2006 UT 55
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Brian R. Anderson, personally
No. 20050262
and on behalf of a class of
persons similarly situated,
Petitioner,
v.
The Honorable James R. Taylor,
The Honorable John C. Backlund,
The Honorable Lynn W. Davis,
The Honorable Donald J. Eyre,
Jr., The Honorable Steven L.
Hansen, The Honorable Fred D.
Howard, The Honorable Claudia
Laycock, The Honorable Howard H.
Maetani, The Honorable Samuel
McVey, The Honorable Derek P.
Pullan, The Honorable Gary D.
Stott, and The Honorable Anthony
Schofield, Judges, Fourth District
Court in and for Utah County,
State of Utah; Paul Vance; Lori
F I L E D
Woffinden; and Eileen Jemison,
Respondents.
September 22, 2006
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Original Proceeding in this Court
Attorneys: Brian M. Barnard, James L. Harris, Jr., Salt Lake
City, for petitioner
Brent M. Johnson, Salt Lake City, for respondents
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PARRISH, Justice:
¶1
Petitioner Brian R. Anderson challenges the practice of
the Fourth Judicial District Court as it relates to the issuance
of search warrants. Following a search of his residence
conducted pursuant to a warrant issued in the Fourth District,
Anderson unsuccessfully attempted to obtain from the court copies

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of the documents supporting the warrant. After learning that the
court routinely fails to retain copies of the search warrants it
issues and the affidavits used in obtaining them, Anderson filed
a petition for extraordinary writ, seeking declaratory and
injunctive relief against judges and court personnel in the
Fourth District. Specifically, Anderson requests a declaration
that the practice in the Fourth District violates the federal and
state constitutions and applicable statutes. Anderson also seeks
an injunction requiring that the Fourth District retain a copy of
all search warrants issued and their supporting documentation.
Because we agree that the practice in the Fourth District
violates Utah law, we exercise our supervisory power over the
courts of this state to require that they retain copies of all
search warrants issued and all documents supporting the request
for such warrants.
BACKGROUND
¶2
The Fourth District Court does not routinely retain
copies of either the search warrants issued in the district or
the material submitted in support of search warrant applications.
Rather, after issuing a warrant, the issuing magistrate returns
both the warrant and the supporting material to the law
enforcement officer seeking the warrant. After the warrant is
executed, the officer delivers the original warrant, the
supporting material, the return, and the inventory of items
seized in the search to the magistrate, who then reviews it and
either files it with the court or returns it to law enforcement
with a request that law enforcement file it with the court.
¶3
On Friday, October 8, 2004, a magistrate in the Fourth
District Court issued a search warrant based on an affidavit
written and signed by Detective Troy Beebe, a police officer with
the Provo City Police Department. Later that evening, police
officers executed the warrant and searched Anderson's residence.
¶4
Four days later, on October 12, 2004, Anderson went to
the district court clerk's office and requested a copy of the
affidavit used to obtain the search warrant for his residence.
The clerk's office informed Anderson that neither the original
nor a copy of the affidavit had been filed with the court and
that it had no record of the warrant. On October 21, 2004, an
officer returned the warrant and the supporting affidavit to the
magistrate, but the magistrate did not file the documents with
the Fourth District Court clerk's office at that time.
¶5
On October 24, 2004, Anderson filed in the Fourth
District Court a civil rights complaint against judges and court
personnel in that district. The case was subsequently
No. 20050262
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transferred to the Second District Court, where the defendants
moved to dismiss. Also pending in the Second District Court was
a case involving similar claims against judges and court
personnel in the Third District Court. The defendants in that
case had also filed a motion to dismiss.
