MEDIA GENERAL OPERATIONS, INCORPORATED, d/b/a The Tampa Tribune v. THE HONORABLE THERESA BUCHANAN, United States Magistrate Judge

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a The Tampa
Tribune; THE NEW YORK TIMES
COMPANY, publisher of The New
York Times,
Petitioners-Appellants,
v.
THE HONORABLE THERESA BUCHANAN,
United States Magistrate Judge,
Respondent,
and
UNITED STATES OF AMERICA,
Intervenor-Appellee.
No. 02-2287 
ABC, INCORPORATED; ALLBRITTON
COMMUNICATIONS COMPANY; THE
BALTIMORE SUN COMPANY;
BLOOMBERG NEWS; CABLE NEWS
NETWORK; CBS BROADCASTING,
INCORPORATED; NATIONAL
BROADCASTING COMPANY,
INCORPORATED; THE REPORTERS
COMMITTEE FOR FREEDOM OF THE
PRESS; USA TODAY NEWSPAPER; THE
WASHINGTON POST COMPANY;
WBAL-TV, WYFF-TV, WXII-TV,
Operating Units of Hearst-Argyle
Television, Incorporated,
Amici Supporting Appellant. 

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Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-02-837-A)
Argued: April 2, 2003
Decided: August 1, 2005
Before WIDENER and MICHAEL, Circuit Judges, and
Richard L. WILLIAMS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Senior Judge Williams concurred. Judge Michael wrote a sepa-
rate opinion concurring in part III and concurring in the judgment.
COUNSEL
ARGUED: Charles D. Tobin, HOLLAND & KNIGHT, L.L.P.,
Washington, D.C., for Appellants. Brian David Miller, Assistant
United States Attorney, Alexandria, Virginia, for Appellee. ON
BRIEF: Leslie S. McAdoo-Brobson, HOLLAND & KNIGHT,
L.L.P., Washington, D.C.; James H. Rodio, HOLLAND & KNIGHT,
L.L.P., McLean, Virginia; Gregg D. Thomas, Rachel E. Fugate, HOL-
LAND & KNIGHT, L.L.P., Tampa, Florida; George Freeman, THE
NEW YORK TIMES CO., New York, New York, for Appellants.
Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Alexandria, Virginia, for Appellee. Lee
Levine, Cameron A. Stracher, Thomas Curley, LEVINE, SULLIVAN
& KOCH, L.L.P., Washington, D.C.; Henry S. Hoberman ABC,
INC., New York, New York; Jerald N. Fritz, ALLBRITTON COM-
MUNICATIONS CO., Washington, D.C.; Stephanie S. Abrutyn, TRI-
BUNE COMPANY, New York, New York; Charles J. Glasser, Jr.,
BLOOMBERG NEWS, New York, New York; David Vigilante, Pilar
Keagy-Johnson, CABLE NEWS NETWORK, L.P., L.L.P., Atlanta,
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Georgia; Susanna M. Lowy, CBS BROADCASTING, INC., New
York, New York; Susan Weiner, Maya Windholz, NATIONAL
BROADCASTING COMPANY, INC., New York, New York; Lucy
A. Dalglish, THE REPORTERS COMMITTEE FOR FREEDOM OF
THE PRESS, Arlington, Virginia; Barbara W. Wall, GANNETT CO.,
INC., McLean, Virginia; Mary Ann Werner, THE WASHINGTON
POST, Washington, D.C.; Eve Burton, Robert J. Hawley, THE
HEARST CORPORATION, New York, New York, for Amici
Curiae.
OPINION
WIDENER, Circuit Judge:
Petitioners Media General Operations and the New York Times
Company appeal the district court’s September 19, 2002, order deny-
ing petitioners’ petition for mandamus for an order directing a federal
magistrate judge to (1) unseal search warrant affidavits connected
with an ongoing criminal investigation, and (2) direct the Office of
the Clerk of the United States District Court for the Eastern District
of Virginia to maintain a public docket of search warrant proceedings.
Specifically, petitioners allege that the magistrate judge and the dis-
trict court failed to comply with the procedural requirements estab-
lished by this court to protect the public’s right of access to judicial
records in Balt. Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989) and
that in violation of their common law right of access, they have been
denied access to public documents by the office of the Clerk of the
United States District Court for the Eastern District of Virginia.
We affirm the judgment of the district court.
I.
