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Walworth County search warrants could disappear

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Phillip Koss

ELKHORN — In some Wisconsin counties, sealed court documents hold back details from search warrants for a limited time while investigations are ongoing.

In Walworth County, seals have no time limit, and some records could disappear from the public eye altogether.

Motions to seal search warrants in Walworth County ask that all documents and their existence be kept under wraps. The seal acts as a seal on itself, as if the search never happened, leading some warrants to be kept away from public scrutiny.

The procedure gives law enforcement the power to search homes virtually undetected. The paper trail disappears, and interested parties are unable to find out the basis for the execution of a search warrant or how it was conducted.

The two conditions to unseal search warrants are if a criminal complaint is filed, or if a prosecutor files a motion requesting the court to open the file.

If no evidence of criminal activity is found and a criminal complaint is never filed, the documents could remain sealed forever. It has happened before, District Attorney Phil Koss said.

“The problem may come when the matter is sealed, and then we never get it filed, there’s no referral from law enforcement or for whatever reason the investigation doesn’t pan out,” Koss said.

“With really no active mechanism to tickle them, have them brought up again so that people remember to unseal them, they get filed with the clerk, the clerk is not going to unseal them, and the judge is not going to think about them until we ask him to.”

Koss said the practice isn’t widespread. The majority of search warrants are not sealed, and most result in criminal charges, he said.

Judge Michael Gibbs said the seals are necessary to protect ongoing investigations. He said he is not aware of the system in other counties, but he rarely seals search warrants.

Earlier this year, details of a search warrant executed at a Delavan home were kept secret for one month. Area police and Walworth County’s SWAT team executed a no-knock search at 405 Pine St., some bearing heavy weaponry and equipment.

Law enforcement officials, prosecutors and court clerks refused to comment on the operation or the whereabouts of the search warrant files.

One high-ranking sheriff’s official told the Gazette that the documents had been sealed and the case remained under investigation.

Another court official said the existence of the search warrants had been sealed along with the documents themselves. Those who knew about the search could not acknowledge it had happened or disclose any details.

Later-unsealed court documents show police were seeking a stolen firearm allegedly kept by Raul R. Valadez, one of the residents of 405 Pine St. Confidential informants told sheriff’s office detectives that Valadez had taken the weapon from another man, Blake A. Kruizenga, who was allegedly displaying the Desert Eagle handgun at a birthday party in Delavan Township.

Officials found drugs and paraphernalia at Valadez’s house, but no weapon. Kruizenga’s home was also searched, and the gun wasn’t there, either.

On Nov. 11, Kruizenga told police he had thrown the gun into Lake Como. The sheriff’s office dive team searched the area but didn’t find the weapon.

On Oct. 6, The Gazette filed an open records request with the clerk of courts requesting copies of orders sealing search warrants dated Sept. 1 and later. The request was an effort to track down how often Walworth County judges had ordered documents sealed and how long they would remain sealed.

The request, which should have brought up the order to seal the search on 405 Pine St., was denied. In a written response, Deputy Corporation Counsel Michael Cotter wrote that all parts of the search warrant were sealed, including the seal itself.

Gibbs said most of the documents he seals are financial documents pertaining to divorce, mental health records and juvenile matters, which by law are not public records.

Bill Lueders is the president of the non-profit Wisconsin Freedom of Information Council and news editor at Isthmus, a weekly newspaper in Madison. When documents are sealed, he said, the custodian of records should still provide as much information as possible without compromising the contained information.

“It’s important that we do not have secret courts in this country, that everything that happens in the court of law is public,” Lueders said. “The courts have tremendous amounts of power to make decisions that affect people’s lives, and it’s appropriate that there be a maximum amount of transparency.”

The goal is to protect the public’s interest to promote open and accountable courts, he said.

“The fact is that police and prosecutors occasionally do things that they shouldn’t,” Lueders said. “And for that and among other reasons, a high level of transparency is in everybody’s interest.”

Bob Dreps, an attorney at Madison-based Godfrey and Kahn law firm, said Wisconsin law is unclear, and there is no standard practice when it comes to sealing search warrants. It’s not spelled out in statutes, so each county does it differently, he said.

“The expectation is that search warrants, after they are returned, will be sealed only for good cause and only while that good cause exists,” said Dreps, who regularly represents media companies in court. “So if a prosecutor persuades a judge to seal a subpoena, it should be for a defined period of time.”

Judges grant search warrants upon application of law enforcement officials, who must present an affidavit with findings of criminal activity to substantiate the need to enter a property without permission.

Warrants are kept secret until they are executed to ensure subjects don’t discard evidence the cops are seeking. Once the search warrant is executed, the affidavit, warrant and a return of search warrant are to be filed with the clerk of courts.

In Dane and Rock counties, court officials put out summaries of executed search warrants, including information about the ones sealed and how long the seal will remain. Koss said a sunset provision could be a way to address the Walworth County issue. The law grants judges the power to seal documents, but there is no legislation that outlines an appropriate length of time for a seal’s shelf life. That’s something the Legislature could address, he said.

Locally, Koss said changing the language on applications for seals is a start that would come from Koss’ office. But it ultimately takes a judicial decision to enforce the change in the future.

“With the judges’ approval, we could make our motions include some sort of language about that,” Koss said.

Clerk of Courts Sheila Reiff last week said she will include an agenda item in the upcoming judges meeting to continue the conversation about sealed search warrants.

“It’s never come up before,” Koss said. “Now that we’re having this discussion, we’ll address it.”