Search Warrants Are Powerful. Yet Few NC Courts Track How Often They’re Kept Secret
When North Carolina courts issue warrants to search homes or private property during criminal investigations, records of that process are supposed to be public.
Exceptions should be rare.
But a first-of-its-kind examination by a dozen North Carolina newsrooms found that state courts for the most part don’t track how often they keep these records secret. And although they contend that sealing search warrants is an uncommon practice, most court clerks, district attorneys and judges can’t say how often it happens.
The statewide reporting project was timed to coincide with Sunshine Week, a national celebration of open government and the public’s right to know that takes place every March.
Journalists requested records and surveyed court officials in 30 counties – rural and urban, wealthy and less prosperous – and found inconsistent approaches to sealing search warrants that persist nearly a decade after an effort to standardize the process and make it more transparent.
Brooks Fuller, director of the N.C. Open Government Coalition and assistant professor of journalism at Elon University, said he understands that it’s sometimes necessary for judges to seal warrants, indictments and other records.
“However, it is critical for the public to have a sense of how often and in what types of cases judges seal records from public view,” Fuller said. “This investigation highlights the importance of good record-keeping and transparency, especially by law enforcement agencies that police communities in North Carolina.”
Why search warrants are public
North Carolina law is specific when it comes to the public nature of search warrants: Once a warrant is executed and returned to the court, anyone -- whether it’s a reporter, a suspect or an interested citizen -- should be able to access it.
But the spirit of that law largely springs from broader constitutional protections against unreasonable search and seizure. That’s why officers are required to get a warrant from the courts in most cases before conducting a search of private property.
The law requires search warrants to be reasonable and specific. Police can’t just raid a suspect’s home to see what they might find. Investigators must spell out to the courts what they’re looking for -- like drugs, weapons or computer hard drives that may help them prove a crime has been committed -- and they must demonstrate probable cause.
“These rules that seemingly protect drug dealers and murderers and rapists and so forth also protect all the rest of us,” said Michael Crowell, a lawyer and former faculty member at the UNC School of Government who focused on judicial administration. “It's an expression of the value we put on our rights.”
Making the warrant public, says Wake County District Attorney Lorrin Freeman, acts as a check on the incredible authority of the state.
“These are very intense, powerful steps by our government,” Freeman said. “The public has the right and needs to have the ability to review the exercise of that authority.”
Search warrants can also reveal critical details about the state of an investigation – often in the absence of any other credible information.
In January, for example, search warrants revealed details in a teacher sex scandal in New Hanover County Schools that ended in the resignation of school leaders.
Peter Frank, a band teacher at Roland Grise Middle School, was arrested in January on sex crimes charges against six of his students. At the time of his arrest, officials with the New Hanover County Sheriff’s Office and New Hanover County Schools had only released limited information through news releases: that detectives were aware of alleged crimes spanning from 2003 to 2019, and that Frank had been suspended with pay. The schools noted that Frank had been an employee since 1997, and that he was suspended in 2015 for “an incident not involving students.”
Days after his arrest, a search warrant served and returned to the New Hanover County court provided a much clearer picture of what officers believed Frank – and the schools – had done.
The warrants said school district officials counseled Frank for having “inappropriate relationships” with students during his tenure at the middle school. The document detailed years of inappropriate conduct with female students noted in his personnel records and substantiated by searches of Frank’s phone and computer. A subsequent search explained how detectives became aware of a seventh victim, whom Frank is accused of having oral sex with on numerous occasions in the school band room back in 1999.
Those newly public details sparked public outcry, and Superintendent Tim Markley and Human Resources Director John Welmers resigned in February.
These details provide transparency to the public.
But the search warrants themselves amount to serious intrusions for the subjects of warrants. That’s why Crowell said it’s critical that law enforcement provide public justification when executing their authority.
“When that information is sealed, and it all becomes unknown as to exactly what's being done, why it's being done, then it's harder to see whether it's being abused,” Crowell said.
Seals rarely used, court officials say
District attorneys, judges and other court officials who responded to inquiries from reporters on this project say they must meet a high bar before judges order a search warrant sealed. And when it does happen, it’s rare.
"Our judges tend to fall on the side of being very reluctant to sign orders sealing up information," Orange County District Attorney Jim Woodall said. "And they want a showing of why it's necessary.”
Temporarily sealing a search warrant can be necessary, prosecutors say, in situations where investigators need time to build their cases before tipping off suspects and allowing them to potentially destroy evidence. A case in point: search warrants were sealed following the murder of State Trooper Kevin Conner until authorities could arrest the prime suspect.