This dispute, following the terrorist attacks of September, 2001, is
claimed to arise out of the government’s efforts to ascertain whether
individuals and organizations such as businesses and charities have
engaged in any such criminal activities and the desire of the press for
news of the government’s progress to that end. On March 13, 2002,
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a United States magistrate judge approved search warrant applications
submitted by the United States Attorney for the Eastern District of
Virginia. The search warrants were submitted to further a preindict-
ment investigation, and as of the date of the hearing, the government
had not indicted any individuals connected to the search. To establish
probable cause for the warrants, a U. S. customs agent submitted
identical affidavits more than 100 pages in length detailing an ongo-
ing investigation. The magistrate judge found probable cause to issue
the warrants, which she did.
The government also filed a motion to seal the affidavits, asserting
that "as described in the affidavits," disclosure "might jeopardize
ongoing investigations." The magistrate judge agreed and ordered the
affidavits supporting the search warrants sealed until further order of
the court. Upon the applications of the Assistant U. S. Attorney for
the warrants, and prior to the execution of the search warrants, the
clerk’s office assigned tracking numbers for each application for a
search warrant in the permanent docket book, which is styled MG-
PETTY/PEN REGISTER/SEARCH WARRANTS, and is known as
the running list. A deputy clerk recorded by hand in the columns adja-
cent to the search warrant tracking numbers the words "Search War-
rant" and "Affidavit Under Seal". The book is located behind the
counter in the clerk’s office, and the criminal supervisor of the clerk’s
office asserts without contradiction that the book is "available for
public inspection upon request."
The search warrants, affidavits, and inventories of items seized
were returned to the clerk’s office for filing after the execution of the
warrants. See Fed. R. Crim. Proc. 41(f). With the exception of the
search warrant affidavits, all other pleadings and documents, includ-
ing the returns and the motions to seal, are not implicated by the
March 13, 2002, sealing order and should have been available to the
public upon request. Any mistake with reference to that was corrected
by the magistrate judge on the record at the hearing on May 30, 2002.
By motion dated April 24, 2002, certain occupants of the premises
searched moved for return of their property and to unseal the affida-
vits. The magistrate judge scheduled a hearing on the occupants’
motion for May 3, 2002. Although the occupants’ motion and the par-
ties’ corresponding briefs were not recorded on the index to the run-
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ning list previously referred to, the clerk’s office recorded the
occupants’ hearing on the hearing calendar located on the public
counter, and the motion and briefs in support of the hearing were
placed in the corresponding files. After hearing arguments from the
occupants and the government, the magistrate judge denied the occu-
pants’ motion for return of property and to unseal the affidavits.
On May 3, 2002, petitioners sought leave to intervene in the occu-
pants’ case for the purpose of moving to unseal the affidavits. The
magistrate judge scheduled a hearing on petitioners’ motion that was
conducted on May 30, 2002. During the hearing, the magistrate judge
acknowledged that deputy clerks from the Eastern District of Virginia
improperly denied petitioners access to public documents, and stated
that she had "discussed this with the clerk’s office" and that she
thought she had "straightened out" the problem. With regard to peti-
tioners’ complaints about the docketing procedure in the clerk’s
office, the magistrate judge stated that the information petitioners
sought was in the files, how the clerk’s office numbered and kept
track of the documents was purely "administerial," and she would not
"micromanag[e] the clerk’s office." The magistrate judge also heard
petitioners’ objection to the sealing of the affidavits, but concluded
that "it was clear and apparent from the affidavits that any disclosure
of the information there would hamper an investigation." By written
order dated May 31, 2002, the magistrate judge granted petitioners’
motion to intervene, but denied their motion to unseal the affidavits.
On June 10, 2002, petitioners filed a two-count petition for writ of
mandamus requesting the United States District Court for the Eastern
District of Virginia to direct the magistrate judge to (1) make public
the affidavits under seal, and (2) direct the clerk’s office to maintain
a public docket of proceeding held in connection with search war-
rants. The United States intervened and on August 9, 2002, moved to
dismiss the petition. On August 23, 2002, petitioners filed their oppo-
sition brief and moved for summary judgment. By written order filed
September 19, 2002, the district court granted the government’s
motion to dismiss and denied petitioners’ motion for summary judg-
ment.
Petitioners now appeal, and we affirm.
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II.
The press and the public have a common law right of access to
judicial documents. In Nixon v. Warner Communications, Inc., 435
U.S. 589 (1978) the United States Supreme Court stated,
It is clear that the courts of this country recognize a general
right to inspect and copy public records and documents,
including judicial records and documents. . . . American
decisions generally do not condition enforcement of this
right on a proprietary interest in the document or upon a
need for it as evidence in a lawsuit. The interest necessary
to support the issuance of a writ compelling access has been
found, for example, in the citizen’s desire to keep a watchful
eye on the workings of public agencies, and in a newspaper
publisher’s intention to publish information concerning the
operation of government.
