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Federal judge rules U.S. had duty to disclose reason for search warrant

In a judicial opinion published just last week in the 2010 investigation of a then-Northrop Grumman Corp. employee, a federal judge sharply rejected the U.S. government’s claim of national security as the reason for not disclosing to the worker the basis for a search warrant of his North Potomac home.

Gurpreet Singh Kohli was suspected of operating an unlicensed side business that helped broker electronics sales to India. He filed an action in U.S. District Court to see the affidavit supporting the warrant after his home was searched.

“The government stated that such national security threats may or may not be present in this case, but explained that the government is not at liberty to provide any more details to this court at this time,” Magistrate Judge Susan K. Gauvey wrote in the opinion published Thursday.

“The government … relied on the general statements of fact that Mr. Kohli was trafficking regulated goods to India without a license; the inference apparently being that Mr. Kohli may possibly be revealing classified information to, or working at the direction of, Indian officials,” Gauvey added. “While this court is certainly well aware of the ever-present threat to this country’s national security in this age of terrorism and counter-intelligence concerns, the court finds the government’s assertions in this case to be wholly conclusory and insufficient.”

Kohli pleaded guilty last November to obstructing a federal agency’s investigation of his involvement in the side business, NAVTEC. He was sentenced in April to six months of home detention and three years of probation.

On Nov. 30, 2010, federal agents executed the search warrant on Kohli’s home, seizing records allegedly related to NAVTECs transactions with the Indian government, its officials, foreign nationals and entities doing business with India.

The agents did not provide Kohli with the affidavit they submitted to the court in support of the search warrant, so he filed a motion for it with the federal court in Baltimore, citing the Fourth Amendment’s prohibition on unreasonable searches.

The government fought the motion, arguing that disclosing the basis for the search could harm national security, impede the government’s criminal investigation and undermine Northrop Grumman’s internal investigation of Kohli.

Gauvey rejected the motion in an April 5, 2011, memorandum opinion that was published Thursday.

“Naturally, the government would prefer not to share its summary and analysis of its investigation, but the subject of a search warrant is entitled to know the investigative basis for the significant invasion of his or her privacy that a search entails,” Gauvey wrote in ordering disclosure of the affidavit.

A footnote to Gauvey’s opinion stated it was being published now because the federal investigation has concluded.

U.S. Attorney Rod J. Rosenstein, whose office sought the warrant and fought Kohli’s disclosure motion, declined to comment on the case on Friday.

Kohli’s attorney, Paul M. Flannery, also declined to comment. Flannery is with Rosenberg Martin Greenberg LLP in Baltimore.

In addition to calling the government’s national-security argument too speculative, Gauvey also criticized as too broad the government’s concern that the disclosure would enable Kohli to cover up any illegal activity.

“Even assuming the truth of this general assertion,” Gauvey wrote, “the government has provided no evidence specific to this case beyond a general concern that could justify the sealing of affidavits in every criminal investigation.”

The government also argued that Kohli’s post-search call to a NAVTEC customer was evidence of a potential cover-up.

“The court does not view this one call by Mr. Kohli as an attempt to tamper with or influence a potential witness,” Gauvey wrote. “It is more likely that Mr. Kohli, after being the subject of a search warrant at his private residence, did what any rational person would do; he attempted to find out why he was the center of a federal government investigation.”

The government also expressed concern that disclosing the affidavit would undermine Northrop Grumman’s internal investigation of Kohli, a factor the judge found irrelevant.

“This court has found no case law which supports the proposition that an affidavit in support of a search warrant for a criminal investigation should remain sealed to protect independent investigations by a private corporation, or even another federal agency,” she wrote. “Regarding Northrop Grumman, the effectiveness of a private investigation dealing with continued employment is not a compelling reason to deny a person his Fourth Amendment right of access.”

The case is In the Matter of the Search of 14416 Coral Gables Way, North Potomac, Md., No. 10-4451-BPG.