United States v. Cohen

United States District Court for the Southern District of New York · Evidence

Evidencesearch warrantsRule 4118 U.S.C. § 2703Stored Communications Actunsealingjudicial documentscommon law access

Facts

On April 9, 2018, the FBI executed searches of Michael Cohen's residence, hotel room, office, safe deposit box, cell phones, and electronic communications pursuant to Rule 41 and 18 U.S.C. § 2703 warrants. Media organizations sought access to the warrants, applications, affidavits, and riders underlying those searches. The Government argued that disclosure would jeopardize ongoing investigative matters, especially those tied to campaign finance crimes, and would prejudice the privacy interests of uncharged third parties identified in the materials. Cohen filed no opposition.

Issue

Whether search warrant materials issued under Rule 41 and 18 U.S.C. § 2703 should be unsealed under the common law or the First Amendment. More specifically, whether those materials are judicial documents subject to a presumption of access, whether the Stored Communications Act displaces any common law right, and whether countervailing interests justify continued sealing or redaction.

Rule

The Stored Communications Act does not negate the common law presumption of access to § 2703 warrant materials because it contains no clear congressional command mandating sealing of those warrants, applications, or affidavits. Search warrants, applications, and supporting affidavits are judicial documents entitled to a strong common law presumption of public access, but that presumption may be overcome by countervailing interests such as protecting ongoing investigations, law enforcement methods, cooperating sources, and the privacy interests of uncharged third parties; sealing or redaction must be no broader than necessary. Neither Rule 41 warrant materials nor § 2703 warrant materials are subject to a First Amendment right of access because history and logic do not support such a right and warrant proceedings are traditionally ex parte and in camera.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Chicago, federal agents obtained a warrant under 18 U.S.C. § 2703 for emails associated with Owen Mercer, then later executed a separate physical search warrant at his warehouse. After Mercer was indicted, a newspaper moved to unseal the § 2703 warrant, application, and supporting affidavit. The government argues the Stored Communications Act itself eliminates any common law presumption of access to those materials.

How should the court rule on the government's threshold statutory argument?

Explanation. The majority held that the Stored Communications Act does not displace the common law presumption of access because it contains no clear congressional command mandating sealing of § 2703 warrants, applications, or affidavits. Provisions allowing nondisclosure to customers or delayed notice do not create the kind of express anti-disclosure regime that would negate common law access. The court must therefore proceed with the usual judicial-document and balancing analysis. (Derived from United States v. Cohen (n.d.).)