United States of America v. No. 10-30222THE BUSINESS OF THE CUSTER BATTLEFIELD MUSEUM

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 10-30222THE BUSINESS OF THE CUSTER
BATTLEFIELD MUSEUM AND STORE D.C. No.
LOCATED AT INTERSTATE 90, EXIT 1:05-mj-00022- 
514, SOUTH OF BILLINGS, MONTANA, RFC-1
Defendant, OPINION
and
CHRISTOPHER KORTLANDER,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted
June 8, 2011—Portland, Oregon
Filed September 30, 2011
Before: Raymond C. Fisher, Ronald M. Gould and
Richard A. Paez, Circuit Judges.
Opinion by Judge Fisher
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COUNSEL
Penelope S. Strong, Penelope S. Strong Law Office, Billings,
Montana, for the appellant.
Michael W. Cotter, U.S. Attorney, and Leif M. Johnson
(argued), Assistant U.S. Attorney, Billings, Montana, for the
appellee.
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OPINION
FISHER, Circuit Judge:
We decide whether the public has a common law or First
Amendment right of access to materials filed in support of
search warrant applications after an investigation has been ter-
minated. We hold that a qualified common law right of access
applies. We decline to reach the constitutional question.
BACKGROUND
Christopher Kortlander owns and operates the Custer Bat-
tlefield Museum in Garryowen, Montana. Beginning in 2005,
the United States investigated Kortlander for unlawfully
attempting to sell migratory bird parts and for fraudulently
misrepresenting the provenance of historical artifacts for sale.
During that investigation, two search warrants were executed
(in 2005 and 2008), and the court sealed the affidavits sup-
porting the warrant applications. The government ultimately
declined prosecution of any criminal charges.
In 2010, Kortlander asked the district court for a copy of
the search warrant applications and supporting affidavits. He
initially sought “a personal copy of the entire file, while leav-
ing the file sealed to the public.” Later, however, he asked
that the warrant applications be “ordered unsealed” and “fully
disclosed.” Citing cases discussing the public’s qualified First
Amendment right of access to judicial proceedings, he
asserted that “search warrant papers are presumptively public
judicial records,” adding that “[u]nfettered disclosure is
entirely appropriate and fitting in this case and should be
effectuated forthwith.”
The United States Attorney’s Office initially opposed Kort-
lander’s request in its entirety, citing the need to protect wit-
ness, informant and grand jury secrecy. The government’s
objections said that portions of the search warrant affidavits
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“refer to witness testimony and documentary evidence col-
lected by the grand jury, as well as informant statements[,]
and identif[y] undercover officers.”
Later, however, the government dropped its blanket objec-
tion to giving Kortlander access to the records, acknowledg-
ing that Kortlander and his attorney had already learned the
“details of investigation in the course of negotiation” in the
case, including “informant and undercover officer identities”
and “grand jury material.” “The government therefore no lon-
ger ha[d] concerns about disclosure of sensitive law enforce-
ment and/or witness information.”
Nonetheless, the government urged the court to “limit dis-
semination of the material to Kortlander’s personal review
and/or for inclusion in any future court filings,” citing privacy
interests of third parties. The government said:
[C]oncerns have been raised that information col-
lected by Kortlander may be posted on web sites.
The Ninth Circuit has explained that “the privacy
interests of the individuals identified in the warrants
and supporting affidavits” supports the conclusion
that warrant-related material not be made available
for public dissemination. Times Mirror Co. v. United
States, 873 F.2d 1210, 1216 (9th Cir. 1989).
Consequently, should the Court unseal the warrant
applications in this matter, the government requests
that any order limit dissemination of the material to
Kortlander’s personal review and/or for inclusion in
any future court filings.
The district court granted Kortlander’s request for access to
the warrant materials, but limited Kortlander’s access in
accordance with the government’s suggestions.1 The court
1We treat the restrictions the district court imposed on Kortlander’s use
and dissemination of the materials as restrictions on his “access” to these
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noted that “[t]he government does not object to the unsealing
of the records for Kortlander’s personal review and/or inclu-
sion in future court filings, but does have concerns about the
information being posted on websites.” The court accordingly
directed the government “to provide a copy to Kortlander’s
counsel for dissemination to Kortlander,” but advised Kort-
lander “that the information is to be used only for personal
review and/or inclusion in any future court filings. Kortlander
is ordered not to post the warrant applications on any web-
sites.” The court did not make any findings — beyond citing
unspecified “concerns” about Internet postings — articulating
a justification for the restrictions imposed. Kortlander timely
appealed.2
DISCUSSION
[1] The law recognizes two qualified rights of access to
judicial proceedings and records, a common law right “to
inspect and copy public records and documents, including
judicial records and documents,” Nixon v. Warner Commc’ns,
Inc., 435 U.S. 589, 597 (1978) (footnote omitted), and “a First
Amendment right of access to criminal proceedings” and doc-
uments therein, Press-Enter. Co. v. Superior Court, 478 U.S.
