In re Essex Search Warrants

2012 VT 92, 60 A.3d 707, 192 Vt. 559, 41 Media L. Rep. (BNA) 1048, 2012 WL 5458090, 2012 Vt. LEXIS 93

• Court: Supreme Court of Vermont
• Decided: November 9, 2012
• Docket: 2011-228
• Status: Published

Opinions

Burgess, J.

¶ 1. The State appeals from the Chittenden Criminal Division’s denial of its motion to seal search warrants and related materials generated during an ongoing investigation into a missing Essex couple. The court determined that the State failed to show with specificity, as required under In re Sealed Documents, that disclosure would cause “substantial harm to public or private interests.” 172 Vt. 152, 153, 772 A.2d 518, 521 (2001). The State asserts foundationally that there is neither a First Amendment nor a common law right of access to search warrant materials in an active, pre-arrest investigation, and argues that Sealed Documents’ presumptive right of access should not apply in such cases. Instead, the State urges this Court to hold that there is no right of access to such materials under the Vermont Rules for Public Access to Court Records (PACR Rules). Assuming that Sealed Documents applies to pre-arrest investigations, however, the State claims error in the court’s conclusion that the standard for sealing was not satisfied. Finally, the State asserts that the court erred in turning down its request for an evidentiary hearing. We see no error in the court’s refusal to conduct a further hearing, but reverse its determination that the State failed to cite sufficiently specific reasons to seal the warrant information.

¶ 2. Despite ‘the dissent’s hyperbole, this holding meets the facts of this particular case, and presents no reversal, let alone defiance, of our case law or rules. Post, ¶ 42. Just because application of Sealed Documents does not yield the result preferred by the dissent, it signals no departure from the requirement of specific and compelling reasons for sealing search warrant documentation from public inspection. Id. Nor does it follow that the balance between presumed public access and necessary confidentiality in ongoing police investigations is torn asunder, id., rather than confirmed as provided for in the PACR Rules. See V.R.P.A.C.R. 6(a), (b)(15) (providing for general public access to “case records” subject to exemption for “[r]ecords of the issuance of a search warrant,” until the warrant’s return, unless sealed by the court).¹ Correctly describing its difference with the majority as over the meaning of the standard in Sealed Documents, the dissent then incorrectly characterizes the majority’s reading of the case as a “change” in that standard. Post, ¶¶ 52, 55.

¶ 3. William and Lorraine Currier of Essex, Vermont were reported missing on June 9, 2011. The Curriers were last seen on June 8 leaving work, and evidence suggests that they were at their home at 8 Colbert Street in Essex at around 7 p.m. that night. The couple’s abandoned car was found on June 10 less than a mile from their home.

¶ 4. Essex police obtained a series of search warrants from the Chittenden Criminal Division as part of the investigation into the Curriers’ disappearance. On June 15, a Burlington Free Press reporter requested from the court copies of the search warrants issued for the Curriers’ home and car, as well as their cell phones, bank account, and credit card receipts. The court denied the request because the search warrant returns had not yet been filed. On June 16, the State moved “to seal search warrants, applications for search warrants, and affidavits filed in support of the search warrants, that were filed in connection with the [Currier] investigation.” The court denied this motion, again citing the fact that the search warrant returns had not been filed.

¶ 5. On June 21, Essex Police filed returns for four of the search warrants executed during the Currier investigation, as well as inventories and affidavits filed in support of the warrants, and the State renewed its motion to seal the search warrants.² At the time of the State’s renewed motion, no arrest had been made in connection with the Curriers’ disappearance. The court denied the State’s motion, requesting more information about how disclosure of the search warrant materials would harm the investigation, such as what facts remained known only to police and any putative suspect and how this balance of information was useful to the investigation.

¶ 6. The State responded with a supplemental renewed motion to seal. This motion, supported by the affidavit of Essex Police Detective Lawton, listed the information contained in the search warrants believed to be known only to police and any putative suspect in the Curriers’ disappearance.³ The State specified that disclosure of search warrant materials would frustrate police evaluation of the credibility of citizen reports by comparison against information known only by police. The Lawton affidavit further posited that because police did not know whether the information collected was relevant to the Curriers’ disappearance, or how so, disclosure of the search warrants “would significantly hamper” the investigation by “allow[ing] a suspect to easily avoid detection and/or respond to police questioning. . . . unduly influencing] the recollection of true witnesses, or allowing] any false witnesses to tailor information to fit with what is already known by police.” The State also suggested redaction of the nonpublic information contained in the warrant materials as an alternative to sealing, though it questioned whether redaction would be practical in this case.

