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Docket Number

Misc.-Civ. No. 722.

Attorney(S)

Stephen Stein, Las Vegas, Nev., Stanley I. Greenberg, Los Angeles, Cal., for movants. Geoffrey A. Anderson, Asst. U.S. Atty., Strike Force Division, Las Vegas, Nev., for respondents.

Judges

Harry E. Claiborne

Acts

Crimes And Criminal Procedure — Searches And Seizures — Criminal Procedure — Effect Of Rules Of Court—(Rule)
Crimes And Criminal Procedure — Wire And Electronic Communications Interception And Interception Of Oral Communications — Crimes — Procedure For Interception Of Wire, Oral, Or Electronic Communications

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Smart Summary

Memorandum Decision and Order — Summary

Factual and Procedural Background

On or about February 14, 1979, the Government presented to the court a 131‑page affidavit sworn to by an FBI special agent in support of five search warrants. The judge determined that probable cause existed and executed the warrants. The warrants and returns (public record) reflect searches of the moving parties and/or their premises for evidence of violations relating to the management and control of the Tropicana Hotel and Casino in Las Vegas, Nevada. On February 15, 1979, the court ordered that the affidavit be kept in a separate folder under seal. The searches occurred on February 14, and returns were filed on February 15. The investigation was ongoing at the time of this opinion and no indictments had been returned.

Movants Joseph V. Agosto and Productions and Leasing, Inc. filed a "Motion to Unseal and Limit Inspection of Affidavit(s) Pertaining to Search Warrants Executed on February 14, 1979, to Persons Whose Person, Premises, and Property Interests Were Searched, Said Persons' Attorneys, and Government Counsel." The court heard oral argument on April 23, 1979; counsel for the movants made four arguments, one of which contested the court's power to seal such affidavits.

Legal Issues Presented

Whether a federal court (judge or magistrate) has the power to seal affidavits that underlie the issuance of search warrants.
Whether, in the absence of statutory or rule-based authority, the judiciary may exercise an implied power to seal such affidavits.

Arguments of the Parties

Movants' Arguments

The movants sought unsealing of the affidavit and limitation of inspection to specified persons and counsel.
At oral argument, movants contended (among other arguments) that the Court does not have the power to seal the affidavit supporting a search warrant.

The opinion does not contain a detailed account of the respondents' (government's) legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975)	Treatment of sealing affidavits by district court using a balancing test and government's asserted need for secrecy.	The court observed that Shea is the only case of which it was aware dealing with sealing affidavits to any extent, but that Shea did not decide whether a judge had the power to seal and thus did not resolve the central question before this court.
Liberty Mutual Insurance Co. v. Horton, 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961), affg. 275 F.2d 148, 153 (5th Cir. 1960)	The limitation that federal courts may construe and apply laws but may not rewrite, expand, or contract statutes enacted by Congress.	The court relied on this principle to support its position that it cannot create (legislate) a power to seal affidavits where Congress has not granted such authority.
In re Dejay Stores, Inc., 220 F. Supp. 497, 503-504 (S.D.N.Y. 1963)	Constraint on courts with respect to altering procedural rules that relate to substantive federal law.	Used to reinforce the court's view that it lacks authority to legislate procedural powers not provided by Congress or existing rules.
Aptheker v. Secretary of State, 378 U.S. 500, 516, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964)	Principle that courts should not decide abstract questions about hypothetical statutes' validity.	The court invoked Aptheker to explain that it is not the court's role to consider whether Congress might have enacted a valid statute permitting sealing; the issue is whether authority presently exists.

Court's Reasoning and Analysis

The court examined existing statutory and rule-based authorities governing searches and seizures, including Rule 41 of the Federal Rules of Criminal Procedure and relevant sections of Title 18, but found no statute, rule, or case law that expressly grants a judge or magistrate the power to seal affidavits underlying search warrants. Although Rule 41(c) addresses affidavits used to obtain search warrants, the court noted that Rule 41(c) does not suggest a sealing power. The court acknowledged other statutes and rules that provide secrecy in different criminal and civil contexts (e.g., grand jury secrecy, discovery protective orders, wiretap tape provisions), but determined none supply authority to seal search-warrant affidavits.

The court considered existing case law and found only Shea v. Gabriel to be remotely on point, but concluded that Shea did not decide the question of judicial power to seal. Turning to constitutional structure and separation of powers, the court reasoned that the Constitution grants lawmaking authority to Congress and defines the judicial power narrowly; federal courts lack authority to legislate or create new statutory powers. Citing Liberty Mutual and In re Dejay Stores, the court emphasized that it cannot rewrite Rule 41 or legislate a sealing power. The court also observed that whether a hypothetical statute authorizing sealing would be constitutionally valid is an abstract question not for the court to decide in the absence of such a statute, citing Aptheker.

On this reasoning, the court concluded that, in the absence of congressional authorization or a rule expressly granting the power, it had no authority to keep search-warrant affidavits sealed.

Holding and Implications

Holding: The court held that federal courts have no power to seal affidavits upon which search warrants are based, at least until Congress grants federal courts such power. The court ordered that the prior order sealing the affidavit be rescinded and directed the Clerk of the Court to unseal the affidavit(s).

Implications: The direct effect of the decision is the rescission of the sealing order and the unsealing of the relevant affidavit(s) in this matter. The court's analysis rests on the absence of statutory or rule authority for sealing and on separation-of-powers principles; the opinion declines to address the constitutionality of a hypothetical statute authorizing sealing. The opinion does not purport to announce a new statute or rule; it concludes that only Congress can provide the sealing power the court declined to exercise.