Nixon, 435 U.S. at 597-98 (citations and footnote omitted). This court
has held that the press and public enjoy a qualified common law right
of access, but not a First Amendment right, to judicial records includ-
ing affidavits supporting investigative search warrants. Balt. Sun Co.
v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989). But the right of access
is qualified, and a judicial officer may deny access to search warrant
documents if sealing is "essential to preserve higher values" and "nar-
rowly tailored to serve that interest." Goetz, 886 F.2d at 65-66. Com-
mon law rights provide the press and the public with less access than
First Amendment rights, and the decision to seal or grant access to
"warrant papers is committed to the sound discretion of the judicial
officer who issued the warrant" and reviewed for abuse of discretion.
Goetz, 886 F.2d at 65; In re Washington Post Co., 807 F.2d 383, 390
(4th Cir. 1986).
We have held that in determining whether to seal judicial docu-
ments, a judicial officer must comply with certain procedural require-
ments. Washington Post, 807 F.2d at 390. The decision to seal
documents must be made after independent review by a judicial offi-
cer, and supported by "findings and conclusions specific enough for
appellate review." Goetz, 886 F.2d at 65-66. If a judicial officer deter-
mines that full public access is not appropriate, she "must consider
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alternatives to sealing the documents" which may include giving the
public access to some of the documents or releasing a redacted ver-
sion of the documents that are the subject of the government’s motion
to seal. Goetz, 886 F.2d at 66.
Petitioners contend that the magistrate judge’s sealing order should
be overturned because the order violates the procedural requirements
delineated in Goetz, Washington Post, and In re Knight Pub. Co., 743
F.2d 231 (4th Cir. 1984). We first address the question of whether the
motion to seal should have been docketed and petitioners given an
opportunity to object prior to the entry of the initial sealing order. The
government’s search warrant application and motion to seal were
filed on March 13, 2002. The magistrate’s initial sealing order was
entered on the same day and prior to the execution of the search war-
rants. While petitioners appeared to have contended otherwise before
the magistrate judge, petitioners now concede that they have no right
to view or object to sealing orders prior to the execution of search
warrants. In any event, these arguments have been foreclosed
squarely by both United States Supreme Court and Fourth Circuit pre-
cedent. Goetz, 886 F.2d at 64 (relying on Franks and stating that "pro-
ceedings for the issuance of search warrants are not open.") See
Franks v. Delaware, 438 U.S. 154, 169 (1978) (stating search warrant
application "is necessarily ex parte, since the subject of the search
cannot be tipped off to the application for a warrant lest he destroy
or remove evidence"). A rule to the contrary would endanger the lives
of officers and agents and allow the subjects of the investigation to
destroy or remove evidence before the execution of the search war-
rant. Just as importantly, premature disclosure by the executive of the
object of an investigation is not a Constitutional or common law pre-
requisite to further proceedings.
We agree that members of the press and the public must ordinarily
be given notice and opportunity to object to sealing of public docu-
ments. But, in the context of search warrant documents, the opportu-
nity to object does not arise prior to the entry of a sealing order when
a search warrant has not been executed. As recognized by Goetz, the
"motion to seal all or part of the [search warrant] papers is usually
made when the government applies for the warrant." 886 F.2d at 65.
The Goetz court explicitly recognized that "[t]he procedures outlined
in" Washington Post and Knight had to be "modified to accommodate
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the sealing of search warrant papers." Goetz, 886 F.2d at 65. In the
context of a search warrant application, "[s]ince the application and
issuance of a warrant are necessarily closed to press and public,"
Goetz, 886 F.2d at 65, notice prior to the entry of an initial sealing
order is not required. Rather, the notice requirement is fulfilled by
docketing "the order sealing the documents," Goetz at 65, which gives
interested parties the opportunity to object after the execution of the
search warrants. Goetz, 886 F.2d at 65. ("If someone desires to
inspect the papers, an opportunity must be afforded to voice objec-
tions to the denial of access."). Because the sealing order was made
public upon the execution of the search warrant and petitioners were
then given an opportunity to object to the sealing of the affidavits, the
notice requirement was satisfied.
We turn next to petitioners’ argument that the order denying the
motion to unseal failed "to articulate any findings supporting sealing
of the search warrant affidavits" or to consider alternatives to sealing
in violation of circuit precedent. Petitioners take the position that
whenever a judicial officer enters an order sealing search warrant
materials, the sealing order must be accompanied by a separate order
detailing why sealing is appropriate. We decline to adopt the blanket
rule suggested by petitioners.
