S.D.Tex.: “the qualified common-law right of access to affidavits supporting search warrants when a pre-indictment investigation is underway” applies to defendant, too

Under Baltimore Sun, “the public has a qualified common-law right of access to affidavits supporting search warrants when a pre-indictment investigation is underway.” That includes the defendant. He also gets return of any privileged documents and to copies of others, but not their return. In re Search Warrant Executed on March 22, 2016 U.S. Dist. LEXIS 73026 (S.D.Tex. May 20, 2016):

Furthermore, the Court finds the Fourth Circuit’s approach to defining the common-law right of access in Baltimore Sun persuasive. In Baltimore Sun, the Fourth Circuit recognized that the “common[-]law qualified right of access to the warrant papers is committed to the sound discretion of the judicial officer who issued the warrant.” 886 F.2d at 65. It then set out the standard governing the exercise of that discretion: the judicial officer may deny access where restriction is “‘essential to preserve higher values and is narrowly tailored to serve that interest.'” Baltimore Sun, 886 F.2d at 65-66 (quoting Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501, 510 (1984) (Press-Enterprise I)). Because the judicial officer must consider alternatives to keeping the documents sealed, disclosure of some documents or provision of a redacted version will ordinarily be necessary. Baltimore Sun, 886 F.2d at 66. Moreover, if a court denies access to the requested materials, it must make specific findings demonstrating that other considerations outweigh the interests in providing access; “conclusory assertions are insufficient.” Id. at 66 (citing Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty., 478 U.S. 1, 14 (1984) (Press-Enterprise II)). By contrast, in Times Mirror, the Ninth Circuit adopted a categorical rule that “the ends of justice would be frustrated, not served, if the public were allowed access to warrant materials in the midst of a pre[-]indictment investigation into suspected criminal activity.” 873 F.2d at 1219. The Ninth Circuit opined that if “the supporting affidavits were made public when the investigation was still ongoing, persons identified as being under suspicion of criminal activity might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction.” Id. at 1215. Accordingly, it held that there is, per se, no common-law right of access to such materials during an investigation.

Baltimore Sun’s fact-sensitive approach is consistent with the qualified nature of the right of access and the accretive common-law process from which it derives. See Nixon, 435 U.S. at 598-99 (declining to provide “a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate”); Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 256 (1974) (Supreme Court would proceed “cautiously, in the traditional case-by-case approach of the common law”). Whether unsealing an affidavit will unduly interfere with an ongoing investigation necessarily depends on the content of that particular affidavit, the precise nature of that investigation, and other case-specific factors. See Nixon, 435 U.S. at 599 (trial court discretion over access should “be exercised in light of the relevant facts and circumstances of the particular case”). Baltimore Sun’s framework accounts for those factors, and thereby also promotes the Fifth Circuit’s admonition that courts exercise their discretion to seal judicial records “charily,” Van Waeyenberghe, 990 F.2d at 848 (internal quotation marks omitted) (quoting Fed. Say. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987)). The Ninth Circuit’s categorical approach in Times Mirror, on the other hand, precludes case-by-case development of the right of access and excludes an entire category of judicial documents from public access based on an abstract assessment of interests viewed in the aggregate.

In maintaining that Smith has no right to access the affidavits, the Government cites the Seventh Circuit’s decision in In re EyeCare Physicians of America, 100 F.3d 514 (7th Cir. 1996). In EyeCare, a company whose premises had been searched pursuant to a search warrant moved to unseal the application and affidavit supporting the warrant. Id. at 515. The district court denied the motion based on an ongoing government investigation. Id. at 516. Affirming the district court, the Seventh Circuit held that the company had no right to the application or affidavit under the Fourth Amendment or the Due Process Clause of the Fifth Amendment. Id. at 516-17. Because Smith argues that he has a right to the affidavits under the common law, and not under the Fourth or Fifth Amendments, EyeCare is inapposite. Indeed, the Seventh Circuit expressly recognized the common-law right of access and reviewed the district court’s refusal to unseal in light of that right. Id. at 517-19 (ultimately upholding the district court because disclosure would “breach the secrecy of the grand jury” and entail other adverse consequences).