1, 8 (1986). Kortlander contends that he has a right to unfet-
tered access to the search warrant materials under both stan-
dards. We address the common law question first.
documents as that term is used in connection with the common law and
First Amendment principles governing access to judicial proceedings and
documents.
2We reject the government’s argument that Kortlander lacks standing to
appeal because he has not asserted any concrete plans to post the warrant
materials on the Internet, a fact Kortlander in any event disputes. Kort-
lander seeks a single remedy: access to the warrant materials. He indispu-
tably has standing to seek that remedy, and we will not require him to
establish standing for each component of that access that may be encom-
passed within the general remedy he seeks.
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I. Common Law Right of Access
[2] The first step in any inquiry under the common law
right of access is whether this right applies at all to the type
of documents at issue. See Kamakana v. City & Cnty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (“A narrow
range of documents is not subject to the right of public access
at all because the records have ‘traditionally been kept secret
for important policy reasons.’ ” (quoting Times Mirror Co. v.
United States, 873 F.2d 1210, 1219 (9th Cir. 1989))). “Our
case law has identified two categories of documents” that are
not covered by the common law right of access: “grand jury
transcripts and warrant materials in the midst of a pre-
indictment investigation.” Id. (citing Times Mirror, 873 F.2d
at 1219). We review this threshold question de novo. See
Times Mirror, 873 F.2d at 1212.
[3] Whether the common law right of access applies to
warrant materials after an investigation has ended is a ques-
tion of first impression in this circuit. We have held that the
common law right of access does not apply to warrant materi-
als “during the pre-indictment stage of an ongoing criminal
investigation.” Id. at 1221. But we expressly reserved whether
the common law right of access applies to warrant materials
after “an investigation has been terminated.” Id. We answer
that question today, and hold that, as the government con-
cedes, the common law right of access applies under these cir-
cumstances.3 In doing so, we join a number of courts that
have reached the same conclusion. See, e.g., In re EyeCare
Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996); In re
Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990); Baltimore Sun
Co. v. Goetz, 886 F.2d 60, 62 (4th Cir. 1989); United States
v. Wells Fargo Bank Account Number 7986104185, 643 F.
3Times Mirror also reserved whether the public has a common law right
of access to warrant materials when “an investigation is still ongoing, but
an indictment has been returned.” 873 F.2d at 1221. We have no occasion
to address that question here.
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Supp. 2d 577, 583-84 (S.D.N.Y. 2009); In re N.Y. Times Co.,
585 F. Supp. 2d 83, 92 (D.D.C. 2008); Commonwealth v.
Fenstermaker, 530 A.2d 414, 417-19 (Pa. 1987); see also In
re Search Warrant for Secretarial Area Outside Office of
Gunn, 855 F.2d 569, 575-76 (8th Cir. 1988) (Bowman, J., con-
curring).4
[4] We agree with these courts that warrant materials are
“judicial records and documents.” Nixon, 435 U.S. at 597
(recognizing a common law right “to inspect and copy public
records and documents, including judicial records and docu-
ments”). In Baltimore Sun, the Fourth Circuit offered persua-
sive reasons for treating search warrant affidavits as judicial
records:
The requirement that warrants issue only upon oath
or affirmation showing probable cause is embodied
in the fourth amendment. A judicial officer must
review the affidavit to determine whether the war-
rant should issue. This initial review is subject to fur-
ther review by district and appellate courts upon
motion to suppress the objects seized in the search.
4Though generally invoked by news organizations, the common law
right of access to judicial records and documents “is a general right held
by all persons.” In re EyeCare Physicians, 100 F.3d at 517. It has been
invoked, for example, by those with “a proprietary interest” in a docu-
ment, by those who need a document “as evidence in a lawsuit,” by citi-
zens who “desire to keep a watchful eye on the workings of public
agencies” and by news organizations seeking “to publish information con-
cerning the operation of government.” Nixon, 435 U.S. at 597-98.
