United States v. Kortlander

There is a qualified common law right of access to warrant materials after a criminal investigation has been terminated.

Kortlander was investigated by the United States for attempting to sell migratory bird parts and for fraudulently misrepresenting historical artifacts. After the investigation, the government declined to file any criminal charges. Kortlander requested that the search warrants and accompanying affidavits be unsealed and fully disclosed to the public. The government argued the documents should only be available for Kortlander’s personal review, because privacy issues exist with the individuals mentioned in the sought information. The district court agreed with the government and allowed Kortlander personal review, specifically instructing that he could not make this information available to the public, and that the public was not allowed access to this information. Kortlander appealed this decision to the Ninth Circuit arguing he, and the public, have a common law right and a First Amendment right to inspect the search warrant materials. The Ninth Circuit concluded that while a common law right of access does not exist for warrant materials in the pre-indictment stage of criminal proceedings, there exists a qualified right of access for the public once an investigation has been terminated. To overcome the right of access to the public the government must present a compelling reason why the access should be limited and a factual basis for doing so; and the government failed to do so in this case. The articulated policy behind allowing records to be open to the public once an investigation has been closed is to serve as a check on the judicial system to make sure judges are not just giving a rubber stamp of approval to police during warrant proceeds. The Ninth Circuit declined to decide the constitutional issue in this case. VACATED and REMANDED.