S.D.N.Y. concludes there is a somewhat limited common law right of access to the SW materials in the Michael Cohen case

On the motion of media organizations’ for access to the search warrant materials in the Michael Cohen case, the S.D.N.Y. concludes there is a limited common law right of access to the search warrant materials. Contrary to other courts, the court also concludes that there is no right of access under the First Amendment to the materials. Granted in part, denied in part, and the government should propose possible redactions. United States v. Cohen, 2019 U.S. Dist. LEXIS 20107 (S.D. N.Y. Feb. 7, 2019):

Like other courts in this circuit, this Court concludes that search warrants and search warrant materials are entitled to a strong presumption of public access. See, e.g., In re Search Warrant, 2016 WL 7339113, at *3 (S.D.N.Y. Dec. 19, 2016) (determining that “[t]he common law presumption of access to the search warrant and related materials” is “entitled to great weight”); Wells Fargo Bank, 643 F. Supp. 2d at 584-85 (affording search warrant affidavits a common law presumption “of the highest” weight); In re Sealed Search Warrants Issued June 4 & 5, 2008 (“Sealed Search Warrants”), 2008 WL 5667021, at *3 (N.D.N.Y. July 14, 2008) (concluding that the presumption of access attaching to search warrant materials “carries the maximum possible weight”). Indeed, search warrants are not merely “matters that directly affect an adjudication,” Amodeo II, 71 F.3d at 1049; they themselves represent a judicial determination that probable cause exists for governmental intrusion. And the information contained in search warrant applications and affidavits necessarily plays a direct role in a court’s determination of whether probable cause exists to support issuance of the warrant. See Wells Fargo Bank, 643 F. Supp. 2d at 584; see also Bernstein, 814 F.3d at 142 (citing Amodeo II, 71 F.3d at 1050) (describing the “locus of the inquiry” as “whether the document ‘is presented to the court to invoke its powers or affect its decisions'”).

To be sure, as the Media Organizations point out, (see Times Letter, at 2, 3; News Organizations Letter, at 1; CBS Letter, at 1), the public interest in the underlying subject matter of the Materials—which implicates the integrity of the 2016 presidential election—is substantial, cf. Bernstein, 814 F.3d at 143 (recognizing the public’s interest in the substantive allegations of a complaint sought to be unsealed). However, the analysis is a functional one—that is, the presumption of access is at its core tethered to the need for public monitoring of the federal courts and their exercise of judicial power. Cf. SEC v. Van Waeyenberghe, 990 F.2d 845, 847 (5th Cir. 1993) (explaining that “[t]he public’s right to information does not protect the same interests that the right of access is designed to protect”). As the Second Circuit explained,

Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions.

Amodeo II, 71 F.3d at 1050.

Thus, the public’s right of access to summary judgment materials in a mine-run case is not afforded any less weight based on its pedestrian nature. And conversely, the public has no presumption of access to discovery materials exchanged between the parties—no matter how sensational—if they play no role in the exercise of judicial power. Cf. Amodeo II, 71 F.3d at 1050 (“Documents that play no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the presumption’s reach . . . .”). Moreover, premising the weight of the common law presumption on the degree of public interest in the underlying substance of the document would require a court to engage in an inherently subjective determination as to the newsworthiness of particular information. Accordingly, this Court sees no basis to afford additional weight to the Materials simply by virtue of their subject matter. Cf. In re Application of the U.S., 707 F.3d at 294 (explaining that “[t]he mere fact that a case is high profile in nature does not necessarily justify public access”).

. . .

Rather, the relevant inquiry is whether public access to the Rule 41 Materials would play a “significantly positive” role in the functioning of the search warrant process in particular. Press-Enter. Co., 478 U.S. at 8-9 (“Although many governmental processes operate best under public scrutiny, it takes little imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly.”). This Court cannot conclude that public scrutiny of search warrants and supporting materials would significantly benefit the proper functioning of a process aimed at uncovering the fruits, instrumentalities, or other evidence of crime without also introducing “the potential of witness corruption, the destruction of evidence, and the flight of persons under investigation.” In re S.F. Chronicle, 2007 WL 2782753, at *2 (E.D.N.Y. Sept. 24, 2007); accord Wells Fargo Bank, 643 F. Supp. 2d at 583 n.6 (noting that “it is often crucial that probable cause determinations in connection with search and seizure warrants be shielded from public scrutiny at the time they are made in order to preserve the integrity and effectiveness of the related criminal investigations”).

Finally, the Times also asserts that public access would assist in monitoring the use of the Government’s search and seizure power. (See, e.g., Times Letter, at 5.) Certainly, the knowledge that the public might scrutinize a search warrant affidavit may well deter potential abuses of the search warrant process by law enforcement. But it may just as easily incentivize the government to selectively disclose or under-disclose information in warrant applications to protect the integrity of its investigations, which could in turn subvert the proper functioning of the investigatory process by “imped[ing] [a magistrate judge’s] ability to accurately determine probable cause.” In re Fair Finance, 692 F.3d at 432. On balance, disclosure would not play “a particularly significant role in the actual functioning” of the search warrant process or the larger investigatory process. Press-Enter. Co., 478 U.S. at 11. Accordingly, neither experience nor logic points to a First Amendment right to access the Rule 41 Materials.

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Nor does logic dictate that a First Amendment presumption of access should apply to search warrant proceedings, whose objective of obtaining evidence in a criminal investigation would be undermined if those involved with criminal activity had foreknowledge of an impending search. See Gunn, 855 F.2d at 573 (“[T]he very objective of the search warrant process, the seizure of evidence of crime, would be frustrated if conducted openly.”); Balt. Sun, 886 F.2d at 64 (explaining that “the proceeding for issuing a search warrant ‘is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove the evidence'” (citing Franks v. Delaware, 438 U.S. 154, 169 (1978)).

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