Search warrant papers were judicial documents and were presumptively disclosable. Here, the CIs were not easily discoverable, and, on balance, the records should be ordered unsealed. In re Sealed Search Warrant, 2006 U.S. Dist. LEXIS 89255 (N.D. N.Y. December 11, 2006):

The search warrants, orders, and return in the files of the search warrants do not contain any information which reasonably could reveal the identities of any confidential source of information or either uncharged third-party. Given the presumption of access applicable here, those documents must be unsealed.

The affidavits of Hautau and Bragg present more difficult questions. As noted, the weight of the presumption here is great. That presumption arises from the need to permit meaningful monitoring of judicial actions. As to the confidential sources of information, the confidentiality of the identities of those sources remains critical to law enforcement's ability to obtain reliable information on criminal activity by assuring sources of that information that their identities will remain undisclosed. Amodeo II, 71 F.3d at 1051-52. Here, the need to preserve that confidentiality may easily be accommodated with public access to the affidavits by redacting the limited information in the affidavits which might serve to identify those sources. Redacting such information would not impair meaningful monitoring of the judicial determinations related to the search warrants and in such circumstances, redaction and release rather than continued complete sealing has consistently been employed and approved. See Amodeo II, 71 F.3d at 1052 (approving redaction of the identities of confidential sources from a report filed with the court). Thus, while this factor does not require continued sealing of the entire affidavits, it supports redacting the limited information which would serve to identify the confidential sources.

As to the two uncharged individuals identified by name in the affidavits, the Second Circuit has held that "the privacy interests of innocent third parties . . . should weigh heavily in a court's balancing equation." In re New York Times Co., 825 F.2d 110, 116 (2d Cir. 1987); Gardner, 895 F.2d at 79-80. Prior cases have recognized the need to protect third-parties from the disclosure of information which is "scandalous, unfounded, or speculative." Amodeo II, 71 F.3d at 1052 (sealing portions of a document containing accusations which were unsworn and "of doubtful veracity, possibly stemming in part from personality conflicts.").

Here, the information concerning the two individuals was reported by two FBI agents and made under oath. By their sources and form, therefore, the affidavits bear reasonable indicia of reliability and trustworthiness. Moreover, the information related in the affidavits about the two individuals is not salacious, sensational, or descriptive of private, embarrassing conduct unrelated to the business matters under investigation. The information contained in the affidavits about the two individuals is limited to the details of business transactions in which the two were involved with Dare. Additionally, while the United States asserts that neither individual has been or will be charged with any federal offense, both affidavits assert that there was probable cause to believe that Dare and the two individuals "misappropriated rental proceeds and other income for their own use." While uncharged, therefore, it remains open to question whether their conduct was "innocent." See Gardner, 895 F.2d at 79 (citation omitted).

Finally, the premise of the federal investigation of Dare and those associated with him was that mortgages obtained to finance certain real estate purchases were insured by the United States Department of Housing and Urban Development (HUD), which regulated the use of income received from the property. The individuals involved in the operation of such properties should reasonably have anticipated that their use of the income from the properties would be examined by HUD. Therefore, both because public funds were at stake and because these individuals should have anticipated government scrutiny, their expectations of privacy in the transactions described in the affidavits was substantially reduced. See Amodeo II, 71 F.3d at 1052-53 (finding that the activities of a law firm which were described in a sealed report were "such that the firm might reasonably have expected some public scrutiny.").

Thus, what appears here is a strong presumption of public access to the affidavits weighed against the acknowledged but diminished privacy interests of two third-parties. Given the strength of the presumption here and the third-parties' limited expectation of privacy, the balance tips decidedly in favor of unsealing and access. Redaction of the names of the two individuals remains possible and has been suggested as an alternative by the United States. However, redaction of all information in the affidavits which could serve to identify the individuals would excise from public examination significant material portions of the affidavits. Such redaction would too greatly impair the ability of the public to monitor the judicial process here which stands at the heart of the presumption of access. Accordingly, the secondary protection of redaction is also rejected.

III. Conclusion

For the reasons stated above, it is hereby

ORDERED that:

. . .

3. The documents contained in the two above-captioned matters are UNSEALED except that the Clerk shall maintain the original affidavits of Hautau and Bragg UNDER SEAL pending further order of the Court;

4. On or before December 13, 2006, the United States shall submit to the Court copies of the affidavits of Hautau and Bragg containing the redactions which the United States contends are necessary to prevent identification of the confidential sources of information in the affidavits; and

5. Upon review and determination of the proposed redactions, the redacted affidavits will be ordered filed and made available to the public.

Defendant's wife and entire family had access to his computer, and it was not password protected. Defendant's wife saw a child porn picture that defendant had printed out, and she reported it and then consented to a search of the computer, which she had apparent authority to do. United States v. Albertson, 2006 U.S. Dist. LEXIS 89236 (M.D. Pa. December 11, 2006).*

Officers observed what appeared to be a hand-to-hand drug sale in a high crime area to a prostitute, and they confronted the prostitute who gave up the drugs. That give probable cause to arrest defendant as the seller. United States v. Williams, 2006 U.S. Dist. LEXIS 88927 (E.D. Ky. November 22, 2006).*

In Indiana, an officer must be in a marked police car to make a stop. A narc in an unmarked car wearing a sweatshirt with "Police" on the back cannot make a traffic stop. The fact defendant was in a high crime area is not reasonable suspicion for a stop. Denial of suppression motion reversed. Davis v. State, 858 N.E.2d 168 (Ind. App. December 11, 2006).

In a factually cryptic unpublished opinion, something we will see more of under new F.R.A.P. 32.1, the Ninth Circuit held that a probation search applies to a probationer's business, citing nothing more than Knights. United States v. Brown, 212 Fed. Appx. 608 (9th Cir. 2006) (unpublished).

Officers did a knock and talk of defendant's house after an allegation by defendant's 14-year-old girlfriend who police stopped running down the street. She said that he had sex with her, beat her, and restrained her. They also learned that he was an illegal alien. When they looked through the window, there were several men in the living room, but, after they knocked, the men dispersed through the house. Officers were admitted, and elected to do a protective sweep because of the other men, some of whom could be seen around the house. During the sweep, one officer saw a box of shotgun shells, and defendant was asked about it and whether he had a shotgun, after being told he did not have to answer. He admitted to a shotgun, and officers retrieved it, and it was sawed off. While the Tenth Circuit had previously held that a protective sweep required an arrest, they looked back to the facts of the knock and talk and held that the officers had probable cause to arrest the defendant for domestic abuse [or even sex with a minor], and that, coupled with the others scattered around the house, justified the protective sweep. United States v. Torres-Castro, 470 F.3d 992 (10th Cir. December 12, 2006).

At an immigration checkpoint stop, the defendant, driving a tractor trailer, was excessively nervous, so the officer directed the truck over to a secondary checkpoint, and defendant consented to a search. The officer also "us[ed] an alien and drug detecting dog" which alerted on the truck. "Immigration checkpoint stops, and referral to the secondary inspection area there, do not require individualized suspicion, and asking for consent to search a vehicle does not unreasonably prolong an immigration checkpoint stop." United States v. Harrison, 209 Fed. Appx. 390 (5th Cir. 2006)* (unpublished).

Stop of truck, on review for clear error, was not unconstitutionally prolonged to warrant suppression of search warrant. United States v. Ricardo, 472 F.3d 277 (5th Cir. 2006).*