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An ex parte order of impoundment may be issued by the court without prior notice only upon either the filing of a written motion supported by affidavit in the manner provided in URIP Rule 2, or by the court sua sponte, and only upon a showing that immediate and irreparable injury may result before a party or interested nonparty can be heard in opposition. The court may conduct an ex parte hearing prior to issuing an order.
An ex parte order of impoundment shall include the date of issuance and the clerk shall record the filing of the order on the docket and store the order with the underlying materials. An ex parte order of impoundment shall expire ten days from the date of issuance unless otherwise ordered by the court for good cause shown.
After the court has ruled on the ex parte motion for impoundment, the movant, unless the ruling was sua sponte by the court, shall serve a copy of the motion, supporting affidavit, and any other related documents, on the parties and any interested nonparty. The court shall provide notice of the ex parte order or the sua sponte order and the scheduling of any subsequent hearing. The court has discretion to order that certain notice requirements be withheld for good cause shown.
Any party or interested nonparty aggrieved by an ex parte order may file a written motion to vacate or modify the ex parte order. The motion may request a hearing not fewer than two days from the date of filing. Any motion to modify or terminate an ex parte order shall be accompanied by a certificate of service that notice has been provided to all parties, any interested nonparty, and any other person named by the court.
(1) Ex Parte Motion for Impoundment, Order, and Notice. An ex parte motion to impound materials related to the issuance and/or execution of a search warrant may be filed and allowed in conformance with Rule 3(a). The court may enter, contemporaneously with or subsequent to the issuance of a search warrant, an ex parte order that the search warrant application and any related materials be impounded upon their return to the court. An ex parte order of impoundment shall expire ten days from the date of issuance unless otherwise ordered by the court for good cause shown. The clerk shall record the filing of any order on the docket or, if a docket for search warrants is not maintained, on the clerk's application folder. The court has discretion to order that the notice requirements of Rule 3(c) be withheld for good cause shown.
(2) Motion to Modify or Terminate an Ex Parte Order Related to a Search Warrant. After an order to impound a search warrant or related materials has issued, any motion for relief from the impoundment order shall be filed in the court or division where the search warrant was returned. A judge in the court or division where the search warrant was returned may request the transfer of a hearing on a motion to impound a search warrant or motion for relief of an impoundment to a different court department or division (i) if the impoundment order was ordered by a judge of a different court department or division or (ii) if a criminal case relating to the search warrant is pending in a different court department or division.
Motion. URIP Rule 3 provides that the court may grant an ex parte order of impoundment, “only upon written motion supported by affidavit . . . showing that immediate and irreparable injury may result before a party or interested nonparty can be heard in opposition.” This standard is similar to that set forth in Rule 65(a) of the Massachusetts Rules of Civil Procedure, governing the issuance of a temporary restraining order. See Mass.R.Civ.P. 65(a).
Sua Sponte Impoundment Order. A court may enter sua sponte an ex parte order of impoundment, that must otherwise comply with the provisions of Rule 3. A court has the inherent power "'to impound its files in a case and to deny public inspection of them, and that is often done when justice so requires.'" H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987) (quoting from Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158 (1945)). See Newspapers of New England, Inc. v. Clerk-Magistrate of Ware Div. of Dist. Court Dep't., 403 Mass. 628, 631-632 (1988); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 604 (2000) ("Courts possess supervisory power of their records and files, and have properly denied public access where those records and files 'might have become a vehicle for improper purposes.'") (citation omitted). A sua sponte order of impoundment is appropriate "where 'good cause' is shown." Commonwealth v. George W. Prescott Publishing Co., LLC, 463 Mass. 258, 263 (2012). A sua sponteimpoundment order is an interim order which must comply with the Trial Court's Uniform Rules on Impoundment Procedure. If the court sua sponte enters an impoundment order ex parte, the court must provide notice to the parties and interested persons and may schedule a subsequent hearing. When, however, during an ongoing proceeding the court sua sponte raises an issue of impoundment with the parties present and provides them an opportunity to be heard, no subsequent hearing may be necessary, and any order of impoundment may include a duration longer than the ten- day limit imposed by Rule 3(b). A sua sponte order will be subject to any subsequent motions to modify or vacate.
The court may, but is not required to, hold a hearing before issuing an ex parte order of impoundment.