“At the end of the day, if it's something that we are concerned will thwart an investigation, make an investigation impossible, then we're going to at least file a motion and have a judge decide is this a case where it's appropriate that a search warrant be sealed,” Freeman, Wake County’s district attorney, said.
In Rockingham County, Superior Court Judge Stanley L. Allen said he hasn't signed many orders to seal information, though he does see a place for them when they can help law enforcement conduct searches, or when it can protect the identity of an undercover police officer.
In some cases, he said, a seal is used "so the bad guys won't find out about it.”
In Johnston County, District Attorney Susan Doyle said that, to her knowledge, her office had only filed one motion to seal in 2019 – and that was to protect victims and witnesses in a gang-related case with four co-defendants.
“We rarely file any motions to seal,” Doyle said. “However, that is a tool that becomes necessary when the safety of victims and witnesses is at stake.”
Franklin County Clerk of Superior Court Patricia Chastain said that after conferring with her staff and reviewing her records, she estimates that judges there seal between one and two warrants per year, on average.
Buncombe County Clerk of Court Steven Cogburn said he hasn’t seen many himself.
District Attorney Greg Newman, the chief prosecutor for Henderson, Polk and Transylvania counties, said in the rare instances where he seeks a seal, it most often deals with victims through the Department of Social Services.
“There’s no one just agreeing to seal records for no good reason. That hasn’t been my experience, and I’ve been at this for 30 years,” Newman said. “If someone is trying to hide something, that will be detected pretty quickly.”
Sometimes medical records come into play, Newman said. If it’s relevant for a jury to view private medical records, he’ll seek a seal first and consult with a judge to avoid violating federal privacy laws.
“The duty of every DA in the state is to make sure that everyone’s rights are preserved, including the accused -- a lot of people don’t know that,” Newman said. “I have a responsibility toward the people that we prosecute to ensure their rights are not jeopardized or compromised in any way.”
There is no policy in Rutherford County’s court that governs how prosecutors and judges handle sealing warrants, said Karla Towler, an assistant court clerk. But they are uncommon to begin with.
“It would be a guess, but maybe one every month or so,” Towler said.
Only five files from criminal matters in 2020 in the seven westernmost North Carolina counties were sealed as of mid-February, according to District Attorney Ashley Welch. They included a search warrant, a motion to obtain medical records in a death investigation and a child sex abuse case.
“It’s common when we have, say, a pending homicide investigation where it’s in the process of being worked and we haven’t made an arrest yet,” Welch said.
Search warrants and associated documents can contain information that only the perpetrator would know, Welch said.
“A lot of times when there’s a homicide investigation, the way that it’s solved is if the person that committed the crime knows details about the crime that no one else would know,” she said.
That was the case in Orange County, where Woodall used a sealed warrant in the investigation of the 2008 murder of UNC-Chapel Hill student Eve Carson. In high-profile cases like this, tips can fly in from across the state or even country -- with very few of them actually reliable.
"You've got to have a way to distinguish what's good information and what's bad information,” Woodall said.
The autopsy report showed Carson had been shot multiple times by two different weapons, a detail unknown outside of the police department and the medical examiner's office. By sealing the autopsy report as well as search warrants, investigators were able to keep that information from spreading through the public. That allowed them to home in on tips with specific pieces of information.
The strategy worked: It was someone who knew that bit of information that ultimately broke the case open, he said.
Clerks in New Hanover, Brunswick and Columbus counties said search warrants there are rarely sealed, and they have no specific way to track them when they are.
Todd Tilley, clerk of Superior Court for Perquimans County, said he couldn’t answer questions because he’s never had a search warrant sealed pursuant to court order.
“If we were to have one, we would certainly comply with the order of court,” Tilley said in January.
Cabarrus Senior Resident Superior Court Judge Martin McGee says the county had only seven sealed warrants generated by three criminal cases in all of 2019.
And in Mecklenburg County, Senior Resident Superior Court Judge Bob Bell said he couldn’t remember the last search warrant he put under seal.
“It’s anything but routine,” Bell said.
Across counties, tracking often nonexistent
Rare though the practice of sealing warrants may be, court officials in almost all of the 30 counties surveyed said they had no way to track them. Most weren’t able to provide a specific number of sealed warrants, produce the arguments district attorneys made when they sought the seals or say how much longer they would be sealed.
Statewide, the N.C. Administrative Office of the Courts says it “has no application that tracks the issue of sealed search warrants,” according to spokesperson Sharon Gladwell.
But on the local level, Wake County is one exception.
