NC: SW materials not opened to public while investigation proceeds

There was only a qualified right of access to search warrant materials under statute and the First Amendment, and the district court did not abuse its discretion in not opening the materials when the murder investigation was still ongoing and no one had been arrested. In Re: Search Warrants Issued in Connection with the Investigation into the Death of Nancy Cooper, COA08-1280 (October 6, 2009:

We hold that the trial court properly sealed all the search warrants at issue in this case. A motion to seal search warrants and related documents is usually made when the government applies for the warrant. Baltimore Sun, 886 F.2d at 65. As stated in the 2008 Administrative order, law enforcement officers may notify the District Attorney’s office to obtain a motion and order to seal a search warrant at the time the affidavits and applications for search warrants are submitted to the trial court. However, as in the present case, a trial court judge may issue an ex parte sealing order at his discretion.

It is appropriate to seal such documents “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’” Id. At the time the probable cause affidavits were submitted and search warrants were issued, no suspect had been arrested in connection with Nancy Cooper’s homicide. Disclosure of the information contained in the affidavits and search warrants, as the trial court included in the order, would have been “premature, since the homicide investigation [was] ongoing and no perpetrator ha[d] been charged.”

If the trial court “decides to close a hearing or seal documents, ‘it must state its reasons on the record, supported by specific findings.’” In Re Washington Post, 807 F.2d 383, 391 (4th Cir. 1986) (quoting Knight Publishing Co., 743 F.2d at 234). The trial court “may explicitly adopt the facts that the government presents to justify sealing when the evidence appears creditable. But the decision to seal the papers must be made by the judicial officer[.]” Baltimore Sun, 886 F.2d at 65. The United States Supreme Court has “emphasized that the interest to be protected by closing trial proceedings [or sealing search warrants] must ‘be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’” Id. at 65 (quoting Press-Enterprise, 464 U.S. at 510, 78 L. Ed. 2d at 638). “[C]onclusory assertions are insufficient to allow review; specificity is required.” Id. at 66.