Baltimore Sun Co. v. Goetz

• Decision Date: 15 September 1989
• Docket Number: No. 88-3601,88-3601
• Citation: 886 F.2d 60
• Parties: 16 Media L. Rep. 2295 In re The BALTIMORE SUN COMPANY, Plaintiff-Appellant, v. The Honorable Clarence E. GOETZ, United States Magistrate, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 60

886 F.2d 60

16 Media L. Rep. 2295

In re The BALTIMORE SUN COMPANY, Plaintiff-Appellant, v. The Honorable Clarence E. GOETZ, United States Magistrate,

Defendant-Appellee.

No. 88-3601.

United States Court of Appeals, Fourth Circuit.

Argued April 12, 1989.

Decided Sept. 15, 1989.

Henry Robbins Lord (Stephen H. Kaufman, Piper & Marbury, Baltimore, Md., on brief), for plaintiff-appellant.

Richard C. Kay, Law Clerk (Breckinridge L. Willcox, U.S. Atty.; Barbara Slaymaker Sale, Asst. U.S. Atty., Baltimore, Md., on brief), for defendant-appellee.

Before ERVIN, Chief Judge, and RUSSELL, Circuit Judge, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

The Baltimore Sun Co., a newspaper publisher, appeals the district court's order denying its petition for a writ of mandamus ordering a magistrate to unseal a search warrant affidavit. The principal issue is whether either the first amendment or the common law confers a qualified right of access to inspect and copy affidavits supporting search warrants in the interval between execution of the warrants and indictment. ¹ Subsidiary issues, raised by the government, are whether this appeal is moot and whether mandamus is an appropriate remedy. We hold that the appeal is not moot and that mandamus is appropriate. Although the press and public do not have a first amendment right of access, they have a qualified common law right of access. Because the district court did not recognize this right, we vacate its judgment, but remand is unnecessary.

I

On January 27, 1988, a magistrate issued three search warrants related to an FBI investigation of fraud and organized crime in the health insurance industry. The warrants were based on the affidavit of an FBI agent. Upon the request of the government, the magistrate sealed the papers. The warrants were executed and returned on January 28 and 29. On March 3, 1988, the magistrate unsealed the warrants and returns but left the supporting affidavit sealed.

The Sun sought without success to have the affidavit unsealed during March and April of 1988. On May 4, 1988, the Sun petitioned to intervene, seeking relief in the form of inspection and publication of the affidavit. The government filed two responses to the Sun's motion--a four page document filed under seal and a two page redacted version which was delivered to the Sun.

On May 29, 1988, the magistrate denied the Sun's motion to unseal. He found that the procedures for sealing public documents and closing court proceedings, set out by this court in In re Knight Publishing Co., 743 F.2d 231 (4th Cir.1984), and In re Washington Post Co., 807 F.2d 383 (4th Cir.1986), were inapplicable to the sealing of an affidavit supporting a search warrant. The magistrate concluded: "The public interest in the investigation of crime is best served by not publishing search warrants or affidavits prior to the execution of the warrant and for a reasonable time thereafter while the investigation is continuing."

After the magistrate denied its motion, the Sun filed a petition for a writ of mandamus to compel the magistrate to unseal the affidavits. The district court reviewed the unredacted version of the government's response to the Sun's motion to intervene but refused to examine the affidavit itself. The court concluded that the magistrate did not abuse his discretion. It agreed that the public's interest in effective criminal investigation outweighed the Sun's interest in publication of the affidavit and that release of the affidavit could hamper the ongoing investigation.

While this appeal was pending, indictments arising out of the FBI's investigation were returned on September 22, 1988. Three weeks later, on the government's motion, the magistrate unsealed the affidavit.

II

We cannot accept the government's contention that, because the affidavit has been released to the public, this appeal should be dismissed as moot. This case falls within the exception to the mootness rule which permits judicial review when the dispute is "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). This exception applies if (1) the challenged action is too short in duration to be fully litigated and (2) there is a reasonable expectation that the same party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).

