California orders reporters not to write about sealed search warrant

On Oct. 17, 2018, Orange County Superior Court judge Gregory Jones ordered members of the media not to report on a sealed search warrant that had previously been made available to the public—an unconstitutional prior restraint. Four days later, he rescinded the order and unsealed the search warrant materials.

The search warrant was executed in January 2018 against Grant Robicheaux, a prominent surgeon suspected of sexually assaulting multiple women. Like most search warrants in California, it was initially filed under seal but was automatically unsealed and made available to the public shortly after it was carried out.

Eight months later, in September 2018, police arrested Robicheaux and his girlfriend, Cerissa Riley, and the Orange County district attorney Tony Rackauckas charged them with sexually assaulting two women. After the arrests were announced, a number of journalists found the January search warrant materials (which were now available to the public) and reported on their contents. In response, both prosecutors and Robicheaux’s defense team asked a judge to re-seal the search warrant materials, which he did.

The next month, as The Associated Press reported, Rackauckas announced that five more women had accused Robicheaux and Riley of sexual assault. At a court hearing on Oct. 17, Rackauckas’ office formally filed additional charges against Robicheaux and Riley, who pleaded not guilty.

According to the OC Register, outside the hearing, Orange County supervisor Todd Spitzer — who is challenging Rackauckas in the election for Orange County district attorney — held a press conference to criticize Rackauckas for taking so long to arrest Robicheaux and Riley. Speaking to a group of reporters, Spitzer said Rackauckas should have had Robicheaux and Riley arrested back in January 2018, right after the search warrant was executed. To prove his point, Spitzer and his assistant handed out copies of the January 2018 search warrant materials to reporters.

Rackauckas objected to Spitzer’s stunt, since the search warrant materials were supposed to be sealed from the public, and the district attorney’s office asked judge Jones do something about it. (Jones was not the judge who originally ordered the search warrant sealed, but he was the judge presiding over the hearing.)

Jones called reporters back into the courtroom and told them to return the copies of the search warrants that they had received. He then told them to remind their news organizations that the search warrant was sealed and they should not publish it.

The Orange County Register and the AP challenged Jones’ order, arguing that it amounted to an unconstitutional prior restraint on the press. On Oct. 21, Jones unsealed the search warrant, finding that it could not be re-sealed once it had already been made available to the public.