Access right applies to post-investigation search warrants

The public has a right to view materials filed in support of search warrant applications once an investigation is over, a federal appeals court recently held, adding that the right of access is infringed when the material is sealed because of general concerns that it may be posted online.

The opinion of a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) answers a question left unresolved by an earlier Ninth Circuit ruling addressing public access to search warrant materials. In that 1989 case, Times Mirror Co. v. United States, the court refused to recognize a right of access to search warrants and related materials during an ongoing criminal investigation.

However, the substantial burdens that openness would impose during the pre-indictment stage of an ongoing criminal investigation are less relevant once the investigation has ended, the court ruled Friday in United States v. Kortlander.

“In Times Mirror, we were concerned primarily with the impact disclosure would have on an ongoing criminal investigation. We said[,] ‘[f]irst, and most obviously, if the warrant proceeding itself were open to the public, there would be the obvious risk that the subject of the search warrant would learn of its existence and destroy evidence of criminal activity before the warrant could be executed . . . .’ These are important concerns, but they are not as relevant once an investigation has been terminated,” the court said. (The emphasis is in the opinion.)

In 2005, the federal government began investigating Christopher Kortlander, owner of the Custer Battlefield Museum in Garryowen, Mont., for unlawfully attempting to “sell migratory bird parts and for fraudulently misrepresenting the provenance of historical artifacts for sale,” according to the opinion. Two search warrants were executed during the investigation, one in 2005 and the other in 2008, and the court sealed the affidavits supporting the warrant applications. Police generally attach such affidavits to their applications for warrants in which they describe the evidence that, in their view, provides the “probable cause” necessary for a judge to authorize the search. The government eventually declined to file any criminal charges in connection with the investigation against Kortlander.

In 2010, Kortlander asked the trial court to unseal the search warrant applications and supporting affidavits. Although prosecutors did not object to Kortlander receiving access to the records, they asked the court to limit disclosure of the materials to his personal review only, citing privacy interests of third parties in light of “[c]oncerns [that had] been raised that information collected by Kortlander may be posted on web sites,” the opinion stated.

The court granted Kortlander’s request for access to the warrant materials but limited his access as the government suggested, advising “that the information is to be used only for personal review and/or inclusion in any future court filings. Kortlander is ordered not to post the warrant applications on any websites,” according to the opinion.

In holding that the common law — or case law developed by courts over long periods — establishes a right of access to warrant materials after an investigation has ended, the Ninth Circuit joined a number of other federal courts that have reached the same conclusion. Other courts have gone further and held that a First Amendment right of access applies to these documents — an issue the Ninth Circuit specifically declined to address in this ruling.

“In the post-investigation context, warrant materials have generally been open to the public,” the court stated. “This tradition of openness serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police. Warrant materials are also often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures.”

Because the public has a qualified common law right of access to post-investigation warrant materials, a strong presumption of access attaches to the documents, and a party seeking to seal a judicial record must overcome this strong presumption by articulating compelling reasons that outweigh the general history of access and the public policies favoring disclosure, the court held. The trial court must then balance the competing interests of the public and the party who seeks to keep certain judicial records secret, basing any decision to seal certain judicial records on a compelling reason supported by specific factual findings, it added.

Although the trial court in this case properly found that a common law right of access attached to the documents at issue, the restrictions it imposed on Kortlander’s use of the materials did not conform to this standard, the court ruled.

“Although the court ruled that Kortlander may not post the warrant applications on any websites, it did not articulate a compelling reason for these limitations or a factual basis for its ruling,” according to the opinion. “Even when we look [to the government’s arguments], we do not find a compelling reason or a factual basis for the restrictions. The [government] said only that concerns have been raised that information collected by Kortlander may be posted on web sites, and cited the general principle that individuals identified in warrants have privacy interests that may justify denying access.”

The Ninth Circuit sent the case back to the trial court to correctly balance the public’s interest in disclosure against any countervailing concerns that may apply and to articulate both a compelling reason and factual basis for a decision limiting Kortlander’s access to the documents.