The Champion
March 1996

Litigating Sealed Search Warrants:
Recent Cases Limit Indefinite Seal in Pre-Indictment Investigations

By James E. Phillips, David F. Axelrod & Kevin G. Matthews

James E. Phillips is Chairman of the White-Collar Defense Group at Vorys, Sater, Seymour & Pease. He represents corporate and individual subjects of criminal investigations and prosecutions and has successfully defended cases in both state and federal courts. His experience includes the defense of federal mail and wire fraud, tax, extortion, kickback, money laundering, Foreign Corrupt Practices, public corruption and environmental matters. ©1996 by Vorys, Sater, Seymour and Pease.

David F. Axelrod is a partner in Vorys, Sater, Seymour and Pease, Columbus, Ohio. He was formerly an Assistant U.S. Attorney for the Southern District of Florida, where he specialized in the prosecution of criminal tax, money laundering, Bank Secrecy Act and forfeiture cases. He also served as Trial Attorney for the U.S. Department of Justice, Tax Division, Criminal Section. Mr. Axelrod has been a frequent speaker to the bar and has written many articles on topics relating to white-collar practice.

Kevin G. Matthews is of counsel with Vorys, Sater, Seymour and Pease. He was formerly a trial attorney for the U.S. Department of Justice, Criminal Division, where he specialized in the investigation of complex economic crimes, including financial institution, government program, money laundering and criminal forfeiture matters. As a prosecutor, Mr. Matthews successfully represented the U.S. in the investigation and prosecution of the Bank of Credit and Commerce International, S.A. (BCCI) and its highest ranking officer.

The documentary search warrant is one of the government's most potent weapons in white-collar criminal investigations of business organizations. In state and federal investigations, this device is often used instead of the more traditional grand jury subpoena.

The advantages of the search warrant approach to the government are obvious. A search warrant substantially reduces the possibility that the target will move or destroy evidence before the government can obtain it. In addition, the use of a search warrant generally ensures that responsive documents will be obtained and thereafter controlled by the government. Moreover, the use of a search warrant also eliminates the possibility of any claim of Fifth Amendment privilege by business owners.1

From the government's point of view, the issuance of a grand jury subpoena duces tecum invites a motion to quash. Some prosecutors believe that defense counsel use such motions to interfere with grand jury investigations, delay the return of indictments and obtain discovery not authorized under the rules of criminal procedure. By contrast, return of property under Fed. R. Crim. P. 41(e) may be available only under limited circumstances.2 Furthermore, such motions are made only after the government has the documents.

The government's most recent innovation to frustrate challenge by defense counsel involves motions to seal search warrant affidavits. Although there is no statutory authority to do so, prosecutors have often persuaded judges to continue the secrecy of search warrant affidavits long after the warrants have been executed.3 Anecdotal evidence suggests that in many cases, courts have required nothing more than the prosecutor's conclusory assertion that disclosure would imperil his or her investigation.4

In such cases, defense counsel's first task obviously must be to move to unseal.5 Until the application has been unsealed, it is impossible to identify any but the most obvious defects in the warrant or its execution. In particular, it is impossible to determine whether there was probable cause to search and, if so, for what. Motions to unseal may be based on a variety of grounds including common law and First Amendment rights of access to judicial records, and a due process right to test the validity of the warrant. In addition, the decision in a recent case brought by the authors of this article recognizes a right of access to search warrant applications arising from the Fourth Amendment.

Qualified First Amendment Right of Access to Search Warrant Affidavits
In In re Search Warrant for Secretarial Area Outside Office of Gunn ("Gunn I"),6 the court held that the First Amendment right of access applied to search warrant affidavits. In Gunn I, the government and the subjects of its investigation opposed a newspaper's motion to unseal a search warrant affidavit. The Eighth Circuit held that the First Amendment right of access applied pre-indictment, since judicial records, including search warrant affidavits, "have historically been considered to be open to inspection by the public."7 The court also found that such access allows the public to understand the judicial process and criminal justice system, and serves as a check on prosecutorial misconduct. Accordingly, the court declared "that the First Amendment right of public access does extend to the documents filed in support of search warrant applications."8

This right is qualified, however, and access may be denied when the government demonstrates that nondisclosure "is necessitated by a compelling government interest."9 Specific on-the-record findings must be made by the district court that closure is essential to preserve higher values and is narrowly tailored to that end. If a less restrictive alternative is available to preserve those higher values, it must be used.10

Applying this test, the Eighth Circuit held that the government's ongoing investigation was a "compelling government interest" and denied the motion to unseal. The court found a substantial probability that disclosure of verbatim excerpts of court-authorized intercepted telephone conversations and information obtained from confidential informants would severely compromise the ongoing investigation.11 Moreover, since virtually every page of the affidavit contained multiple references to intercepted communications and confidential informants, redaction was not practicable.12

