D. Warrants, wiretaps and related materials

Overview

The Supreme Court has not ruled on the public right of access to applications for search warrants, supporting affidavits, or returns. Indeed, federal appellate courts disagree about whether the public has a right of access to these documents. See, e.g., Times Mirror Co. v. U.S., 873 F.2d 1210, 1211 (9th Cir. 1989) (“members of the public have no right of access to search warrant materials while a pre-indictment investigation is under way”); In re Application and Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir. 1991) (“a newspaper has a common law right of access to affidavits supporting search warrants, although not a First Amendment right of access”); In re Search Warrant for Secretarial Area-Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (“the first amendment right of public access does extend to the documents filed in support of search warrant applications”). However, even courts recognizing a presumption of access to search warrant materials will often find the need to protect the integrity of an ongoing investigation to override the presumption of access. Id. at 574.

The Supreme Court has not ruled on public access to wiretap materials. The Seventh Circuit noted, however, that the First Amendment permits limiting public access to wiretap materials “unless and until admitted into evidence at a trial or other public proceeding.” U.S. v. Dorfman, 690 F.2d 1230, 1234 (7th Cir. 1982).

6th Cir.

The Court of Appeals for the Sixth Circuit applies the “experience and logic” test of Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) when reviewing the right of access to search warrants and related materials and proceedings. The Court does not recognize a First Amendment right of access to these documents, though it acknowledges that a common law right may apply in some cases. See, e.g., In re Search of Fair Finance, 692 F.3d 424 (6th Cir. 2012).