Breaking the Seal on White-Collar Criminal Search Warrant Materials

Abstract

This Article argues for stricter standards of judicial review and codified procedures to regulate the government's practice of sealing warrant materials in white-collar investigations. The Article proposes a statutory, presumptive ex post right of access by the target to a search warrant's underlying materials. These statutory procedures would require that prosecutors demonstrate a compelling interest in continued nondisclosure to maintain a sealing order on affidavits and other warrant materials.

Part I describes the rising use of search warrants and sealing orders in white-collar investigations. Part II examines the procedure by which the government seals search warrant materials in certain federal jurisdictions, and Part III explains the changes this induces from the normal procedures governing the execution of federal search warrants. Part IV argues for statutory reform of the Federal Rules of Criminal Procedure to regulate and standardize the use of sealing orders and access to warrant materials. Part V analyzes the limited judicial treatment of targets' challenges to sealing orders on search warrant affidavits. The Article concludes in Part VI with the proposal of a new subsection of Federal Rule of Criminal Procedure 41 (hereinafter "Rule 41") that would institute a significantly different approach from the current regime, a regime in which targets must seek access to sealed materials after the fact by resting their claims upon limited rights of access shared by the media and general public.