MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Notice of Appeal (Dkt. No. 17) of Jantz and Sheila Clinkscale (collectively referred to as “the Clinkscales”). They seek review of the Magistrate Judge’s Order denying their Fed.R.CRIm.P. 41(e) motion to unseal the affidavit in support of the wаrrant which authorized the search of their house, and for the return of property which was seized from their home. 1 For the following rеasons, the Clinkscales’ appeal is DISMISSED.
FACTS
On August 3, 1998 an Application and Affidavit was presented to Magistrate Judge James D. Thomas by a federal law enforcement agent. Magistrate Judge Thomas ordered that the search warrant affidavit be placed under seal.
On August 4, 1998, the search warrant was directed and executed at the residence of the Clinkscales at 2934 Anderson-Morris Road in Niles, Ohiо. The following were among the items seized pursuant to the warrant: financial records, jewelry, and a black-zippered travеl bag which contained approximately $321,380.00 in U.S. currency. Additionally, two vehicles at the premises were seized when quantities of mаrijuana, packaged for distribution, were discovered therein.
On February 26, 1999, the Clinkscales filed their aforementioned motion for thе return of property seized under the warrant and to unseal the search warrant affidavit. Specifically, they sought the return of thе financial records and jewelry. 2 *1083 The United States opposed their motion, asserting that (1) Magistrate Judge Thomas had already fоund probable cause to support all seizures under the warrant; (2) the government’s continued possession of the property was reasonable; and (3) that sealing of the search warrant affidavit was appropriate. The United States further assertеd that unsealing the affidavit would violate Fed.R.Crim.P. 6(e), identify unnamed and uncharged subjects, identify cooperating witnesses, could comрromise and influence the cooperation of present and potential witnesses, and could enable subjects of thе investigation to alter, remove, withhold or create records. (United States’ Response to Motion to Unseal at p. 4).
On March 16, 1999, Magistrate Judge Thomas held a hearing on the Clinkseales’ motion. On March 23, 1999, Magistrate Judge Thomas issued an Order denying the Clinkseales’ motiоn. This appeal followed.
ANALYSIS
Generally, a person whose property has been seized pursuant to a search warrаnt has a right under the Warrant Clause of the Fourth Amendment to inspect and copy the affidavit upon which the warrant was issued.
In re Search Warrants Issued August 29, 1991,
The Clinkseales premise their appeal on Up North Plastics, and argue that the following four factors must be considеred when determining whether to unseal a search warrant affidavit:
1) The government’s interest in secrecy to protect an ongоing investigation;
2) Whether a prima facie showing of probable cause has been made;
3) Whether the movant may reassert thе claim, should the government’s delay become unreasonable; and
4) The movant’s entitlement to lawful possession of the items.
Id.
at 233
(citing, Shea v. Gabriel,
The
Up North Plastics
сourt expressly held that the government’s “conclusory allegations” that the unsealing of the affidavit would compromise an investigаtion were inadequate to keep an affidavit under seal for a prolonged period of time.
As this case is still in the pre-indictment phase, there exists a question as to whether the Clinkseales even have a right to review the affidavit upon which the warrаnt was issued. Courts are split on the issue of whether the Warrant Clause of the Fourth Amendment grants a right of access to sealed affidavits in support of a search warrant prior to indictment. The Seventh Circuit, in
EyeCare Physicians,
held that “no provision within the Fourth Amendment grants a fundamental right оf access to sealed search warrant affidavits
before an indictment.”
Assuming arguendo that the Clinkscales do indeed have a Fourth Amendment right to inspeсt the search warrant affidavit, their motion still fails under an Up North Plastics analysis. In his Order, Magistrate Judge Thomas determined that the affidavit should remain seаled. He based this determination on his findings that “the government’s interest in secrecy is necessary to protect the ongoing investigatiоn ... there has been a prima facie showing of probable cause in the execution of the search warrant in the first instance ... [and] there is no limitation on the [Clinkscales] seeking for recovery of property should the government delay any further.” (Magistrate’s Order at 8-9). With respect to the last Up North Plastics factor, the Magistrate Judge opined that the Clinkscales need only examine the search warrant and the inventory listing of warrant items seized to determine whether they are entitled to lawful possession of any of the sеized items. (Magistrate’s Order at 9, footnote 2).
Upon consideration of the sealed affidavit, the affidavit of Special Agent Gary L. Gruver, the motions of the parties, and the evidence in the record, the Court finds that the sensitive nature of the information contаined in the affidavit, the compelling governmental interest in protecting the ongoing investigation, and the privacy interests of thosе named in the affidavit, all weigh in favor of maintaining the affidavit under seal. Moreover, no less restrictive means are availablе as even redactions would not protect the identities of various individuals due to the context in which they are mentioned. Acсordingly, the Clinkscales’ appeal of the Magistrate Judge’s Order denying their motion to unseal the search warrant affidavit is DISMISSED.
IT IS SO ORDERED.
Notes
. This apрeal is limited to the issue of whether the Magistrate Judge lawfully refused to unseal the affidavit. (Clinkscales Appeal Memorandum at 2.)
. Thеir motion did not request the return of the seized cash, noting that two weeks prior thereto, another individual had filed a Fed. *1083 R.Crim.P. 41(e) motion for the return of approximately $277,000.00 of the seized cash.