Sealing Warrants - 1
SEALING WARRANTS
Michael Crowell, UNC School of Government (Jan. 2015)
Contents
I. Public Records Law .........................................................................................................1
II. Constitutional Issues in Sealing Warrants ........................................................................1
III. Procedure .........................................................................................................................1
I. Public Records Law. Under the Public Records Law (G.S. Chapter 132) arrest and
search warrants become public records once they have been served by law enforcement
and returned to the clerk, unless they are sealed by court order. See G.S. 132-1.4(k).
The statute provides no further guidance on when warrants should be sealed or the
procedure to be followed. The statutes do not specify how soon a warrant is to be
returned to the clerk after being executed.
II. Constitutional Issues in Sealing Warrants.
A. First Amendment. There is no First Amendment right of public access to
warrants. In re Investigation into Death of Cooper, 200 N.C. App. 180 (2009).
B. North Carolina Constitution. There is, however, a qualified right of access
under Art. 1, § 18 of the North Carolina Constitution (“All courts shall be open.”).
Cooper; Virmani v. Presbyterian Health Services Corp., 350 N.C. 449 (1999).
The qualified right of public access to warrants may be restricted by sealing
warrants when doing so is “essential to preserve higher values and is narrowly
tailored to serve that interest.” Cooper, 683 S.E. 2d at 427, quoting Baltimore
Sun Company v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989).
1. Higher Values. Higher values that may justify sealing a warrant include
protection of the defendant’s right to a fair trial, maintenance of the
integrity of an ongoing investigation, protection of the state’s right to
prosecute a defendant, protecting the privacy rights of an innocent third
party, and protection of witnesses and third parties.
2. Narrowly Tailored. The “narrowly tailored” requirement means that a
warrant should not be sealed if there is a lesser alternative that serves the
need for protection, such as redacting a portion of the warrant or sealing
only the affidavit accompanying the warrant application. It also means
that the warrant should not remain sealed any longer than necessary to
serve the purpose; e.g., if a search warrant needs to be sealed to protect
an ongoing investigation, it should not remain sealed after an arrest has
been made.
3. Contents of Order. The order sealing a warrant must include specific
findings justifying the action. The order may adopt the facts presented by
the prosecution but the decision must be made by the court. Cooper, 200
N.C. App.180
III. Procedure. Some districts have local rules or administrative orders about sealing
warrants. The rules may specify, for example, who may apply for an order sealing a
warrant, who hears the request, and how long the warrant remains sealed.
It is recommended that the request for sealing be made by written motion.
Sealing Warrants - 2
It is recommended that the motion be signed by a district attorney.
It is recommended that the motion be accompanied by a supporting affidavit.
The affidavit may be sealed.
Sometimes, before the warrant is served, law enforcement will seek an order
sealing the inventory of items seized. Generally a request to seal the inventory
should not be made until the warrant has been served and the officers know what
has actually been seized and the court can determine whether confidentiality
really is needed, but there may be occasions where it is clear in advance that
revelation of the inventory will compromise an ongoing investigation.
It is recommended that a public log or record be maintained showing that a
sealing order has been issued, who applied for the order, the judge who signed
the order, when the order was signed and when the order expires.
It is recommended that an order sealing a warrant include an expiration date,
subject to extension upon proper motion.
© 2015, School of Government, University of North Carolina at Chapel Hill. This document may not be copied or posted online, nor
transmitted, in printed or electronic form, without the written permission of the School of Government, except as allowed by fair use
under United States copyright law. For questions about use of the document and permission for copying, contact the School of
Government at sales@sog.unc.edu or call 919.966.4119.
