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Saunders v. Superior Court (San Jose Mercury News, LLC)

Superior Court of California, Appellate Division, Santa Clara

April 28, 2017

RYAN SAUNDERS, Petitioner,
v.
SUPERIOR COURT, COUNTY OF SANTA CLARA, (Limited Jurisdiction), Respondent; SAN JOSE MERCURY NEWS, LLC, Real Party in Interest.

         Santa Clara County Superior Court No. C1521450 Hon. Arthur Bocanegra Trial Judge.

          Counsel for Petitioner, Ryan Saunders: Joshua A. Olander, Mastagni Holstedt APC

          Counsel For Real Party in Interest, San Jose Mercury News, LLC: James M. Chadwick David E. Snyder, Sheppard, Mullin, Richter, & Hampton, LLP

          Counsel for Real Party in Interest, The People: District Attorney Jeffrey Rosen Supervising DDA Kaci R. Lopez

          Counsel for Real Party in Interest, The County of Santa Clara: County Counsel James R. Williams Asst. County Counsel Robert M. Coelho

          OPINION

          Williams, P. J

         Petitioner Ryan Saunders, who worked as a custodial officer in the county jail, was accused of eight misdemeanor counts of violating Penal Code section 13304, for his alleged unauthorized access, receipt, or possession of local summary criminal information. The People alleged by complaint that Saunders had illegally accessed a county criminal-information database-CJIC-and passed protected information to people associated to a Hell's Angels motorcycle gang.

         As part of pre-filing investigation in 2015, law enforcement, namely the Santa Clara County Sheriff's Office, which also employed Saunders as a custodial officer in the jail, sought and obtained a search warrant for his personal cell-phone records. The warrant sought a broad swath of information, including but not limited to text-message content for a two-and-a-half-year period of time. The search warrant was executed and the third-party service provider, Verizon, complied by producing Saunders's cell-phone records, and placing them in the hands of the Sheriff's Office as the prosecuting law enforcement agency.

         After the misdemeanor complaint was filed, the People determined that Saunders's cell-phone records were not needed, and would not be used for, prosecution of the case against him. No portion of the records was ever admitted into evidence or used in any court proceeding in connection with the case, which has since resolved by plea. But in the meantime, the local newspaper and real party in interest, San Jose Mercury News LLC, learned that Saunders's text-message content produced in response to the search warrant was likely to include vile and racist text messages exchanged between Saunders and other custodial officers working in the jail. This prompted the Mercury News to initiate a California Public Records Act[1] request with Santa Clara County, by which it sought access to Saunders's seized cell-phone records in the hands of the Sheriff's Office.

         In response, the County, through the Office of the County Counsel, (erroneously) concluded that Saunders's personal cell-phone records seized under the search warrant were open to public access under the Act. But instead of acquiescing to the Mercury News's CPRA request by providing or making available the seized documents directly to the Mercury News under that Act, the County deposited a compact disk containing the records with the court. Saunders objected to the release of his private cell-phone content to the Mercury News, contending there was no right of public access to this information and that he and his right to a fair trial would be harmed by its release.

         Saunders and the Mercury News litigated this question below, with the trial court ultimately ordering the release of the seized records with certain redactions.[2] The court did not identify the authority it relied on for its order, other than its stated recognition that the records were subject to the court's “control and disposition.” But the court expressly concluded that Saunders had not presented “a compelling justification” for withholding release of the seized records to the public and there was no need to keep them confidential. The court also found that release of the records would have no prejudicial impact on Saunders.

         Saunders sought writ relief in prohibition or mandate in the Appellate Division, and we stayed the trial court's release order and issued an order to show cause. After full briefing and oral argument, we conclude that the trial court's order releasing Saunders's private cell-phone records-obtained through execution of a search warrant on a third-party service provider-to the Mercury News was an abuse of discretion. For one thing, even acknowledging policies promoting public access to court or judicial records, property or things seized under a search warrant are not publicly accessible, unlike warrant materials-the warrant, supporting probable-cause affidavit, and return-under Penal Code section 1534, subdivision (a). Moreover, the seized records, in their present state and in this procedural context, are not court or judicial records, and there is no associated public right of access, whether rooted in the federal or state Constitution, statutory authorities, or the common law, to such private property or things seized under a search warrant and constructively possessed by the court pending a criminal prosecution, when those things are never offered in evidence or otherwise used in a court proceeding. And even if the court acted only through its inherent power to control the disposition of the seized records regardless of their status as a court or judicial record, their release at this procedural juncture before they were ever offered in evidence or otherwise used in the criminal proceeding, would cause irreparable harm to Saunders's constitutional right to privacy. We accordingly grant writ relief.

         STATEMENT OF THE CASE

         As noted, Saunders was charged by misdemeanor complaint with eight violations of Penal Code section 13304, which prohibits an unauthorized person from buying, receiving, or possessing a record of local summary criminal-history information or information obtained from such record.[3] The underlying facts of these crimes are not relevant to this writ proceeding. But in sum, and as we've noted by way of introduction, Saunders was alleged to have engaged in the prohibited conduct by accessing and obtaining information from CJIC while he was employed as a correctional deputy in the county jail, and turning that information over to members of a Hell's Angel motorcycle gang.