¶ 7. The court again denied the motion and ordered that the search warrants be released. The court reasoned that Sealed Documents created a presumption in favor of disclosure that the State failed to overcome with “compelling reasons” showing “substantial harm, demonstrated with specificity with respect to each document.” The court characterized the State’s arguments in support of sealing as “only general assertions that the police investigation will be jeopardized if the [search warrants are] released.”

¶ 8. The State then requested a stay until an evidentiary hearing could be held at which Essex Police could testify in support of sealing and the State could argue for redaction. The court refused to grant a stay, explaining that the State proffered no additional information to what had already been offered. The State appealed and requested a stay pending appeal, which the court also denied. This Court, however, granted the State’s motion for a stay pending appeal, explaining that denial “would effectively preclude the State from appealing the criminal division’s decision and potentially hamper its investigation.” In re Search Warrants, 2011 VT 88, ¶ 3, 190 Vt. 572, 27 A.3d 345 (mem.).

¶ 9. While this appeal was pending, a suspect in the disappearance of the Curriers was taken into custody and the State withdrew its motions to seal the search warrants and related material that form the subject of this appeal. Consistent with this action, the Attorney General informed the Court of his position that all of the material in question should be available to the public. Upon request by the Burlington Free Press, this Court ordered the release of the material and, in a separate order, directed the parties to show cause why the appeal should not be dismissed as moot. Both parties responded that, while technically moot, the appeal should be decided nevertheless under the settled exception for cases “capable of repetition, yet evading review.” State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (1987) (quotation omitted). We agree.

¶ 10. The applicability of this particular exception turns on a two-part test: “(1) the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. (quotation omitted). We have applied the exception on at least two occasions to address the propriety of orders sealing documents in pending criminal matters where the underlying criminal cases resolved during the pendency of the appeal. See State v. Schaefer, 157 Vt. 339, 345, 599 A.2d 337, 341 (1991) (applying exception to rule on propriety of order sealing affidavit of probable cause, despite dismissal of the criminal case during appeal); Tallman, 148 Vt. at 469, 537 A.2d at 424-25 (applying exception to address validity of order sealing affidavit of probable cause and closing suppression hearing to the public, although defendant was acquitted during pendency of appeal). As observed in Tallman, pretrial orders of this nature tend to be “short-lived,” and news organizations challenging such orders could reasonably expect to be subjected to similar restrictions in the future. Tallman, 148 Vt. at 469, 537 A.2d at 424-25 (citation and quotation omitted).

¶ 11. As events here demonstrate, the orders at issue in this case are of a similar nature. With the arrest of a suspect, the State’s rationale for sealing the search warrant materials and the stay order preventing their disclosure consequently became moot. It is reasonable to expect that this chain of events would likely occur in any future investigation involving pre-arrest search warrants. It is equally reasonable to expect that the State and the media will confront each other again over the same issue in the future, but be frustrated, due to recurring mootness, in their effort to obtain a final judicial determination of their respective obligations and rights relative to public access to these kinds of records.

¶ 12. Furthermore, as explained below, while this case ultimately turns on the application of the Sealed Documents standard, it also depends upon the meaning of that standard and its interplay with the PACR Rules. That these are matters of legal, rather than factual, contention yet to be resolved by this Court militates in favor of review, as well. See Schaefer, 157 Vt. at 345, 599 A.2d at 341 (finding that the appeal raised unresolved legal questions about the proper standard to apply in balancing the right to a fair trial against the right to access, while cautioning that as legal issues are resolved cases “will become more fact specific” and the legal issues less likely to recur or evade review in the future); cf. State v. Rooney, 2008 VT 102, ¶ 15, 184 Vt. 620, 965 A.2d 481 (mem.) (declining to address a moot order where “the applicable legal standard has already been decided in previous cases, and our analysis, were we to reach the merits, would be wholly factual”). As the following discussion and vigorous dissent make clear, the question of how the Sealed Documents decision governs disclosure of warrant documents vis-á-vis PACR Rules 6(b)(15) and 7(a) presents an issue of first impression not already decided. Accordingly, we conclude that this appeal satisfies the criteria for review under Tollman.