Gunn I was reaffirmed in Certain Interested Individuals v. Pulitzer Publishing Company ("Gunn II"),13 which arose later in the same investigation. In Gunn II, the subjects of the same investigation opposed a newspaper's pre-indictment motion to unseal the same search warrant affidavit.14 The court held that unsealing would compromise the petitioners' Fourth Amendment right of privacy and the protections of Title III (regarding intercepted communications). Those interests outweighed the media's First Amendment right of access.15

Qualified Common Law Right of Access to Search Warrant Affidavits
In Baltimore Sun Company v. Goetz,16 the court found a pre-indictment right of access to search warrant affidavits under the common law.17 Since Fed. R. Crim. P. 41(g) is silent regarding disclosure of search warrant papers, the Fourth Circuit determined that "the common law qualified right of access to the warrant papers is committed to the sound discretion of the judicial officer who issued the warrant."18 This right of access yields only when the government can demonstrate that "sealing is 'essential to preserve higher values and is narrowly tailored to serve that interest.'"19 The judicial officer, in making this decision, must consider alternatives to sealing, including redaction.20 Moreover, these findings must be sufficiently specific to permit meaningful appellate review.21 Applying the common law test, the Fourth Circuit concluded that the district court erred in not disclosing a redacted version of the search warrant affidavit.

More recently, in Lawmaster v. United States ,22 the Tenth Circuit held that the continued sealing of an informant's name in a warrant affidavit was appropriate under the common law right of access. In Lawmaster, the subject of a fruitless search sought to learn the identity of the government's informant for use in a potential legal action against the informant. Admitting that the investigation had been terminated, the government opposed unsealing to protect the informant from reprisal.23

Recognizing the existence of a qualified common law right of access, the Lawmaster court nonetheless concluded that the informant's privilege "trumps the common law right of access to judicial records as to the identity of the informant."24 Although the informant's privilege may give way under a sufficient showing of need, Lawmaster's proffered need for disclosure was not sufficient to overcome it.25

In addressing the issue of alternative remedies, the court stated that redacted affidavits should be made available [as was done in Lawmaster] "if doing so would not reveal the informant's identity or prejudice an ongoing investigation."26 Although under the peculiar facts of this case, the party seeking disclosure principally sought the identity of the informant, such a result in the typical case is beneficial to parties seeking disclosure.27

In United States v. Cabal,28 the district court found that the government's need for secrecy in an ongoing investigation justified continued sealing of a search warrant affidavit even after an indictment had been returned against the subject of the search. Although the court failed to cite controlling Second Circuit precedent which recognizes a common law right of access after conviction, In re Newsday,29 it nonetheless applied Newsday's test in holding that "[t]he government's interests in ongoing investigations are sufficient to justify sealing of documents which are ordinarily presumed to be public." This case illustrates the deference frequently given the assertion that an ongoing criminal investigation may be compromised.

Courts Reject Pre-Indictment Rights of Access
In Times Mirror Company v. United States,30 the Ninth Circuit refused to recognize either a common law or First Amendment right of access to search warrant affidavits during the pre-indictment stage of a criminal case. Rejecting the Eighth Circuit's ruling in Gunn I, the court found "no history of openness at this stage in the warrant proceedings which might argue in favor of a constitutionally protected right of access."31 The court emphasized the government's need for secrecy, and held that because no indictment had been returned, disclosure would not serve the "ends of justice."32

In United States v. Valenzuela-Chairez,33 the Ninth Circuit held, without citation to Times Mirror, that the "informant's privilege" trumped the defendant's right to review the warrant affidavit in a drug case. The court concluded that the government's interest in nondisclosure was particularly strong where it proffered that a confidential informant would be killed were his identity disclosed.34 Although the court did not address Times Mirror, it did recognize, citing Franks v. Delaware,35 that defendants are generally entitled to review an affidavit.36 The court held that the decision to disclose involves balancing the defendant's right to information with the government's interest in protecting its confidential sources.37

Similarly, In re Search Warrants for National Builders Corp.,38 the court uncritically accepted the government's rote "investigation would be threatened" argument in denying a motion to unseal a search warrant affidavit. Without determining whether there is a First Amendment right of access, and recognizing the circuit split on this issue, the court held that the existence of an ongoing investigation was a compelling government interest sufficient to restrict public access.39 The court also found that there was no common law right of access, "particularly in light of the ongoing investigation."40

Due Process Right to Sealed Affidavits
Pursuant to Fed. R. Crim. P. 41(g), the district court is required to file with the clerk the warrant, the return, and all supporting documents, making no provision for secrecy.41 Early Advisory Committee Notes to Fed. R. Crim. P. 41 make it clear that it was originally intended that persons wishing to challenge a warrant would have access to the supporting affidavit.42 Fed. R. Crim. P. 41(e) clearly establishes the right of a person aggrieved by the execution of a search warrant to challenge the propriety of the seizure of his property.43 The subject of the warrant suffers the deprivation of property and has more than just an academic interest in knowing the basis for the warrant. Without the affidavit, it is impossible to assess the legitimacy of the warrant, and, therefore, the deprivation of property.

