Blame it on the pandemic, I guess, but somehow I missed this interesting article from March of last year that looked into how often (and why) search warrants are sealed in North Carolina. Former SOG faculty member Michael Crowell was quoted in the article, and his blog post discussing the significance of In re Cooper, 200 N.C. App. 180 (2009) for sealed warrants is available here. I highly recommend reading both, if you haven’t already seen them
Those articles reminded me of a similar issue that I’ve occasionally had questions about, but I don’t think we’ve ever covered on this blog. What about sealed indictments?
Authorized, but Limited:
When I was in state court practice, sealed indictments were extremely rare. In most criminal cases, the defendant has already been charged by some other process long before the state seeks an indictment, so there is simply no reason to have it sealed. But for charges connected to an ongoing drug trafficking investigation, indictments involving confidential juvenile records (an issue that Jacqui Greene flagged here), or a case that involves cooperators or witnesses whose identities need to be protected, the state may decide that it is necessary to avoid publicly disclosing the fact that the defendant has been indicted, at least for a while. Is that allowed?
The short answer is yes, it is. The authorization for it is found in G.S. 15A-623(f), which says:
The presiding judge may direct that a bill of indictment be kept secret until the defendant is arrested or appears before the court. The clerk must seal the bill of indictment and no person including a witness may disclose the finding of the bill of indictment, or the proceedings leading to the finding, except when necessary for the issuance and execution of an order of arrest.
So it’s clearly authorized by the statutes, at least until the defendant is arrested or appears in court, if directed by the judge. That’s a helpful starting point, but it leaves some pretty important questions unanswered. What level of showing is necessary to justify this type of court order, if any? How often should it be granted? What are the best practices to follow regarding the mechanics of applying for the order? I went digging through the case law to try to find some answers…
…and I didn’t find much. At all. One of the only North Carolina cases I found that even mentions sealed indictments is State v. Ortiz, 238 N.C. App. 508 (2014). In Ortiz, the state failed to include an aggravating factor in its pleading as required, but the state argued on appeal that it had no choice because including that factor in the pleading would have disclosed confidential medical information about the defendant, in violation of another statute. The appellate court rejected the state’s argument and pointed out that one way the state could have satisfied both statutory requirements was by sealing the whole indictment:
However, if the State was concerned that including the aggravating factor in the indictment would violate N.C. Gen.Stat. § 130A–143, it could have requested a court order in accordance with N.C. Gen.Stat. § 130A–143(6), which allows for the release of such identifying information “pursuant to [a] subpoena or court order.” Alternatively, the State could have sought to seal the indictment. N.C. Gen.Stat. § 132–1.4(k) (providing that an indictment is a “public records and may be withheld only when sealed by court order”). It is perplexing to this Court that the State obtained permission from the trial court to file notice of its intent to pursue an aggravating factor under seal but did not attempt to do so for the indictment.
Ortiz, 238 N.C. App. at 513-14; see also State v. Ginn, 59 N.C. App. 363 (1982), fn. 1 (“If the judge directs that the indictment be sealed as provided in G.S. 15A–623(f), he may defer the giving of notice under [G.S. 15A-630] for a reasonable length of time”).
That’s not much to build on, but we can draw a couple of noteworthy points out of Ortiz. First, although there probably wasn’t much doubt about this one, Ortiz confirms that sealing the indictment would be an appropriate solution for cases in which the confidentiality requirements of some other statute conflict with the normal public disclosure of the indictment, like the juvenile records situation mentioned above. Second, Ortiz indicates that the authorization to seal indictments found in G.S. 15A-623(f) remains subject to the requirements for obtaining a court order under G.S. 132-1.4(k):
“The following court records are public records and may be withheld only when sealed by court order: arrest and search warrants that have been returned by law enforcement agencies, indictments, criminal summons, and nontestimonial identification orders.