¶ 13. The State preliminarily asserts that there is neither a First Amendment nor a common law right of access to search warrant materials when, as here, an investigation is active and no arrests have been made. Sealed Documents declined to address these issues, 172 Vt. at 156, 772 A.2d at 523, and we need not reach them here because the State did not raise them below. See In re Shenandoah LLC, 2011 VT 68, ¶ 18, 190 Vt. 149, 27 A.3d 1078 (explaining that issues not argued below are not reviewable on appeal). For the same reason, we also decline to consider the State’s argument that Sealed Documents should not apply in active, pre-arrest investigations.⁴ See id. Rather, our decision today is limited to whether the Sealed Documents standard for sealing was satisfied under these facts.⁵

¶ 14. We review the court’s decision on the motion to seal for abuse of discretion. See Sealed Documents, 172 Vt. at 163-64, 772 A.2d at 528 (explaining that on remand “[t]he court shall determine in its discretion whether and to what extent the contents of each document shall be protected under seal”). “[A]n abuse of discretion is the failure to exercise discretion or its exercise on reasons clearly untenable or to an extent clearly unreasonable.” State v. Amler, 2008 VT 1, ¶ 5, 183 Vt. 552, 944 A.2d 270 (mem.) (quotation omitted). ‘When a trial court commits an error of law, it is an abuse of discretion.” Spooner v. Town of Topsham, 2010 VT 71, ¶ 7, 188 Vt. 293, 9 A.3d 672.

¶ 15. Reiterating points made below, the State maintains that sealing or redaction is justified under the Sealed Documents standard. It argues that disclosure of the search warrant materials would substantially threaten the Currier investigation by depriving police of the use of nonpublic information to, among other things, identify possible suspects, corroborate new information, and recognize false confessions. The Lawton affidavit, the State continues, identifies with requisite specificity the nonpublic information which, if disclosed, would threaten these law enforcement interests. These interests are not unimportant, and we hold that the trial court abused its discretion in concluding that the State’s proffer and argument failed to meet the specificity requirements of Sealed Documents to authorize sealing certain search warrant records in this ongoing investigation.

¶ 16. We start with the PACR Rules and Sealed Documents. Rule 6 governs public access to “case records” and Rule 6(a) provides for access to “all case records,” subject to the exceptions enumerated in Rule 6(b).⁶ Rule 6(b)(15) excludes from public access “[rjecords of the issuance of a search warrant, until the date of the return of the warrant, unless sealed by order of the court.” This exception covers not only the record of the issuance of a search warrant, but also related materials, such as the application, supporting affidavit and inventory. See Sealed Documents, 172 Vt. at 158, 772 A.2d at 524 (explaining scope of Rule 6(b)(15) based on Court’s decision in Tollman)-, see also Tallman, 148 Vt. at 472-73, 537 A.2d at 426-27 (holding search warrant affidavit is subject to disclosure under statute providing for public access to “records of the court”). Sealed Documents spelled out four conditions precedent to sealing a search warrant and related material, requiring that an order to seal must “determine specifically what information should be sealed and why.” 172 Vt. at 162, 772 A.2d at 527.

¶ 17. Assuming, without deciding, the dissent is correct in its claim that Rule 7(a) is “the governing rule” in this case, post, ¶ 49,⁷ we do not read it to establish a standard more demanding than Sealed Documents. To begin with, nothing suggests that the criteria of Sealed Documents are inadequate to serve and protect public access to court records. Indeed, Notes to Rule 7(a) repeatedly hold up Sealed Documents as a dissertation on a court’s “authority to grant access to a closed record, to deny access to or seal an open record” and of “the standards and process necessary to exercise that authority.” Reporter’s Notes, Rule 7(a). Under Sealed Documents, and as more particularly reviewed below, warrant records may not be sealed unless the State can show a “substantial threat exists to the interests of effective law enforcement,” with the “requisite showing of harm . . . demonstrated with specificity as to each document; general allegations of harm are insufficient.” 172 Vt. at 161, 772 A.2d at 527 (emphasis and quotation omitted).

