IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE
September 2, 1999
UNITED STATES OF AMERICA
SEALED SEARCH WARRANTS
The opinion of the court was delivered by: Kugler, United States Magistrate Judge:
Currently before the Court is the motion by petitioners Philadelphia Newspapers, Inc. and Gannett Satellite Information Network, Inc., t/a The Courier-Post to intervene in this action and to unseal all affidavits, inventories, and other documents submitted in connection with three search warrants issued by this Court for the residence and office of Camden City Mayor Milton Milan. Milton Milan joins in the motions to intervene and to unseal. There is no objection to petitioners' motion to intervene, and the Court accordingly grants that motion to intervene.
I. FACTUAL BACKGROUND
On August 25, 1999, this Court issued three warrants to search the residence, office, and computer of Camden City Mayor Milton Milan and to seize any property, documents, and things described therein. As part of the search warrant application process, an agent from the Federal Bureau of Investigations, William P. Grace, and Assistant United States Attorney Renee Bumb presented the Court with two affidavits and search warrant applications. The Court reviewed the affidavits, applications, and warrants and, satisfied that they met the requirements of Fed. R. Crim P. 41, observed Agent Grace sign the affidavits under oath and authorized the government to execute the warrants. Agent Grace stated in the affidavits that he based his testimony, in part, upon his review of grand jury testimony and documents that had been subpoenaed by the grand jury.
Upon oral application by Ms. Baum that was based upon the testimony contained in the affidavits, the Court granted the government's motion to seal the affidavits and any inventories that may be generated as a result of execution of the warrants. The government did not move to seal the actual search warrants themselves.
Federal officials then executed the search warrants upon the Mayor's home and office. As is required under Rule 41(d), they either presented copies of the warrants, along with a receipt which included an inventory of the property taken, to the person from whom property was taken, and/or they left copies of the warrants and receipts at the premises.
The search warrants sought: "Evidence of violations of federal law, including Title 18, United States Code, Sections 371, 666, 1341, 1346, 1503, 1951, 1952 and 2 and Title 26, United States Code, Sections 7206, including records in whatever form they are kept, . . ." They then named 46 individuals, companies or other entities to whom the sought-after information may be related, which included several locally well-known professional individuals, personalities, attorneys, government agencies, along with a former alleged high-ranking member of organized crime. Inevitably, the search of the Mayoral home and office, and the seizure of property therefrom, along with the list of local individuals and organizations, generated significant and ongoing media coverage. Newspaper accounts reported that authorities were looking for evidence that Mayor Milan engaged in conspiracy, embezzlement and theft, mail fraud, obstruction of justice, interstate transportation in aid of racketeering enterprises, and tax fraud. See, e.g., Harold T. Nedd, Milan: 'I've Done Nothing Wrong,' Courier-Post, Sept. 2, 1999, at 1A, 10A.
The search warrants did not, however, name Camden City Mayor Milton Milan, nor any of the listed individuals, as a target of a grand jury investigation. Neither Mayor Milan nor any of the listed individuals have been charged with a crime.
On August 26, 1999, a federal agent returned two of the warrants. *fn1 Pursuant to Rule 41(d), the warrants were returned accompanied by inventories of the property that was taken. In accordance with the government's earlier application for a sealing order, the Court sealed the inventories. On September 2, 1999, a federal agent returned the third warrant, along with an inventory. *fn2 The returned warrants, inventories, and affidavits were filed with the clerk of the court under Rule 41(g). The affidavits and inventories were filed under seal pursuant to the sealing order; the warrants were not.
Intervenors/petitioners Philadelphia Newspapers, Inc. ("PNI"), and Gannett Satellite Information Network, Inc., t/a The Courier-Post ("Courier-Post"), now move before the Court to have the affidavits and inventories unsealed. Camden City Mayor Milton Milan joins in the motion. The Court held oral argument on this motion earlier today, and commends counsel on their excellent presentations.
