Iowa search warrants remain secret for decades

This editorial appeared in the Des Moines Sunday Register on March 13, 2016.

In courthouses across Iowa, there are hundreds of search warrants that remain sealed from public view years after they were approved by judges.

Most, if not all, of these warrants should have been made public years ago as part of a process that’s intended to guard against abuses by police, prosecutors and judges. In fact, state law contemplates that search warrants will be made public after the police conduct their search and report back to the courts on what they found.

So why is it that in Dubuque County, there are roughly 100 search warrants currently under seal, some of which are believed to date back to the 1970s and 1980s?

In Polk County, there are 132 sealed search warrants in the clerk of court’s office. Ninety-eight of them were granted between 2008 and 2014.

Johnson County has search warrants that remain sealed 11 years after they were approved by a judge.

“What you’re telling me is something I have never heard of before,” Chief Judge Kurt Wilke of Iowa’s 2nd Judicial District told a Register editorial writer last week. “I don’t know why this would be happening.”

According to Iowa clerks of court, one explanation is tied to a change in state law.

Years ago, the police could apply for, and obtain, a search warrant that would be filed with the clerk of court under seal. Within 10 days, the police were required by law to execute the search and file a separate document, called a “return of service,” with the clerk of court, indicating what had been seized in the search. At that point, both the warrant application and the return of service were typically made public.

Unfortunately, in the 1970s, the Iowa Legislature did away with the 10-day deadline for filing the return of service. The police still have to conduct their search within 10 days, but they have as long as they want to file the return of service. And if they never file it — either because they forget or because they don’t want the search made public — the warrant could remain forever sealed.

Even more alarming is the fact that there’s no way to calculate the total number of sealed warrants because, in some Iowa counties, the records never even make it to the clerk’s office.

Iowa law requires that the judges or magistrates who issue the warrants file copies with their clerks of court. But in many Iowa counties, judges have delegated that job to the police officers who appear in their chambers asking for the warrant. If, for whatever reason, those officers fail to file the warrant with the clerk, the case stays off the grid, unknown even to the people who run Iowa’s court system.

Chief Judge Marlita Greve of the 7th Judicial District says it is “standard practice” for Iowa judges to rely on the police to carry the search warrants from their chambers to the clerk of court’s office.

“There’s just no way with the staff that we have, the resources we have, that we could ever keep track of that type of thing,” she said. “I don’t have a clerk … I don’t have a court attendant for everything, I don’t have a personal secretary… I’d have to physically do that myself, getting it to the clerk’s office.”

One eastern Iowa clerk of court says judges have also been known to hang onto approved search warrants for years without ever filing them with the clerk’s office. Then, when they retire, they clean out their file cabinets and carry the warrants to the clerk’s office to be filed en masse.

In these types of cases, the process of obtaining a search warrant has been reduced to little more than a private, backroom transaction between police and judges. And given the independence that judges are supposed to maintain, the manner in which they facilitate these secret searches by the police and prosecutors is troubling on several levels.

Because the records are sealed, the public doesn’t know whether the searches were justified; whether the judges acted appropriately in approving them; or even why the records remain sealed 20 or 30 years after the fact.

And it’s not simply a matter of the media and the public being kept in the dark. The very people whose homes and businesses are searched are also prohibited from accessing records that are under seal unless charges are filed against them. This means people who are never even accused of criminal wrongdoing can’t see some of the records related to a search of their own property.

In January and February, police obtained three warrants to search Midwest Academy in Keokuk due to allegations that a student was sexually abused there. Recently, a judge refused the state’s request to keep the records sealed at the point where a return is filed, stating there is “no compelling public interest” to be served by secrecy at that point. But the judge also refused to set a deadline for filing the return.

So, despite the judge’s “public interest” finding, the records remain sealed, unavailable even to Midwest Academy, which, along with the Register, has fought unsuccessfully for access.

This is justice turned on its head. Under the current scheme, a judge can refuse a request to keep a search warrant sealed, at which point police and prosecutors can do an end-run around the judge and simply refuse to file a return of service.

Until the law is changed and the 10-day deadline for a return of service is reinstated, abuses like this are going to continue.

All of the safeguards we have in place to protect against unreasonable searches by police and prosecutors hinge on public disclosure. If search warrants can be obtained and executed in total secrecy, then there is no public oversight, no public accountability and no protection of citizens’ rights.