¶ 18. The import of these terms is further informed by the rationale summarized in our reversal of the trial court’s decision to seal warrant records in Sealed Documents absent

any evidence that it clearly placed the burden of demonstrating a compelling need for confidentiality upon the State; that it analyzed each document separately in light of the State’s arguments; that it considered alternatives short of a blanket order of nondisclosure; or that it made any fact-specific findings determining precisely what information contained in the disputed materials would result in the kinds of harm advanced by the State.

Id. at 163, 772 A.2d at 528 (emphasis added). Rule 7(a) authorizes an order to seal “only upon a finding of good cause specific to the case before the judge and exceptional circumstances.” The dissent apparently understands the rule to require more than the Sealed Documents standard.

¶ 19. We disagree. The rule’s test of “good cause specific to the case” and “exceptional circumstances” are practically indistinguishable from the “specificity” of harm presented by disclosure of particular documents, and that harm’s “substantial threat . . . to . . . effective law enforcement” amounting to a “compelling need for confidentiality” demanded by Sealed Documents as a precondition to an order to seal. Compare V.R.RA.C.R. 7(a) with Sealed Documents, 172 Vt. at 161, 163, 772 A.2d at 527-28. That the terms are synonymous is supported by the “policies behind this rule,” V.R.P.A.C.R. 7(a), which, suggest the Notes, are reflected in “[t]he standards in In re Sealed Documents [that] will be particularly relevant in deciding whether to exercise the authority under this section.” Reporter’s Notes, V.R.P.A.C.R. 7(a). Nor can it be reasonably said that the State’s proffer in this case failed to specify actual risk of false leads, distractions and resulting interference with its ongoing investigation into the Curriers’ disappearance, or that such impediments and the relinquishing of an informational advantage — evidently the only police advantage in this unusual case — would not compromise the investigation and so present a “compelling need for confidentiality” under Sealed Documents and an “exceptional circumstance” under Rule 7(a).

¶20. The PACR Rules incorporate Sealed Documents as the standard for whether the public should have access to search warrant materials.⁸ See Reporter’s Notes, V.R.P.A.C.R. 7(a). In Sealed Documents, the trial court sealed search warrant materials generated during the investigation of a New Hampshire murder for which two Vermont residents had been arrested, but not yet indicted by a New Hampshire grand jury. 172 Vt. at 154-55, 772 A.2d at 521-22. We reversed, holding that upon a search warrant’s return, there is a presumptive right of access to the warrant and related documents “which are filed with the court, and which become a part of the case record.” Id. at 159, 772 A.2d at 525. Drawing from the Washington Supreme Court’s decision in Cowles Publishing Co. v. Murphy, 637 P.2d 966 (Wash. 1981), we further held that to overcome this presumption, the party opposing access must show that disclosure poses “a substantial threat ... to the interests of effective law enforcement,” or, where redaction is possible, that “these interests might be served by deletion of the harmful material.” Sealed Documents, 172 Vt. at 161-62, 772 A.2d at 527 (quotation omitted).⁹ These interests must be shown “with specificity as to each document,” and general allegations of harm will not suffice. Id. at 161, 772 A.2d at 527 (quotation omitted); see also Cowles, 637 P.2d at 970 (discussing common law right of access to search warrant materials). For its part, “the court must examine each document individually, and make fact-specific findings with regard to why the presumption of access has been overcome.” Sealed Documents, 172 Vt. at 162, 772 A.2d at 527 (quotation omitted).

¶ 21. Here, the trial court failed to acknowledge or dispel what the State explained, as to each piece of information and document sought to be protected, to be a substantial threat to its Currier investigation resulting from disclosure of the materials withheld, so far, from the public. It is given that controlling access to information is an advantage that law enforcement must both protect and exploit.¹⁰ In any case, and especially in the course of an active investigation, nonpublic information has a variety of uses, including enabling police to determine the relevancy or importance of information, to identify or exclude putative suspects, test theories, evaluate tips and claimed alibis, discover motives and conduct ruses. See F. Inbau, Criminal Interrogation and Confessions 11-12 (4th ed. 2001) (describing “fact analysis” used to identify probable criminal offenders); see also Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (concluding that “the common sense reason why proceedings for search warrants are not open to the public” applies when considering disclosure of search warrant affidavits); Times Mirror Co. v. United States, 873 F.2d 1210, 1215, 1218 n.11 (9th Cir. 1989) (explaining that with disclosure of search warrant affidavits in pre-arrest investigations suspects “might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction”). Neither the Free Press nor the court below rebutted, as unfounded or illogical, the State’s assertion that lifting the police embargo on specific investigative results, before charges are filed, runs the risk of subjecting the investigation to wasteful diversions and distractions to the detriment of crime solving and, by extension, public safety. See Inbau, supra, at 11 (explaining that “fact analysis” is “utilized in such a way as to locate possible suspects and to help identify which one probably committed the crime”).