Petitioners argue that they have a First Amendment and common law right of access to the affidavits and inventories and other documents submitted in support of the search warrants. They claim that the search warrants, which were made public, contain very specific and incendiary information, leading the press and public to draw their own conclusions about the criminal investigation involving Mayor Milan and possibly the individuals and entities listed on the warrants. According to petitioners, they are entitled to know the facts supporting the request for the warrants.
With respect to the inventories, PNI pointed out that the list of seized documents and property could not be any more specific than the description in the search warrants themselves. Since the government chose not to move to seal the search warrants because they purportedly did not contain evidence that was to be presented to a grand jury, then the same rationale should apply to the inventories. Mayor Milan adds that even though he received a copy of the inventories, he has not released them to the public. Since the inventories contain a long list of items, many of which appear to be vague or harmless, he asks that the government be compelled to redact only those items that are necessary to be sealed because they relate to a grand jury investigation, and disclose the rest.
The government claims that the affidavits contain information that has been presented to a sitting grand jury, as well as other information that relates to the grand jury criminal investigation. The inventories contain evidence that will be presented to the grand jury. Because both grand jury proceedings and search warrant applications have historically been kept secret, and because the posture of this case is an ongoing criminal investigation in which no indictments have been handed down, the government argues that public access to the sensitive information contained in the affidavits would irreparably damage the investigation, as well as the grand jury institution, and, therefore, there is no First Amendment or common law right of public access to them.
A. FIRST AMENDMENT RIGHT OF PUBLIC ACCESS
A First Amendment right to attend criminal trials was established in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Two features of the criminal justice system support public access to criminal trials. First, throughout the evolution of the criminal trial in Anglo-American justice, it has been "open to all who cared to observe." 448 U.S. at 564. Openness "gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality." Id. at 569. The First Amendment guarantees of speech, press, and assembly, which were "enacted against the backdrop of the long history of trials being presumptively open," implicitly include the right to attend criminal trials. Id. at 575-80. Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Id.
The analysis in Richmond Newspapers has taken shape as the "experience and logic" test. As the Supreme Court later explained in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press- Enterprise II"), "two complementary considerations" must be analyzed when deciding whether a First Amendment right of public access attaches to particular criminal proceedings. 478 U.S. at 8. First is "whether the place and process have historically been open to the press and general public," -- i.e., the "experience" prong of the test. Id. Second is "whether public access plays a significant positive role in the functioning of the particular process in question," -- i.e., the "logic" prong. Id.
The Supreme Court has since extended the First Amendment right of public access beyond the criminal trial itself to other criminal proceedings, as well as to documents generated as part of a criminal proceeding. See, e.g., Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) ("Press-Enterprise I") (voir dire of potential jurors); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II") (transcripts of a preliminary hearing in a criminal murder trial). The Third Circuit also has extended the First Amendment right of access to proceedings and documents other than the criminal trial. See, e.g., United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) ("Smith I") (bill of particulars supporting an indictment); United States v. Simone, 14 F.3d 833 (3d Cir. 1994) (post-trial hearings to examine an allegation of juror misconduct); United States v. Smith, 787 F.2d 111 (3d Cir. 1986) ("Smith II") (transcript of sidebar conference during criminal trial).
One notable exception is grand jury proceedings, which have been kept secret even though they are judicial proceedings that are closely related to the criminal fact-finding process. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979) ("Since the 17th century, grand jury proceedings have been closed to the public, and records of such proceedings have been kept from the public eye."); United States v. Smith, 123 F.3d 140 (3d Cir. 1997) ("Smith III") ("[G]rand jury proceedings are not subject to a First Amendment right of access under the test of 'experience and logic.'").
Even if a First Amendment right of access attaches to a particular criminal proceeding or document, it is presumptive, and not absolute. Closure may be necessitated by overriding governmental interests, and when it is narrowly tailored to serve those interests. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press- Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ("Press-Enterprise I"); United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) (findings must be made on a case-by-case basis "establishing the existence of a compelling governmental interest, and demonstrating that absent limited restrictions upon the right of access, that other interest would be substantially impaired").
