Monday, January 3, 2005
A recent opinion issued by the United States District Court for the District of Maryland upholds the right of a person whose property is searched (and seized) to review the government's affidavit filed in support of the warrant unless there is a compelling government interest in maintaining secrecy. The decision in In re Search Warrants Issued on April 26, 2004 involves an increasingly common scenario in which the government obtained a warrant to search three offices of a doctor in Maryland, identified in the opinion only as "Property Owner," as part of a health care fraud investigation. The court initially granted the government's motion to seal the affidavit, a step the court noted occurs with much greater frequency these days, particularly in white collar crime investigations. The Property Owner sought to review the affidavit in anticipation of challenging the validity of the warrant. The government's position was that the only means to challenge a search, and hence the sealing of the affidavit, is by way of a Rule 41(g) motion for the return of property when there has not yet been an indictment. The District Court noted that "[t]he remedy proposed by the government would be essentially meaningless." Instead, the court held that the Fourth Amendment incorporates a right to review the affidavit, stating:
The search subject's Fourth Amendment right to access of a search warrant affidavit is balanced against the government's right to oppose that access. In order to prevent a subject from inspecting the contents of a search affidavit, the government must demonstrate to the court that: 1) there is a compelling governmental interest requiring materials to be kept under seal, and 2) there is no less restrictive means, such as redaction, available.
The District Court then rejected the government's argument that there was a compelling need to maintain the seal, noting that it "found that the government's general allegations of possible witness 'coaching,' the government's fears concerning discovery of their 'novel' legal theories, and the concern over exposure of other potential targets, are all unfounded given the facts of this case."
The practice of using search warrants rather than subpoenas is now well-established, and the fight will turn toward litigating the probable cause determination in addition to the breadth of the warrant, which are usually quite encompassing in white collar cases. The District Court's opinion provides a potential avenue for discovery of the scope and theory of the government's investigation, and its Fourth Amendment analysis is one that other district courts have recognized (the opinion cites decisions consistent with its holding) and is still being developed in the lower courts. (ph)