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Court Says Provider Can See Search Affidavit

Feb.05.2005

By David O'Brien

A December 23 ruling by the US District Court for the District of Maryland that a health care provider is entitled to see the affidavit used to establish probable cause for a search of its offices highlights the continuing legal battles over prosecutors' use of search warrants, based on sealed affidavit support. 

The government sealed the affidavit as it often now does in these cases and it objected to the provider's request for unsealing. The magistrate judge ordered the affidavit unsealed with redactions.  The government appealed and the district court upheld the magistrate finding that there was a fourth amendment right to examine the affidavit after the search.  The district court noted that "the government's practice of routinely seeking to execute and seal search warrants is a recent phenomenon" and the "showing of harm has become dramatically less demanding".  The court also pointed out that while the "government traditionally preferred to use grand jury subpoenas to obtain evidence in white collar cases . . . the government's use of the search warrant in white collar investigations has increased dramatically within the past". 

The government argued that no fourth amendment right attaches until after the subject of the search is indicted.  The court rejected this argument in reliance on Rule 41 of the Federal. Rules of Criminal Procedure and said that "the search itself prompts suspicion and damages the reputation of the subject".  The court also noted that it may be years before the subject is indicted.  In some instances, the government may strike first with a search warrant and then issue a "clean-up" subpoena for items they may already have seized.   The case is In re Search Warrants issued on April 26, 2004, Case No. 04-1603SKG (Dec. 23, 2004), decided by Judge Bennett.

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For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

David W. O'Brien
Partner – Washington, D.C.
Phone: +1 202.624.2850
Email: dobrien@crowell.com