         During the 2015 criminal investigation that preceded the filing of the misdemeanor complaint, law enforcement sought to obtain (under search warrant number CSW47657[4]) Saunders's personal cell-phone records for a two-and-a-half-year period from his third-party service provider, “Cellco Partnership, LLP DBA Verizon Wireless” (Verizon). The search warrant broadly sought, among other things, “[a]ll records associated with the identified mobile number” belonging to Saunders, including all phone numbers communicating with Saunders's phone number by call and text message; text message content; voicemail; “all data connections;” cell-site information; subscriber, billing, and credit information; email; digital images and “associated metadata;” address books; calendars; and “applications and their associated account information, ” including but not limited to Facebook, Instagram, Twitter and Skype.

         One June 12, 2015, the same day the search warrant was issued, and before it was executed, a portion of the supporting affidavit (“Hobbs Attachment-Exhibit A”) was ordered sealed by the magistrate under the cited authority of Evidence Code sections 1040-1042, People v. Hobbs (1994) 7 Cal.4th 948, and People v. Flannery (1985) 164 Cal.App.3d 1112.

         According to the July 28, 2015 “search warrant return inventory, ” what law enforcement obtained from Verizon by executing the search warrant was “[e]lectronic phone records” related to Saunders's personal cell-phone number from November 1, 2012 to June 12, 2015.[5] According to the parties, the phone records seized under the warrant include actual content of Saunders's text messages. He submits that this content is private, contains “private facts” and “embarrassing communications, ” and that he did not consent to its release beyond the intended recipients of the messages. Some of the texts were apparently vile and racist in nature; we say apparently because we have not viewed them ourselves. And, according to the Mercury News, some of these offensive messages were sent to and received by other custodial officers, though we are aware of nothing to establish that some or all of these text messages were sent or received while the communicating parties were at work in the jail. According to briefing filed in the trial court by the Mercury News, Saunders wrote in one text message to another custodial officer: “I know you are on vacation, going to be more f--- up than a n-----'s checkbook by 4 p.m.”[6]

         On November 17, 2015, several months after the search warrant was executed, a different judge than the magistrate who had signed the search warrant and the sealing order issued an order “that Search Warrant #CSW47657 and all supporting affidavits, probable cause statements, attachments, and seized documents which were sealed on June 12, 2015 … be unsealed and made part of the public record.” (Italics added.) This order purported to “unseal” matters that had not been sealed in the first place, as the sealing order had covered only the “Hobbs Attachment-Exhibit A” to the probable cause affidavit. The law enforcement affidavit supporting the application to “unseal” “all supporting affidavits, probable cause attachments, attachments, and seized documents” urged that unsealing was necessary “so the information contained within may be properly and fully utilized as needed for any criminal proceedings.”

         Upon getting wind of this overbroad unsealing order, the Mercury News concluded that its public right of access to Saunders's seized phone records had been established and initiated a CPRA request with Santa Clara County, through which it sought access to the seized cell-phone content in the hands of the Sheriff's Office.[7] The County appears to have then agreed that the trial court's November 17, 2015 unsealing order made the records seized under the search warrant part of the public record and subject to the CPRA, but recognized that the Sheriff's possession of the seized records was constructive only and in service to the court. In response to the Mercury News's CPRA request, the County did not directly provide the seized records to the Mercury News under the Act but instead deposited a compact disk containing Saunders's seized cell-phone records with the judge who had signed the “unsealing” order.

         That judge later clarified at a hearing that he had not intended by the unsealing order to “unseal” the records seized under the warrant. The court correctly explained that this order could not have “unsealed” the content of Saunders's text messages, which is what the Mercury News was primarily after, because these seized records had not been sealed by the June 12, 2015 order in the first place and, in fact, had not even been obtained by law enforcement until later when the search warrant was executed. But the court did express a concern that Saunders's seized cell-phone records had become part of the court file by the County having deposited the compact disk with the court and they potentially had thereby become “court records” subject to being released to the public.

         Saunders objected to the release of his cell-phone records-and specifically his text messages-contending there was no right of public access to these records by the “unsealing” order or any other authority. The Mercury News appeared in court and filed papers pressing for the release of the seized records, particularly the text-message content.[8] At that juncture, the County took no position on the release of the records. And, for their part, the People informed the court that they did not intend to use Saunders's seized cell-phone records in the underlying criminal case against him and “submitted” the issue to the court.

         On May 20, 2016, based on its conclusion that the records were subject to its “control and disposition, ” the court ordered the release to the public of Saunders's seized cell-phone records, excluding any “emails” along with phone and text numbers with which his phone had communicated. The court also ordered redaction of personal identifying information except “first names and first initials of the last names” of any individuals whose names appeared in the records. As noted, the court found that Saunders had not presented “a compelling justification” against release of the seized records and saw no reason to keep them confidential. The court further found that release of the records would have no prejudicial impact on Saunders.

         Saunders then timely pursued writ relief, alternatively in prohibition or mandate, in this court. We stayed the trial court's order releasing the seized records, issued an order to show cause, held oral argument after full briefing, and then requested and received supplemental briefing after learning that Saunders had resolved the criminal case by change of plea.[9]

         DISCUSSION

         I. Scope of Relief in Mandate and Standard of Review

         Code of Civil Procedure section 1085, subdivision (a), is the source of authority for a court to order relief in mandate. Subdivision (b) of this section specifically provides that the appellate division of a superior court may issue a ...


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