Courts have applied the common law right of access to a variety of
warrant-related materials. See In re EyeCare Physicians, 100 F.3d at 515
(search warrant application and affidavit); In re Newsday, 895 F.2d at 75
(same); Baltimore Sun, 886 F.2d at 62 (search warrant affidavit); Wells
Fargo, 643 F. Supp. 2d at 579 (affidavits in support of warrants of seizure
in rem); In re N.Y. Times Co., 585 F. Supp. 2d at 86 (search warrant appli-
cations and affidavits); Fenstermaker, 530 A.2d at 415-16 (affidavits of
probable cause in support of arrest warrants); see also Gunn, 855 F.2d at
570 (search warrant affidavits and related materials).
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Federal Rule of Criminal Procedure 41(g) directs the
judicial officer to file the warrant and all papers in
connection with it with the clerk of the district court.
The papers are then available for use in a subsequent
criminal trial if its sufficiency is questioned. We
therefore conclude that affidavits for search warrants
are judicial records.
886 F.2d at 63-64 (footnote omitted). “Affidavits in support
of seizure or search warrants are central to a court’s probable
cause determination.” Wells Fargo, 643 F. Supp. 2d at 583.
They therefore “clearly fall within the definition of ‘judicial
documents.’ ” Id.; see also Fenstermaker, 530 A.2d at 418
(“[D]ocuments upon which a magistrate bases a decision to
issue an arrest warrant are clearly judicial in character.”).
We also agree with these courts that post-investigation war-
rant materials fall outside the “narrow range of documents
[that are] not subject to the right of public access at all
because the[y] have ‘traditionally been kept secret for impor-
tant policy reasons.’ ” Kamakana, 447 F.3d at 1178 (quoting
Times Mirror, 873 F.2d at 1219). As we acknowledged in
Times Mirror, 873 F.2d at 1213-14, 1218, warrant materials
have not historically been accessible to the public during the
early stages of criminal proceedings. “Warrant application
proceedings are highly secret in nature and have historically
been closed to the press and public.” Wells Fargo, 643 F.
Supp. 2d at 583; see also Baltimore Sun, 886 F.2d at 64
(“[P]roceedings for search warrants are not open to the pub-
lic.”); Gunn, 855 F.2d at 573 (“[H]istorically the process of
issuing search warrants involves an ex parte application by
the government and in camera consideration by the judge or
magistrate. Moreover, the very objective of the search warrant
process, the seizure of evidence of crime, would be frustrated
if conducted openly.”).
[5] Post-investigation, however, warrant materials “have
historically been available to the public.” In re N.Y. Times
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Co., 585 F. Supp. 2d at 88. “Search warrant applications . . .
generally are unsealed at later stages of criminal proceedings,
such as upon the return of the execution of the warrant or in
connection with post-indictment discovery.” Wells Fargo, 643
F. Supp. 2d at 581. “[A]lthough the process of issuing search
warrants has traditionally not been conducted in an open fash-
ion, search warrant applications and receipts are routinely
filed with the clerk of court without seal.” Gunn, 855 F.2d at
573 (emphasis added). In the post-investigation context, war-
rant materials have generally been open to the public.
[6] This tradition of openness “serves as a check on the
judiciary because the public can ensure that judges are not
merely serving as a rubber stamp for the police.” In re N.Y.
Times Co., 585 F. Supp. 2d at 90. Warrant materials are also
“often used to adjudicate important constitutional rights such
as the Fourth Amendment protection against unreasonable
searches and seizures.” Id. As the Eighth Circuit has
observed, “public access to documents filed in support of
search warrants is important to the public’s understanding of
the function and operation of the judicial process and the
criminal justice system and may operate as a curb on prosecu-
torial or judicial misconduct.” Gunn, 855 F.3d at 573; see also
Wells Fargo, 643 F. Supp. 2d at 583 (stating that access to
warrant materials “promotes the legitimate interests of the
public and the press in ‘keep[ing] a watchful eye on the work-
ings of public agencies’ ” (alteration in original) (quoting
United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995))).
[7] For these reasons, we hold that the public has a quali-
fied common law right of access to warrant materials after an
investigation has been terminated. In doing so, we decline to
extend Times Mirror to post-investigation access. In Times
Mirror, we were concerned primarily with the impact disclo-
sure would have on an ongoing criminal investigation. We
said:
First, and most obviously, if the warrant proceeding
itself were open to the public, there would be the
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obvious risk that the subject of the search warrant
would learn of its existence and destroy evidence of
criminal activity before the warrant could be exe-
cuted. Additionally, if the proceeding remained
closed but the supporting affidavits were made pub-
lic when the investigation was still ongoing, persons
identified as being under suspicion of criminal activ-
ity might destroy evidence, coordinate their stories
before testifying, or even flee the jurisdiction.
