Search of 1638 E. 2nd Street, Tulsa, Okl., Matter of, 92-5092

• Decision Date: 20 May 1993
• Docket Number: No. 92-5092,92-5092
• Citation: 993 F.2d 773
• Parties: In the Matter of the SEARCH OF 1638 E. 2ND STREET, TULSA, OKLAHOMA. John LAWMASTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 773

993 F.2d 773

In the Matter of the SEARCH OF 1638 E. 2ND STREET, TULSA, OKLAHOMA.

John LAWMASTER, Appellant, v. UNITED STATES of America, Appellee.

No. 92-5092.

United States Court of Appeals, Tenth Circuit.

May 20, 1993.

Steven L. Sessinghaus, Tulsa, OK, for appellant.

Allen J. Litchfield, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, OK, for appellee.

Before LOGAN, MOORE, and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

Appellant John Lawmaster appeals the district court's denial of his motion to unseal an affidavit supporting a search warrant that was executed on his residence. The search proved fruitless, and appellant now seeks to discover the identity of the informant who provided the information used to obtain the search warrant.

I

Agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) obtained and executed a search warrant for appellant's home, based on allegations from an informant that appellant was in possession of an illegal firearm. After searching appellant's house, the agents found no such weapon although they apparently found numerous legal firearms. See Appellant's App. at 20. The agents left the house without removing any of appellant's property. The government moved to seal the affidavit, claiming that the sealing was necessary to protect the ongoing investigation and because the informant feared reprisal from appellant. The magistrate judge granted the government's motion.

Appellant then petitioned the district court to overrule the magistrate judge's order and to release the affidavit. Following some confusion over the basis upon which the government sought to keep the affidavit sealed, ¹ the district court ultimately affirmed the magistrate judge's ruling, from which appellant took the instant appeal. We review the district court's decision for an abuse of discretion. In re the Application and Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2243, 114 L.Ed.2d 484 (1991); United States v. Mann, 829 F.2d 849, 853 (9th Cir.1987).

II

The government cites the informer's privilege as the basis for keeping the affidavit under seal and the informer's identity secret. Under that privilege, "the state is normally entitled to refuse to disclose the identity of a person who has furnished information relating to an investigation of a possible violation of law." Hoffman v. Reali, 973 F.2d 980, 987 (1st Cir.1992). "The underlying concern of the doctrine is the common-sense notion that individuals who offer their assistance to a government investigation may later be targeted for reprisal from those upset by the investigation." Dole v. Local 1942, IBEW, 870 F.2d 368, 372 (7th Cir.1989). The government is entitled to assert the privilege without showing that reprisal or retaliation is likely. Id.

The informer's privilege is not absolute, however. If the party seeking disclosure makes a proper showing of need, the privilege will give way. It will yield "when the identification of the informant or of a communication is essential to a balanced measure of the issues and the fair administration of justice. The party opposing the privilege may overcome it upon showing his need for the information outweighs the government's entitlement to the privilege." Id. at 372-73 (citations omitted).

In most circumstances, the party seeking disclosure is the defendant in a criminal case, who wants the informant's identity to assist in his or her defense. In such cases, if "the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, ... the privilege must give way." Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639 (1957). However, the privilege is applicable in civil cases as well. United States v. One 1986 Chevrolet Van, 927 F.2d 39, 43 (1st Cir.1991). Here, appellant has not been indicted, nor is he threatened with later prosecution. His motion is therefore civil in nature, although no civil suit has been filed. ² In such cases, the informer's privilege is arguably stronger, because the constitutional guarantees assured to criminal defendants are inapplicable. Dole, 870 F.2d at 372.

Appellant argues that he is entitled to the affidavit under the common law right of access to the courts. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). We agree that "the press and the public have a common law qualified right of access to judicial records," Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir.1989), and that "affidavits for search warrants are judicial records," id. at 64. However, although "the common law right of access creates a strong presumption in favor of public access to materials submitted as evidence in open court, this presumption should not apply to materials properly submitted under seal." United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (internal quotation and citation omitted); see also Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.1989) ("[T]here is no right of access to documents which have traditionally been kept secret for important policy reasons."). Thus, when the government properly invokes the informer's privilege, it trumps the common law right of access to judicial records as to the identity of the informant.

Appellant further argues that he was entitled to a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This argument fails for a number of reasons. First, Franks is premised upon a potential showing of a Fourth Amendment violation in a criminal case, in which case the defendant would be entitled to the suppression of illegally obtained evidence. Here, appellant is merely an interested party, not a criminal defendant, and so is not subject to criminal sanctions based on the search of his home. Second, to qualify for a Franks hearing, appellant must have made a substantial showing that the affiant knew of, or recklessly disregarded, the falsity of the informant's information. United States v. Bloomgren, 814 F.2d 580, 584 (10th Cir.1987). Appellant does not challenge the actions of the police; he merely seeks the identity of the informant. Appellant alleges no impropriety on the part of the affiant, ATF Agent P. Blair Ward. Third, Franks itself states that "[t]he deliberate falsity or reckless disregard whose...