Court rules affidavits in T. Denny Sanford investigation should be released
Sanford legal team argued it should have opportunity to redact
The affidavits that were used to obtain search warrants in a child pornography investigation into billionaire T. Denny Sanford must be made public, a unanimous South Dakota Supreme Court ruled Thursday.
The decision upholds a ruling from Judge James Power, the Minnehaha County judge who signed off on the warrants — the first of which was issued in December of 2019.
Four additional warrants were issued in March of 2020 as investigators sought to review electronic devices and accounts that Sanford owned.
The affidavits remained sealed under state law while the investigation was underway. But last May, the Attorney General’s Office notified Power that the investigation had been closed without prosecution. Sanford’s legal team had argued that his accounts had been hacked.
Power rule in June that the affidavits should be released. Sanford appealed to the Supreme Court.
Search warrant affidavits are written narratives describing the probable cause that exists for judges to consider when deciding whether to issue search warrants. Under state law, they can be sealed until a subject is indicted or a case is closed, as in Sanford’s case.
Sanford’s legal team argued that it should have an opportunity to inspect the affidavits prior to their public release in order to argue that sensitive information should be redacted. Power had already indicated that he would redact personal information including Social Security numbers and addresses.
The Supreme Court found that nothing in state law allows for such inspection by a subject of a search warrant.
“Moreover,” wrote Chief Justice Steven Jensen in the 5-0 opinion, “we find no abuse of discretion in the court’s decision to deny Sanford’s request to inspect the affidavits and participate in the redaction of personal information before unsealing the affidavits.”
“In considering Sanford’s request to participate in the redaction process before unsealing the affidavits,” Jensen added, “the court determined that it was appropriate for the court, rather than Sanford, to redact any ‘personally identifying information,; such as ‘personal email addresses, home addresses, phone numbers, and birth dates.’ In doing so, the court aptly expressed concerns that allowing the parties to participate in the redaction process would further extend the litigation and unnecessarily delay the unsealing of the affidavits required by SDCL 23A-35-4.1.”
It was the second time that ProPublica and the Argus Leader had been to the Supreme Court in this case. Earlier, in a case known as Implicated Individual I, the media organizations had successfully persuaded the court that state law required the returns and warrants from search warrants be made public. Those returns revealed what accounts and devices investigators were searching.
But they did not disclose why they were being searched. That information is expected to be contained in the affidavits.
Jon Arneson, the lawyer who represented the Argus Leader, said Thursday he expects the affidavits to be made public after the time period elapses in which Sanford’s legal team can request a rehearing.
The South Dakota Attorney General’s Office also argued that the affidavits should be public. Current Attorney General Marty Jackley had been Sanford’s lawyer while in private practice.
Thursday’s decision came only three weeks after the court heard oral arguments in the case, which was dubbed Implicated Individual II
Sanford, 87, made his fortune as the founder of First Premier Bank.