The Superior Courts in Los Angeles and Orange counties have for years allowed police to keep the only version of the sealed affidavit they use to obtain a search warrant without filing a copy with the court, a practice that defense attorneys said was rife with potential abuse.
Law school professors and defense lawyers reacted with surprise when they learned about the little-known rule.
“It’s unheard of for the police to bring in an affidavit and then leave with it, saying we have to keep this secret, without the court having a record of it,” said Gerald Uelmen, a law professor at Santa Clara University.
Ted Cassman, vice president of California Attorneys for Criminal Justice, the state’s largest organization of criminal defense lawyers, said the practice was “frightening” because officers could change the document after the search to make it fit the case. It would be impossible for the judge who issued the warrant to spot changes, because the court would not have a copy, he said.
“Government intrusion of your privacy is allowed only under extreme circumstances,” Cassman said. “The idea that the court chooses not to keep a record of that intrusion is bothersome. I’ve never heard of this before.”
The use of the procedure in Orange County began receiving attention two weeks ago, after a state appeals court ruling in a local case involving a search warrant.
Asked by a reporter, Los Angeles County Superior Court officials said this week that judges there also allowed officers to keep the sealed affidavits.
The practice was so little-known that the Los Angeles County public defenders office, with one of the largest caseloads in the country, did not learn about it until the appeals court decision.
“It’s news to us,” said Deputy Public Defender Albert Menaster. “It’s so weird I don’t know how to analyze it.”
He said his office planned to mount a legal challenge to the practice.
A spokeswoman for Los Angeles County Superior Court said Thursday that Judge Steven R. Van Sicklen, supervising judge of the criminal department, had ordered the practice changed and that copies of sealed affidavits would be filed with the court. She said the change was prompted by the appellate court ruling. Van Sicklen was traveling and unavailable for comment.
There were conflicting accounts of how the Orange County court was handling the situation.
Prosecutors at the California attorney general’s office, which represented Orange County Superior Court in the appellate case, said the ruling had forced the court to abandon the practice.
But Presiding Judge Nancy Wieben Stock, who called the issue “an arcane topic,” said court officials were reviewing the decision.
Stock said the practice had been in effect for at least 15 years. Others say 25 years or more, and it is impossible to gauge the number of cases in which officers were allowed to retain the sealed documents.
Stock said the “imperfect practice” evolved from police requests for search warrants made “at night or on the fly.”
She said the practice of allowing police to keep the affidavits was used infrequently and by just a few police departments. Officers kept the documents to protect confidential informants, she said. She insisted nothing was secret about the documents.
It is unclear how many counties follow the same practice.
To get a search warrant, authorities provide a judge with an affidavit to convince him there is probable cause.
A defendant can challenge the affidavit when the case comes to trial, but a 1994 California Supreme Court ruling bars defense attorneys from reviewing the document if the judge has sealed it.
If a defendant challenges the affidavit, the judge reviews the document in chambers, in the presence of the prosecutor and the officer who swore out the affidavit. The prosecution team can advocate for its position, but the defense attorney is not allowed in the meeting. After reviewing the document, the judge determines whether police had probable cause.
Normally, a sealed affidavit is placed in the court file -- which is a public record -- and removed if someone asks to see the file. In an unknown number of cases, police, rather than the court, keep the affidavit.
That practice was disclosed when Anthony Andrew Galland appealed an Orange County judge’s decision to deny his motion to suppress the evidence uncovered in a search. The appellate court ruled that police had no authority to keep the documents. Galland’s drug conviction was overturned on grounds that his rights were violated because the judge failed to keep an adequate court record.
The Orange County public defender’s office, which represented Galland and tried for more than 10 years to persuade Superior Court officials to change the practice, declined to comment. What is unclear is why no defense attorney had challenged the practice until then.
Laurence Benner, a professor at California Western School of Law in San Diego, said the 1994 California Supreme Court ruling -- banning a defendant from a hearing in which the sealed affidavit is reviewed -- limits the defendant’s right to a fair trial. Allowing police to keep the affidavit adds a layer of secrecy and erodes the defendant’s 4th Amendment right against unreasonable search and seizure, he said.
“This becomes a secret kangaroo hearing where the judge is telling [the defendant], ‘Trust me to make the right call,’ ” Benner said. “Topping this off by giving what should be a public record to a law enforcement officer is just nonsense.”