ERHC Energy Inc (ERHE)

[rocky822]

Unsealing the Affidavit
ERHC asks the Court to unseal the affidavit forming the basis for the search
warrant.7 It asserts it cannot challenge whether the Government established probable
cause necessary to procure the warrant without viewing the unsealed affidavit. It further
avers that the Fourth Amendment protects its right to examine the affidavit forming the
basis for the search warrant. ERHC requests that the Court adopt the reasoning of other
circuits and require that the Government demonstrate a compelling interest to keep the
affidavit sealed. See, e.g., In re Search of Up North Plastics, Inc., 940 F. Supp. 229 (D.
Minn. 1996) (“The government must make a specific factual showing of how its
investigation will be compromised by the release of the affidavit. . . .”).
ERHC’s argument fails to give sufficient weight to the Fifth Circuit opinion in In
re Grand Jury Proceedings, 115 F.3d 1240 (5th Cir. 1997), wherein the court
recognized that no Fourth Amendment right exists to access a sealed affidavit before indictment. Moreover, although the Court disagrees that a showing of a compelling
interest is required to keep an affidavit sealed in this circuit, it concludes that the
Government has, through its sealed submissions to this Court, demonstrated it has a
compelling interest in keeping the affidavit sealed and that its investigation would be
jeopardized if the Court unsealed the affidavit. Accordingly, the Court declines to
order that the affidavit be unsealed at this time. Given the foregoing, the Court hereby
ORDERS that ERHC Energy Inc.’s Motion for Return of Property, To Enjoin
Government Review of Seized Documents and Computer Images Pending Judicial
Review, and To Unseal Affidavit in Support of Search Warrant (Document No. 1) is
DENIED. The Court further
ORDERS that the instant action is DISMISSED.
SIGNED at Houston, Texas, on this 6th day of July, 2006.
__________________________
DAVID HITTNER
United States District Judge