B. COMMON-LAW RIGHT OF PUBLIC ACCESS
The public also has a common law right of access to judicial records and proceedings. This "general right to inspect and copy public records and documents, including judicial records and documents," which predates the Constitution, was recognized by the Supreme Court in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). See also United States v. Criden, 648 F.2d 814 (3d Cir. 1981) ("Criden I"). It has been justified on the ground of the public's right to know, which encompasses public documents generally, and the public's right to open courts, which has particular applicability to judicial records. Criden I, 648 F.2d at 819.
The Third Circuit in Criden I explained that the interests identified by the Supreme Court in Nixon v. Warner Communications as supporting the right to access -- "the citizen's desire to keep a watchful eye on the workings of public agencies" and publication of "information concerning the operations of government" -- are identical to the interests identified in Richmond Newspapers. 648 F.2d at 820. Thus, the same policy considerations are at work in applying both a First Amendment and a common-law analysis. Although the interests are the same, rather than applying the "compelling interest" standard used under the First Amendment, a court must balance the strength of the common law right to view judicial records against the interests pressed by the defendants. Id.
C. THE COMPETING INTERESTS
The Fourth and Ninth Circuits, along with a federal court within the Third Circuit, have found that there is no First Amendment right of access to pre-indictment search warrant documents. *fn3 See Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989); Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); In Matter of Search of 1993 Jeep Grand Cherokee, 1996 WL 768293, Nos. 96-91M to 96- 93M, (D. Del. 1996). The courts in these cases reason that warrant proceedings have historically been closed to the public and that public access would hinder, rather than facilitate, the warrant process and the government's ability to conduct criminal investigations.
The Eighth Circuit, on the other hand, recognized a qualified First Amendment right of access to search warrant documents, and it is this holding that petitioners here urge us to adopt. See In Re Search Warrant for Secretarial Area, 855 F.2d 569 (8th Cir. 1988). The Eighth Circuit based its "experience" analysis on its belief that, although the process of obtaining warrants is usually not open to the public, search warrant documents are "routinely filed with the clerk of court without seal." 855 F.2d at 573.
With respect to the "logic" prong, the court concluded that "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." Id. Further, search warrants are an integral part of a criminal prosecution, and are the center of pretrial suppression hearings, which have been held to be subject to a First Amendment right of public access. Id.
Once finding that the First Amendment right of access applies to search warrant documents, the Eighth Circuit nevertheless denied the motion to unseal them, holding that the government demonstrated a compelling interest -- the ongoing investigation. Id. at 574. "These documents describe in considerable detail the nature, scope and direction of the government's investigation and the individuals and specific projects involved. Many of the specific allegations in the documents are supported by verbatim excerpts of telephone conversations obtained through court-authorized electronic surveillance or information obtained from confidential informants or both. There is a substantial probability that the government's ongoing investigation would be severely compromised if the sealed documents were released." Id.
Keeping aside a debate about whether this reasoning is a distinction without a difference from that used by the Fourth and Ninth Circuits, this Court holds that, based upon experience and logic, there is no First Amendment right to access to the affidavits and inventories submitted in connection with the search warrants issued for the home and office of Mayor Milan. It cannot be disputed that the process by which a search warrant is obtained has historically been a closed one. See United States v. U.S. Dist. Court, 407 U.S. 297, 321 (1972) (a "warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge"); Franks v. Delaware, 438 U.S. 154, 169 (1978) (search warrant proceedings are "necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove evidence"); Times Mirror, 873 F.2d at 1213-14 ("The process of disclosing information to a neutral magistrate to obtain a search warrant, therefore, has always been considered an extension of the criminal investigation itself. It follows that the information disclosed to the magistrate in support of the warrant request is entitled to the same confidentiality accorded other aspects of the criminal investigation.").
Petitioners argue that Rule 41(g) provides a basis for public access to search warrant documents because it requires the documents to be filed with the court, thereby making them public records. Rule 41(g) is merely "a rule of procedure," however, and does not distinguish between filed documents that are sealed and unsealed. See In Re Search of Jeep Grand Cherokee, 1996 WL 768293, at *6. Contrary to the observation by the Eighth Circuit in In re Secretarial Area, the practice throughout this District is that sealing orders for search warrant documents are granted routinely upon a proper showing, almost as a matter of course. *fn4 Thus, the mere fact that search warrant documents are required to be filed under Rule 41(g) does not create an historical basis for public access, and this Court rejects that part of the Eighth Circuit's reasoning that holds otherwise.