¶ 22. The dissent complains that such issues are not “specific” as intended in Sealed Documents because they are common to investigations generally and are not “peculiar” to this case. Armed with dictionaries emphasizing “specific” as peculiar or exceptional, post, ¶ 48, the dissent ignores dictionaries of equal stature defining “specific” as “definite, explicit.” Webster’s New World Dictionary 1367 (2d College ed. 1979); accord The American Heritage Dictionary of the English Language 1240 (New College ed. 1979) (defining “specific” as “[e]xplicitly set forth; particular; definite”); see also Black’s Law Dictionary 1406 (7th ed. 1999) (defining “specific” as “[o]f, relating to, or designating a particular or defined thing; explicit”). Sealed Documents refers not to unique, but specific circumstances to justify sealing. It may be that the same concerns raised by the State are common to cases as unusual as this where there are suspicions, but no apparent certainty about what has happened to the Curriers, the means of their disappearance or who might have been involved. If not unique, the actual risk of harm outlined by the State is no less real, and the objective of Sealed Documents was to avoid harmful interference with criminal investigations. The dissent contends, instead, that if not uniquely harmful, let the harm begin. Sealed Documents does not stand for that proposition.

¶ 23. Moreover, the dissent assumes much in contending that the reasons offered by the State for confidentiality in this case here are common to all open investigations. In any number of investigations involving search warrants, the offense is evident, the perpetrators are known, the implements identified, the underlying circumstances established and public disclosure of some or all of same may compromise nothing. Not every investigation is a “whodunit,” but when search warrants are employed in an attempt to solve an actual mystery, the specific reasons given by the State for not publicizing the results of an investigation may indeed, as here, prove reasonable justification for avoiding diversion or frustration of the investigative effort.

¶ 24. Other courts recognize the necessity of preserving the confidentiality of certain information during a criminal investigation. For example, in In re State (Bowman Search Warrants), the New Hampshire Supreme Court reversed the trial court’s order to unseal search warrant materials in an ongoing investigation, reasoning that “[t]he threat to an on-going, pre-indictment criminal investigation . . . most often significantly outweighs any possible benefits from public disclosure.” 781 A.2d 988, 992 (N.H. 2001). The New Hampshire court explained that release of information contained in search warrant materials could harm ongoing investigations in many ways, such as by prompting suspects to destroy evidence, to fabricate stories to evade their own detection, or that of others, or by exposing the identity of witnesses, who may then refuse to cooperate for fear of reprisal. Id. at 992-93; see also PSC Geothermal Servs. Co. v. Superior Court, 31 Cal. Rptr. 2d 213, 223 (Ct. App. 1994) (recognizing that with disclosure of search warrant affidavits in pre-arrest investigations “[s]ubjects of such investigations might be alerted and impede the investigation by tampering with or destroying evidence”).

¶ 25. Likewise, in Seattle Times Co. v. Eberharter, the Washington Supreme Court refused to grant public access to a search warrant affidavit in the ongoing investigation of a suspected serial killer. 713 P.2d 710, 717 (Wash. 1986). The trial court there, applying the same common law standard adopted in Sealed Documents, had sealed the affidavit to help facilitate the cooperation of informants associated with prostitution and to protect them against targeting by the killer. Id. at 711-12 (utilizing Cowles standard); see also Sealed Documents, 172 Vt. at 161-62, 772 A.2d at 527 (adopting common law standard for sealing of Cowles). Rejecting that there was a right to view the affidavit under either the Washington or federal constitutions, the Washington Supreme Court in part emphasized that with the disclosure of such information, “the public interest in discovering and capturing the perpetrator of a criminal act is compromised.” Eberharter, 713 P.2d at 717.