In practice, ex parte motions for impoundment are regularly filed to impound materials related to the issuance and/or execution of a search warrant. See, e.g., New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 79 (2012). Although a motion for impoundment is unnecessary because G. L. c. 276, § 2B requires that an affidavit filed in support of an application for a search warrant shall be impounded until the search warrant is returned, it is nonetheless permissible to file, prior to the return, a motion to impound the materials after return of the warrant. In such circumstances, therefore, prior to the return, only a notice of the filing of impounded information, as required by URIP Rule 13, needs to be filed for the clerk to designate the search warrant application materials as impounded. See URIP Rule 13. Neither a motion, service, nor hearing is required for the application materials to be impounded.
The Commonwealth must execute the search warrant “within a reasonable time.” G. L. c. 276, § 2A ; Commonwealth v. Cromer, 365 Mass. 519, 522 (1974). After its issuance, the warrant must then be returned to court within seven days. G. L. c. 276, § 3A . See Commonwealth v. Cromer, 365 Mass. at 524; Commonwealth v. Kaupp, 453 Mass. 102, 114-115 (2009). Once the warrant has been returned to the court, the warrant and affidavit lose their impoundment status and are public documents. In re Globe Newspaper Co., Inc., 461 Mass. 113, 118 (2011); Commonwealth v. Rutkowski , 406 Mass. 673, 674 n.3 (1990); Newspapers of New England, Inc. v. Clerk-Magistrate of Ware Div. of Dist. Court Dep't., 403 Mass. 628, 631 (1988). A judge, however, possesses inherent authority to impound the affidavit, warrant, and related documents pursuant to the Uniform Rules on Impoundment Procedure. See Newspapers of New England, Inc. v. Clerk-Magistrate of Ware Div. of Dist. Court Dep't., 403 Mass. 628, 632-633 (1988). An ex parte request to impound a search warrant may be filed and ordered anytime subsequent to the issuance of the search warrant.
The court may enter an order to extend any ex parte order allowing impoundment beyond ten days for good cause shown. Examples of situations that constitute “good cause” as defined in URIP Rule 7(b) include, but are not limited to: search warrants containing sensitive investigative information; documents containing information pertaining to an ongoing grand jury investigation; or information that, the public dissemination of which, could compromise a defendant's constitutional right to a fair trial or the Commonwealth's vital interest in the fair administration of justice. Such an order would continue to be subject to modification or termination under URIP Rule 10.
It is common practice for a Superior Court judge to issue an ex parte impoundment order of the search warrant application and affidavit when issuing a search warrant under G. L. c. 276, § 3A. Although the warrant and affidavit are not public documents until the warrant is returned, see G. L. c. 276, § 2B, the impoundment order acts to continue the impoundment status of the warrant and affidavit immediately after the search warrant is returned to the District Court or Boston Municipal Court.
When a motion to impound a search warrant has issued, any motion for relief of an impoundment order shall be filed in the court or division where the search warrant was returned. A judge in the court or division where the search warrant was returned may request the transfer of a hearing on a motion to impound a search warrant or motion for relief of an impoundment to another court department or division (1) if the impoundment order was ordered by a judge of another court department or division or (2) if a criminal case relating to the search warrant is pending in another court department or division. See Trial Court Rule XII, Requests for Interdepartmental Judicial Assignments.
Ex parte motions for impoundment also arise in criminal proceedings on discovery matters. See Republican Co. v. Appeals Court, 442 Mass. 218, 220 & 220 n.2 (2004); Commonwealth v. Mitchell, 444 Mass. 786, 788 (2005); Commonwealth v. Carney, 458 Mass. 418, 431 (2010). Ex parte motions and in camera review have been found to be appropriate in connection with other aspects of criminal cases, as well. See, e.g., Commonwealth v. Martin, 423 Mass. 496, 505 (1996) (validity of a grand jury witness’s claim of immunity); WBZ-TV v. District Attorney for the Suffolk Dist., 408 Mass. 595, 598 (1990) (disclosure of relevant witness statement would compromise ongoing grand jury investigation); Globe Newspaper Co. v. Commonwealth, 407 Mass. 879, 885 n. 8 (1990) (evidence and argument bearing on reason for closure); Commonwealth v. Amral, 407 Mass. 511, 525 (1990) (whether to hold a Franks hearing exploring validity of averments in a search warrant affidavit based on confidential informant information); Newspapers of New England, Inc. v. Clerk-Magistrate of Ware Div. of Dist. Court Dep't., 403 Mass. 628, 638 (1988) (judge’s statements regarding need for impoundment).