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In re Sealed Search Warrants

July 14, 2008


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge



On June 4 and 5, 2008, search warrants were issued for the offices and storage annex of Powers & Co., a business located in Albany, New York. Upon the application of the United States, the search warrants, applications, and supporting affidavits were sealed. The two warrants were executed on June 6, 2008 and the returns were likewise ordered sealed. Presently pending is the motion of Brendan J. Lyons ("Lyons") pro se, a reporter for the Times Union newspaper and the Hearst Corporation, to unseal all documents related to both search warrants.*fn1 In response, the United States moves to unseal the search warrants and returns but opposes Lyons' motion in all other respects.*fn2 Counsel for William D. Powers and Powers & Co. (collectively "Powers & Co.") opposes Lyons' motion in its entirety. For the reasons which follow, Lyons is granted leave to intervene for purposes of this motion and his motion is granted in part and denied in part.

I. Background

On June 4, 2008, Special Agent Ray B. Cook, III of the Federal Bureau of Investigation applied for a search warrant for the office of Powers & Co. at 90 State Street in Albany. Docket No. 1. The following day, Cook applied for a second warrant for the storage annex of Powers & Co. at the same address. Docket No. 5. Both applications were granted, warrants were issued, and the documents were sealed on motion of the United States. Docket Nos. 2, 3, 6, 7. Both warrants were executed on June 6, 2008 and the returns on those warrants were filed under seal. Docket Nos. 4, 8; see Fed. R. Crim. P. 41(f)(4).

By letter dated June 16, 2008, Lyons requested that records related to the search of Powers & Co. be unsealed. Lyons' letter was forwarded to the attorney for the United States with the directions to serve any known interested parties and to serve any response on or before July 1, 2008. Both the United States and Powers & Co. have served responses. The response of the United States moved to unseal the search warrants and returns but opposed unsealing the affidavits. The response of Powers & Co. opposed unsealing the search warrant records in their entirety. To date, no indictments have been returned which relate to the subject matter of the affidavits supporting the search warrants.

II. Discussion

Lyons seeks the unsealing of the documents filed in connection with the two search warrants, asserting both a First Amendment and a common law right of access. In such circumstances, a court must first "look to the common law, for [a court] need not, and should not, reach the First Amendment issue if judgment can be rendered on some other basis." Gardner v. Newsday, Inc., 895 F.2d 74, 78 (2d Cir. 1990). As to Lyons' common law claim, the Second Circuit has explained that "[t]he common law right of public access to judicial documents is firmly rooted in our nation's history" and there exists a presumption of access to such documents. Lugosch v. Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006).

The presumption of access is based on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administration of justice. . . . [P]rofessional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of [judicial] functions.

United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (Amodeo II).

In evaluating a claim to access under the common law, a court must determine (1) whether the documents to which access is sought constitute "judicial documents" giving rise to a presumption of access; (2) if so, the weight accorded the presumption; (3) the existence of any countervailing factors militating against public access; and (4) whether the presumption of access outweighs the countervailing factors. Lugosch, 435 F.3d at 119-26. The central focus of the inquiry is the relationship of the documents to the judicial process, not the particular motivations of those seeking access. See Logusch, 435 F.3d at 123; Amodeo II, 71 F.3d at 1050.

A. Judicial Documents

The fact that a document is filed with a court does not, by itself, render that document a "judicial document." Lugosch, 435 F.3d at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (Amodeo I)). "In order to be designated a judicial document, 'the item filed must be relevant to the performance of the judicial function and useful in the judicial process.'" Id. (citation omitted). The documents contained in the file of the two search warrants consist of the two warrants and returns, Cook's applications and affidavits, two sealing orders, and two applications for sealing orders. The warrants and orders are documents representing decisions by a judge and are, therefore, quintessentially judicial documents. See U.S. Const. amend. IV (requiring that a search warrant issue only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"); Fed. R. Crim. P. 41(d)(1) (same). Cook's affidavits were also mandated by the Fourth Amendment and by Fed. R. Crim. P. 41. Both constitute the basis upon which a judge determined to issue ...

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