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Wednesday, July 24, 2013

The fundamental flaw in the "Sneak and Peek" statute

So far I have argued that delayed notice searching raises Fourth Amendment issues.  Now I want to look at the statute, and argue that it is a badly flawed approach to regulating covert searches. 

Covert searching is an invasive search technique, and it should be reserved for cases when (as James Comey said) it “really, really matters.”  The problem is that the statute allows police to get delayed notice authority whenever they want—not only when it is particularly important or necessary.

The practice of “sneak and peek” searching was first codified as part of the USA Patriot Act, in 18 U.S.C. § 3103a, which permits a delay in notice if a court “finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result,” as that term is defined in section 2705 of Title 18.

Section 2705, in turn, lists the following “adverse results”:

(A) endangering the life or physical safety of an individual;

(B) flight from prosecution;

(C) destruction of or tampering with evidence;

(D) intimidation of potential witnesses; or

(E) otherwise seriously jeopardizing an investigation . . . .

Sounds pretty reasonable.  Sections (A)-(D) look at lot like “exigent circumstances,” which are a fairly well-established set of justifications in Fourth Amendment law to (1) conduct a search without a warrant, or (2) execute a search without knocking and announcing beforehand.  I argued earlier that the “rule requiring notice” (aka the “knock and announce rule”) helps show why “sneak and peek” searching raises Fourth Amendment issues.  Section 3103a, then, seems mostly (except for subsection (E)) to follow the exceptions to that “notice” rule.

The problem is that the “exigent circumstances” doctrine places no limitation on covert searching, but allows police to get delayed notice almost anytime they so choose.  The “exigent circumstances” doctrine is simply the wrong tool for the job—it is a lock to which police always have the key.    

When confronted with a request for a covert search, courts should be asking:  “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?”  Sections 3103a and 2705 do not direct courts to that question. 

Instead, the question implied by sections 3103a and 2705 is:  “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?”  Viewed this way, it is readily apparent that the answer will almost always be “yes.”

Consider an ordinary drug investigation.  Police have probable cause that I have drugs in my house.  They plan on arresting me next week, searching the house and seizing the drugs.  They want to wait for a week and conduct some additional investigation and surveillance, hoping to identify my supplier.  There is no pressing need to conduct a covert search of my house now, rather than waiting until next week.

Can police get a delayed notice search warrant under § 3103a?  Probably so.  If they enter my house today to look for drugs—but choose not to arrest me or seize any evidence—there is no doubt that giving me notice of the search will cause me to destroy evidence and, perhaps, try to leave the jurisdiction.  The statute does not require police to show why it is important to conduct a covert search today, rather than waiting and doing an ordinary search next week. 

We see this in cases.  For example, in United States v. Christopher, 2009 WL 903764 (D. Virgin Islands March 31, 2009), a DEA Agent in St. Croix received a tip that a wooden shack, located on the property of Amobi Christopher, was being used to grow marijuana.  On June 27, 2008, the agent obtained a delayed notice search warrant to permit a covert search of the shed, at night, and to delay notice for thirty days.   In his affidavit, he explained that he sought delayed notice “to continue the investigation and to identify suspects.”  He explained, “providing immediate notification of the execution of the warrant will cause the target subjects to destroy evidence and conceal themselves from law enforcement.”

Notice what is said and what is not said.  There is no explanation for why a covert search of the shed was important or critical—because the statute does not require any such explanation.  Instead, all that is needed is a statement that if the search is conducted (now), the suspects will likely destroy evidence or escape.  Since that is true—as it is true in almost any case in which police elect not to seize all the evidence and arrest the suspects—a delayed notice search warrant is authorized by the statute.

The problem, then, is that the thing requested (a covert search) always, as a matter of logic, provides the necessary ingredients that satisfy the standard.  

Next post:  a solution to this problem. 

Posted by Jonathan Witmer-Rich on July 24, 2013 at 09:23 AM | Permalink

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