Times Mirror Co. v. U.S., KCST-T

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before SCHROEDER, ALARCON and NORRIS; William A. NORRIS
• Citation: 873 F.2d 1210
• Parties: , 16 Media L. Rep. 1513 The TIMES MIRROR COMPANY; Petitioner-Appellant, and The Copley Press, Inc., Appellant, v. UNITED STATES of America, Real Party in Interest-Appellee. The TIMES MIRROR COMPANY; the Copley Press, Inc., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA; United States District Court for the Southern District of California, Respondents, United States of America; Doe Parties, Real Parties in Interest. The TIMES MIRROR COMPANY; The Copley Press, Inc., Appellants, v. UNITED STATES of America, Real Party in Interest-Appellee. CHANNEL 39,ppellant, v. UNITED STATES of America, Appellee.
• Docket Number: Nos. 88-6278,A,KCST-T,88-6279 and 88-6280,88-7291
• Decision Date: 24 July 1989

Page 1210

873 F.2d 1210 57 USLW 2653, 16 Media L. Rep. 1513 The TIMES MIRROR COMPANY; Petitioner-Appellant,
and
The Copley Press, Inc., Appellant,
v.
UNITED STATES of America, Real Party in Interest-Appellee.
The TIMES MIRROR COMPANY; the Copley Press, Inc., Petitioners,
v.
UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF
CALIFORNIA; United States District Court for the
Southern District of California, Respondents,
United States of America; Doe Parties, Real Parties in Interest.
The TIMES MIRROR COMPANY;
The Copley Press, Inc., Appellants,
v.
UNITED STATES of America, Real Party in Interest-Appellee.
CHANNEL 39, KCST-TV, Appellant,
v.
UNITED STATES of America, Appellee. Nos. 88-6278, 88-7291, 88-6279 and 88-6280. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 5, 1988.
Decided April 18, 1989.
As Amended on Denial of Rehearing and Rehearing En Banc July 24, 1989.

Page 1211

Rex S. Heinke, Gibson, Dunn & Crutcher, William A. Niese and Glen A. Smith, The Times Mirror Co., Los Angeles, Cal., Harold W. Fuson, Jr., The Copley Press, Inc., La Jolla, Cal., Judith L. Fanshaw, Wahrenbrock & Fanshaw, La Mesa, Cal., for appellants-petitioners.

Robert A. Philipson, Cutler and Cutler, Los Angeles, Cal., George L. O'Connell, Miller & O'Connell, Inc., Los Angeles, Cal., Randall J. Turk, Miller, Cassidy, Larroca & Lewin, Mark H. Tuohey, III, Pierson, Ball & Dowd, Barry William Levine, Dickstein, Shapiro & Morin, Robert F. Muse, Stein, Mitchell & Mezines, James F. Hibey, Verner, Liipfert, Bernhard, McPherson & Hand, Washington, D.C., Vincent J. Marella, Bird, Marella, Boxer, Wolpert & Matz, Bert H. Deixler, McCambridge, Deixler & Marmaro, Los Angeles, Cal., for Doe parties.

Joseph J. Aronica, Asst. U.S. Atty., Alexandria, Va., George Hardy, Asst. U.S. Atty., San Diego, Cal., Steven E. Zipperstein, Asst. U.S. Atty., Los Angeles, Cal., Maury S. Epner, Dept. of Justice, Washington, D.C., for U.S.

Appeal from the United States District Court for the Central District of California.

Appeal from the United States District Court for the Southern District of California.

Before SCHROEDER, ALARCON and NORRIS, Circuit Judges.

William A. NORRIS, Circuit Judge:

In these consolidated appeals we consider whether the public has a qualified right of access to search warrants and supporting affidavits relating to an investigation which is ongoing and before any indictments have been returned. Appellants (the Times Mirror Company, KCST-TV Channel 39, and the Copley Press) claim they have a qualified right of access, derived from the First Amendment, the common law and Fed.R.Crim.P. 41(g) ¹, to search warrant materials associated with Operation Ill-Wind, a nationwide FBI investigation of corruption and fraud in the procurement of military weapons systems. The United States District Courts for the Central and Southern Districts of California both rejected these claims. We affirm, holding that members of the public have no right of access to search warrant materials while a pre-indictment investigation is under way. We need not and do not decide at this time the question whether the public has a First Amendment right of access to warrant materials after an investigation is concluded or after indictments have been returned.

I BACKGROUND

This dispute arises out of a far-ranging investigation, originating in the Eastern District of Virginia, into fraud and bribery in the defense contracting industry. In June 1988, agents of the Federal Bureau of Investigations applied to United States District Courts around the country for various search warrants, four of which were issued and executed in the Central District of California and one of which was issued and executed in the Southern District of California. To establish probable cause for the warrants, the agents submitted detailed affidavits. Following execution of each warrant, the agents also prepared inventories of the items seized, in accordance with Fed.R.Crim.P. 41(d). The search warrants and inventories were then returned to magistrates in the districts where the warrants were served.