¶6
While the motions to dismiss were pending in the
district court cases, Anderson filed a petition for an
extraordinary writ directly with this court.1 Anderson argues
that the practice of issuing a warrant without retaining copies
of the warrant or the material supporting the request for the
warrant violates the Fourth and Fourteenth Amendments to the
United States Constitution, article I, sections 7 and 14 of the
Utah Constitution, and Utah Code sections 77-23-203 and
77-23-204. Anderson has requested that this court issue a
declaratory judgment enjoining this practice and declaring it to
be a violation of his constitutional rights. He argues that the
Fourth District Court should be required to retain copies of all
the search warrants it issues, as well as the supporting material
associated with those warrants. Anderson has also requested that
we certify a class of similarly situated plaintiffs and award him
his attorney fees.
¶7
Approximately ten days after Anderson filed his
petition for extraordinary writ, the Fourth District Court
located and filed with the clerk's office the search warrant
documents at issue. We have jurisdiction over Anderson's
petition for extraordinary writ pursuant to Utah Rule of Civil
Procedure 65B(d).
ANALYSIS
¶8
Anderson's petition raises two issues. First, he
alleges that the Fourth District Court violated the federal and
state constitutions and Utah statutory law when it failed to
retain, at the time of issuance, a copy of the search warrant
issued by the court and the original affidavits on which the
warrant was based. Second, he alleges that a similar violation
occurred when the Fourth District Court failed to make available
to him the search warrant and supporting affidavits after the
warrant had been executed.
1 After Anderson filed his petition for extraordinary writ,
the Second District Court consolidated the district court cases
against the Fourth District Court and the Third District Court
and stayed those actions pending resolution of Anderson's
petition.
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¶9
The Fourth District Court asserts that we need not
reach the merits of Anderson's petition because he lacks standing
to challenge its practices. The Fourth District argues that
Anderson's claims became moot when the search warrant and other
related documents were filed with the court. It reasons that
this translates into a lack of standing because the fact that
Anderson was previously subject to a search does not give rise to
the suggestion that the Fourth District's policies present him
with any future threat.
¶10
We are unpersuaded by the Fourth District's challenge
to Anderson's standing. Although Anderson's petition may be
technically moot, it falls within a recognized exception to the
mootness doctrine. We outlined this exception in Wickham v.
Fisher:
The principles that determine the
justiciability of the instant case are the
well-established rules which permit a court
to litigate an issue which, although
technically moot as to a particular litigant
at the time of appeal, is of wide concern,
affects the public interest, is likely to
recur in a similar manner, and, because of
the brief time any one person is affected,
would otherwise likely escape judicial
review. The law provides no exemption from
judicial scrutiny of unlawful acts which are
likely to be repeated because they do not
fall within the usual principles of standing
and justiciability.
629 P.2d 896, 899-900 (Utah 1981) (citations omitted).
¶11
Anderson's claims qualify for review under this well-
recognized exception to the mootness doctrine. Anderson's
challenge to the practice of the Fourth District Court is a
quintessential example of a claim that, while technically moot,
deserves review. The claims Anderson raises are present every
time a search warrant is issued by the Fourth District Court.
Yet it is difficult to conceive of any such claim that will not
become technically moot before it wends its way through the
adjudicative process. Indeed, once a challenge is initiated, law
enforcement will have every incentive to immediately file the
documentation supporting the search, thereby mooting the
particular claim.
¶12
In addition, this issue is one that affects the public
interest. Anderson's petition raises significant issues
No. 20050262
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regarding the integrity of the court's record-keeping systems,
including the potential for law enforcement to alter search
warrants and supporting documentation. It also raises serious
issues relating to an individual's right to challenge the
validity of a warrant. Because the right to be free from
unreasonable searches and seizures is a right guaranteed by the
United States and Utah Constitutions, maintaining that right is a
public interest of the highest order.
¶13
The Fourth District further argues that we should
decline to reach the merits of Anderson's petition because our
Advisory Committee on the Rules of Criminal Procedure is best
equipped to remedy any deficiencies in the current practices of
the Fourth District Court. While we acknowledge that our
advisory committee may be a more expedient forum for proposing a
comprehensive solution to the problem presented, that does not
justify our refusal to decide the issue. Expediency is not part
of the mootness doctrine and does not relieve this court of its
responsibility to resolve this petition.
