{"id":7040,"date":"2012-08-25T12:18:05","date_gmt":"2012-04-27T09:09:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-04-27T09:09:42","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=7040","title":{"rendered":"MA: Some impoundment of SW materials is possible on a showing of necessity by the state"},"content":{"rendered":"

Recognizing the right of access to search warrant papers by the target of a search and the press, the state sought impoundment of the records for a brief time until indictment, and this was reasonable under the circumstances. [The case also contains a summary of the law on access to materials.] New England Internet Caf\u00e9 v. Clerk of the Superior Court for Criminal Business in Suffolk County<\/a>, 462 Mass. 76, 966 N.E.2d 797 (2012):<\/p>\n

In sum, we do not agree with the plaintiffs that the Fourth Amendment requires that the target of government searches be given access to the materials supporting them prior to indictment or that an analysis separate from our recognized “good cause” analysis is required whenever a Fourth Amendment interest is asserted. On the other hand, we do not agree with the Commonwealth that the privacy and property interests protected by the Fourth Amendment’s constraint on unreasonable searches are irrelevant to a judge’s balancing of the interests of the parties in the circumstances presented here.<\/p>\n

With this in mind, we turn to the manner in which the judge balanced the respective interests of the parties before us. After reviewing both the warrant affidavits and the assistant attorney general’s affidavit on good cause, the judge concluded that “the contents of the affidavits are unexceptional.” As he explained, and we so conclude after our own review of the impounded materials, the affidavits portray a generic gaming experience at a public place of business; they are innocuous and do not expose any secretive investigative techniques or clandestine operations. In light of the judge’s findings, and the opportunity he properly extended to the Commonwealth to suggest the redaction of information that it believed was particularly sensitive, the Commonwealth’s interest in preserving the secrecy of its ongoing investigation as described in the affidavits, while ordinarily compelling, was considerably diminished. See In re Search Warrants Issued August 29, 1994, 889 F. Supp. 296, 302 (S.D. Ohio 1995) (“redaction of the original affidavit is feasible and would meet the government’s concerns regarding any ongoing criminal investigation”). Contrary to the Commonwealth’s contention that the judge overlooked critical information pertinent to the good cause analysis, his acknowledgment of potentially sensitive information worthy of redaction reflects an appreciation of the Commonwealth’s purported needs, as well as his conclusion that the Commonwealth had failed to demonstrate good cause to shield the documents in their entirety.<\/p>\n

On the other side of the scale, the judge properly considered the extent of the materials seized from the plaintiffs, the closure of the plaintiffs’ businesses, and the fact that, nearly two and one-half months after the searches had been executed, the plaintiffs had not yet been charged with a crime. There was no abuse of discretion. The judge’s order allowing the plaintiffs’ emergency motion to modify or terminate the impoundment order is affirmed.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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