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Wednesday, July 31, 2013

Fixing the Sneak and Peek Statute

Last post I argued that the current statutory rules governing “sneak and peek” searches are fatally flawed:  they permit police to opt for a covert search, instead of one with notice, whenever they want.

The solution is to insert a “necessity” requirement into section 3103a. 

As argued earlier, the statute currently prompts police to justify a request for a covert search by asking this question:  “Assuming you conduct a search now but choose not to arrest anyone or seize the relevant evidence, will giving notice of the search likely lead to the destruction of evidence, escape of suspects, or otherwise seriously jeopardize the ongoing investigation?”  As you can see, the answer to that question is almost always “yes.” 

Instead of asking why a covert search is needed, the current statute asks what bad consequences will occur if the searchers give notice of the search.  Those might sound like the same standards, but they are not.  The police always have the ability to readily manufacture bad consequences from a search with notice—if you search but don’t seize the drugs, then giving notice of the search will result in the suspects destroying the drugs!  And we know from Kentucky v. King (2011), that there is no bar to police “manufacturing” their own exigent circumstances, unless they independently violate the Fourth Amendment in so doing.

The statute should instead require police to explain why a covert search is necessary (as that concept is used in Title III wiretapping)—why police cannot reasonably discover the evidence they are seeking through conventional search techniques.  When police seek authority to make their search covert, the right question to ask is:  “Why is it so important to do a covert search now, while the investigation is still ongoing, rather than a public search later, once you are ready to seize the evidence and arrest the suspects?” 

Adding a “necessity” requirement to section 3103a would prompt courts to ask that question, and force police to answer it.  This would go a long way toward ensuring that the dangerous tool of covert searching is only used, as James Comey has stated, “when it really, really matters.” 

Posted by Jonathan Witmer-Rich on July 31, 2013 at 08:51 AM | Permalink


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I may misunderstand your proposed test, but when would sneak and peek searches ever be allowed under a necessity standard? The idea of necessity in TItle III is premised on the idea that there are several distinct methods for obtaining evidence. The government has to show that wiretapping is necessary in the sense that other ways of getting the same information (physical searches, undercover ops, etc.) have been tried and failed or would be futile. But sneak and peek warrants are not distinct methods for obtaining evidence. Instead, they're traditional warrants to search places such as homes, the difference being that there is no up-front notice and the officers try to leave no sign that the search occurred.

To be clear, I agree that sneak and peek authorities should be used only sparingly. But if the test is whether not giving notice is necessary in the sense that the police could not "reasonably discover the evidence they are seeking through conventional search techniques," then that sounds like a null set. Maybe I'm missing something, but I would think that whether there is notice has no connection to whether the evidence could be discovered: An officer can find evidence in a home with the same degree of ease or difficulty independently of whether there is notice. If anything, it may be harder to find evidence using a sneak and peek warrant, as the officers generally will go out of their way to avoid invasive search techniques that would leave a sign that the search occurred.

I may just be misunderstanding your proposal, though -- if so, my apologies.

Posted by: Orin Kerr | Jul 31, 2013 12:50:36 PM


I don’t think adding a “necessity” rule would eliminate sneak and peek searches. (My concern is actually the opposite: given how weakly many courts apply the “necessity” test in the context of Title III, it may not constrain police enough. But it is a start.) And note that I would add a “necessity” test to the existing requirements, not replace them. The “necessity” rule would work in conjunction with §3103a’s “exigent circumstances” rules.

Let’s say police have PC that a terrorism suspect has contact information for other terror cell members in his apartment. They want to find that information without ending their existing investigation. Delayed notice searching permits this to happen—and this is an example in which the “necessity” test, along with § 3103a’s existing rules, are satisfied. Giving notice immediately would compromise an investigation, and there is no reasonable way to discover this evidence using conventional search techniques, without compromising the investigation. If they searched the house today with notice to the occupant, he might tip off the other suspects before police could track them down.

In contrast, let’s say police have PC there is a meth lab in a house. They want to do a covert search to confirm their suspicions, but do not want to end the investigation yet. At the same time, there is no pressing reason why they need to do this search now rather than in a few weeks, when they plan on raiding the house, seizing the meth lab, and arresting the suspects. Police cannot show necessity—they can find and seize the same meth lab in three weeks using conventional techniques. (This example roughly describes the first delayed notice search warrant case, United States v. Frietas, 610 F. Supp. 1560 (N.D. Cal. 1985).)

Another example (this is taken from an example given by DOJ lawyer Chuck Rosenberg in 2005 Congressional testimony): A task force was conducting an extensive drug trafficking investigation in Pennsylvania. Partway through that investigation, they learned that some of the conspirators were linked to a credit card fraud operation. They had probable cause that a certain FedEx package contained fraudulent credit cards, and wanted to open the package and see if this was correct. (Also, presumably, they were able to photograph the fraudulent credit cards.) If police had given notice of this package search, Rosenberg testified, it would have potentially jeopardized the ongoing wiretap in the drug investigation.

This satisfies both § 3103a’s existing requirements as well as a “necessity” rule. Clearly, giving notice of the search above would have seriously jeopardized an ongoing investigation (§ 3103a(E)). In addition, it seems plausible to think that this search was also “necessary”—there was no reasonable way to discover the evidence of fraudulent credit cards other than through a covert, delayed notice search. If that were not the case, then police should not be able to do a covert search.

Posted by: Jonathan Witmer-Rich | Jul 31, 2013 3:27:59 PM

Thanks for the response. It sounds like your test focuses on whether the covert search was designed to obtain new evidence rather than just confirm what the officers already believe. Why not just amend the statute to make clear that merely confirming what is believed is not a ground for a sneak and peek search?

Posted by: Orin Kerr | Jul 31, 2013 4:30:14 PM

Thanks for the feedback, Orin. My initial thought is that merely ruling out "confirmation" sneak and peek searches doesn't completely solve the problem, but I need to give it more thought.

Posted by: Jonathan Witmer-Rich | Aug 1, 2013 9:23:26 AM

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