This court has stated that in entering a sealing order, a "judicial
officer may explicitly adopt the facts that the government presents to
justify sealing when the evidence appears creditable." Goetz, 886 F.2d
at 65. Morever, "[i]f appropriate, the government’s submission and
the officer’s reason for sealing the documents can be filed under
seal." Goetz, 886 F.2d at 65.
The magistrate judge issued three orders determining that sealing
was appropriate. We have reviewed the transcript of the hearing and
magistrate judge’s order and it is apparent that the magistrate judge,
after independent review, relied on the affidavits and the reasons for
sealing presented by the government to support her decision. She
incorporated the affidavits into her decision stating, "it was clear and
apparent from the affidavits that any disclosure of the information
there would hamper an investigation," that the affidavits "amply sup-
ported the sealing," and that the "Government’s reasons for sealing
remain compelling now." At the hearing on petitioners’ motion to
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unseal the documents, the government presented numerous reasons
why sealing was appropriate: the preliminary stage of the investiga-
tion; the potential impact on the parties searched if unproven criminal
allegations were made public; the impact of the affidavit’s release on
broader investigations in other districts; and the privacy interests in
personal tax information relating to the persons being searched.
A review of the lengthy, detailed, and thorough affidavits in this
case demonstrates how release of any part of the search warrant affi-
davits could harm these interests. As noted by the magistrate judge,
"the affidavit contained sensitive details of an ongoing investigation"
and it is "clear and apparent from the affidavits that any disclosure of
the information there would hamper" this ongoing investigation.
Even if petitioners correctly assert that the existence of an ongoing
investigation will not always justify a sealing order, under the circum-
stances of this case, the documents presented to the court demonstrate
that the government’s interest in continuing its ongoing criminal
investigation outweighs the petitioners’ interest in having the docu-
ment opened to the press and the public. While petitioners may have
preferred that the magistrate judge issue a separate and detailed writ-
ten memorandum opinion, we require a court to "state the reasons for
its decision to seal supported by specific findings, and the reasons for
rejecting alternatives to sealing" to provide this court with sufficient
information for meaningful appellate review. Knight, 743 F.2d at 235.
That the government’s and judicial officer’s reasons for sealing may
also be placed under seal, Goetz, 886 F.2d at 65, demonstrates that
this requirement is for the benefit of the court, not the public. Where,
as here, the government’s explanations and the judicial officer’s rea-
sons for sealing are patently apparent upon consideration of the docu-
ments at issue and when the record provides sufficient information for
appellate review, there is no requirement that the district court or
magistrate judge prepare separate, detailed orders. Upon consider-
ation of the affidavits in question, we find that the magistrate judge’s
reasons for sealing and rejecting alternatives to sealing are patently
apparent from the affidavits and that sealing the affidavits was not an
abuse of discretion.
A principal part of the complaint of the petitioners is expressed in
their brief as follows:
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It [the district court] never even undertook to "examine the
affidavit when considering [the] magistrate’s order."
Br. p. 42.
On account of that argument, the district court held a hearing on
the government’s motion to correct or modify the record. At the hear-
ing, the petitioners adhered to the position taken in their brief:
And there is nothing in the transcript or your order that
recites that you did it.
March 21, 2003 transcript at 5.
The district court correctly denied the motion, the substance of its
decision being:
THE COURT: Well, I don’t think it is appropriate, I think
that you can assume that I looked at all the evidence in this
case, but I don’t think it is appropriate for me or necessary
for me to go back through the decisions I make and set out
in particularity what I did and what I did not review.
I am going to deny your motion. There is something
about this issue that just doesn’t seem right to me. I don’t
think that I ought to entertain even motions to go back and
tell counsel what I reviewed and what I did not review. I
review all the evidence in the cases.
March 21, 2003 transcript, p.6.
The argument as set forth in the brief is without evidence to sup-
port it, and, in any event, it is frivolous. The argument of the petition-
ers, that the decision in Goetz, 886 F.2d. at 66, requires a district
judge reviewing the provisions of an affidavit to state in his decision
that he has read the affidavit, is not an arguable construction of Goetz,
in which case the district judge had reviewed the "unredacted version
of the government’s response . . . but refused to examine the affidavit
itself." Goetz, 886 F.2d at 63. (Emphasis added.)
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To require a district judge, as sought here, to recite in his order
each paper that he has read in arriving at his decision is a requirement
not worthy of serious consideration. Relief on that argument is
denied.
III.
