U.S. Court Bars Search Warrant Access Before Suspects Are Indicted

In a case growing out of the government’s sweeping investigation into defense contract fraud, a federal appeals court ruled Tuesday that the public does not have a right to see search warrants and supporting material before anyone is indicted.

While the 1st Amendment’s right of access must be weighed, the U.S. 9th Circuit Court of Appeals in a 3-0 decision said such rights are “more than outweighed by the damage to the criminal investigatory process that could result from open warrant proceedings. . . . Public access would hinder, rather than facilitate, the warrant process and the government’s ability to conduct criminal investigations.”

The 9th Circuit decision turned on the fact that the inquiry, called Operation Ill Wind, an investigation into fraud and bribery in the Pentagon’s $150-billion-a-year procurement system, had not yet led to any indictments when the search warrants were issued in June, 1988.

Therefore, the court ruled, “the incremental value in public access is slight compared to the government’s interest in secrecy at this stage of the investigation.” The judges also said that to make public such search warrants could injure individuals who have not been charged with any crime.

The decision written by Judge William A. Norris was described as important but not a landmark 1st Amendment case by the attorney for the plaintiffs. The Times Mirror Co., which publishes The Times, and the San Diego-based Copley Press Inc. had sought to see search warrants and supporting affidavits issued in connection with the three-year investigation into corruption in military weapons-buying.

The lawyer for Times Mirror, Rex S. Heinke, said the appellate decision “is disappointing. It ignores what had occurred here. The warrants had all been executed. We were not seeking access prior to the warrants being served. The people being searched knew that. The only people being kept in the dark were the public.”

Assistant U.S. Atty. Joseph J. Aronica, who argued to keep the documents sealed, said, “The bottom line wasn’t that the news media wouldn’t get (the documents) . It was keeping (the documents) from the (suspects).”

Homes, Offices Searched

As part of the investigation, agents of the Naval Investigative Service and the FBI searched the homes and offices of four dozen defense contractors, consultants and government officials.

Search warrants issued by magistrates list evidence being sought in a house or business; “returns,” or follow-up documents, tell what was seized; affidavits, submitted under oath by law enforcement officers, often describe an investigation in detail. In the Ill Wind proceedings, all of these documents remained sealed.

In successfully arguing to keep the documents sealed, government lawyers warned that allowing the public--including journalists--to read them would give suspects an opportunity to flee or destroy evidence.

No Decision on Appeal

Heinke said it had not yet been decided if an appeal would be mounted to the U.S. Supreme Court.

He did note, however, that the U.S. 8th Circuit Court of Appeals in St. Louis in a similar Ill Wind case ruled 2-1 that the public does have a 1st Amendment right of access to search warrant materials. But, in the end, this appellate court also decided that the government had made a compelling showing to keep the documents sealed.

“A split between circuit courts is the classic situation where the U.S. Supreme Court grants review,” Heinke observed.

As a result of the Ill Wind investigation, 14 defendants have either pleaded guilty or admitted to criminal charges. Teledyne Industries Inc. of Newbury Park, and Hazeltine Corp. of Long Island, N.Y., have pleaded guilty to charges of conspiracy, fraud and lying to the government. The inquiry is continuing.