S.D.N.Y.: No precharge right of access to SW materials while investigation ongoing

The target of a search (here Rudy Giuliani) doesn’t have a precharge right of access to the materials where the investigation is ongoing. In re Search Warrants Executed on April 28, 2021, 2021 U.S. Dist. LEXIS 101348 (S.D. N.Y. May 28, 2021):

Giuliani requests that the Court unseal the affidavits submitted in support of the 2019 and 2021 warrants so he can challenge their legality. But he is not entitled to a preview of the Government’s evidence in an ongoing investigation before he has been charged with a crime.

Giuliani cites no precedent — and the Court is aware of no authority — for the proposition that the Fourth Amendment (or any other constitutional or statutory provision) gives a person who has not been charged a right to review a search warrant affidavit during an ongoing investigation. See, e.g., Matter of EyeCare Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996).

Assuming that the search warrant affidavits are “judicial documents” to which the First Amendment and common law right of access applies, the Court finds that the presumption of access is plainly outweighed by the need to protect a grand jury investigation that is ongoing. “Among other things, if matters relating to grand jury proceedings became public, prospective witnesses may be deterred from testifying, those who do testify may be less likely to do so truthfully, targets of investigations may flee, and persons who are the subject of an ultimately meritless investigation may face public embarrassment.” United States v. Haller, 837 F.2d 84, 87-88 (2d Cir. 1988) (citation omitted).

If Giuliani is charged with a crime, of course, he will be entitled to production of the search warrant affidavits as part of discovery pursuant to Federal Rule of Criminal Procedure 16. He will also be able to file motions challenging the warrants under Rule 12. But such disclosure is premature at the present stage.

This request is therefore denied.