Most of the balance of this opinion will be devoted to the request
of the petitioners for a writ of mandamus which would direct the man-
ner in which the office of the clerk of the court in the Eastern District
of Virginia keeps certain records of that court. The "STATEMENT OF
ISSUES PRESENTED FOR REVIEW," Br. p.4, is as follows:
1. Upon the return of an executed, sealed search warrant
and its filing with the Clerk of the Court under Fed. R.
Crim. P. 41, must the Clerk note on a ready, clear and dis-
cernible public docket: (1) the warrant itself; (2) the Gov-
ernment’s motion to seal the search warrant affidavits; (3)
the judge’s sealing order; (4) all other documents filed with
the warrant; and (5) all subsequent proceedings and filings
concerning the warrant?
There has not been a sealed search warrant in this case. Neither has
there been any improper denial of access to the papers involved in this
case other than through simple mistakes of some of the deputy clerks
or other like employees in the clerk’s office, so we will address the
affidavits filed by the petitioners in support of their petition.
Before addressing with particularity the facts shown by the peti-
tioners’ affidavits, we should mention a misconception and an omis-
sion in the papers presented to us.
The petitioners treat a "pen register" as a book kept in the clerk’s
office. A pen register, in fact, is defined in pertinent part in 18 U.S.C.
§ 3127(3):
[t]he term "pen register" means a device or process which
records or decodes dialing, routing, addressing, or signaling
information transmitted by an instrument or facility from
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which a wire or electronic communication is transmitted.
. . .
The device is addressed at least in 18 U.S.C. §§ 3121, 3122, 3123,
3124, 3125, and 3126, as well as 3127. We add that the government
has not helped to clear up such misconception.
Federal Rule of Criminal Procedure 55 provides in terms that:
The clerk of the district court must keep records of criminal
proceedings in the form prescribed by the Administrative
Office of the United States Courts. The clerk must enter in
the records every court order or judgment and the date of
entry.
Those same provisions (with change only in grammar) were in effect
during all times relevant to this proceeding. The Guide to Judiciary
Policies and Procedures, Vol. IV, Chapter 3, § 3.01, Search War-
rants, deals with the records suggested or required by the Administra-
tive Office with relation to search warrants. Despite the fact that a
principal part of this case concerns itself with the records relating to
search warrants, neither Rule 55 nor Chapter 3, Vol. IV of the Guide
to Judiciary Policies and Procedures is mentioned in the briefs or
was mentioned in oral argument. Chapter 3 is included as an appendix
to this opinion.
In affidavits, petitioners assert that on three occasions they were
denied access to various public documents. Specifically, petitioners
maintain that (1) on April 26, 2002, a clerk’s office employee denied
a paralegal for petitioners’ attorneys access to search warrant docu-
ments, erroneously stating that there was no file number 02-MG-114;
stated that there was no information on the docket sheet; stated that
the record was sealed; and refused to give the paralegal a copy of the
docket sheet;1 (2) on May 21, 2002, a deputy clerk informed one of
petitioners’ attorneys that all the search warrant materials were sealed,2
1That mistake was apparently due to a belief that the book containing
the docket sheet was not to be photocopied because of damage to the
binding of the book by placing the same on a photocopier.
2The government makes no issue that the affidavit was made by an
attorney appearing in the case. See United States v. Howard, 115 F.3d
1151, 1155 (4th Cir. 1997).
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and (3) on August 19, 2002, another employee of the clerk’s office
denied a paralegal for petitioner’s attorneys access to the pen registry,
stating that it was not a public document. That same paralegal was not
permitted to photocopy entries in the red ledger book.3
With respect to the affidavits relating requests to see certain of the
records, which requests were made on April 26, 2002 and May 21,
2002, the government does not take the position that the employees
in the clerk’s office who denied access to the paralegal and the attor-
ney were correct in the denial of access. At the hearing before the
magistrate judge on May 30, 2002, the magistrate judge announced
in open court that the search warrant itself, its return, and the motion
to seal, should not have been under seal. She also announced:
The only thing that’s under seal is the affidavit which
accompanies the application, and the application is really
nothing anyway.
So, on May 30, 2002, prior to the time this suit was filed on June 10,
2002, all of the papers which the petitioners desired to examine had
been made available to them by order of the magistrate judge, with
the exception of the affidavit supporting the sealing of the search war-
rant.