The government sought, and magistrates in the Central and Southern Districts of California initially granted, orders maintaining the search warrants, supporting affidavits and inventories under indefinite seal. Appellants then filed these original

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actions in the United States District Courts for the Central and Southern Districts of California, seeking court orders to unseal the warrant materials. In the Central District action, a magistrate granted appellants' request and ordered the search documents unsealed. After securing a stay, the government appealed the magistrate's order to the district court. District Judge Kenyon reversed the magistrate's order on the ground that "the public's interest in a complete and uninhibited investigation strongly outweighs [the public's] need for or right of access to the search warrant affidavits at this time." Excerpt of Record (E.R.) at 480.

In the Southern District action, the magistrate denied the motion to unseal the search papers. Appellants then appealed the denial to the district court. Chief Judge Thompson affirmed the magistrate's order denying relief, ruling that appellants had no First Amendment right of access to pre-indictment warrant materials and that the common law right of access to judicial documents was trumped in this case by important governmental interests in maintaining the secrecy of the warrant materials during the investigation. Id. at 992.

II JURISDICTION

This court's jurisdiction to review the district courts' orders denying access rests on 28 U.S.C. Sec. 1291. Section 1291 provides appellate review for all "final decisions of the district courts of the United States." Each of the orders denying access "finally adjudicated the matter presented to the district court and was not a mere component of a different proceeding." Re Sealed Affidavit(s) to Search Warrants, 600 F.2d 1256, 1257 n. 2 (9th Cir.1979) (per curiam). As the Third Circuit noted in Re New York Times Co., 828 F.2d 110, 113 (2d Cir.1987) cert. denied, --- U.S. ----, 108 S.Ct. 1272, 99 L.Ed.2d 483 (1988), because "the claims could have been treated by the district court as a new civil case, as opposed to an intervention in [a] pending criminal case," each order by the district court resolved all issues that were raised in the proceeding, making the order a final decision. Accord: Re Search Warrant for Secretarial Area Outside Office of Thomas Gunn, McDonnell Douglas Corp., 855 F.2d 569, 572 (8th Cir.1988) ("McDonnell Douglas Corp."); Re Application of National Broadcasting Co., Inc., 635 F.2d 945, 949 n. 2 (2d Cir.1980). ²

III STANDARD OF REVIEW

The question whether the public has a qualified First Amendment right of access to search warrants and supporting affidavits during the pre-indictment stage of a criminal investigation is a question of law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir. en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). Similarly, the questions whether the common law provides the public with a qualified right of access to warrant materials and whether Fed.R.Crim.P. 41(g) embodies a statutory right of access are also questions of law, requiring de novo review.

IV THE FIRST AMENDMENT

Appellants assert that the First Amendment guarantees the public a qualified right of access to search warrants and supporting affidavits at the pre-indictment stage of an ongoing criminal investigation. ³ Appellants argue that warrant proceedings are "criminal proceedings," and that therefore the public has a right of access to all documents relating to those proceedings unless there is a compelling state interest requiring closure. See generally, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ("Press-Enterprise II ") (public has First Amendment right of access to transcript of

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preliminary hearing in criminal prosecution); CBS, Inc. v. United States Dist. Court, 765 F.2d 823 (9th Cir.1985) (public has First Amendment right of access to criminal proceedings and documents filed therein). They contend that the justifications for granting the public access to criminal trials apply with equal force to warrant proceedings. Public access to warrant proceedings, like public access to criminal trials, appellants claim, would ensure active participation of the individual citizen in "our republican system of self-government," Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604, 102 S.Ct. 2613, 2619, 73 L.Ed.2d 248 (1982) (citations omitted), serve as a check upon possible abuses of judicial power, and "enhance the quality and safeguard the integrity of the fact-finding process." 457 U.S. at 606, 102 S.Ct. at 2619 (footnote omitted). Appellants conclude that because the public would stand to benefit in these ways, the First Amendment requires warrant proceedings and materials to be open to public inspection, unless the government can demonstrate that compelling interests necessitate closure.

Appellants essentially argue that any time self-governance or the integrity of the criminal fact-finding process may be served by opening a judicial proceeding and its documents, the First Amendment mandates opening them to the public. Were we to accept this argument, few, if any, judicial proceedings would remain closed. Every judicial proceeding, indeed every governmental process, arguably benefits from public scrutiny to some degree, in that openness leads to a better-informed citizenry and tends to deter government officials from abusing the powers of government. However, complete openness would undermine important values that are served by keeping some proceedings closed to the public. Openness may, for example, frustrate criminal investigations and thereby jeopardize the integrity of the search for truth that is so critical...