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New Search Law
Likely To Provoke
4th Amendment Challenge

Terrorism Bill OKs 'Sneak-and-Peek'

by Marcia Coyle, The National Law Journal

October 29, 2001

Among the likely court fights over Congress' terrorism package is one over so-called sneak-and-peek warrants, according to Fourth Amendment scholars and groups across the political spectrum.

The anti-terrorism package enacted in the wake of the Sept. 11 attacks contains a provision expanding the authority of federal law enforcement officers to conduct covert searches.

Unlike other provisions broadening law enforcement power, this one does not have a "sunset" or time limit attached that would allow the lawmakers to revisit its necessity at a later date. And like many other provisions, the sneak-and-peek language is not restricted to terrorism investigations.

"On the face of things, the connection between this provision and terrorism generally is tenuous," says criminal procedure scholar Tracey Maclin of Boston University School of Law. "It's not tied to cases in which national security or threats from foreign agents appear to be the focus of investigation. It can apply to any intrusion.

"It allows the government to go in, conduct a search and then not tell anybody that they've been in one's home."

Like much of the anti-terrorism package, what the Justice Department wants with covert searches is "partly necessary," says Stephen Saltzburg of George Washington University Law School, a member of the American Bar Association's Taskforce on Terrorism and Law.

"I think most people would agree that in some limited situations, these sneak-and-peek warrants make sense," he says. "It's the breadth that concerns people and they're not persuaded the government can do this for any kind of a warrant."

Because of that breadth, the law will be challenged under the Fourth Amendment, predicts Timothy Lynch, director of the Criminal Justice Project at the libertarian Cato Institute.

Prior to the anti-terrorism package, nothing in the criminal code authorized secret searches for physical evidence, says Rachel King, legislative counsel to the American Civil Liberties Union. In fact, Rule 41(d) of the federal Rules of Criminal Procedure still requires officers conducting a search to "leave a copy and receipt at the place from which the property was taken."

The Supreme Court in 1977 held that an officer, absent exigent circumstances, must knock and announce his presence before serving a search warrant.

But delayed notice of searches has been authorized in two instances: The federal wiretap law -- Title 18 -- permits delayed notice for searches of oral and wire communications, as does the Foreign Intelligence Surveillance Act for intelligence gathering.

"In terms of regular, run-of-the mill criminal searches for physical evidence, our position is they don't have any authority to do it," King says. "To me, it is the ultimate power grab."

The terrorism law permits delayed notice of a search if a court finds reasonable cause to believe that immediate notice of the warrant may have an adverse result on an investigation. The warrant must provide for giving notice within a "reasonable period," which could be extended by a court for good cause.

The Justice Department argued that the existing law is a mix of inconsistent rules, practices and court decisions that vary from jurisdiction to jurisdiction. It said the anti-terrorism provision resolves the inconsistency by establishing a uniform, statutory standard for all cases.

The department also relied on a 1990 decision by the 2nd U.S. Circuit Court of Appeals. In U.S. v. Villegas, 899 F.2d 1324, the court upheld a covert search where no physical evidence was seized in a drug investigation. But the court said that certain safeguards are required for covert searches, such as a showing of reasonable necessity for the delayed notice.

The 9th Circuit, also in a drug case, earlier found a covert search unlawful under Rule 41 and under the Fourth Amendment because the warrant contained no provision for notice. A delay in notice, the court said, should not extend beyond seven days except upon a strong showing of necessity. The court allowed the evidence in under the "good faith" exception to the exclusionary rule. U.S. v. Freitas, 800 F.2d 1451 (1986).

Beyond a handful of court rulings, there is little authority to support secret searches, Saltzburg says.

"A fair statement would be that because the Supreme Court has a knock-and-announce rule, the court's assumption is most searches are not going to be secret," he says. But, he says, "I think there is a good argument to be made that it doesn't make sense to say you can delay notice on wiretaps but can't delay notice on any other physical search. That kind of distinction is arguably backward because tapes can go on for months and people have enormous interest in knowing about them."

Some critics across the political spectrum agree with Saltzburg that the covert-search provision might have been more palatable with restrictions.

"It should be tied to terrorism investigations," says Phil Kent, president of the conservative Southeastern Legal Foundation. "And the extraordinary power requested should be temporary."

In the end, Boston University's Maclin says, "It's all a question of how we view the Fourth Amendment. The amendment's essential purpose is to control the discretion of government officials to intrude in our lives. How many judges, particularly where criminal contraband is discovered, are going to say the government's request is unreasonable? They're not going to do it."

The Supreme Court has not focused on notice under the Fourth Amendment as much as it has on probable cause and reasonable suspicion, says Fourth Amendment scholar Yale Kamisar of the University of Michigan Law School. "As long as the police have probable cause or individualized suspicion to do this, the Court could say there's no reason to tell you," he says. "But I'd hope not. People ought to know what's taken from them so they can at least prepare a defense."

The problem may be getting a challenge before the Supreme Court, adds the Cato Institute's Lynch. "Having Congress codify this power strengthens the department's hand when the warrants are litigated. And if the department sees a potential legal challenge in front of them, they may offer plea bargains to eliminate the threat.

"That's why we find this so worrisome. It may take 10 years or more before this power is invalidated."


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