FISHER, Circuit Judge:
We decide whether the public has a common law or First Amendment right of access to materials filed in support of search warrant applications after an investigation has been terminated. We hold that a qualified common law right of access applies. We decline to reach the constitutional question.
Christopher Kortlander owns and operates the Custer Battlefield Museum in Garryowen, Montana. Beginning in 2005, the United States investigated Kortlander for unlawfully attempting to sell migratory bird parts and for fraudulently misrepresenting the provenance of historical artifacts for sale. During that investigation,
In 2010, Kortlander asked the district court for a copy of the search warrant applications and supporting affidavits. He initially sought "a personal copy of the entire file, while leaving the file sealed to the public." Later, however, he asked that the warrant applications be "ordered unsealed" and "fully disclosed." Citing cases discussing the public's qualified First Amendment right of access to judicial proceedings, he asserted that "search warrant papers are presumptively public judicial records," adding that "[u]nfettered disclosure is entirely appropriate and fitting in this case and should be effectuated forthwith."
The United States Attorney's Office initially opposed Kortlander's request in its entirety, citing the need to protect witness, informant and grand jury secrecy. The government's objections said that portions of the search warrant affidavits "refer to witness testimony and documentary evidence collected by the grand jury, as well as informant statements[,] and identif[y] undercover officers."
Later, however, the government dropped its blanket objection to giving Kortlander access to the records, acknowledging that Kortlander and his attorney had already learned the "details of investigation in the course of negotiation" in the case, including "informant and undercover officer identities" and "grand jury material." "The government therefore no longer ha[d] concerns about disclosure of sensitive law enforcement and/or witness information."
Nonetheless, the government urged the court to "limit dissemination of the material to Kortlander's personal review and/or for inclusion in any future court filings," citing privacy interests of third parties. The government said:
The district court granted Kortlander's request for access to the warrant materials, but limited Kortlander's access in accordance with the government's suggestions.
The law recognizes two qualified rights of access to judicial proceedings and records, a common law right "to inspect and copy public records and documents, including judicial records and documents," Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (footnote omitted), and "a First Amendment right of access to criminal proceedings" and documents therein, Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). Kortlander contends that he has a right to unfettered access to the search warrant materials under both standards. We address the common law question first.
I. Common Law Right of Access
The first step in any inquiry under the common law right of access is whether this right applies at all to the type of documents at issue. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.2006) ("A narrow range of documents is not subject to the right of public access at all because the records have `traditionally been kept secret for important policy reasons.'" (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.1989))). "Our case law has identified two categories of documents" that are not covered by the common law right of access: "grand jury transcripts and warrant materials in the midst of a pre-indictment investigation." Id. (citing Times Mirror, 873 F.2d at 1219). We review this threshold question de novo. See Times Mirror, 873 F.2d at 1212.
Whether the common law right of access applies to warrant materials after an investigation has ended is a question of first impression in this circuit. We have held that the common law right of access does not apply to warrant materials "during the pre-indictment stage of an ongoing criminal investigation." Id. at 1221. But we expressly reserved whether the common law right of access applies to warrant materials after "an investigation has been terminated." Id. We answer that question today, and hold that, as the government concedes, the common law right of access applies under these circumstances.
886 F.2d at 63-64 (footnote omitted). "Affidavits in support of seizure or search warrants are central to a court's probable cause determination." Wells Fargo, 643 F.Supp.2d at 583. They therefore "clearly fall within the definition of `judicial documents.'" Id.; see also Fenstermaker, 530 A.2d at 418 ("[D]ocuments upon which a magistrate bases a decision to issue an arrest warrant are clearly judicial in character.").
We also agree with these courts that post-investigation warrant materials fall outside the "narrow range of documents [that are] not subject to the right of public access at all because the[y] have `traditionally been kept secret for important policy reasons.'" Kamakana, 447 F.3d at 1178 (quoting Times Mirror, 873 F.2d at 1219). As we acknowledged in Times Mirror, 873 F.2d at 1213-14, 1218, warrant materials have not historically been accessible to the public during the early stages of criminal proceedings. "Warrant application proceedings are highly secret in nature and have historically been closed to the press and public." Wells Fargo, 643 F.Supp.2d at 583; see also Baltimore Sun, 886 F.2d at 64 ("[P]roceedings for search warrants are not open to the public."); Gunn, 855 F.2d at 573 ("[H]istorically the process of issuing search warrants involves an ex parte application by the government and in camera consideration by the judge or magistrate. Moreover, the very objective of the search warrant process, the seizure of evidence of crime, would be frustrated if conducted openly.").
