The Texas Legislature is considering a new law that will allow judges to seal search warrant affidavits for up to 60 days in SB 244. Currently, a sworn affidavit filed to support a search warrant is public information once the warrant is executed. Furthermore, Texas courts have ordered the affidavit immediately available for the public. These affidavits can provide critical details about the alleged crime and explain why the police need the warrant.
Prosecutors have argued for some time the affidavits include information that could result in the destruction of evidence or put witnesses in danger. During my 17 years of practicing criminal law, both as a prosecutor and as defense counsel, I have never seen a search warrant affidavit lead to such a result envisioned by the prosecutor lobby. As a defense lawyer, I know how important these affidavits are to begin mounting an effective defense to charges. The affidavits contain details about the alleged crime and how my client might be possibly linked to a crime. Without the details contained in these affidavits I often know little about what the police are claiming my client did to violate the law.
Sealing these search affidavits for up to 60 days simply gives the State another advantage in prosecuting the citizen accused. The new law harms the public by putting a delay on an important check of police powers. These documents should remain immediately available to the public pursuant to current procedural rules and opinions by Texas appellate courts.