Unless the search warrant application is open to review, corporate counsel and the property owner cannot evaluate whether the affidavit is based on false or erroneous information. In white-collar investigations involving business organizations, indictments may not be returned, if at all, for lengthy periods after warrants are executed. The longer the delay, the greater the need for the information, and, often, return of the property. In other words, as time passes, the need to scrutinize the affidavit becomes more acute.

The denial of access to a warrant affidavit effectively precludes a business organization from the most effective forms of challenge to the warrant, depriving the company of procedural and substantive due process under the Fifth Amendment. "[M]inimum due process requirements are violated when a government agency permits its officers to carry out a seizure . . . without providing the owners any meaningful opportunity to challenge the seizure at the earliest possible time."44

Don't Give Up the Ship
In two recent cases brought by the authors of this article, trial courts in Southern District of Ohio and Eastern District of New York held that subjects of search warrants were entitled, before indictment, to access to sealed warrant affidavits. A court in the Eastern District of Wisconsin reached the same result. To be sure, these cases do not signal the end of this powerful government weapon. Nonetheless, they do establish that the government's rote recitation of the existence of an ongoing investigation should not be enough to postpone disclosure indefinitely.

Recent Cases Applying Pre-Indictment Right of Access

The government routinely asserts that rights of access (constitutional and common law) automatically disappear, or that they are ipso facto overcome, whenever there is a criminal investigation in progress.62 That the government is wrong is demonstrated by cases such as In re Search Warrants Issued August 29, 1994, Semtex and Wag-Aero, all of which ordered search warrant applications unsealed during criminal investigations. These cases demonstrate that rights of access exist before indictment, as well as after, and are overcome only where the government can establish that sealing is necessary to preserve higher values (common law right), or is essential to a compelling government interest (constitutional right).63

To date, courts have been far too willing to accept uncritically the government's assertions that search warrant applications should be kept secret even after execution of the warrants. However, there is ample precedent to demand that the interests of all parties be considered, and not just the interests of the government. Judges must appreciate that the execution of a search warrant is not just a minor intrusion on the operations of a business organization. Those on the receiving end have a legitimate interest in knowing, and often challenging, the basis for the government's action. Our recent experience gives some reason for optimism that the courts may increasingly be receptive to these arguments.

1. See Andresen v. Maryland, 427 U.S. 463, 470-77 (1976).

2. See, e.g., In the Matter of Searches of Semtex Industrial Corp., 876 F.Supp. 426 (E.D.N.Y. 1995); In re Sentinel Government Securities, 530 F.Supp. 493 (S.D.N.Y. 1982).

3. See, e.g., Matter of Sealed Affidavit(s) to Search Warrants, 600 F.2d 1256 (9th Cir. 1979).

4. In some districts, the government successfully opposes the unsealing of even its motion to seal and the order granting it. In such cases, the owner of the searched premises is deprived of all knowledge of the basis for secrecy, as well as the basis for the search.

5. It is generally worth calling the prosecutor's office before preparing a written motion. Some prosecutors have occasionally been known to agree to unseal and may, short of that, give defense counsel some indication of the alleged basis for continued secrecy.

6. 855 F.2d 569, 573 (8th Cir. 1988), cert. denied, 488 U.S. 1009 (1989).

7. Id.

8. Id.

9. Id. at 574.

10. Id.

11. Id.

12. Id.

13. 895 F.2d 460, 462 (8th Cir.), cert. denied, 498 U.S. 880 (1990) (Gunn II).

14. In contrast to its earlier argument in Gunn I, the government appearing as amicus on the side of the newspaper in Gunn II, did not oppose unsealing because its investigatory objectives had mostly been attained. Gunn II, 895 F.2d at 462. Thus, because the government endorsed it in Gunn II, it must concede that unsealing a search warrant affidavit prior to indictment is not always improper.

15. Gunn II, 895 F.2d at 466.

16. 886 F.2d 60 (4th Cir. 1989).