¶14
The Fourth District Court has also urged us to decline
review of this matter on the basis that Anderson is ineligible
for extraordinary relief. Under rule 65B(a) of the Utah Rules of
Civil Procedure, one may seek extraordinary relief only when "no
other plain, speedy and adequate remedy is available." The
Fourth District Court asserts that Anderson is not entitled to
such relief because he has alternative means of redress.
Specifically, the Fourth District Court suggests that Anderson
could have filed a civil rights action against law enforcement,
pursued an administrative appeal based on the court's failure to
provide the requested records, or challenged the legality of the
search within the context of any criminal proceedings arising
therefrom.
¶15
We are unpersuaded that any of these alternatives are
an adequate substitute for the extraordinary relief Anderson
seeks. First, there is no basis for a civil rights suit against
law enforcement, as there is no evidence that the search itself
was illegal and law enforcement had no control over the practices
of the Fourth District Court. With respect to the second
suggestion, an administrative appeal based on the court's failure
to produce the records at issue would have been futile inasmuch
as Anderson is not challenging his right to access records in the
possession of the court, but rather the court's policy of not
maintaining control over the records in the first place.
Finally, Anderson could not raise the issue in the context of a
related criminal proceeding as no criminal charges were ever
filed against him. Thus, we conclude that Anderson lacked any
other plain, speedy, or adequate remedy and was therefore
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No. 20050262

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entitled to seek extraordinary relief pursuant to rule 65B of the
Utah Rules of Civil Procedure.
¶16
Having concluded that Anderson has standing to pursue
his claims, we turn to the merits of his petition. Anderson
requests relief on three alternative grounds: (1) Utah statutory
provisions; (2) article I, sections 7 and 14 of the Utah
Constitution; and (3) the Fourth and Fourteenth Amendments to the
United States Constitution. Because we grant extraordinary
relief on statutory grounds, we do not reach Anderson's
constitutional claims.
¶17
Statutory authority concerning the issuance and
handling of warrants is located in Utah Code sections 77-23-201
to -212 (2003).2 The applicable version of Utah Code section
77-23-209 stated that upon the return of a search warrant to the
issuing magistrate, the magistrate shall forward the warrant,
return, inventory, and depositions or affidavits "to the
appropriate court of the county having jurisdiction within 15
days after the return." Utah Code Ann. § 77-23-209 (2003)
(amended 2005).3 The Fourth District argues that nothing in the
statute requires that the court retain a copy of the warrant or
supporting material prior to the time when the warrant has been
executed and a return delivered to the magistrate. We disagree.
¶18
The statute in effect at the time police officers
searched Anderson's residence specifically provided that
"evidence to be considered by a magistrate in the issuance of a
search warrant . . . be given on oath and either reduced to
writing or recorded verbatim."4 It further provided that "[a]ny
person having standing to contest the search may request and
2 Section 77-23-209 was amended in 2005, but the new
language does not affect our reasoning.
3 Respondents admit that the common practice in the Fourth
District varies somewhat from the statutory requirement.
Although the statute contemplates that law enforcement will
return the warrant and related materials to the magistrate, who
will then deliver them to the court, magistrates in the Fourth
District "typically instruct law enforcement to deliver the
documents to the court clerk for keeping."
4 In 2005, the legislature repealed the previous
requirements; however, the new language continues to emphasize
the importance of maintaining the integrity of the warrant
process by requiring remotely communicated search warrants to be
served in written form. See Utah Code Ann. § 77-23-204 (2006).
