We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SEARCH ME

There are few events in life as unnerving as having a phalanx of gendarmes appear, search warrant in hand, to toss your house or office. Contrary to pop culture – where a couple of cops knock on the door with the warrant, look in a few drawers, find some evidence and leave – the execution of search warrants usually involves dozens of law enforcement personnel, takes hours to complete, and often involves you and your family watching helplessly while your home is trashed and your lives upended by scowling, officious cops.

And that’s on a good day. Many times these days, even for the most pedestrian of suspected offenses, searches include having guns pointed at your kids, being thrown to the floor, and being held, handcuffed on a couch, for hours on end.

The nightmare continues after the search, too. The property carted off is often irreplaceable and, at the same time, it may seem to the target to have no relationship to any possible criminal offense. Given the frequency these days of seizure of computers, cellphones and media storage devices, searches almost always mean loss of a trove of photos, emails, contacts and data we depend on for our businesses and daily lives.

Federal search warrants are governed by Rule 41 of the Federal Rules of Criminal Procedure, and may be issued only after a particularized affidavit is presented to a federal judge or magistrate, and he or she finds probable cause to believe evidence of a crime or contraband may be found on the premises to be searched.

Justin Smith suffered having his home and offices searched by federal authorities, seeking God knows what. Because God wasn’t talking, Justin demanded that the government produce a copy of the affidavit filed with the magistrate. Justin filed a motion pursuant to Rule 41, demanding a copy, but the district court ruled that it could remain sealed after the government complained that release could hinder whatever investigation it was pursuing.

Justin appealed.

Earlier this week, the 5th Circuit agreed that he had a right to access to the affidavit, and remanded the case to the district court. The Circuit observed that there exists a general common-law right to inspect and copy public records and documents, including judicial records and documents, and it extended the right – subject to qualification – to access to warrant materials, including affidavits, during a pre-indictment investigation.

In cases such as this one, the Court said, involving a request to unseal affidavits in support of pre-indictment search warrants, district courts should exercise their discretion by balancing the public’s right to access judicial documents against interests favoring nondisclosure. If the unsealing would threaten an ongoing investigation, the district court has discretion to redact the affidavit prior to its unsealing or even, where necessary, to leave the affidavit under seal. The same applies where unsealing such materials might endanger or discourage witnesses from providing evidence or testimony, or where the publication of the affidavit warrant could damage an unindicted target’s reputation.

“This is not to say,” the Circuit wrote, “that a district court must go to painstaking lengths to review pre-indictment warrant materials, detailing factual findings on each line of every affidavit. This Court is sensitive to the district court’s concern over the judicial resources that would have to be expended if that much detail were unilaterally required. As a result, the requisite degree of specificity will vary from case to case, but in most cases, a district court should at least articulate any reasons that would support sealing a judicial document or explain why it chose to seal a judicial document.”

The Circuit directed the district court to review Julian’s motion with the specificity that the right requires.

United States v. Sealed Search Warrants, Case No. 16-20562 (5th Cir., Aug. 21, 2017)

– Thomas L. Root