CA5: There is a common law right of access in SW materials by the target of the search

A search target has a common law right of access to the search warrant materials, but the case is remanded to the district court for more factual findings of why the target can’t get access. [The target did not raise a First Amendment right of access.] United States v. Sealed Search Warrants, 2017 U.S. App. LEXIS 15905 (5th Cir. Aug. 23, 2017) (see Treatise § 59.08):

We hold that the qualified common law right of access can extend to an individual seeking to access pre-indictment search warrant materials, and the decision of whether access should be granted must be left to the discretion of the district court, upon the court’s consideration of “the relevant facts and circumstances of the particular case.” Nixon, 435 U.S. at 599. Though the district court purported to conduct this case-specific analysis, its findings evade meaningful appellate review because they are too conclusory and lack detail, as this circuit and other circuits have required in similar situations. For these reasons, the judgment of the district court is vacated and remanded for further factual clarification.

a. The qualified common law right of access must be assessed on a case-by-case basis.

. . .

iii. Discussion

In the Fifth Circuit, the common law right of access to judicial records has consistently been addressed on a case-by-case basis, indicating that this Court should adopt such an approach in the context of pre-indictment warrant materials. In all of the major cases discussed above, the Fifth Circuit has left the decision to seal judicial records to the discretion of the district court. And in so doing, the Fifth Circuit has consistently required the district court to explain its decisions to seal or unseal. Van Waeyenberghe, 990 F.2d at 849 (“We find no evidence in the record that the district court balanced the competing interests prior to sealing the final order. First, the district court made no mention of the presumption in favor of the public’s access to judicial records. Second, the district court did not articulate any reasons that would support sealing the final order.”); Holy Land Foundation, 624 F.3d at 690 (“Here, the district court did not explain why it chose to seal its opinion and order holding that [the Trust's] rights were violated.”).

Underscoring this conclusion, the policy justifications that concerned the Ninth Circuit in Times Mirror are not at all diluted by a case-specific approach. In any given case, the discretion of the district court protects these interests, as this Court has repeatedly emphasized; in other words, this Court has consistently trusted district courts to exercise their discretion to determine when court files “might … become a vehicle for improper purposes.” Van Waeyenberghe, 990 F.2d at 848. If the unsealing of pre-indictment warrant materials would threaten an ongoing investigation, the district court has discretion to make redactions prior to unsealing or, where necessary, to leave the materials under seal. The same is true where unsealing such materials might endanger or discourage witnesses from providing evidence or testimony, or where the publication of a warrant could damage an unindicted target’s reputation while leaving no judicial forum to rehabilitate that reputation.

The final reasons for extending the Fifth Circuit’s general approach and adopting the Fourth Circuit’s reasoning from Baltimore Sun are the affirmative policy justifications behind the common law right of access to judicial documents. This Court in Van Waeyenberghe acknowledged that the right of access promotes the trustworthiness of the judicial process, curbs judicial abuses, and provides the public with a better understanding of the judicial process, including its fairness. Id. at 849. The right serves as a “check[ ] on the integrity of the system.” Id. at 849-50 (quoting Wilson v. American Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985) (alterations original)); see also Holy Land Foundation, 624 F.3d at 690 (“‘Public confidence [in our judicial system] cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from public view.’” (quoting In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 230 (5th Cir. 2008) (alterations in original)). A case-by-case approach to pre-indictment warrant materials gives the district court discretion in balancing the legitimate interests against public access against the public’s interests supporting access.

In sum, we extend the case-by-case approach previously used by this Court for assessing the common law qualified right of access to judicial records to situations involving an individual’s request to access pre-indictment warrant materials such as the affidavits in this case. In cases involving a request to unseal affidavits in support of pre-indictment search warrants, district courts should exercise their discretion by balancing the public’s right to access judicial documents against interests favoring nondisclosure. Van Waeyenberghe, 990 F.2d at 848.

b. The district court abused its discretion by finding that the pre-indictment warrant materials here should remain sealed without making sufficient factual findings.

Having extended a qualified right of access to pre-indictment warrant materials, the Court now turns to whether the district court properly found that the pre-indictment warrant affidavits in this case should remain sealed.

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