No. 20050262
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shall be provided with a transcription of the recorded testimony
in support of the application for the warrant." Id. If the
court fails to maintain a record of the testimony supporting a
warrant application in a manner that will ensure its integrity,
these requirements are rendered meaningless.5 See, e.g., In re
Up North Plastics, 940 F. Supp. 229, 232-33 (D. Minn. 1996) ("The
Fourth Amendment requirement of probable cause is meaningless
without some way for targets of the search to challenge the
lawfulness of that search."). We therefore conclude that the
current practice of the Fourth District Court is inconsistent
with the statutory requirements.6
¶19
The Fourth District Court also argues that its policy
is justified because the Rules of Judicial Administration allow
for the release of records to noncourt personnel. We similarly
find this argument unpersuasive. While rule 4-205(3) of the Utah
Rules of Judicial Administration allows for records to be removed
"from their normal place of storage . . . by individuals
obtaining the written authorization of the clerk of the court or
the judge assigned to the case," there is no allegation that such
a written authorization occurred in this case. Also, the records
must be returned "within two days," id., a significantly shorter
period of time than the ten-day window during which a search
warrant is valid for execution under Utah Code section
77-23-205(2). In short, the policy of turning over custody of
warrants and affidavits to the police without securing copies for
court files is not within the purview of rule 4-205.
5 Similarly, subsection (2) of section 77-23-204, which
governed the issuance of telephonic warrants, required that the
"sworn oral testimony . . . communicated to the magistrate by
telephone or other appropriate means . . . shall be recorded and
transcribed. After transcription, the statement shall be
certified by the magistrate and filed with the court." Utah Code
Ann. § 77-23-204(2) (repealed 2005). This procedure is
consistent with our conclusion that the courts have an obligation
to maintain as part of the court records the information upon
which warrants are based.
6 The current practice is also inconsistent with section
77-23-209, which required that the magistrate "annex to the
depositions and affidavits upon which the search warrant is
based, the search warrant, the return, and the inventory." Utah
Code Ann. § 77-23-209 (2003) (amended 2005). If the magistrate
surrendered to law enforcement control of the material on which
the warrant is based, he would be unable to fulfill the
requirements of this section with any confidence.
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No. 20050262

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¶20
Finally, regardless of the statutory requirements, we
conclude that the practice followed by the Fourth District Court
is sufficiently troubling to warrant the imposition of this
court's "inherent supervisory authority over all courts of this
state." State v. Thurman, 846 P.2d 1256, 1266 (Utah 1993); see
also State v. Wareham, 772 P.2d 960, 965 (Utah 1989) (invoking
supreme court's supervisory power to require bifurcation in the
context of criminal trials); In re Criminal Investigation, 754
P.2d 633, 642 (Utah 1988) (recognizing that "[t]he courts'
inherent supervisory power is that which is necessary to protect
the fundamental integrity of the judicial branch"). The policy
of the Fourth District Court is sound only if we may confidently
assume that law enforcement always acts with complete honesty,
integrity, and competence. Unfortunately, it is much more likely
that even the most honest and well-intentioned officer will
occasionally make mistakes in handling, preserving, and filing
the warrant documents. Were it not so, there would be no need
for a warrant requirement at all.
¶21
The issues raised by this petition are similar to those
that confronted this court in In re Criminal Investigation. In
that case, this court faced myriad challenges to the
constitutionality of the Subpoena Powers Act. 754 P.2d at 636.
Among those challenges was the claim that the Act failed to
provide for adequate records of subpoenas issued pursuant to the
Act. Id. at 644. While acknowledging that the Act did not
include a provision expressly requiring the maintenance of
investigatory records, the court relied on various provisions of
the Act suggesting that the legislature had anticipated detailed
record-keeping. Id. at 653. The court further noted that
adequate records were necessary in order for the courts to
fulfill their constitutional role of protecting against abuse of
subpoenas issued under their authority. Id. The court then
called upon its inherent supervisory authority to require that
all investigations under the Act be fully documented and that
"such documentation . . . be maintained by the district court
authorizing the investigation." Id.
¶22
We adopt a similar approach here. Giving law
enforcement sole custody of all affidavits and warrants up
through the point where the warrant has been executed and a
return filed is inherently problematic for at least two reasons.
