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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)