Senate panel weakens bill to open warrant evidence

Rep. John Rubin, R-Shawnee, said Thursday he will continue to fight for a bill to unseal evidence used to justify police searches and arrests in its original form after a Senate committee voted to change it substantially.

Rubin said he will attempt to secure a place on a House-Senate conference committee to debate changes made Thursday. The changes were based on concerns prosecutors and police voiced about sensitive information or "gory details" within search or arrest warrant affidavits ending up in the media, whether traditional news outlets or blogs.

"I continue to disagree with the position that prosecutors and law enforcement in Kansas are different than the prosecutors and law enforcement in other states that do not have these problems," Rubin said.

Rubin is pushing the bill on behalf of constituents who spent more than a year and $25,000 in legal fees trying to gain access to the affidavit police used to get a warrant to search their home.

Under current Kansas law, such documents can only be opened by court order unless someone is charged with a crime, in which case they may access them as a defendant.

Rubin's original proposal, House Bill 2555, would have presumed that affidavits filed with courts to obtain search and arrest warrants are open record after such warrants are executed. The burden for proving such documents should be sealed or redacted would lie with attorneys.

That passed the House 113-10, but in the Senate Judiciary Committee Sen. Greg Smith, R-Olathe, said his experience as a police officer made him sympathetic to the concerns law enforcement and prosecutors expressed about opening the affidavit information.

Smith came up with amendments that weren’t fully published as the committee debated them Thursday. Smith said they would separate out the arrest warrant affidavits and continue to seal them as in current law. The search warrant information would be made available immediately to those whose property is searched at the time of the search. Anyone else wanting to view the documents, including the media, would be allowed to petition the clerk of the court for the information 14 days after the search warrant is executed. Prosecutors and police would then have seven days to file an objection to the release of the information.

"I’m quite happy with current law. This amendment is an attempt to appease both sides," Smith said. "Both sides probably aren’t going to be happy about it, so that probably means it’s good law.”

The Kansas Press Association has advocated for the bill in its original form, saying it would allow Kansas news outlets to provide more public awareness of law enforcement actions.

Doug Anstaett, the group's executive director, said he was disappointed in the changes made Thursday.

"I think what the committee has said is law enforcement and prosecutors get to live by a different standard than everybody else," Anstaett said. "This tells me they don't believe they should be challenged in any of the work they do."

Rubin has pushed the bill on behalf of constituents Robert and Adlynn Harte, who were awakened early one morning to the sounds of a SWAT team banging on their door.

The Hartes, former CIA employees with top-secret security clearances, eventually found out that Robert's trip to a hydroponics store to purchase equipment for tomato growing coupled with Adlynn's tea leaves found in the couple's trash formed the basis for the raid that turned up no marijuana.

Rubin asked the Legislature's research department to determine how Kansas compares to other states on openness of the search and arrest warrant documents. He said of the 40 states the researchers looked at, Kansas was the only one that "presumptively, automatically, completely seals all probable cause documents."

Rubin said his bill is borne out of the state's commitment to transparent government, even when inconvenient.

"I don't see any reason why that rubric shouldn't apply to law enforcement and prosecutors," Rubin said.