First, it leaves the court without any record of the subpoena or
the materials supporting its issuance until after the subpoena is
executed and a return filed. Second, it allows for the
possibility that affidavits and other court records may be
mishandled or even altered without detection. When the records
upon which the magistrate acts in issuing a warrant are handled
by persons other than court personnel prior to being filed with
No. 20050262
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the court, the court has no basis for confidence in the accuracy,
authenticity, or completeness of those documents. In the matter
of warrants for the search and seizure of persons or property,
more is required. We accordingly require that magistrates
issuing search warrants retain in their custody copies of all
search warrants issued, as well as the material supporting search
warrant applications, rather than surrendering to law enforcement
the only copies of such material.
¶23
To ensure the integrity of our court records, we have
concluded that the courts of this state must retain copies of all
search warrants and supporting material. Nevertheless, we are
without the information necessary to prescribe the particular
procedures to be followed in maintaining and disclosing such
records.7 Those particulars are best addressed by study and
examination in the context of our rule-making process. We
therefore refer those particulars to our Advisory Committee on
the Rules of Criminal Procedure for further consideration.8
¶24
Anderson has also requested that we certify this matter
as a class action pursuant to rule 23 of the Utah Rules of Civil
7 For example, the question of when a search warrant should
be available to the public raises particularly thorny issues. A
search warrant is issued ex parte, without prior notice to
individuals who might be affected by the search. See, e.g.,
United States v. Matlock, 415 U.S. 164, 174 (1974). And the
target of a search warrant is not entitled to notice or a copy of
the warrant documents between the time of issuance and execution.
This process protects the integrity of the criminal investigation
and the evidence sought through the search. It also protects the
law enforcement officers who execute the search by eliminating
the chance of forewarning those who might pose a threat to
officer safety. Thus, while an individual may have a right of
access to information regarding a warrant after it has been
executed, the courts must be careful to ensure that information
regarding a warrant is not released prematurely.
8 Until new rules take effect, we prescribe the following
interim procedure: First, as previously mentioned, all
magistrates must keep copies of any warrants that are issued and
the documents supporting law enforcement's request for such
warrants. Second, parties may access these materials only for
good cause pursuant to court order. This simple procedure will
maintain the integrity of the warrant system during the period in
which the new rules are being drafted, while simultaneously
ensuring that court clerks are not suddenly burdened with a
barrage of requests to access warrant records.
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No. 20050262

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Procedure. Anderson states that the proposed class would seek
and be entitled to the same equitable relief sought by Anderson
himself. Inasmuch as this court has exercised its supervisory
power to order the relief Anderson seeks, his request for class
certification is both unnecessary and moot. It is also
inadequately briefed. We accordingly deny Anderson's request for
class certification.
¶25
Finally, Anderson has requested an award of attorney
fees pursuant to 42 U.S.C. §§ 1983 and 1988. We decline to
consider his request because it was inadequately briefed. The
argument in Anderson's principal brief supporting his request for
attorney fees is limited to a footnote consisting of two
conclusory sentences in which Anderson suggests he is entitled to
fees because the practice of the Fourth District Court is
"clearly in excess" of its jurisdiction. Such briefing is
inadequate. Our rules require
"not just bald citation to authority but
development of that authority and reasoned
analysis based on that authority." State v.
Thomas, 961 P.2d 299, 305 (Utah 1998). As we
have noted many times before, "this court is
not a depository in which the appealing party
may dump the burden of argument and
research." State v. Gamblin, 2000 UT 44,
¶ 6, 1 P.3d 1108 (quotations and citations
omitted).
State v. Green, 2004 UT 76, ¶ 13, 99 P.3d 820.
CONCLUSION
¶26
Utah statutes governing the issuance of search warrants
contemplate that the issuing court will maintain reliable records
of the warrants and the documents supporting them. We
accordingly grant in part Anderson's petition for extraordinary
writ and call upon our supervisory power over the courts of this
state to require that they retain copies of all warrants issued
and the documents supporting the requests for such warrants. We
leave to our rule-making process the particular mechanisms for
implementing this requirement and managing these records. We
deny the remainder of Anderson's petition, including his request
for class certification and attorney fees.
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No. 20050262
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¶27
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish's
opinion.
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