¶ 26. As these cases recognize, and contrary to the suggestion of amicus American Civil Liberties Union, premature disclosure of search warrant materials can do more than just inconvenience the police. It could, according to the State, compromise the Currier investigation. Among other reasons specified to the court below, the State seeks to seal the search warrant materials precisely to allow police to accurately and efficiently analyze new information based on evidence obtained so far, to sift representations of purported witnesses, and to tell which facts are incidental and which vital. “Forewarned is forearmed,” and the State explained its effort to seal particular information collected so as to deprive putative suspects the advantage of that adage and so avoid detection. See Inbau, supra, at 11 (emphasizing importance of information analysis in identifying suspects). The State similarly posits that closely held information helps in identifying false confessors and screening out false leads. See id. at 432 (describing use of nonpublic information to verify confessions); see also Cowles, 637 P.2d at 969-70 (noting law enforcement interests at stake in a sealing decision). Arguing that disclosure is presumptively the better policy and echoing the trial court’s characterization of the State’s claims as merely possible, the Free Press does not refute the State’s concerns or show the State’s perceived risks to be unlikely.

¶27. The trial court’s decision did not, ostensibly, consider the specific law enforcement claims of likely investigative interference. Instead, the court focused on the public’s right to know about police activity and stated, only in conclusory fashion and without particular explanation, that release of the search warrant materials would not harm the investigation. To be sure, public access to records outlining the direction, strategy, results and progress or lack of progress in an ongoing investigation opens government wide to examination. See Times Mirror Co., 873 F.2d at 1218 (noting that disclosure may indirectly deter police abuse of power). Nevertheless, it is unclear what that degree of openness achieves, at a price of compromised investigative integrity, that is not already generally secured by established constitutional safeguards against unreasonable search and seizure. Id. As the Ninth Circuit explained in Times Mirror.

While public access would doubtless have some positive effect by increasing the flow of information to the public about the workings of the government and by deterring judicial and law enforcement officers from abusing the warrant process, the incremental value in public access is slight compared to the government’s interest in secrecy at this stage of the investigation. This is particularly true given the other mechanisms — including suppression motions and civil actions for violation of constitutional rights — that are already in place to deter governmental abuses of the warrant process.

Id. The dissent’s concern about secret warrants, post, ¶ 62, is farfetched when in all cases, such warrants are issued by independent, disinterested magistrates and, except in the rare instance where the holders of the premises searched have vanished, the proprietors are free to publicize the warrant and the search.

¶ 28. The court’s statement that “access can not cause interference with a completed search” apparently misapprehends the State’s reasons for sealing, or dismisses those reasons without explanation and without weighing the full range of interests at play. See Times Mirror Co., 873 F.2d at 1218 (discussing competing interests at stake in decision to disclose search warrant materials). The State’s interest in investigative integrity did not end with the search, because its investigation is ongoing. Effective execution of past searches was not the issue before the court. The risk described by the State is not, as the trial court concluded, theoretical, but real. At stake, as set forth by the State, was the effectiveness of a still open investigation, and the potential mischief from disclosure of nonpublic information on future searches, tips, suspects, witnesses and the ability of police to gather, screen, identify and evaluate putative evidence.

¶ 29. Without elaboration, the court concluded that the State “made only general assertions that the police investigation will be jeopardized.” This assessment does not comport with the State’s claims of interference, which were specific on their face. Assuming the court considered the State’s submission, it may have, like the dissent, misread Sealed Documents to condition sealing on a unique, rather than specific, showing of jeopardy and unique, rather than exceptionally compelling, circumstances. As pointed out earlier, however, specificity and exceptional do not mean rarity if the State can demonstrate specific risk of harm in the ease before the court, and that harm is exceptional in the sense that it will nullify a police advantage and risk wasteful diversion and distraction of investigative resources.

¶ 30. That public disclosure of investigation strategy, tactics and results to date can commonly compromise police work does not make actual examples of such instances any less specific. The specificity called for in Sealed Documents means articulating concrete reasons for keeping certain information from the public eye and identifying how the breach of such confidentiality can undermine the integrity of the investigation. See Sealed Documents, 172 Vt. at 161, 772 A.2d at 527 (explaining that “the requisite showing of harm must be demonstrated with specificity as to each document” (quotation omitted)); see also Cowles, 637 (explaining that party seeking to seal search warrant “must state specific reasons for the need for confidentiality” (emphasis added)). Similarly, that the same kind of harm can derail or divert an investigation in more than one instance makes it no less compelling in the sense of Sealed Documents, where the harm to be avoided is an unjustified and needless frustration of investigators.

