The Volokh Conspiracy
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Affidavit Supporting Search Warrant, Considered in Motion-to-Suppress Hearing, Can't Be Sealed
But modest redactions are permissible.
From U.S. v. Campbell, decided last week by Judge Douglas R. Cole (S.D. Ohio):
"It would be easy—in the interest of judicial economy, one might say—to grant a sealing motion when no party objects." But a court should not, indeed cannot, grant a motion to seal simply because it is easy and convenient to do so. Rather, courts must evaluate a motion to seal in light of the weighty public interests in judicial transparency and open access to court records. Accordingly, as the Sixth Circuit recently explained, "a court's obligation to explain the basis for sealing court records is independent of whether anyone objects to it."
The public right of access to judicial information is secured both in the First Amendment and the common law. "Although the scope of the First Amendment and common law rights differ somewhat, when a right of access arises under either, the burden falls on the party opposing disclosure to show compelling reasons that justify confidentiality."
Whether a right of access exists under either body of law will depend on the nature of the document or proceeding at issue. The document at issue here is a search warrant affidavit that is the subject of Campbell's motion to suppress. The affidavit is attached as the first exhibit to both Campbell's motion and the government's response. The Court also admitted the affidavit into evidence at the motion to suppress hearing. The question here is whether the common law right of access, or the First Amendment right of access, preclude the parties' efforts to seal the affidavit in this case.
Start with the constitutional right of access…. The fact that the affidavit at issue here plays such a central role in a motion to suppress is significant for the Court's constitutional analysis. … [H]earings on motions to suppress, like certain other pre-trial criminal proceedings, historically have been, and logically should be, open to the public…. A suppression hearing is one of the most "critical pre-trial proceeding[s]," and can be "as important as the trial itself." As suppression hearings evaluate the "conduct of law enforcement officers[,] … the public interest in access to a suppression hearing is particularly high." Given the public interest in such proceedings, the First Amendment right of access fairly extends to the exhibits used at such a hearing.
Given the First Amendment interests involved in exhibits used at suppression hearings, a seal is appropriate only if it is "essential to preserve higher values" and is "narrowly tailored" to those interests. The parties' motion identifies an interest that could check the first box, namely, the parties suggest that a seal would serve the "higher value" of ensuring the "safety of the witness referenced in the warrant affidavit." The Court agrees that witness safety is of crucial interest, both to the criminal justice system, and to the public at large.
But, while the motion identified a "higher value," the motion to seal falls short on the narrow tailoring front. The affidavit at issue is eight pages long. It includes a variety of information, some of which admittedly concerns a government witness, but much of which appears completely unrelated to the witness, at least at first blush. The parties' attempt to seal this information wholesale fails to satisfy the First Amendment's narrow tailoring requirement. At most, the First Amendment would support redacting the allegedly sensitive information.
While the analysis under the common law right of access is slightly different, it leads to the same result here…. In Shane Group, Inc. v. Blue Cross Blue Shield of Mich. (6th Cir. 2016), the Sixth Circuit distinguished between documents in the "discovery stage" and the "adjudication stage" of litigation. The first of these stages is largely a private matter between the parties, which involves collection and exploration of documents that "might or might not be relevant to their case." Accordingly, "[s]ecrecy is fine at the discovery stage, before the material enters the judicial record."
"At the adjudication stage, however, very different considerations apply." The adjudication stage begins when "the parties place material in the court record." At that point, the documents in the record begin to directly inform the court's ultimate disposition of the case. These documents, then, can provide the public notice of "whether a right does or does not exist" and of "the [type of] conduct [that can give] rise to [such a] case." Perhaps even more importantly, transparency at the adjudication stage prevents the courts from "masking impropriety, obscuring incompetence, and concealing corruption."
Although Shane Group was a civil case, its reasoning applies in the criminal context. For example, one of Shane Group's articulated goals is to provide the public notice of the type of conduct that could give rise to civil liability. The public has a similar, and possibly even weightier, interest in having notice of the type of conduct that could lead to criminal liability. Similarly, although the presumption of openness serves to control for corruption and incompetence in the civil system, it is arguably even more important to control for such improprieties in the criminal system, where such misconduct could have severe consequences.
At the adjudication stage in both criminal and civil matters, then, Shane Group requires the party seeking a seal to advance a "compelling reason why certain documents or portions thereof should be sealed." And, even if the movant can demonstrate a compelling reason, the proposed "seal itself must be narrowly tailored to serve that reason." As part of the narrow tailoring requirement, it falls to the "proponent of sealing" to "analyze in detail, document by document, the propriety of secrecy, [and to] provid[e] reasons and legal citations."
The government's unopposed motion to seal here falls short of these standards. To start, … [the affidavit] is not only an exhibit to a motion to suppress, but the Court also admitted it into evidence during a hearing on that motion. Therefore, the affidavit is a document that is "in the court record" for purposes of Shane Group.
Not only does the express language of Shane Group support this finding, but it also is consistent with the policy underlying that decision. On a deeper level, the presumption behind the right of public access in Shane Group "traces its roots to the Roman and English traditions of trials being open to the public." A motion to suppress (and any responsive briefing and attached exhibits) is intimately connected to the concept of a trial. Motions to suppress, like their civil-law cousin motions in limine, are motions which serve the core function of limiting the evidence that the court can consider at trial. It is well-established that motions in limine are "adjudicative" motions that can trigger Shane Group's strict scrutiny test. In fact, one of the documents at issue in Shane Group was a motion to strike the report and testimony of the plaintiffs' expert witness, and the Court held that the heightened sealing burden applied to that motion. Briefing and exhibits concerning motions to suppress, then, are also subject to Shane Group's requirements.
In its unopposed motion to seal, the government identifies a potentially compelling interest. Namely, the government asserts that a seal is necessary to protect the "safety of the witnesses referenced" in the exhibit. Even so, the government once again runs into a problem on the narrowly-tailored front. Specifically, the government seeks to seal the exhibit in its entirety, without offering any explanation as to why redaction of key information, rather than sealing in the entirety, would not serve the same identified compelling interest of witness safety….
Two days later, the court approved the filing of a redacted version of the affidavit: "The Court finds that the proposed redactions are narrowly tailored to serve the compelling interest of witness safety. Each redaction concerns potentially identifying information the confidential informant relayed to the police or information that reveals the confidential informant's involvement in controlled buys."