The affidavit of Kathy Bartell, the supervisor of the criminal sec-
tion in the office of the clerk of the court, relates various steps taken
with respect to the search warrant involved in this case. While it is
not patent from the face of the affidavit that the actions taken in that
clerk’s office correspond precisely with Vol. IV, Chapter 3 of the
Guide to Judiciary Policies and Procedures, there is nothing to show
that the clerk’s office was not in substantial compliance with its duty
under that chapter and Federal Rules of Criminal Procedure 55 and
41(b). Of more consequence, the petitioners have not shown that a
writ of mandamus was necessary in order for them to see the public
records involved in this case. There seems to be little doubt that the
personnel in the clerk’s office made several unfortunate errors, but
3The red ledger book is not otherwise identified. Its connection with
this case is not apparent, and we no longer consider it. The "pen registry"
is apparently the running list.
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there is no hint that the errors were anything but inadvertent or were
the result of a deliberate secreting of records that the petitioners were
entitled to see. A writ of mandamus is issued to require an officer or
employee of the United States to perform a duty owed to the plaintiff.
28 U.S.C. § 1361. Mandamus is only issued if the petitioner has no
other adequate means to attain the relief he desires and that his right
to the issuance of the writ is clear and indisputable. Allied Chemical
Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). In this case, the magis-
trate judge had made available to the petitioners all of the records they
were entitled to see prior to the time their petition for mandamus was
filed. Petitioners’ attorneys were present at the hearing in which the
magistrate judge announced that all of the papers except the affidavit
were available to them. It may be that the clerk’s office does not fol-
low the suggestions or requirements of the Administrative Office in
the Guide to Judiciary Policies and Procedures, and even if it does,
it may be that those policies and procedures are contrary to some stat-
utory or Constitutional principle. But that is not the question which
was presented here. As the district court related, the petitioners did
not even go to a supervisor in the clerk’s office when access was
denied, instead they filed this petition even after permission had been
granted to them to see the sought-for papers. Petitioners had other
adequate means to attain the relief desired, so this right to the issu-
ance of the writ was not clear and indisputable. If the petitioners wish
to correct some procedure in the clerk’s office, that is another matter
upon which we express no opinion.
Again, with respect to the affidavits upon which the search war-
rants were based being kept under seal, the magistrate judge’s finding
was well expressed as follows:
The only real serious argument here is whether or not the
affidavit supporting the application supports sealing it.
And I find, and as I already found, when I entered the
sealing order, that the affidavits contained sensitive details
of an ongoing investigation. The affidavits were detailed.
They were thorough. I believe that it was clear and apparent
from the affidavits that any disclosure of the information
there would hamper an investigation.
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I think that they amply supported the sealing, and I
believe that the disclosure of the affidavits may well jeopar-
dize an ongoing investigation.
I find that the Government’s reasons for sealing remain
compelling now. There’s nothing now that’s different from
when I signed the affidavit — signed the search warrants a
couple of months ago.
And I believe that those reasons for sealing continue to
outweigh the intervenors right of access to the information.
So the motion is denied. Thank you.
App. pp.238-39.
And the district court, in its opinion, affirmed the magistrate judge
as follows:
This court finds that the magistrate judge’s findings and
conclusions were more than sufficient to support sealing the
search warrant affidavits. The magistrate judge set forth her
reasoning for granting government’s motion to seal with
great detail. She examined the government’s affidavits and
commented on their detail and thoroughness. She considered
the circumstances surrounding the criminal investigation.
She concluded that the government did in fact have a com-
pelling interest in protecting an on-going criminal investiga-
tion. Finally, she observed that these circumstances had not
changed since she initially ordered that the affidavits remain
under seal. The magistrate judge made a thorough and inde-
pendent evaluation and did not in any respect merely adopt
the government’s findings of fact. Moreover, these findings,
together with the submissions of the government referred to
by the magistrate judge, create an ample record for appellate
review. The detail of the magistrate judge’s ruling went well
beyond what is required by applicable case law.
An appropriate order shall issue.
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App. p.365.
The same affidavit was filed in support of the sealing of each of
the warrants involved in this case and has been described in the opin-
ions of the magistrate judge and the district court referred to in this
opinion. We add only that those descriptions of the affidavit are accu-
rate. The affidavit is 106 pages in length, to which are added five
attachments, A through E, which are 39 pages in length, a total of 145
pages. The affidavit was prepared with a great deal of care and atten-
tion to detail. In our opinion, the affidavit contains sensitive details
of an ongoing investigation, which may well jeopardize the ongoing
investigation, as concluded by the magistrate judge, and we agree
with the district court that it is clear and apparent from the affidavit
that any disclosure of any of the information there would hamper the
investigation.
