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Thursday, July 18, 2013

Sneak and Peek, founding-era history

The case for subjecting sneak and peek searches to Fourth Amendment scrutiny does not rest only on claims about Fourth Amendment first principles.  Today:  history and doctrine.

In assessing modern surveillance technologies, the history of search and seizure at the time of the founding often provides little help—there were no wires worth tapping, let alone digital packets to seize.

But covert searching is another story—there’s no technological reason that a Massachusetts magistrate couldn’t have issued a delayed notice search warrant in 1791.  And the Supreme Court has told us (not always consistently) that “[i]n determining whether a search or seizure is unreasonable, we begin with history.  We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.” Virginia v. Moore, 553 U.S. 164, 168 (2008).

So I looked.  There was no such thing as a delayed notice search warrant circa 1791.  No court mentions the concept of a search warrant authorizing covert entry.  None of the key historical work, like that of Thomas Davies or William Cuddihy, makes mention of any such thing.

Does that mean the Fourth Amendment prohibits delayed notice search warrants—that they are categorically "unreasonable"?  I don’t think so.  When confronted by a silent historical record, a good first question is whether the practice in question “could have been raised by the founders—was thinkable in their conceptual world.”[1] 

In one sense, the founders could have thought up the idea of a covert search.  But there’s no evidence that they ever contemplated—either pro or con—the idea of a warrant authorizing covert entry and delayed notice.  Why not? 

There were no joint task forces in 1791.  There weren’t even any police departments.  There were no professional police conducting forward-looking, complex criminal investigations.  Also, most searching was looking for the thing itself—the untaxed molasses, the libelous pamphlet, the dead body—not for secondary evidence from which one might inferentially build a case.  There was no forensic evidence collection.

In short, there were no delayed notice search warrants in 1791 because nobody had thought to ask for one.

This does, at the very least, put the lie to Senator Orrin Hatch’s fuzzy claim (defending section 3103a) that delayed notice search warrants have been upheld as constitutional “from the beginning of this country; some will say from the beginning of this country.”[2]  I appreciate the waffling “some will say.”  I have not found anybody saying that except for Senator Hatch.

Can we draw anything relevant here from the founding-era history?  Yes:  the basic principle that absent some special justification, persons conducting a search had to notify the occupants of the search and demand entry.  Today we always call this the “knock and announce” rule, and that makes it sound like a rule that probably has nothing to do with delayed notice search warrants.  And indeed so courts have assumed—no court analyzing delayed notice search warrants has ever even so much as cited Wilson v. Arkansas, the 1996 Supreme Court case which many describe as holding that the “knock and announce” rule is part of the Fourth Amendment.

Wilson, a unanimous decision written by Justice Thomas, grounds its holding in history—thoroughly documenting the many founding-era (and earlier) decisions holding that searchers much announce their presence and demand entry before breaking down the door.  None of these early decisions refer to this common law doctrine as the “knock and announce” rule.  They call it various things, almost always centering on the concept of “notice.”  One Connecticut case (from 1822) calls it the “rule requiring notice.”

In a sense, a sneak and peek search is just an extreme version of a no-knock search, with the "notice" being delayed for weeks or months rather than minutes.

The “rule requiring notice”—now that sounds like a rule that might be relevant to delayed notice search warrants.  The “rule requiring notice” does have its exceptions, though, so even if you are convinced that delayed notice search warrants are subject to this Fourth Amendment rule, that does not mean the practice is categorically forbidden by the Fourth Amendment. 

[1] Jefferson Powell, Rules for Originalists, 73 Va. L. Rev. 659, 671 (1987).

[2] 147 Cong. Rec. S10990-02, S11023 (Oct. 25, 2001).

Posted by Jonathan Witmer-Rich on July 18, 2013 at 01:59 PM | Permalink


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"Can we draw anything relevant here from the founding-era history? Yes: the basic principle that absent some special justification, persons conducting a search had to notify the occupants of the search and demand entry."

Isn't that current doctrine-- that sneak and peak requires some special justification?

Posted by: Eric Rasmusen | Jul 20, 2013 3:12:19 PM

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