When can a Search Warrant be Sealed?

In most cases in Texas the Affidavit for a search warrant is public information. The affidavit in a search warrant is very valuable to a criminal attorney because it sets out the facts that law enforcement based it’s request to have a judge sign their search warrant. The affidavit can give the criminal attorney critical information early on in the case which can be essential in determining the first steps the attorney takes and how he advises the client. News reporters also have a keen interest in obtaining affidavits. Reporters use the facts in the affidavit to find out the critical facts to use in a news story about a crime. Law enforcement officials sometimes give copies of the affidavit to members of the press in order to generate more publicity for an arrest.

Under Article 18.011 of the Texas Code of Criminal Procedure the prosecutor can request to have the judge seal the search warrant affidavit for 31 days. To do so the prosecutor must establish a compelling state interest that can cover two areas.

One is public disclosure of the affidavit would jeopardize the safety of the victim, witness or confidential informant or cause the destruction of evidence.

The second is the affidavit contains information obtained from a wire tap which has not expired at the time the prosecutor makes the request to seal. affidavits are rarely sealed under this provision because the state authorities rarely use wire taps.

At the end of 31 days the order expire and the search warrant affidavit will be unsealed. If the prosecutor makes another request on a new compelling state interest the judge can seal the affidavit for another 30 days.

The sealing of the affidavit does not prevent the accused from getting a copy of the affidavit. The attorney for the accused can get a copy from the judges clerk. The public, which usually means the press, is prevented from getting a copy.

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