No. 92-5092, 993 F.2d 773, 10th Cir. (1993)
No. 92-5092, 993 F.2d 773, 10th Cir. (1993)
2d 773
In the Matter of the SEARCH OF 1638 E. 2ND STREET, TULSA,
OKLAHOMA.
John LAWMASTER, Appellant,
v.
UNITED STATES of America, Appellee.
No. 92-5092.
United States Court of Appeals,
Tenth Circuit.
May 20, 1993.
Appellant John Lawmaster appeals the district court's denial of his motion to
unseal an affidavit supporting a search warrant that was executed on his
residence. The search proved fruitless, and appellant now seeks to discover the
identity of the informant who provided the information used to obtain the
search warrant.
* Agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) obtained and
executed a search warrant for appellant's home, based on allegations from an
informant that appellant was in possession of an illegal firearm. After searching
appellant's house, the agents found no such weapon although they apparently
found numerous legal firearms. See Appellant's App. at 20. The agents left the
house without removing any of appellant's property. The government moved to
seal the affidavit, claiming that the sealing was necessary to protect the ongoing
investigation and because the informant feared reprisal from appellant. The
magistrate judge granted the government's motion.
Appellant then petitioned the district court to overrule the magistrate judge's
Appellant then petitioned the district court to overrule the magistrate judge's
order and to release the affidavit. Following some confusion over the basis
upon which the government sought to keep the affidavit sealed,1 the district
court ultimately affirmed the magistrate judge's ruling, from which appellant
took the instant appeal. We review the district court's decision for an abuse of
discretion. In re the Application and Affidavit for a Search Warrant, 923 F.2d
324, 326 (4th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2243, 114 L.Ed.2d 484
(1991); United States v. Mann, 829 F.2d 849, 853 (9th Cir.1987).
II
4
The government cites the informer's privilege as the basis for keeping the
affidavit under seal and the informer's identity secret. Under that privilege, "the
state is normally entitled to refuse to disclose the identity of a person who has
furnished information relating to an investigation of a possible violation of
law." Hoffman v. Reali, 973 F.2d 980, 987 (1st Cir.1992). "The underlying
concern of the doctrine is the common-sense notion that individuals who offer
their assistance to a government investigation may later be targeted for reprisal
from those upset by the investigation." Dole v. Local 1942, IBEW, 870 F.2d
368, 372 (7th Cir.1989). The government is entitled to assert the privilege
without showing that reprisal or retaliation is likely. Id.
Appellant argues that he is entitled to the affidavit under the common law right
of access to the courts. See Nixon v. Warner Communications, Inc., 435 U.S.
589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). We agree that "the press
and the public have a common law qualified right of access to judicial records,"
Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir.1989), and that
"affidavits for search warrants are judicial records," id. at 64. However,
although "the common law right of access creates a strong presumption in favor
of public access to materials submitted as evidence in open court, this
presumption should not apply to materials properly submitted under seal."
United States v. Corbitt, 879 F.2d 224, 228 (7th Cir.1989) (internal quotation
and citation omitted); see also Times Mirror Co. v. United States, 873 F.2d
1210, 1219 (9th Cir.1989) ("[T]here is no right of access to documents which
have traditionally been kept secret for important policy reasons."). Thus, when
the government properly invokes the informer's privilege, it trumps the
common law right of access to judicial records as to the identity of the
informant.
Finally, we note that shortly before oral argument, the government provided
appellant with a redacted version of the affidavit. This version states that the
informant knew that appellant had purchased an illegal weapon, that the
informant had observed appellant firing it in automatic mode, that appellant
had carried the weapon in several different vehicles, and that the gun could be
found in a green military gun case. Whatever need appellant has demonstrated
for the affidavit, and it is slight, is satisfied by production of the redacted
11
AFFIRMED.
Initially, the government asserted that the seal was required to protect an
ongoing investigation. Following the district court's decision, however, the
government notified the court that the investigation had terminated, and that the
only reason to maintain the seal was to protect the informant from reprisal