Moreover, this Court finds that public access to the affidavits and inventories would undermine the historically protected institution of the grand jury. The affidavits of Agent Grace are based in part upon his review of testimony and documents that were presented to the grand jury. Fed. R. Crim. P. 6(e) provides that: "Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury." The Third Circuit has held in Smith III that there is no presumptive First Amendment right of access to materials that are required to be sealed under Rule 6(e). 123 F.3d at 150. The government has represented that the information contained in the affidavits "affects" or "relates to" an ongoing grand jury criminal investigation. According to the government, the sealed affidavits "contain, in relevant part, the scope and focus of the grand jury's investigation. They also set forth statements of various individuals, which statements were obtained through either (a) grand jury testimony, (b) wire intercepts and consensual recordings, or (c) witness interviews. The sealed affidavits also contain, in relevant part, analyses of the voluminous documents that the grand jury has received through various subpoenas." (Gov't Brief, at 4). In addition, they "identify individuals who may be targets or subjects of the grand jury's investigation who are suspected of criminal activity." (Id.).
The government has further represented that the inventories contain evidence that will be presented to the grand jury.
The Third Circuit stated in Smith III that this Court "must accept the representation that undisclosed grand jury secrets will come out" if the public was granted access to the affidavits. Id. at 151. In addition to the government's representation, the affidavits themselves state that they are based in part upon records and testimony presented to the grand jury. Any threat to the grand jury process would justify denial of petitioners' claimed First Amendment right of access. See Douglas Oil, 441 U.S. at 218 ("The proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.").
Other damage could be done to the criminal investigation by public disclosure of the affidavits and inventories. Names of cooperating witnesses would be revealed, and they could be subject to intimidation, tampering, and public inquiries. Other evidence could be destroyed or modified, including wiretap sources. In addition, public access would discourage unfettered testimony from witnesses who know their identities and statements will be made public through the press. As the government notes in its brief, public disclosure further runs the risk that anyone suspected of criminal activity might "tailor their actions and accounts of events to take advantage of perceived strengths or weaknesses in the Government's investigation." (Gov't Brief, at 4). These threats to the effective operation of an ongoing criminal investigation are the same reasons that grand jury proceedings have traditionally been kept secret. See Douglas Oil, 441 U.S. at 219; United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954).
Further, there is little public interest served by disclosure. The affidavits are permitted to be based upon hearsay, which is normally not admitted at criminal trials except under judicially monitored circumstances that assure its reliability. The information in the affidavits only supports a finding of probable cause for these particular search warrants; it does not comprise the entirety of the government's evidence, nor does it clearly indicate the scope and focus of the investigation. As the government points out, evidence in a criminal investigation is continually developing, and evidence that may at first seem material may prove to be inconsequential; conversely, evidence that initially seems irrelevant may prove to be critical. Thus, there is no public good served in disclosing a distorted, inaccurate, or incomplete picture of the basis for the criminal investigation. See In re Search of Grand Jeep Cherokee, 1996 WL 768293, * 7 ("the danger in providing irrelevant or unreliable information is that the public would not be objectively educated regarding the search warrant process"). The public's interest in a complete factual basis for an investigation is served once an indictment has returned; if and when an indictment is returned, the affidavits in support of the search warrants are required to be disclosed under Fed. R. Crim. P. 16.
Accordingly, neither experience nor logic provides a basis for a First Amendment right of public access to the affidavits and inventories.
Even if there was such a right, this Court finds that there are compelling governmental and privacy interests that override that right. There is undoubtedly the need to protect the secrecy of grand jury matters. There is the government's need, as described above, to conduct a criminal investigation unfettered by early public disclosure of its sources of evidence and identities of witnesses.
Moreover, there are the privacy interests of the individuals identified in the affidavits who may be witnesses or potential targets of criminal activity. The Third Circuit found individual privacy interests to be such overriding interests in United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) ("Smith I"), where the press moved to unseal a portion of a bill of particulars that identified unindicted co- conspirators of the defendants.
