CA9: Target of search has common law right of access to search warrant materials

The Ninth Circuit joins virtually every other jurisdiction and holds that there is a common law right of access to search warrant materials, thus declining to reach the constitutional issues of whether the Fourth Amendment requires it. United States v. The Business of the Custer Battlefield Museum and Store Located at Interstate 90, Exit 514, South of Billings, Montana, 658 F.3d 1188 (9th Cir. 2011):

We also agree with these courts that post-investigation warrant materials fall outside the “narrow range of documents [that are] not subject to the right of public access at all because the[y] have ‘traditionally been kept secret for important policy reasons.’” Kamakana, 447 F.3d at 1178 (quoting Times Mirror, 873 F.2d at 1219). As we acknowledged in Times Mirror, 873 F.2d at 1213-14, 1218, warrant materials have not historically been accessible to the public during the early stages of criminal proceedings. “Warrant application proceedings are highly secret in nature and have historically been closed to the press and public.” Wells Fargo, 643 F. Supp. 2d at 583; see also Baltimore Sun, 886 F.2d at 64 (“[P]roceedings for search warrants are not open to the public.”); Gunn, 855 F.2d at 573 (“[H]istorically the process of issuing search warrants involves an ex parte application by the government and in camera consideration by the judge or magistrate. Moreover, the very objective of the search warrant process, the seizure of evidence of crime, would be frustrated if conducted openly.”).

[5] Post-investigation, however, warrant materials “have historically been available to the public.” In re N.Y. Times Co., 585 F. Supp. 2d at 88. “Search warrant applications … generally are unsealed at later stages of criminal proceedings, such as upon the return of the execution of the warrant or in connection with post-indictment discovery.” Wells Fargo, 643 F. Supp. 2d at 581. “[A]lthough the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court without seal.” Gunn, 855 F.2d at 573 (emphasis added). In the post-investigation context, warrant materials have generally been open to the public.

[6] This tradition of openness “serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police.” In re N.Y. Times Co., 585 F. Supp. 2d at 90. Warrant materials are also “often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures.” Id. As the Eighth Circuit has observed, “public access to documents filed in support of search warrants is important to the public’s understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct.” Gunn, 855 F.3d at 573; see also Wells Fargo, 643 F. Supp. 2d at 583 (stating that access to warrant materials “promotes the legitimate interests of the public and the press in ‘keep[ing] a watchful eye on the workings of public agencies’” (alteration in original) (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995))).

[7] For these reasons, we hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. In doing so, we decline to extend Times Mirror to post-investigation access. …