17. The Baltimore Sun court rejected the existence of a First Amendment right of access. Baltimore Sun, 886 F.2d at 64.

18. Id. at 65.

19. Id. at 65-66 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984).

20. Id. at 66.

21. Id.

22. 993 F.2d 773 (10th Cir.), cert. denied, 114 S. Ct. 196 (1993).

23. Id. at 774.

24. Id. at 775.

25. Id. at 776.

26. Id. at 775.

27. In a case decided before Lawmaster, the district court in In re Flower Aviation of Kansas, Inc., 789 F. Supp. 366 (D. Kansas 1992) denied a motion to unseal, citing the existence of an ongoing investigation and concerns regarding the privacy interests and safety of various individuals identified in the affidavit. Id. at 368. The court also considered that the movant had earlier destroyed relevant documents. Id. at 369. Nonetheless, the sealing order was not indefinite, and by its own terms was to expire 90 days from date of entry or when an indictment was returned, whichever occurred first. Id. The decision was based on the common law, and rejected the existence of a First Amendment right of access. Id. at 367.

28. 1992 WL 110738 (S.D.N.Y. 1992).

29. 895 F.2d 74 (2d Cir.), cert. denied, 496 U.S. 931 (1990).

30. 873 F.2d 1210 (9th Cir. 1989).

31. Id. at 1218.

32. Id. at 1219.

33. 1994 U.S. App. LEXIS 5505 (9th Cir. March 8, 1994).

34. Id.

35. 438 U.S. 154 (1978).

36.Valenzuela-Chairez, 1994 U.S. App. LEXIS 5505, *1.

37. Id.

38. 833 F.Supp. 644 (N.D. Ohio 1993).

39. Id. at 645-46.

40. Id.

41. This is in sharp contrast to Fed. R. Crim. P. 6(e), which provides for automatic grand jury secrecy.

42. Prior to amendment in 1972, Fed. R. Crim. P. 41 required that the warrant itself state the grounds for its issuance and the names of any affiants. In 1972, this requirement was eliminated because, "[a] person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued." Fed. R. Crim. P. 41(e), "Notes of Advisory Committee on Rules" (1972 Amendment).

43. Fed. R. Crim. P. 41 (e) provides in pertinent part:

A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property.

Fed. R. Crim. P. 41(f) and 12(b)(3) provide a parallel right to test a search warrant after indictment by motion to suppress.

44. Lee v. Raab, 576 F. Supp. 1267, 1274 (S.D. Ohio 1983).

45. 889 F. Supp. 296 (S.D. Ohio 1995).

46. 889 F. Supp. at 299.

47. Id. at 299.

48. Id.

49. Id.

50. Id. at 299-300.

51. Id. at 301.

52. The district court distinguished two cases cited by the government, Dalia v. United States, 441 U.S. 238, 248 (1979) and United States v. Pangburn, 983 F.2d 449, 453 (2d Cir. 1983), since these cases dealt with the entirely separate question of whether the Fourth Amendment requires that the person whose premises were searched be given some notice that the search has occurred. In re Search Warrants Issued August 29, 1994, 889 F. Supp. at 301.

53. The court in In re: Search Warrants for the Offices of J.I. Sopher & Company, 1987 U.S. Dist. LEXIS 8511, September 23, 1987 (S.D.N.Y.), while acknowledging the existence of a Fourth Amendment right to examine the warrant affidavit, stated that the disclosure of the warrant affidavits "might lead to identification of the confidential informants and thereby jeopardize the government's investigation." Without addressing the feasibility of redaction, the court denied the motion to unseal.

54. 796 F. Supp. 394 (E.D. Wis. 1992).

55. Id.

56. Id.

57. Id.

58. Id. at 429.

59. Id. at 432. In recognizing a common law right of access, the district court extended the holding of Newsday, 895 F.2d 74 (2d Cir.), cert. denied, 496 U.S. 931 (1990), to encompass pre-indictment access to sealed search warrants.

60. 889 F. Supp. at 299-300.

61. Recently, In In re Search Warrant Executed February 1, 1995 and Seizure Warrant Executed December 14, 1994, 1995 U.S. Dist. LEXIS 9475, July 6, 1995 (S.D.N.Y.), citing Semtex with approval, the district court invited the movant "to renew his motion to unseal the warrant application if the grand jury fails to indict him within a reasonable period of time." Id. at 9.

62. If sealing is continued without any legitimate identification of the harm feared, targets of search warrants are relegated to the position of the proverbial "blind man striking at an invisible foe," Chernekoff v. United States, 219 F.2d 721, 724 (9th Cir. 1955), and their rights, constitutional and otherwise, are meaningless.

63. See Semtex, 876 F. Supp. at 429.

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