04D

D. Warrants, wiretaps and related materials

D. Warrants, wiretaps and related materials

Overview

Pennsylvania

The Pennsylvania Supreme Court has held that search warrants and their corresponding applications and affidavits are public judicial documents, and are therefore subject to a presumption of openness.  See PG Publishing Co. v. Commonwealth, 614 A.2d 1106, 1108 (Pa.

D. Warrants, wiretaps and related materials

Overview

Illinois

In 2010, an Illinois court held no right of access attached to a search warrant and a related search inventory that formed part of an ongoing investigation. In re Gee, 2010 IL App (4th) 100275, ¶ 37, 956 N.E.2d 460, 466, 353 Ill.Dec. 598, 604. The court distinguished the case from a 4th Circuit decision where a right of access had attached to an affidavit supporting a search warrant after the underlying investigation had concluded. Id. at ¶ 32 (citing In re Application & Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir. 1991)).

D. Warrants, wiretaps and related materials

Overview

9th Cir.

Preindictment, while there is an ongoing criminal investigation, there is no right of access to search warrant materials. After an indictment has been issued, such materials may be accessed under a common law right. See Times Mirror Co. v. Copley Press, Inc., 873 F.2d 1210 (9th Cir. 1989); United States v. Kott, 135 Fed. Appx. 69 (9th Cir. 2005).

D. Warrants, wiretaps and related materials

Overview

4th Cir.

There is a common law right of access to affidavits filed in support of search warrants, though this right may be outweighed by law enforcement’s interest in ongoing investigations. See Media General Operations, Inc. v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991).

D. Warrants, wiretaps and related materials

Overview

2nd Cir.

The Second Circuit has recognized a qualified First Amendment right of access to pretrial wiretap materials. See In re N.Y. Times Co., 834 F.2d 1152 (2d Cir. 1987). Wiretap materials sealed under the Crime Control Act Title III (which presumes closure) may only be accessed for “good cause.” See In the Matter of the Applic. of the N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 2009 U.S. App. LEXIS 17642 (2d Cir. Aug. 7, 2009); National Broadcasting Co. v. United States Dep’t of Justice, 735 F.2d 51 (2d Cir. 1984).

D. Warrants, wiretaps and related materials

Overview

Washington

Search warrants and accompanying affidavits are presumed open unless a law enforcement or privacy interest amounts to “good cause” for closure under the common law. See Washington v. Bews, 20 Media L. Rep. 1102 (Wash. 1992); Seattle Times Co. v. Eberharter, 105 Wash.2d 144, 713 P.2d 710 (Wash. 1986); Cowles Publishing Co. v. Murphy, 96 Wash. 2d 584, 637 P.2d 966 (Wash. 1981); Washington v. Gutierrez, 1993 WL 568713 (Wash. Super. Ct. 1993). 

D. Warrants, wiretaps and related materials

Overview

Michigan

The public right of access extends to court records such as search warrants. See Capital Cities Broadcasting Corp. v. Tenth Dist. Judge, 91 Mich. App. 655, 283 N.W.2d 779 (Mich. Ct. App. 1979).

D. Warrants, wiretaps and related materials

Overview

New Jersey

New Jersey does not recognize a right of access to affidavits and other materials submitted with search warrants while an investigation is ongoing. See United States v. Sealed Search Warrants, 28 Media L. Rep. 1151 (D. N.J. 1999). 

D. Warrants, wiretaps and related materials

Overview

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).

D. Warrants, wiretaps and related materials

Overview

Ohio

Ohio does not recognize a First Amendment right to access search warrant materials, but it does recognize a common law right. This common law right can be overcome; for example, when release would interfere with the ongoing criminal investigation. See In re Search of Fair Finance, Fair Fin., Obsidian Enters., 2010 WL 3210975 (N.D. Ohio Aug. 10, 2010); In Re Search Warrants for National Builders Corp., 833 F. Supp. 644 (N.D. Ohio 1993).