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In the Matter of the SEALED AFFIDAVIT(S) TO SEARCH WARRANTS EXECUTED ON FEBRUARY 14, 1979.

MEMORANDUM DECISION AND ORDER

CLAIBORNE, District Judge.

Moving parties, Joseph V. Agosto and Productions and Leasing, Inc., have brought on a "Motion to Unseal and Limit Inspection of Affidavit(s) Pertaining to Search Warrants Executed on February 14, 1979, to Persons Whose Person, Premises, and Property Interests Were Searched, Said Persons' Attorneys, and Government Counsel." On or about February 14, 1979, the Government presented to me one 131-page affidavit sworn to by a special agent of the Federal Bureau of Investigation in support of the issuance of five search warrants. I determined that, based thereon, probable cause existed for the issuance of said warrants, and I executed the same. The warrants and the returns, which are matters of public record, reflect searches of the moving parties and/or premises, among others, for evidence of violation of various Federal laws relating to the management and control of the Tropicana Hotel and Casino in Las Vegas, Nevada. On February 15, 1979, I ordered that said affidavit be kept in separate folder under seal. The searches were made on the 14th, and returns were filed on the 15th. The investigation is still ongoing but should be completed shortly, and no indictments have been returned.

The Court heard oral arguments on this matter on April 23, 1979. At that time, counsel for the movants made four arguments in support of their motion, but the one argument which intrigues the Court is the proposition that the Court does not have the power to seal the affidavit in support of a search warrant in the first place.

Much of the law with respect to the area of searches and seizures, both statutory and judgemade, has been codified into Rule 41 of the Federal Rules of Criminal Procedure. See 18 U.S.C. § 3101 et seq.; and 3 Wright, Federal Practice and Procedure, § 661 at 20. While there are other sections of Title 18 to the United States Code which deal with specific problems regarding searches and seizures, none of those statutes have anything to do with the power of a judge or magistrate to seal an affidavit upon which a search warrant is based. Rule 41(c) is the only authority which relates to affidavits which underlie the execution of a search warrant, but nowhere in Rule 41(c) is the power of a judge or magistrate to seal such an affidavit even suggested. And, while there are other statutes and rules which can provide for secrecy in some areas of criminal law (cf. Rule 6 — grand jury proceedings and indictments; Rule 16 — discovery proceedings; 18 U.S.C. § 2518(8)(a) — tapes of wiretapped conversations) as well as civil law (cf. F.R.C.P. Rule 26(c) — protective orders), there is no statute providing for secrecy with respect to search warrant affidavits.

The only case of which the Court is aware that deals with the sealing of affidavits to any extent is Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975). However, that case does not answer the question of whether a judge or magistrate has the right or power to seal a search warrant affidavit. The District Court in that case used a "balancing test" and determined that the government's need for secrecy outweighed the immediate need for disclosure to the target of the search warrant in ordering that the affidavit be sealed. The First Circuit did not state whether the Court had the power to seal and, if so, whether it used the proper test in that regard. The specific issues before the First Circuit were whether it had jurisdiction to entertain an appeal following a denial of a pre-indictment motion to suppress and a denial of a pre-indictment motion for return of property, but the Court did not address itself to the issue by ruling that the lower court had properly considered the equities of the case in its "veil of secrecy" in denying the Rule 41(e) motion. Id. at 882.

Not only is there no case law or statute or rule which the Court can look to for guidance, the United States Constitution is likewise of no help. The framers of the United States Constitution gave Congress the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing [specifically enumerated] Powers . . ." (Art. I, § 8, cl. 18), but did not specifically grant any such implied powers to the Judiciary in Article III of the Constitution. The framers specifically defined the Judiciary's powers as follows:

The judicial Power shall extend to all Cases . . . arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority

Art III, § 2.

As I see it, this Court is being asked to construe a law which does not exist. The Court cannot do this. While federal courts have the power to construe and apply the law of Congress, they have no power to rewrite, expand or contract them ( Liberty Mutual Insurance Co. v. Horton, 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961), affg. 275 F.2d 148, 153 (5th Cir. 1960)), even if they relate to matters of procedure with respect to substantive federal law ( In re Dejay Stores, Inc., 220 F. Supp. 497, 503-504 (S.D.N.Y. 1963)). In my opinion, to hold that a federal court has the power under Rule 41(c) to seal an affidavit underlying a search warrant is to legislate Rule 41(c)(1)(b). Furthermore, if such a statute did in fact exist it is far from a closed question as to whether such a statute would be constitutionally valid, given that under certain hypothetical circumstances the sealing of an affidavit could infringe upon a person's Fourth Amendment rights. In any event, it is not for the courts to consider the abstract question of whether Congress might have enacted a valid statute. Aptheker v. Secretary of State, 378 U.S. 500, 516, 84 S.Ct. 1659, 1669, 12 L.Ed.2d 992 (1964).

I agree with one of my brothers, who stated in this Court on May 16, 1979, in ordering that sealed search warrant affidavits be unsealed immediately, "secrecy in government leads to bad government." (Misc.Civ. 717).

In short, I hold that the federal courts have no power to seal affidavits upon which search warrants are based, at least until such time as Congress gives federal courts such power.

WHEREFORE, IT IS HEREBY ORDERED that the Order sealing the above described affidavits is rescinded, and the Clerk of the Court is hereby ordered to unseal the same.

MATTER OF SEALED AFFIDAVIT(S) TO SEARCH WARRANTS, (D.Nev. 1979)