Search warrants and related materials are often treasure troves of information. Police generally attach affidavits to their applications for warrants in which they describe the evidence that, in their view, provides the “probable cause” necessary for a judge or magistrate to authorize the search. Reviewing these documents provides the press and public one of the best opportunities to keep tabs on criminal investigations.
Confusion in the courts.
As important as these documents are, however, courts have not been clear about whether the public has a right to review warrants and related materials. Indeed, in a series of cases arising out of the same 1988 investigation, different federal appellate courts came to very different conclusions.
The U.S. Court of Appeals in St. Louis (8th Cir.) heard one such case resulting from the investigation, in which federal agents executed more than 40 search warrants at offices around the country as part of an investigation of fraud and bribery in the defense industry. In that case, the warrant and attached materials had been sealed at the request of the government, but the publisher of the St. Louis Post-Dispatch sought access to the sealed warrant and related materials for the office of two employees of the McDonnell Douglas Corp., a Missouri-based defense contractor. (In re Search Warrant for Secretarial Area-Gunn)
The Eighth Circuit found that the First Amendment created a presumption of access to the search warrants and related materials. It reasoned that “although the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court without seal,” and “public access to documents filed in support of search warrants is important to the public’s understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct.”
The court added that “a search warrant is certainly an integral part of a criminal prosecution” because “search warrants are at the center of pretrial suppression hearings, and suppression issues often determine the outcome of criminal prosecutions.”
But the very next year, in another case arising from the same corruption investigation, the U.S. Court of Appeals in San Francisco (9th Cir.) refused to recognize a right of access to search warrants and related materials.
“With all due respect,” the court found, “we cannot agree with the Eighth Circuit’s reasoning.” The court found just because search warrants and supporting affidavits are often filed without a seal, that does not establish a First Amendment right of access to them.
It also rejected the idea that public scrutiny would improve the functioning of the warrant process, finding that “whatever the social utility of open warrant proceedings and materials while a pre-indictment investigation is ongoing, we believe it would be outweighed by the substantial burden openness would impose on government investigations.”
But the court emphasized that it was not deciding the question of access to warrant materials when an investigation has been terminated or “an investigation is still ongoing, but an indictment has been returned.” (Times Mirror Co. v. U.S.).
Further complicating matters, the U.S. Court of Appeals in Richmond (4th Cir.) that same year recognized a right of access to warrants, but it based the access right on the common law — case law developed by courts over long periods — rather than the First Amendment. In a case dealing with sealed affidavits attached to search warrants from an investigation of the health insurance industry, the court observed that “the circuits are split on the press’s First Amendment right of access to search warrant affidavits.” It agreed with the Times Mirror court that there was no First Amendment right of access to an affidavit for a search warrant, but it found that the affidavits were judicial records subject to a common-law presumption of openness. (Baltimore Sun Co. v. Goetz).
As these cases show, courts have differed sharply on the access rights to warrant materials. The Goetz court noted that the distinction between a First Amendment right and a common law right is significant because “a First Amendment right of access can be denied only by proof of a compelling governmental interest and proof that the denial is narrowly tailored to serve that interest.” On the other hand, the common law right is left to the “sound discretion of the trial court” based on the facts and circumstances of a particular case.
But, as stark as these differences seem, they often blend together in application during an active investigation. In the Times Mirror case, the court refused to recognize any right of access to warrant materials while an investigation is ongoing, allowing them to be sealed indefinitely. But even the Gunn court, which found that the First Amendment created a presumption of access to warrant materials, concluded that “the government has demonstrated that restricting public access to these documents is necessitated by a compelling government interest – the ongoing investigation.”
It added that “line-by-line redaction of the sealed documents was not practicable” because “virtually every page contains multiple references to wiretapped telephone conversations or to individuals other than the subjects of the search warrants or reveals the nature, scope and direction of the government’s on-going investigation.” And while the Goetz court remanded the case for a more detailed determination, the Fourth Circuit has found in subsequent cases that the interest in protecting that investigation may overcome any public right of access. (Media General Operations, Inc. v. Buchanan)
After the investigation is over, however, the situation changes. The need to protect an ongoing investigation, often considering compelling, is no longer an issue. In one such case, for example, Newsday requested access to a search warrant application that included information from a wiretap. The application had originally been sealed at the government’s request, but “following a guilty plea by the subject of the wiretap, the government withdrew its earlier objection to unsealing the application.” The subject of the wiretap, however, still objected to public disclosure.
The U.S. Court of Appeals in New York (2nd Cir.) in 1990 recognized that other federal appellate courts disagreed on whether the public had a right to access warrant records while an investigation was still active. But it took no position on that split, instead finding a common law right to inspect the warrant application because by the time the request was made “the warrant has been executed, a plea-bargain agreement has been reached, the government admits that its need for secrecy is over, and the time has arrived for filing the application with the clerk.” (In re Application of Newsday, Inc.)
Courts often still balance the interests in privacy and a fair trial against the public interest in disclosure of warrant materials.
The U.S. Court of Appeals in Richmond (4th Cir.), for example, heard a case in 1991 dealing with a search warrant issued after “a five year old girl vanished from a community Christmas party she was attending with her mother in Fairfax County, Virginia.” After a grand jury indicted a man for “abduction with the intent to defile,” The Washington Post asked for the search warrant affidavit to be unsealed and the government agreed that most of the affidavit could safely be released. But the defendant opposed the motion, claiming release of the information would undermine his Sixth Amendment right to a fair trial.
The court ruled that “it cannot be that pretrial publication of affidavits in support of search warrants is altogether forbidden as a matter of law.” The balance between access and fair trial rights must be “carefully struck in each case,” it said.
The court noted that the presumption is in favor of access, and that pretrial publicity “cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.” (In re Application and Affidavit for a Search Warrant).
As a practical matter, however, most trial courts will look first to statutes or court rules to determine whether search warrant materials can be sealed. For example, the court overseeing the Le case noted that Connecticut state law allows search affidavits to be sealed temporarily if the safety of a confidential informant would be jeopardized, if a continuing investigation would be affected, and if disclosure is prohibited under the wiretap statute.
“Of course, where a statute or court rule conflicts with a constitutional access right, it can be challenged,” the court added. “But, especially at the trial court level, showing the court that the rules favor disclosure may be more effective than mounting a First Amendment challenge to secrecy.”