The judgment of the district court in denying the petition for a writ
of mandamus and in its refusal to unseal the affidavit on which the
search warrants were based is accordingly
AFFIRMED.4
MICHAEL, Circuit Judge, concurring in part III and concurring in the
judgment:
I concur in part III of the majority’s opinion. As to part II, how-
ever, I concur only in the judgment affirming the denial of mandamus
relief. Under our longstanding circuit precedent, a judicial officer who
seals documents supporting a search warrant must provide justifica-
tion for her decision at the time of the sealing. Here, the magistrate
judge did not justify her sealing decision until later, after the newspa-
per petitioners filed a motion to unseal. This procedure was in error,
but it turned out to be harmless because the judge subsequently
explained that the sealing was justified for reasons that were apparent
to her at the time the order to seal was entered. I am content to concur
in the judgment because I do not read part II to suggest that after-the-
fact justification is accepted procedure.
4The government’s motion to file a supplemental appendix, which
motion was filed April 1, 2003, is granted.
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Several procedural requirements must be followed when a judicial
officer seals documents supporting a search warrant. Ante at 6-8.
First, the judicial officer must "state the reasons for [her] decision to
seal supported by specific findings." In re Knight Publ’g Co., 743
F.2d 231, 235 (4th Cir. 1984). "The judicial officer may explicitly
adopt the facts that the government presents to justify sealing . . .
[b]ut the decision to seal must be made by the judicial officer." Balt.
Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989). Second, "the judi-
cial officer must consider alternatives to sealing the documents. This
ordinarily involves disclosing some of the documents or giving access
to a redacted version." Id. at 66 (citations omitted). Third, a judicial
officer must give notice to the public by docketing the order sealing
the documents. Id. at 65. All of these procedures "must be followed
when a [judicial officer] seals judicial records or documents. Stone
v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 179-80 (4th Cir. 1988)
(emphasis added). In other words, the procedures must be followed
at the time of sealing. This makes sense because the procedures are
in place not only to "make possible meaningful review of a decision
to seal" but also to "ensure that the decision to seal the records will
not be made lightly." Id. at 182.
In the present case the only contemporaneous evidence of the mag-
istrate judge’s decision to seal the affidavits underlying the search
warrants was the actual order to seal, which provides: "Upon motion
of the United States Attorney, it is hereby ORDERED, ADJUDGED
AND DECREED that the affidavit[s] supporting the search warrant[s]
in this case be placed under seal until further order of this Court." J.A.
18. The order provides no evidence that the magistrate judge followed
the correct procedural requirements for sealing the affidavits, and as
a result there is no indication that she engaged in the reasoned deliber-
ation required of a judicial officer before documents are sealed. This
compels the conclusion that the magistrate judge erred in not follow-
ing the required procedures at the time of sealing.
Though the magistrate judge erred, the error does not warrant
reversal here. When the newspaper petitioners moved to unseal the
affidavits, the magistrate judge corrected her error by complying with
the procedural requirements and providing justifications that had been
apparent to her at the time of the sealing. At the hearing on the motion
to unseal, she provided reasons for her "decision to seal supported by
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specific findings." In re Knight Publ’g, 743 F.2d at 235. Specifically,
she found that "the affidavits contained sensitive details of an ongoing
investigation" and that disclosure "may well jeopardize [the] ongoing
investigation." J.A. 238-39. Moreover, it appears that she considered
alternatives to sealing, such as releasing part of the affidavits or
redacted versions, when she stated "it was clear and apparent from the
affidavits that any disclosure of the information there would hamper
an investigation." J.A. 238 (emphasis added). As the majority cor-
rectly concludes, these justifications are sufficient, and sealing the
affidavits was not an abuse of discretion. Ante at 9. However, it
should be emphasized that such after-the-fact justifications must not
be taken as a substitute for timely compliance with the procedural
requirements for sealing documents supporting a search warrant. In
sum, the proper course is to comply with the procedural requirements
at the time of sealing.
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APPENDIX
3.01. Search Warrants
1. a. Introduction
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue but upon probable cause, sup-
ported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
b. History of the Search Warrant
The concept of unreasonable search and seizure was an 18th century
reaction regarding two separate evils, one on each side of the Atlantic
Ocean. The general warrant and writ of assistance were instruments
which provided the authorities the power to enter anywhere and seize
any persons or things, at anytime, with little or no regard to any
expectation of privacy.
In England, general warrants were used by the King in an attempt to
stop the publishing of what was then referred to as seditious libel
(e.g., documents that incited rebellion against the authority of the
state). In the colonies, writs of assistance were used, again by the
King of England, to enforce customs and tax laws. Taxes on wine,
tea, and stamps were assessed by the British Parliament in an attempt
to retire a portion of the French and Indian war debt. These taxes, of
course, were met with great resistance by the colonists. It was this
resistance that led, in part, to the American Revolution in 1775.