¶31. The State cited several concrete reasons for sealing in this case, such as enabling police to identify suspects, to evaluate the reliability and utility of new information, and to recognize false confessions. It explicitly linked these justifications with the discrete nonpublic information contained in the various search warrant materials referenced in the Lawton affidavit. The State’s reasons for sealing may be common to all investigations, especially at the pre-arrest stage, but commonality renders the rationale no less specific. It may simply mean, as suggested earlier, that specific reasons satisfying Sealed Documents are inherent to active investigations where misconduct is only suspected, or the means, motive or perpetrators behind an obvious crime are unknown. See In re State (Bowman Search Warrants), 781 A.2d at 993 (holding that “in most pre-indictment criminal investigations, the existence of the investigation itself’ will justify sealing search warrant materials).¹¹

¶ 32. Common or not, the State specified its reasons why the nonpublic information contained in the Lawton affidavit should remain confidential. The State’s proposed redaction of the particularized confidential materials, as opposed to wholesale denial of disclosure of all warrant materials, would have satisfied the necessary balance between public access and investigative confidentiality. The court’s summary and unsupported dismissal of the State’s justification for nondisclosure and redaction was an abuse of discretion. The court’s disclosure order is therefore reversed.¹²

Reversed.

1 In her concurrence, Sister Skoglund would have us look to the separation of powers doctrine, deference to legislative policy decisions and comity with the executive’s law enforcement function to avoid applying the judiciary’s PACR Rules in a manner contrary to the Public Records Act, 1 V.S.A. § 317(c)(5), exempting criminal investigation records from the public’s right to disclosure. That the judiciary should not gratuitously interfere with the shared and valid objectives of the legislative and enforcement branches is a legitimate concern. See V.R.P.A.C.R. 7(a) (providing a process for courts to open a case record “to which access is otherwise closed” upon a showing of good cause and exceptional circumstances, except that “[i]f a statute governs the right of public access and does not authorize judicial discretion in determining to open or seal a record, this section shall not apply to access to that record”). Whether § 317(c)(5) of the Public Records Act is such a statute, or whether there is merit to the separation of powers approach, neither was raised below and so we decline to consider it on appeal. See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) (observing that arguments not made to the trial court “are not preserved for appeal”). As for the dissent’s concern that Justice Skoglund’s appeal to comity is somehow submissive to an executive “seeking to force its choice on the judiciary,” post, ¶ 62 n.21, there is no issue of force at all; there would be only the question of whether the judicial branch agrees with the legislative and executive branches on the confidentiality of investigation records.

2 Although eleven search warrants had issued at the time of the State’s renewed motion to seal, the State’s motion covered only the four warrants and related materials that were filed with the Chittenden Criminal Division on June 21, 2011: one signed by Judge Dennis Pearson on June 9, 2001 for the Curriers’ home, two signed by Judge James Crucitti on June 10, 2011 for a dumpster in Essex and the Curriers’ car, respectively, and one dated June 14, but signed by Judge Thomas Devine on June 16, 2011 for Mr. Currier’s work locker at the University of Vermont.

3 Examination of the Lawton affidavit reveals that at the time of the State’s renewed motion to seal, there was a significant amount of information obtained during the Currier investigation that had not been made public. Specifically, the affidavits filed in support of the search warrants detailed the condition in which the Currier home was found, including certain damage, the whereabouts of some of the couple’s personal effects and the absence of others, as well as then’ ownership of a particularly described weapon and its absence. Additionally, the Lawton affidavit states that the public had not been told of several items found at the Curriers’ home that were listed in the search warrant inventory, including a certain item that could relate to the condition of the house or its entry. It notes that the affidavits supporting the warrants for the Curriers’ car and dumpster revealed the police’s theory about the couple’s travel on the day they disappeared. It also describes items collected during the search of the Curriers’ car and Mr. Currier’s work locker that had not been released. Finally, it explains that the search warrant returns and inventories for the dumpster and Mr. Currier’s work locker reveal the results of those searches, to which the public had not been privy.

