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United States v. Sealed Search Warrants

September 2, 1999

UNITED STATES OF AMERICA
V.
SEALED SEARCH WARRANTS



The opinion of the court was delivered by: Kugler, United States Magistrate Judge:

OPINION

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.

I. DISCUSSION

A. FIRST AMENDMENT RIGHT OF ...


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