The government concedes, and we agree, that there is a reasonable expectation that the Sun will be subject to another sealing order denying it access to an affidavit. We are convinced that this kind of secrecy order is usually too short in duration to be litigated fully. The affidavit was unsealed within eight months after the Sun filed its petition. In similar cases the Supreme Court has held that the exception to the mootness doctrine applies. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602-03, 102 S.Ct. 2613, 2617-18, 73 L.Ed.2d 248 (1982); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct. 2791, 2796-97, 49 L.Ed.2d 683 (1976).

III

The government also argues that the district court order should be affirmed because mandamus cannot be granted unless the petitioner shows he has "no other adequate means to attain the relief he desires." Kerr v. United States Dist. Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). Because the Sun did not appeal the magistrate's order denying its motion to unseal, the government asserts that mandamus is not available.

The district court did not err by addressing the merits of the case. Mandamus, not appeal, "is the preferred method of review for orders restricting press activity related to criminal proceedings." Washington Post, 807 F.2d at 388. See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 504-05, 104 S.Ct. 819, 821-22, 78 L.Ed.2d 629 (1984) (Press-Enterprise I ).

IV

The government asserts that an affidavit for a search warrant is not a judicial record; it is ancillary to the investigation of one suspected of crime and not to the criminal trial itself. Consequently, the government argues, there is no right of access to the affidavit by either press or public.

We reject the government's argument. "[T]he distinction between trials and other official proceedings is not necessarily dispositive, or even important, in evaluating the First Amendment issues." Press-Enterprise I, 464 U.S. at 516, 104 S.Ct. at 827. (Stevens, J., concurring). The requirement that warrants issue only upon oath or affirmation showing probable cause is embodied in the fourth amendment. A judicial officer must review the affidavit to determine whether the warrant should issue. This initial review is subject to further review by district and appellate courts upon motion to suppress the objects seized in the search. Federal Rule of Criminal Procedure 41(g) directs the judicial officer to file the warrant and all papers in connection with it with the clerk of the district court. ² The papers are then available for use in a subsequent criminal trial if its sufficiency is questioned. We therefore conclude that affidavits for search warrants are judicial records.

Recognizing that search warrant affidavits are judicial records, however, does not answer the question whether the press has a right of access secured by either the first amendment or the common law. The distinction between the rights afforded by the first amendment and those afforded by the common law is significant. A first amendment right of access can be denied only by proof of a "compelling governmental interest" and proof that the denial is "narrowly tailored to serve that interest." Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2620. In contrast, under the common law the decision to grant or deny access is "left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon v. Warner Communications, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). See also Washington Post, 807 F.2d at 390. The Sun claims both first amendment and common law rights of access.

V

The test for determining whether a first amendment right of access is available is: 1) "whether the place and process have historically been open to the press and general public," and 2) "whether public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S.Ct. 2735, 2740-42, 92 L.Ed.2d 1 (1986) (Press-Enterprise II ). The Sun's claim of a first amendment right of access to the affidavit fails because it does not satisfy the first prong of the test. Twice the Supreme Court has recognized that proceedings for the issuance of search warrants are not open. In Franks v. Delaware, 438 U.S. 154, 169, 98 S.Ct. 2674, 2683, 57 L.Ed.2d 667 (1978), the Court observed that the proceeding for issuing a search warrant "is necessarily ex parte, since the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove the evidence." See also United States v. United States Dist. Court, 407 U.S. 297, 321, 92 S.Ct. 2125, 2138, 32 L.Ed.2d 752 (1972) (a "warrant application involves no public or adversary proceeding"). Although the Supreme Court in these decisions was not addressing the rights of the press, the common sense reason why proceedings for search warrants are not open to the public convinces us that the same principles apply when the press seeks disclosure.

The Sun disclaims any right to examine a search warrant affidavit before the warrant is executed, but the need for sealing affidavits may remain after execution and in some instances even after indictment. For example, the affidavit may describe continuing investigations, disclose information gleaned from wiretaps that have not yet been...