An administrative order from a Superior Court judge years ago established a procedure to log every sealed warrant, noting the case, the date the order was signed and when the seal expires. That order was revised and refined following a 2008 dispute between the district attorney and local news media over sealed search warrants in the high-profile murder of Nancy Cooper in Cary.
An appeals court ruled that temporarily sealing the warrants was proper to protect the integrity of the investigation.
“Nonetheless, trial courts should not withhold public records from public inspection unless it ‘is required in the interest of the proper and fair administration of justice or where, for reasons of public policy, the openness ordinarily required of our government will be more harmful than beneficial,’” the appeals court ruled.
The sealed search warrant log, made explicitly public by judicial order, notes more than 30 search warrants executed by law enforcement were sealed in Wake County in 2019.
One of them includes warrants in the investigation of McCrae Dowless, the political operative at the center of an election fraud scandal that overturned results of the 2018 race for North Carolina’s 9th Congressional District.
But that administrative order -- and its requirement that the log be public -- only applies to Wake County.
In Mecklenburg County, motions to seal search warrants occur in a hearing unannounced to the public.
There is no record placed in a criminal file to alert the public that a sealing has taken place.
The seal also remains in place unless the judge receives a motion to remove it, which is rare, or until the case file is destroyed. In other words, once most warrants are sealed, they effectively disappear.
When reporters asked for specific cases in which warrants have been sealed, the district attorneys and clerk of courts offices said they did not have the technology to identify the cases, nor the legal obligation to track them down and produce a record.
But an assistant Mecklenburg County court clerk does keep a running log of all sealed warrants, which Clerk of Court Elisa Chinn Gary says is a “work document” and not a public record. While she said she was willing to share information from the log, she declined to turn over a copy.
According to her data, 50 of the 1,885 warrants issued in 2018 were sealed. In 2019, judges signed off on 2,312 warrants. About 2% -- 46 of the total -- were sealed.
So far in 2020, the trend is continuing. Through March 6, only 2.4% of the 286 warrants issued were sealed.
No other counties surveyed by reporters were able to point to any similar tracking system. And in some cases, court officials weren’t even able to provide the paperwork district attorneys filed to seal the warrants in the first place.
In Nash County, a reporters’ request for motions to seal warrants ricocheted between the district attorney and the court clerk’s office. In the end, that county clerk’s office declared that motions to seal were in effect sealed themselves.
“A defendant name, file number, and perhaps offense, would be needed for us to ascertain whether a ‘motion to seal’ was filed in the matter,” Kathy C. Jones, the assistant clerk of court, said. “Generally, a ‘motion to seal’ and order are incorporated within the search warrant and signed by a judge, which would, in effect, cause the motion, order and search warrant to be sealed.”
District Attorney Robert Evans, who serves Nash, Edgecombe and Wilson counties, said he was puzzled by the failure to produce those records.
“While I can't possibly state this with certainty, I'm thinking it's only a few as it is usually a request in extraordinary cases to protect sensitive information for short periods of time aiding investigation,” Evans said. “The numbers here will not be substantial, so I really don't understand what the problem is.”
New Hanover County Clerk Jan Kennedy explained that reporters would need to provide her with individual motion or case names to obtain orders because she doesn’t have a list of them.
Cumberland County’s courts have no policy for monitoring sealed search warrants, Trial Court Administrator Ellen Hancox said.
“There is no tracking that I’m aware of,” she said.
Johnston County Clerk of Superior Court Michelle Ball said they don’t not track the number or status of sealed warrants. Neither does Rutherford County. Or Granville County.
“At present, there are no local rules or written procedures for the Ninth Judicial District relating to sealing or unsealing of search warrants,” said Ella Wrenn, the trial court coordinator for the Superior Court district that includes Granville. “The Judge to whom such requests are directed determines, in accordance with applicable law, whether, and to what extent, to order warrants sealed.”
In Franklin County, Clerk of Superior Court Patricia Chastain said that her staff doesn’t have a formal way of tracking the number or status of sealed search warrants. She said that the software her office uses, which is used across the state, doesn’t offer a way to check a box or make a note of sealed warrants, so there’s no easy way to log them in a database.
In Buncombe County, Cogburn said it’s tough for the clerk’s office to know how many cases, civil or criminal, have sealed records because they don’t have a code for “sealed” filings. As a result, he can’t generate a list of cases that have sealed filings.
“We do not track such warrants since most will be unsealed at the time the court determines that it should. Some districts may have an administrative order signed by the senior resident Superior Court judge and the chief District Court judge,” Cogburn said. “I have not found such an order for this district.”
