Fleeson Gooing attorney Lyndon Vix argues for the release of probable cause affidavits in Reno County District Court.

By Lyndon W. Vix

In 2014, the Kansas Legislature enacted a new statute allowing greater public access to the probable cause affidavits that are used to support requests for arrest and search warrants. The new law went into effect July 1, 2014, and brings Kansas in line with most, if not all, of the other state and federal jurisdictions in the country.

Probable cause affidavits are utilized in criminal cases by law enforcement officials to demonstrate to a judge that a legitimate basis exists for the issuance of a warrant. The affidavits contain information explaining what evidence has been collected regarding the case and what the source of that information is. The judge then determines if this information is sufficient to justify the issuance of a warrant for either the arrest of an individual, or the search of a location.

Prior to July 1, 2014, probable cause affidavits were presumptively closed and could only be released with a written order from the court. This placed a heavy burden on the individual seeking disclosure to persuade the court that disclosure was warranted. Those efforts were seldom successful and, as result, the public was generally unaware of the basis for arrests and searches, no matter how important the case was to the public interest. For example, in 2005, Fleeson Gooing, on behalf of various media organizations, unsuccessfully attempted to obtain the release of the probable cause affidavit that led to the arrest of Dennis Radar, the so-called BTK Killer.

With the change in the law, affidavits are now presumed to be open. When a person requests that an affidavit be disclosed, the court clerk must advise the prosecutor and defense attorney that the request has been made, and either of them may then file an objection to disclosure. When an objection is made, the burden falls to the objecting party—be it the state or the defendant—to demonstrate that redactions should be made or that the affidavit should be sealed entirely. The statute provides that the Court may “seal the affidavits or sworn testimony, as necessary to prevent public disclosure of information that would” cause any of the following things to occur:

(A) Jeopardize the safety or well being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;

(B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;

(C) interfere with any prospective law enforcement action, criminal investigation or prosecution;

(D) reveal the identity of any confidential source or undercover agent;

(E) reveal confidential investigative techniques or procedures not known to the general public;

(F) endanger the life or physical safety of any person;

(G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense . . . ;

(H) reveal the name of any minor; or

(I) reveal any date of birth, personal or business telephone number, driver’s license number, nondriver’s identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information.

The statute is somewhat unclear as to the procedure that follows the receipt of an objection. Some courts have allowed the requester to respond to the objection in writing and/or at a court hearing. Other courts are simply making their rulings based upon the objection.

Since the new law became effective, a number of cases have arisen in which the state or defendant have objected to a request for disclosure of a probable cause affidavit. Fleeson Gooing has been at the forefront of these cases, having represented requesters in 20 cases in five different Kansas counties. The requesters represented by the firm have included The Wichita Eagle, The Associated Press, The Hutchinson News, and televisions stations KWCH, KAKE, and KSN.

In 14 of the 20 cases in which Fleeson Gooing has challenged objections to disclosure, the court has ordered the affidavit produced in full or with only minor redactions. In one instance, the affidavit was ordered disclosed with heavy redactions. In one case the requester withdrew its request after reviewing the objection and in another the court ruled that the affidavit would not be disclosed because the request was premature. In only three instances have courts granted the objector’s motion to seal the affidavit.

In 16 of the cases in which Fleeson Gooing has been involved the objection to disclosure was made by the defendant. In virtually all of these cases the defendants have argued that disclosure of the information contained in the probable cause affidavits would taint the jury pool and threaten the defendants’ right to a fair trial. Almost uniformly these arguments have been rejected, with the courts recognizing that the Kansas Supreme Court has never found that pretrial publicity, standing alone, has deprived a defendant of a fair trial. The exception to these rulings was a case in Hodgeman County in which the court found that because of the small size of the available jury pool, there was a greater risk of prejudice if the affidavit were released.

As media organizations continue to pursue their First Amendment right to gather and report news on criminal proceedings of public importance, objections to the disclosure of probable cause affidavits will likely increase as will litigation over whether those objections are valid.