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Wednesday, July 03, 2013

Terminology: Sneak and Peek, Delayed Notice Search Warrants, Covert Searches, and Black Bag Jobs

The most common term for government covert searching of homes is "sneak and peek" searches (this is not a law review article, so no supporting citation, just take my word for it).  Sounds a bit dastardly, and James Comey (in his speech I mentioned last post) tells us that the police "do not call them that."  (Actually they totally do, see FBI Agent Kevin Corr, Sneaky But Lawful: The Use of Sneak and Peek Search Warrants, 43 U. Kan. L. Rev. 1103 (1995).)

Among the many provisions of the USA Patriot Act, passed fall 2001, was express statutory authorization for what Congress titles "Delayed Notice Search Warrants" (codified at 18 U.S.C. § 3103a).  Comey likewise uses the term "delayed notification" when defending this provision.

We should resist this rhetorical move, as it obscures what is going on.  "Delayed notice search warrant" sounds pretty innocuous—it apparently involves a search warrant (which we like), and apparently there is some delay in giving notice.  Sounds pretty ministerial.

But the most salient feature of a delayed notice search warrant—a feature hidden by that name—is that the warrant authorizes a covert entry and search.  I suppose it is preferable that the police tell you, three months later, that they secretly searched your house, rather than never telling you at all.  But really, the most important feature here is that the police are conducting covert searches of people's homes.  So I tend to call them "covert searches"—since that's what they are.  "Sneak and peek" search also gets the point across well.

History gives us another colorful term:  black bag jobs.

In his defense of sneak and peek warrants, Comey reassured his audience that this type of search is nothing new:  “this delayed notification was around long before I was born.”  This is an interesting comment.  The first court decision discussing a delayed notice search warrant—that is to say, a covert search actually authorized in advance by a magistrate—is United States v. Frietas, 610 F. Supp. 1560 (N.D. Cal. 1985).  A DEA Agent in that case, when asked to explain this type of warrant to a federal judge who had never heard of such a thing, filed an affidavit stating "that he knew that there had at one time been issued a surreptitious entry warrant in Oakland."  If delayed notice warrants go back much earlier than 1985, they were clearly quite rare, and (one way or the other) were kept out of judicial decisions.

Of course covert searching does have an older pedigree—it’s just not one that the FBI is proud of.  

In the mid-1960s, FBI Deputy Director Cartha "Deke" DeLoach asked his inferiors "what authority we have for 'black bag' jobs and for the background of our policy and procedures in such matters."  "Black bag jobs" are covert searches—secretly breaking into a house or business and looking around, perhaps copying or taking records, sometimes installing wiretapping equipment, and never notifying the occupants. 

In an infamous memo dated July 19, 1966, FBI domestic intelligence head William Sullivan responded:

"We do not obtain authorization for 'black bag' jobs from outside the Bureau.  Such a technique involves trespass and is clearly illegal; therefore, it would be impossible to obtain any legal sanction for it.  Despite this, 'black bag' jobs have been used because they represent an invaluable technique in combating subversive activities of a clandestine nature aimed directly at undermining and destroying our nation."

The most infamous black bag jobs were conducted not by the FBI, but by the "special investigations unit," aka the Plumbers, authorized by President Nixon.  In the words of Nixon to Henry Kissenger, on April 28, 1973 (listen right near the end of the clip):  "You pick up the paper and it’s Watergate, Watergate, Dean charges this, and somebody charges that.  And who broke into the psychiatrist’s office—wasn't that the silliest goddamn thing?"

Sullivan was wrong about at least one thing:  it is possible to obtain legal sanction for this technique—Congress gave legal sanction in section 3103a. 

Thus today, "black bag" jobs have transitioned from the "clearly illegal" margins of FBI practice to the cleansing, wholesome light of "delayed notice search warrants," expressly authorized by Congress.  Of course Congress can call these whatever it wants.  But for the rest of us, let's keep calling them what they are:  covert searches, aka "sneak and peek" searches.  

Posted by Jonathan Witmer-Rich on July 3, 2013 at 08:51 AM | Permalink

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