Times Mirror, 873 F.2d at 1215. These are important con-
cerns, but they are not as relevant once an investigation has
been terminated. The other concerns we identified in Times
Mirror, particularly “the privacy interests of the individuals
identified in the warrants and supporting affidavits,” id. at
1216, are also important, but, in a particular case involving
materials subject to the common law right of access, they may
be redressed through a court’s discretion either to release
redacted versions of the documents or, if necessary, to deny
access altogether, as we discuss below.
Having held that the right of access applies to post-
investigation warrant materials, we must next decide whether
the district court properly granted Kortlander only limited
access to the warrant materials in this case.
[8] When the common law right of access applies to the
type of document at issue in a particular case, “a ‘strong pre-
sumption in favor of access’ is the starting point.” Kamakana,
447 F.3d at 1178 (quoting Foltz v. State Farm Mut. Auto. Ins.
Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “A party seeking
to seal a judicial record then bears the burden of overcoming
this strong presumption by . . . ‘articulat[ing] compelling rea-
sons’ . . . that outweigh the general history of access and the
public policies favoring disclosure.” Id. at 1178-79 (quoting
Foltz, 331 F.3d at 1135). “In turn, the court must ‘conscien-
tiously balance[ ] the competing interests’ of the public and
the party who seeks to keep certain judicial records secret.”
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Id. at 1179 (alteration in original) (quoting Foltz, 331 F.3d at
1135). “After considering these interests, if the court decides
to seal certain judicial records, it must ‘base its decision on a
compelling reason and articulate the factual basis for its rul-
ing, without relying on hypothesis or conjecture.’ ” Id. (quot-
ing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.
1995)). “Where the district court conscientiously undertakes
this balancing test, basing its decision on compelling reasons
and specific factual findings, its determination will be
reviewed only for abuse of discretion.” San Jose Mercury
News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1102 (9th Cir.
1999).5
5With respect to warrant materials, courts have recognized several con-
cerns that may call for redaction of the materials or withholding of disclo-
sure outright. These concerns include the need to protect an ongoing
investigation, see In re EyeCare Physicians, 100 F.3d at 519; Times Mir-
ror, 873 F.2d at 1215; Gunn, 855 F.2d at 574; Wells Fargo, 643 F. Supp.
2d at 585-86; In re N.Y. Times Co., 585 F. Supp. 2d at 93; Fenstermaker,
530 A.2d at 420, the need to protect the identities and safety of confiden-
tial informants, see In re EyeCare Physicians, 100 F.3d at 518 n.5; In re
N.Y. Times Co., 585 F. Supp. 2d at 91; Fenstermaker, 530 A.2d at 420,
privacy interests, see In re McClatchy Newspapers, Inc., 288 F.3d 369,
373-74 (9th Cir. 2002); In re Newsday, 895 F.2d at 79-80; Times Mirror,
873 F.2d at 1216; In re N.Y. Times Co., 585 F. Supp. 2d at 91, the need
to safeguard the Sixth Amendment fair trial rights of the accused, see Fen-
stermaker, 530 A.2d at 420, and the need to protect the secrecy of grand
jury proceedings, see In re EyeCare Physicians, 100 F.3d at 518-19. In
many cases, courts can accommodate these concerns by redacting sensi-
tive information rather than refusing to unseal the materials entirely. See,
e.g., In re Newsday, 895 F.2d at 80 (redacting documents to protect the
privacy interests of innocent third parties); Baltimore Sun, 886 F.2d at 66
(indicating that a court should consider redaction before denying access
altogether); Wells Fargo, 643 F. Supp. 2d at 585-86 (redacting materials
to protect the government’s ongoing investigation); In re N.Y. Times Co.,
585 F. Supp. 2d at 86 & n.1, 91 (redacting information to protect confi-
dential informants); cf. In re EyeCare Physicians, 100 F.3d at 516, 519
(considering redaction as an alternative to denying access altogether);
Gunn, 855 F.2d at 574 (discussing redaction in connection with the First
Amendment right of access).
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[9] The restrictions the district court imposed here do not
conform to the standards we articulated in Kamakana.
Although the court ruled that Kortlander may not “post the
warrant applications on any websites,” it did not articulate a
“compelling reason” for these limitations or a “factual basis
for its ruling.” Kamakana, 447 F.3d at 1179. The restrictions
therefore cannot be sustained.