Kathy Cartwright, Pasquotank County clerk of Superior Court, said there is no need for her office to track the number and status of sealed search warrants and that she wasn’t able to answer how many cases there were.
“We don’t keep a list,” Cartwright said, in late January.
Paula Harrison, the clerk of Superior Court for Camden County, said she could not estimate how often judges there order warrants sealed, because that question would “require statistical research that is not within our technical ability.”
Even in Wake County, with its public log of sealed warrants, cases occasionally fall through the cracks.
In July 2019, eight search warrants were sealed by a judge in a case under investigation by the N.C. Department of Revenue “until further order from this court.” That’s despite the order from Senior Resident Superior Court Judge Donald Stephens that “no warrant shall be indefinitely sealed.”
It was still sealed in January 2020, a six-month period exceeding Stephens’ guidance that seals shouldn’t go longer than 90 days without “exceptional circumstances.”
A few days after he was contacted by a reporter about the seal, N.C. Department of Revenue spokesperson Schorr Johnson said the department had not been aware that the warrants were still sealed.
“This was a clerical issue that is in the process of being resolved,” Johnson said on Jan. 7.
An order unsealing the documents came the same day.
The warrants detailed items sought in a tax investigation associated with the managers of Lee’s Kitchen, a restaurant in Raleigh. Revenue agents in July charged 47-year-old Charles Burgess and 51-year-old Peter Mark-Anthony Ellison with five counts of embezzlement over nearly $150,000 in sales tax due to the state and county from 2014 to 2017.
Despite 2012 efforts, formal guidance not widely adopted
Wake District Attorney Lorrin Freeman credited the county’s sealed warrant tracking log to the county’s strong working relationship with local media, which regularly review warrants as they’re filed in the courthouse. Formal guidance from the senior judicial officials has also established “a firm stance in terms of the court's need to be open and transparent,” she said.
But Crowell, the lawyer and former UNC School of Government faculty member, said few counties face the same level of scrutiny.
“There are still places in the state where there is a fairly assertive news media looking at these issues,” Crowell said. “Unfortunately, it's essentially in a few urban areas now, and we've lost so much of the local media that we once had.”
In 2012, following the Court of Appeals decision in the Cooper case, Crowell helped draft a suggested local rule as part of committee of district attorneys, judges and media representatives to standardize the process of both sealing and tracking warrants in county courts.
The recommended guidelines say clerks should maintain public information showing the identity of the law enforcement agency requesting the warrant, the attorney who signed the sealing motion, the judge who signed the sealing order, the date the order was signed and its expiration date.
That effort effectively went nowhere, said Peg Dorer, director of the N.C. Conference of District Attorneys.
There are a few reasons for that, she said.
For one, given the age of the court’s 30-year-old underlying technology, she said quantifying anything will be difficult until the system gets a wholesale rewrite.
“To say that we're going to also be able to track search warrants and how they're sealed is almost a luxury with this system,” Dorer said.
A bigger priority at this point, she said, is getting the courts in compliance with new victims’ rights legislation and a law that raises the age for youth automatically charged in the adult criminal justice system.
“That's why this kind of thing does not get the sunshine you would like it to have, because we are besieged by all these other things,” Dorer said.
And her last point: The 43 prosecutorial districts across the state “are as different as night and day.” What works for one, she said, might not work for another.
That’s a reality even Freeman, in Wake County, acknowledged.
“In some districts, the existence of a log in and of itself in the clerk's office might put at risk the very thing we're trying to avoid, which is information being leaked that would jeopardize the investigation,” Freeman said.
But one way or another, Crowell said, the courts should establish some kind of consistent process.
“It seems obvious that as with anything the courts do, you ought to be able to know how to find that information, and it shouldn't be different from Wake County to Bertie County to Rutherford to wherever,” Crowell said. “We are supposed to have a uniform court system.”
A common set of procedures, he said, will ultimately help courts -- even if it’s a process that’s fairly rare.
“For something that court officials don't have to deal with very often, it's particularly handy to have some guidance as to what they do.”
This story was reported by Jonathan Drew, of The Associated Press; Kate Martin, of Carolina Public Press; Doug Miller and Michael Gordon, of The Charlotte Observer; Chris Day and Julian Eure, of The Daily Advance; Paul Woolverton, of The Fayetteville Observer; Josh Shaffer, of The News & Observer; Amelia Harper, of the Rocky Mount Telegram; Ann McAdams and Brandon Wissbaum, of WECT-TV; Jenn Emert, of WLOS-TV; Tyler Dukes, of WRAL-TV; and Jason deBruyn, of WUNC.