4 The State made its most complete argument below in its Supplemental Renewed Motion to Seal. The State’s motion did not argue that Sealed Documents should not apply in active, pre-arrest investigations, but rather that its criteria for sealing were met in this case.

5 We thus leave for another day the question of whether Sealed Documents, or some other standard, best balances the public access and law enforcement interests at stake in active police investigations prior to charges being filed.

6 Just as we assume that Sealed Documents applies to active, pre-arrest investigations, we also assume, without deciding, that search warrant materials in pre-arrest investigations are “case records” within the meaning of the PACR Rules.

7 This claim is only arguable. Rule 4 declares a general policy of open case records, “[ejxcept as provided in these rules.” Rule 6(a) reiterates this open records policy, “except as provided in subsection (b) of this section.” Subsection 6(b)(15), in turn, excepts search warrant records up to the warrant’s return date “unless sealed by order of the court.” The “fairly uniform common-law standard under which a court may seal” warrant records under Rule 6(b)(15) was adopted and established in Sealed Documents. 172 Vt. at 161, 772 A.2d at 526. On its face, and as explained in detail in the Reporter’s Notes, Rule 7(a) “states an exception to the general access policy stated in § 4 of these rules” by authorizing courts “to allow access to an otherwise closed record or to seal, or redact information contained in, an open record” upon finding “good cause specific to the case” and “exceptional circumstances.”

If, as the dissent assumes, this is a more demanding threshold than the common law of Sealed Documents, it may be because the additional Rule 7(a) exception “permits the court to use its discretion when addressing special situations that can not be anticipated and specifically dealt with in these ndes.” Reporter’s Notes, V.R.RA.C.R. 7(a) (emphasis added). Rule 7(a), then, would appear to be inapposite given that Rule 6(b) already anticipates and deals with the situation of sealing warrant records under subpart (b)(15), and the standard for doing so is already set forth in the common law of Sealed Documents. Thus, Rule 7(a) may not at all govern the question presented in this case. Moreover, while the Reporter’s Notes — 2001 Amendment to Rule 6(b)(15) rightly advise that courts “must apply the standards contained in In re Sealed Documents” in deciding whether to seal warrant records, the same Note is arguably in error to assert that those records are available “unless sealed pursuant to § 7(a) of these rules” since Rule 7 is not plainly necessary to sealing warrants under Rule 6(b) and Sealed Documents.

8 In Sealed Documents, we interpreted the disclosure requirements of 4 V.S.A. § 693, which provided for public access to court records. See 172 Vt. at 156-60, 772 A.2d at 523-26 (interpreting former § 693). As part of Vermont’s judicial restructuring in 2010, §693 was replaced by 4 V.S.A. §652(4). Section 652(4) bars disclosure of court records “required by law to be kept confidential.” The PACR Rules, and thus Sealed Documents, now govern such disclosure. See Sealed Documents, 172 Vt. at 158 n.5, 772 A.2d at 524 n.5 (noting that PACR Rules would govern public access to court records after May 1, 2001).

9 Where appropriate, individual privacy and safety must also be considered, but the State claims only law enforcement interests as the basis for sealing or redaction. Sealed Documents, 172 Vt. at 161, 772 A.2d at 527.

10 As Sherlock Holmes once explained, “It is of the highest importance in the art of detection to be able to recognize, out of a number of facts, which are incidental and which vital. Otherwise your energy and attention must be dissipated instead of being concentrated.” Sir Arthur Conan Doyle, The Reigate Puzzle, in Complete Sherlock Holmes 459, 469 (1930).

11 The criminal case in Sealed Documents was pre-indictment, but post-arrest. 172 Vt. at 154, 772 A.2d at 521. Unlike Vermont, which requires no grand jury indictment to commence a criminal case, New Hampshire mandates prosecution brought by indictment if the crime charged is punishable by death or a prison term greater than one year. Compare V.R.Cr.P. 7(a) (providing that “[a]ny offense may be prosecuted by indictment or information at the option of the prosecuting officer”), with N.H. Rev. Stat. Ann. § 601:1 (2011). That sufficient justification for sealing or redaction may exist in many ongoing investigations calls into question the presumption of access but, as said before, we decline to revisit Sealed Documents in this case.

12 Because we conclude that the State’s proffer below was sufficient to warrant sealing or redaction, we need not address the argument that the court erred by refusing to conduct an evidentiary hearing on this matter.