Even when we look past the district court’s order to the
underlying government briefs upon which the district court
relied, we do not find a compelling reason or a factual basis
for the restrictions. The government’s district court brief said
only that “concerns have been raised that information col-
lected by Kortlander may be posted on web sites,” and cited
the general principle that individuals identified in warrants
have privacy interests that may justify denying access. The
government’s brief did not explain what concerns had been
raised, whether they were concrete rather than conjectural or
how they constituted a compelling reason for restricting Kort-
lander’s access to the warrant materials.
[10] Under these circumstances, we hold that the district
court abused its discretion by limiting Kortlander’s access to
the warrant materials. We therefore vacate the court’s order
and remand for the district court to reconsider the application
of the common law right of access in this case, applying the
correct legal standard. In applying this standard, the court
should balance the public’s interest in disclosure against any
countervailing concerns that may apply. But the court may not
restrict access to the documents without articulating both a
compelling reason and a factual basis for its ruling.
II. First Amendment Right of Access
Kortlander argues in the alternative that he is entitled to
unrestricted access to the warrant materials under the First
Amendment right of access to judicial proceedings. Whether
this right of access applies to warrant materials after an inves-
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tigation has ended is also a question of first impression in this
circuit. In Times Mirror, we held that the “public has no qual-
ified First Amendment right of access to warrant materials
during the pre-indictment stage of an ongoing criminal inves-
tigation,” but we expressly reserved whether the public has a
constitutional right of access after “an investigation has been
terminated.” Times Mirror, 873 F.2d at 1221.6
We decline to decide the question reserved in Times Mirror
at this time. First, it has not been addressed by the district
court, and we ordinarily prefer the district court to address
issues in the first instance. Second, the district court may be
able to resolve this case on remand by applying the common
law right of access alone, without the need to address the First
Amendment question. We prefer to “avoid reaching constitu-
tional questions in advance of the necessity of deciding
them.” Camreta v. Greene, 131 S. Ct. 2020, 2031 (2011)
(quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 445 (1988)) (internal quotation marks omitted). The
First Amendment question is therefore reserved.
6Although there are a number of court decisions addressing whether the
First Amendment right of access applies to warrant materials during or
after an investigation, they have not always reached identical conclusions.
See Gunn, 855 F.2d at 572-75 (holding that the public has a qualified First
Amendment right of access to warrant materials, even while an investiga-
tion is ongoing); In re Newsday, 895 F.2d at 75 (declining to decide
“whether . . . the press has a constitutional right of access to documents
contained in search warrant applications”); Baltimore Sun, 886 F.2d at 62
(holding that the public does not have “a qualified [First Amendment]
right of access to inspect and copy affidavits supporting search warrants
in the interval between execution of the warrants and indictment”); Wells
Fargo, 643 F. Supp. 2d at 583 (holding that a media organization had no
First Amendment right of access to seizure warrant information while an
investigation was ongoing); In re N.Y. Times Co., 585 F. Supp. 2d at 90
(holding that the public has a qualified First Amendment right of access
to warrant materials after an investigation has been completed).
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CONCLUSION
We hold that the public has a qualified common law right
of access to warrant materials after an investigation has been
terminated. The district court properly recognized that right
here, but the court erred by granting Kortlander only
restricted access to the warrant materials without articulating
a compelling reason for its ruling or making specific factual
findings. The district court’s order is therefore vacated, and
the matter is remanded to the district court to reapply the
common law standard to Kortlander’s request.
[11] We decline to decide whether the public has a quali-
fied First Amendment right of access to warrant materials
after an investigation has been terminated. In the event that
the court denies Kortlander unrestricted access to the warrant
materials under the common law, the court should decide in
the first instance whether the First Amendment right applies
to post-investigation warrant materials and, if so, whether
Kortlander is entitled to unrestricted access under the First
Amendment standard.7
7The First Amendment is generally understood to provide a stronger
right of access than the common law. See, e.g., Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006); Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). We have held that
“criminal proceedings and documents may be closed to the public without
violating the first amendment only if three substantive requirements are
satisfied: (1) closure serves a compelling interest; (2) there is a substantial
probability that, in the absence of closure, this compelling interest would
be harmed; and (3) there are no alternatives to closure that would ade-
quately protect the compelling interest.” Oregonian Publ’g Co. v. U.S.
Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990); see also Times Mirror,
873 F.2d at 1211 n.1 (“Even when the public enjoys a First Amendment
right of access to a particular proceeding, the public still can be denied
access if closure ‘is necessitated by a compelling governmental interest,
and is narrowly tailored to serve that interest.’ ” (quoting Press-Enter. Co.
v. Superior Court, 464 U.S. 501, 510 (1984))).
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Costs of appeal are awarded to the appellant.
VACATED and REMANDED.
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