Security Enhancement Act
PATRIOT Act II)
Justice Department Drafts Sweeping Expansion
of Anti-Terrorism Act Center for Public Integrity Publishes
Secret Draft of "Patriot II" Legislation
PATRIOT Act / H.R. 3162
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001
Says Corporate Power Grabs Followed September 11
Likely To Provoke
4th Amendment Challenge
Bill OKs 'Sneak-and-Peek'
Marcia Coyle, The National Law Journal
October 29, 2001
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
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
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.
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.
allows the government to go in, conduct a search and then
not tell anybody that they've been in one's home."
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.
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."
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.
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."
Supreme Court in 1977 held that an officer, absent exigent
circumstances, must knock and announce his presence before
serving a search warrant.
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
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."
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.
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.
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
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).
a handful of court rulings, there is little authority
to support secret searches, Saltzburg says.
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."
critics across the political spectrum agree with Saltzburg
that the covert-search provision might have been more
palatable with restrictions.
should be tied to terrorism investigations," says
Phil Kent, president of the conservative Southeastern
Legal Foundation. "And the extraordinary power requested
should be temporary."
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."
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
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.
why we find this so worrisome. It may take 10 years or
more before this power is invalidated."