In England, the battle against the general warrant was being fought
in the courts. Cases such as Huckel v. Money (Chief Justice Charles
Pratt, Lord Camden, 1763); Leach v. Money (Chief Justice William
Murray, Lord Mansfield, 1765); and Entick v. Carrington (Chief Jus-
tice Charles Pratt, Lord Camden, 1765) laid the foundation of one of
the most exciting chapters of legal history. In what was an incredible
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triumph for the absolute impartiality of British justice, aristocratic
judges returned verdicts against members of their own class, con-
demning the use of general warrants.
The search and seizure of an individual’s personal property cannot
extend beyond the intent of the Constitution and federal laws. The
most important consideration underlying the Fourth Amendment’s
protection is the reasonable expectation of privacy and security on the
part of every citizen, against arbitrary intrusions and seizures by gov-
ernmental authorities.
c. Search and Seizure Rule
Search and seizure is governed by Rule 41 of the Federal Rules of
Criminal Procedure.
The rule specifies who has the authority to issue warrants. It states,
in part:
Upon the request of a federal law enforcement officer or an attor-
ney for the government, a search warrant authorized by this rule
may be issued (1) by a federal magistrate, or a state court of record
within the federal district, for a search of property or for a person
within the district, and (2) by a federal magistrate for a search of
property or for a person either within or outside the district if the
property or person is within the district when the warrant is sought
but might move outside the district before the warrant is executed.
Fed.R.Crim.P. 41(a).
d. Maintaining a Retrieval System
Whenever search warrant materials are returned to the clerk’s office
by the magistrate judge, the clerk’s office is responsible for the safe
and secure keeping of these materials. Federal Rule of Criminal Pro-
cedure 41(g) states that the magistrate judge "shall attach to the war-
rant a copy of the return, inventory and all other papers in connection
therewith."
In many courts, a copy of the search warrant is sent to the clerk’s
office when the government agent is given the original search war-
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rant. The search warrant is placed in a special envelope (or file folder)
which can be sealed, if necessary. Either a magistrate judge case num-
ber or a miscellaneous number can be assigned either manually or by
the automated systems. If assigned manually, the magistrate judge
case number should be recorded in a log with pertinent information
(e.g., magistrate judge name, date, type of warrant). The case files and
the log should be kept in a vault or another secure area. See Chapter
10 of this manual for a discussion concerning miscellaneous actions.
When the search warrant is returned, a magistrate judge docket sheet
or a miscellaneous docket should be opened using the magistrate
judge case number or miscellaneous case number either manually or
on the automated systems. If manually, an index card should be pre-
pared at this time. The ICMS CRIMINAL automated system provides
an automated index system. The search warrant and any other docu-
ments are removed from the vault or secure area and placed in a case
file with the magistrate judge case number or miscellaneous number
on the front of the folder. The case file folder is then placed with the
other criminal case files or in a separate part of the file area for magis-
trate judge cases, or in the miscellaneous files.
If the search warrant is ordered to be sealed, the procedures in
§ 3.01.f, below, of this manual, should be followed.
In some instances, it may be necessary, or the United States Attor-
ney’s Office may request, that the search warrant materials be placed
in the criminal case file folder with the rest of the criminal pleadings.
e. Returned Unsealed Search Warrants
Unsealed search warrants should be indexed and placed in a file
folder with a magistrate judge case number or miscellaneous number
and caption. They should then be processed in the usual manner.
f. Returned Sealed Search Warrants
Records can be sealed only by order of the court or by special provi-
sion (e.g., Federal Rule of Criminal Procedure 6 for grand jury mat-
ters). If the search warrant is sealed, it should be sealed in an
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envelope. To provide additional security, a deputy clerk’s initials or
signature should be written across the edge of the envelope closure
and tape placed on top of the signature. If the tape is removed or tam-
pered with, the initialing or signature would reflect it. Sealed warrant
information should be stored in a locked file cabinet, or in a vault, or
both. The sealed folder should have some identification on it (e.g., a
magistrate judge case number or a miscellaneous number from a
sequential list of numbers used for sealed material). A listing or index
of sealed materials, using the minimum amount of information
required to locate the material, should be provided.
Currently, sealed records cannot be forwarded to a Federal Records
Center for storage. The court must first enter an order unsealing them.
The records are then handled according to the provisions of the
records disposition schedule. See the Volume 1, Chapter 12, Part A.
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