Id. (emphasis added). Now we’re really getting somewhere. Looking at G.S. 132-1.4(k) opens up a broader body of case law regarding the sealing of other types of public records, including returned search warrants and nontestimonial identifications orders. Rather than duplicate all of Michael Crowell’s analysis on that issue, I will repeat my recommendation that interested readers revisit his post.
But the condensed version is that a judge presented with a request to seal a public record covered by this statute has to balance the mandate that court records be held open to the public against the reasons being offered to justify sealing it, such as a risk of flight, potential destruction of evidence, or putting someone in danger by revealing his or her identity. Compare In re Baker Investigation, 220 N.C. App. 108 (2012) (search warrants are public records under G.S. 132-1.4(k), and absent “clear statutory exemption or exception, documents falling within the definition of ‘public records’ in the Public Records Law must be made available for public inspection”), quoting News & Observer Publ’g Co. v. Poole, 330 N.C. 465 (1992); with In re Cooper, 200 N.C. App. at 190 (order to seal warrants was justified based on “interests in protecting a defendant’s right to receive a fair trial, the integrity of a future or ongoing investigation, and the State’s right to prosecute a defendant”); see also In re Superior Court Order, 70 N.C. App. 63 (1983), rev’d in part, 315 N.C. 378 (1986) (“The order for examination can be accompanied by instructions for confidentiality in order to prevent flight or destruction of evidence”).
Cases in other jurisdictions more directly considering the propriety of a sealed indictment under comparable statutes like Rule 6(e)(4) of the Federal Rules of Criminal Procedure have reached similar conclusions. See, e.g., U.S. v. Ramey, 791 F.2d 317 (4th Cir. 1986) (indictment sealed where investigation was at a critical stage, defendant was a flight risk, and several witnesses involved in illegal activities were cooperating with the government and would be put in danger if disclosed).
Procedure and Findings:
In re Cooper is significant because it provided more specific guidance than we previously had on exactly how the court should balance those competing interests under G.S. 132-1.4(k), and it articulated the different factors the court should consider, as summarized in the prior post:
(1) [the documents] may be sealed when the sealing is “essential to preserve higher values and is narrowly tailored to serve that interest”; (2) the trial court must state on the record its reasons for sealing; (3) the judge must consider less restrictive alternatives before sealing; (4) the trial court can adopt and rely upon the facts presented by the government to justify sealing, when the evidence is creditable; and (5) the trial court’s findings must be sufficiently specific to allow meaningful appellate review.
Applying those factors to the records at issue, the Cooper court affirmed the trial court’s ruling which “concluded by a preponderance of the evidence that the interest of the law enforcement agency and the District Attorney were those which were most compelling[.]” 200 N.C. App. at 191. Until we have a case that offers more explicit guidance on obtaining sealed indictments under G.S. 15A-623(f), the safest option for prosecutors or judges considering a motion to seal would be to ensure that the request satisfies those same criteria.
Finally, regarding the recommended procedure to follow for obtaining an order to seal the indictment, Rule 27 of the General Rules of Practice addresses “Sealed Documents and Protective Orders,” and subsection (b) lays out the appropriate steps. Again, until we get an appellate case that more directly addresses sealed indictments, the procedures laid out in that rule are probably the best instruction manual we have available. With one final caveat, of course — always check your local rules, as well. In In re Baker, the appellate court had to decide whether one judge had erred by unsealing thirteen search warrants that were issued and placed under seal by various other judges without first giving notice to the state or evaluating the disclosure factors described above. 220 N.C. App. at 112. The appellate court found the unsealing was proper because it was in compliance with a standing order from the senior resident superior court judge which directed that any order to seal a search warrant would expire in 30 days unless a different date was specified or the state sought an extension, which the state did not. Id. at 114. Obviously that’s less likely to be an issue with an indictment ordered under seal until the defendant is apprehended, but it’s a good reminder to pull out those local rules and double-check all the details, just to avoid any unwelcome surprises.