Today was the day the amicus briefs for the Respondent Jones in United States v. Jones (you remember, the GPS case?) set for argument November 8th. A couple are online. Look for the rest later today or tomorrow on ScotusBlog.

Via NACDL, I received six today, but I can't post them.

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. ...

United States v. Krupa, 633 F.3d 1148 (9th Cir. 2011) (posted here), is vacated on rehearing and a new opinion issued: While there arguably was no probable cause based on a later case, at the time of the search (2002) there appeared to be, so the good faith exception would be applied. United States v. Krupa, 658 F.3d 1174 (9th Cir. 2011):

The agent’s affidavit presented to Colonel LaFave first set forth the agent’s qualifications to conduct investigations of computers and recover digital evidence, as well as his experience in investigations related to computer crimes and child pornography. The affidavit then stated that base police, responding to a report of child neglect, determined that “there were several computers at the location and that there was no custodial parents at the house only an individual KRUPA who was not affiliated with the military.” The affidavit stated that Krupa “had care and custody of the residence,” which included the 13 computer towers and two laptops. Reynolds’ affidavit stated that during his initial investigation of the computers, before consent was withdrawn, he located “an image of suspected contraband,” specifically a “photograph [that] appeared to be of a nude 15 to 17 year old female with a web site label of www.nude-teens.com.”

Although a close case, we conclude that Colonel LaFave reasonably concluded that there was probable cause to issue a search warrant. Reynolds’ affidavit set forth his qualifications as a trained investigator of computers for computer crimes and child pornography. Accordingly, the Colonel was entitled to give some deference to the agent’s statement that the photograph constituted an “image of suspected contraband,” even though the affidavit’s description of the photograph did not necessarily support the conclusion that the photograph constituted child pornography. Furthermore, the affidavit indicated that [*9] the police had responded to “a report of child neglect,” that no custodial parents were at the residence, that Krupa, who was not affiliated with the military, had care and custody of the residence, and that the residence contained 15 computers. In sum, the investigator’s assertion that he had found an “image of suspected contraband” — implicitly referring to child pornography — in computers seized from a home for which there had been a report of child neglect, and where there was no custodial parent present, created a “fair probability” that contraband or evidence would be found in the computers. See Gates, 462 U.S. at 238.

Defendant’s Franks challenge was based on the fact that the officer did not include in a later search warrant application that the lady that consented to the search with full authority to do so had a criminal history. The officer included that she’d been indicted. Even if it were all included, the search warrant would have issued. United States v. Livingston, 445 Fed. Appx. 550 (3d Cir. 2011).*

Defendant’s motion to suppress was based on an entrapment defense, a defense on the merits, and it was acceded to that it was more an issue for trial, so the judgment is affirmed. State v. Lewis, 75 So. 3d 495 (La. App. 5th Cir. 2011).*

An FOIA production did not provide enough information of alleged falsity to overcome a 1962 order denying a suppression motion that was affirmed on appeal. United States v. Stonehill, 660 F.3d 415 (9th Cir. 2011).*