Although the First Amendment right of access applied to the bill of particulars because of the history of indictments and supporting documents being open to the public, the court noted that "privacy rights may outweigh the public's interest in disclosure," and found significant privacy interests at stake in the list of unindicted co-conspirators:
If published, the sealed list will communicate to the general public that the named individuals, in the opinion of the chief federal law enforcement official of the District, are guilty, or may be guilty, of a felony involving breaches of the public trust. This broad brush assertion will be unaccompanied by any facts providing a context for evaluating the basis for the United States Attorney's opinion with respect to any given individual. When one adds to this that the United States Attorney's opinion was formed on the basis of an investigation that had not yet reached the point where he was willing to make a decision on whether to prosecute, it becomes apparent that the risk of serious injury to innocent third parties is a grave one. 776 F.2d at 1113-14.
Because of this harm to third-party privacy interests, the court held that there was "a compelling governmental interest in making sure its own process was not utilized to unnecessarily jeopardize the privacy and reputational interests of the named individuals." Because the government has stated that the affidavits identify individuals "who may be targets or subjects of the grand jury's investigation who are suspected of criminal activity," (Gov't Brief, at 4), the same threats to individual privacy interests that compelled the Third Circuit to seal the bill of particulars in Smith I are present here. *fn5
This Court therefore finds that petitioners are not entitled to have access to the sealed affidavits and inventories under the First Amendment. Weighing the same competing interests under a common-law analysis, the Court further finds that petitioners are not entitled to have access to the sealed affidavits and inventories under the common law. The historical tradition of secrecy attending search warrant applications and grand jury matters, the sensitive nature of the information contained in the affidavit, and the procedural posture of the criminal investigation significantly diminish the strength of the common law right to view judicial records. The criminal investigation in this matter is ongoing, and while the search warrants have already been executed, the identities of various individuals mentioned in the affidavits should be kept confidential to protect their privacy interests and safety, particularly at the pre-indictment stage. Public disclosure at this time would cause the press and public to speculate about the nature, scope and focus of the governmental inquiry, while providing an incomplete knowledge base. Public disclosure would also put evidence and witnesses at risk. Accordingly, at this pre-indictment stage, this Court finds that the balance of the competing interests weighs in favor of keeping the affidavits and inventories sealed.
The Court denies Mayor Milan's request to compel the government to redact only those portions of the inventories that are necessary to grand jury proceedings. The court finds persuasive the government's argument that since Mayor Milan already has a copy of the unredacted inventories, the redacted ones would tip him off as to what evidence the government believes important to the criminal investigation before the grand jury. In addition, since evidence is continually developing in a criminal investigation, what the government may not think is essential to present to a grand jury at this stage may subsequently become more important. *fn6
For the reasons contained herein, the Court will deny petitioners' motion to unseal the affidavits and inventories submitted under seal in connection with the search warrants issued for the home and office of Camden City Mayor Milton Milan. Robert B. Kugler
United States Magistrate Judge
THIS MATTER having been brought upon motion before the Court by Warren W. Faulk, Esquire, attorney for Petitioner Philadelphia Newspapers, Inc.; and William L. Ryan, Esquire, attorney for Petitioner Gannett Satellite Information Network, Inc., t/a The Courier-Post; and Edwin J. Jacobs, Esquire, attorney for Petitioner Milton Milan, (collectively, "Petitioners"), for an Order granting leave to intervene in this matter and to unseal the affidavits, inventories and supporting documents submitted in connection with three search warrants issued by this Court on August 25, 1999, for the residence and office of Camden City Mayor Milton Milan; and the Court having considered the parties' moving papers and arguments held on September 2, 1999; and for good cause shown herein and in the accompanying Opinion issued this date;
IT IS this 2nd day of September, 1999 hereby
ORDERED that Petitioners' motion to intervene in this matter is GRANTED; it is
FURTHER ORDERED that Petitioners' motion to unseal the affidavits and inventories is DENIED.
Robert B. Kugler United States Magistrate Judge