Post-investigation, however, warrant materials "have historically been available to the public." In re N.Y. Times Co., 585 F.Supp.2d at 88. "Search warrant
This tradition of openness "serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police." In re N.Y. Times Co., 585 F.Supp.2d at 90. Warrant materials are also "often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures." Id. As the Eighth Circuit has observed, "public access to documents filed in support of search warrants is important to the public's understanding of the function and operation of the judicial process and the criminal justice system and may operate as a curb on prosecutorial or judicial misconduct." Gunn, 855 F.2d at 573; see also Wells Fargo, 643 F.Supp.2d at 583 (stating that access to warrant materials "promotes the legitimate interests of the public and the press in `keep[ing] a watchful eye on the workings of public agencies'" (alteration in original) (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995))).
For these reasons, we hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. In doing so, we decline to extend Times Mirror to post-investigation access. In Times Mirror, we were concerned primarily with the impact disclosure would have on an ongoing criminal investigation. We said:
Times Mirror, 873 F.2d at 1215. These are important concerns, but they are not as relevant once an investigation has been terminated. The other concerns we identified in Times Mirror, particularly "the privacy interests of the individuals identified in the warrants and supporting affidavits," id. at 1216, are also important, but, in a particular case involving materials subject to the common law right of access, they may be redressed through a court's discretion either to release redacted versions of the documents or, if necessary, to deny access altogether, as we discuss below.
Having held that the right of access applies to post-investigation warrant materials, we must next decide whether the district court properly granted Kortlander only limited access to the warrant materials in this case.
When the common law right of access applies to the type of document at issue in a particular case, "a `strong presumption in favor of access' is the starting point." Kamakana, 447 F.3d at 1178 (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). "A party seeking to seal a judicial
The restrictions the district court imposed here do not conform to the standards we articulated in Kamakana. Although the court ruled that Kortlander may not "post the warrant applications on any websites," it did not articulate a "compelling reason" for these limitations or a "factual basis for its ruling." Kamakana, 447 F.3d at 1179. The restrictions therefore cannot be sustained.
Even when we look past the district court's order to the underlying government briefs upon which the district court relied, we do not find a compelling reason or a factual basis for the restrictions. The government's district court brief said only that "concerns have been raised that information collected by Kortlander may be posted on web sites," and cited the general principle that individuals identified in warrants have privacy interests that may justify denying access. The government's brief did not explain what concerns had been raised, whether they were concrete rather than conjectural or how they constituted a compelling reason for restricting Kortlander's access to the warrant materials.
Under these circumstances, we hold that the district court abused its discretion by
II. First Amendment Right of Access
Kortlander argues in the alternative that he is entitled to unrestricted access to the warrant materials under the First Amendment right of access to judicial proceedings. Whether this right of access applies to warrant materials after an investigation has ended is also a question of first impression in this circuit. In Times Mirror, we held that the "public has no qualified First Amendment right of access to warrant materials during the pre-indictment stage of an ongoing criminal investigation," but we expressly reserved whether the public has a constitutional right of access after "an investigation has been terminated." Times Mirror, 873 F.2d at 1221.
We decline to decide the question reserved in Times Mirror at this time. First, it has not been addressed by the district court, and we ordinarily prefer the district court to address issues in the first instance. Second, the district court may be able to resolve this case on remand by applying the common law right of access alone, without the need to address the First Amendment question. We prefer to "avoid reaching constitutional questions in advance of the necessity of deciding them." Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2031, 179 L.Ed.2d 1118 (2011) (quoting Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)) (internal quotation marks omitted). The First Amendment question is therefore reserved.
We hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. The district court properly recognized that right here, but the court erred by granting Kortlander only restricted access to the warrant materials without articulating a compelling reason for its ruling or making specific factual findings. The district court's order is therefore vacated, and the matter is remanded to the district court to reapply the common law standard to Kortlander's request.
We decline to decide whether the public has a qualified First Amendment right of access to warrant materials after an investigation
Costs of appeal are awarded to the appellant.
Courts have applied the common law right of access to a variety of warrant-related materials. See In re EyeCare Physicians, 100 F.3d at 515 (search warrant application and affidavit); In re Newsday, 895 F.2d at 75 (same); Baltimore Sun, 886 F.2d at 62 (search warrant affidavit); Wells Fargo, 643 F.Supp.2d at 579 (affidavits in support of warrants of seizure in rem); In re N.Y. Times Co., 585 F.Supp.2d at 86 (search warrant applications and affidavits); Fenstermaker, 530 A.2d at 415-16 (affidavits of probable cause in support of arrest warrants); see also Gunn, 855 F.2d at 570 (search warrant affidavits and related materials).