Nearly every state but Kansas considers probable-cause documents to be open records. As a result, the public in those states can learn the legal basis for a search or arrest warrant.
Past efforts to unseal these documents in Kansas have sometimes been dismissed by state lawmakers as a media issue – that newspaper and TV reporters just want to get a story. But recent testimony before a legislative committee in Topeka showed why more transparency and accountability are important to all Kansans.
Robert and Adlynn Harte of Leawood told lawmakers how they were awakened one morning by banging on their door, the Topeka Capital-Journal reported. When Robert Harte opened the door, he was met by a Johnson County tactical team preparing to use a battering ram. When his wife got downstairs, he was on the ground, and an officer with an assault rifle was standing over him.
The Hartes and their two children were then forced to sit on their couch under armed guard while officers spent two to three hours searching their house. The officers didn’t find anything and eventually left, but without telling the Hartes why their home was searched.
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The Hartes tried and tried to get answers. After one year, two denied Kansas Open Records Act requests, more than $10,000 in attorney’s fees and articles in the Kansas City Star, the Hartes finally obtained the probable-cause document, the Capital-Journal reported.
It turns out law enforcement targeted the Hartes after the family bought some hydroponic equipment (to grow tomato plants indoors). Officers then found wet tea leaves in the family’s trash and mistakenly thought it was marijuana.
After their story became public, the Hartes were contacted by many other people whose homes had been raided without explanation. Unlike the Hartes, many of these people didn’t have the financial means to keep pressing for answers.
“On behalf of the law-abiding citizens of the state of Kansas,” Robert Harte told lawmakers, “I ask you to overturn this law.”
Sedgwick County District Court Judge Eric Yost and Mike Kautsch, a University of Kansas law professor, also told lawmakers that they favor opening probable-cause documents, the Capital-Journal reported. They understand the value of open records.
Some law enforcement officials worry that information in the documents might put witnesses at risk. But these documents are open in nearly every other state, and they don’t have problems. Also, Kansas could presume the records are open but allow for sealing or redacting certain information under special circumstances, which is how Texas does it.
State lawmakers – particularly libertarians and tea party-leaning Republicans – need to realize that unsealing these documents is important to preserving Fourth Amendment protections against unlawful searches. They need to do as Robert Harte requested and overturn the law.
For the editorial board, Phillip Brownlee