Search warrants and authorizations

Do you have clients who want to know about search warrants or authorizations, and do you want information and access? Well of course. Here’s an interesting case which raises the issue of access to search warrant materials pre-indictment under the Fourth Amendment — or in the military pre-preferral. If the premise of the case is correct, then NCIS, OSI, CID, CGIS, or the SJA can’t just gaff you off when you ask for the search authorization materials prior to preferral. A writ of mandamus would seem to be in order.

In re Searches & Seizures, 2008 U.S. Dist. LEXIS 107087 (E.D. Cal. December 19, 2008).

Note, there is no “sealing” of pre-indictment documents in the military as there is in federal district court.

[C]ourts have concluded that there exists “a qualified first amendment right of access to documents filed in support of search warrant applications.” Certain Interested Individuals v. Pulitzer Publishing Co., 895 F.2d 460, 462 (8th Cir. 1990). See also In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F. 2d 569, 573-74, 576 (8th Cir. 1988). Some have rejected any first amendment right to such search warrant documents but found a common law right to such access. See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989); see also Application of Newsday, 895 F.2d 74, 79 (2d Cir.) (common law right to access recognized after the warrant had been executed and a plea-agreement reached).

In re Searches & Seizures, No._________, 2008 U.S. Dist. LEXIS 107087, at *10–11 n.3 (E.D. Cal. Dec. 19, 2008).

[I]t has generally been recognized that in order to prevent the search subject from inspecting the contents of the supporting affidavit, the government must demonstrate to the court that a compelling government interest requires the materials to be kept under seal and that there is no less restrictive means, such as redaction, capable of serving that interest. In re Search Warrants Issued on April 26, 2004, 353 F. Supp. 2d at 591 (citing United States v. Oliver, 208 F.3d 211, 2000 WL 263954, *2 and In re Search Warrants Issued August 29, 1994, 889 F. Supp. at 299).

In re Searches & Seizures, No._________, 2008 U.S. Dist. LEXIS 107087, at *4–14–2 (E.D. Cal. Dec. 19, 2008).

To a limited extent the government’s showing consists of general assertions that unsealing of the supporting affidavits would prematurely reveal its’ theory of the case and the direction of the investigation, thereby likely obstructing that investigation in its early stages. The expression of such general and conclusory concerns, potentially present in any investigation, are insufficient to meet the government’s burden of demonstrating a compelling government interest in continued sealing.

In re Searches & Seizures, No._________, 2008 U.S. Dist. LEXIS 107087, at *2 (E.D. Cal. Dec. 19, 2008).