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Wednesday, July 10, 2013

Sneak and Peek Statistics

How (and how often) are sneak and peek searches being conducted today?  We have good data from fiscal years 2007-2011, based on annual reports by the Administrative Office of the US Courts—reports required by Congress in the 2006 USA Patriot Act re-authorization. 

So far the trendline is consistent:  up, up, up.  To repeat a chart from my first post:

Figure 1 Revised

(This chart, and the ones below, are from my forthcoming article, The Rapid Rise of “Sneak and Peak” Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine Law Review __ (2014), Figure 1, draft available here; see the article for details.)

In an earlier post, Orin Kerr suggested in the comments that some of these numbers may be coming from warrants used to obtain e-mails or to use GPS tracking devices.  The data from the Administrative Office do not break this down.  The reporting requirement in section 3103a(d) applies to any “warrant authorizing delayed notice . . . under this section,” so that could include delayed notice warrants used for e-mail or GPS tracking rather than physical entry.  So now I have a new research project . . . . 

In what sorts of cases are delayed notice search warrants being used?  Delayed notice search warrants (and section 3103a) have been criticized on the grounds that they were authorized to fight terrorism, yet they are being used in very few terrorism investigations (a few per year) and many, many drug investigations as well as other seemingly run-of-the-mine investigations:

Figure 2

Here’s the same data presented in pie chart form for one year, FY 2010, which is a bit easier to digest:

Figure 3

There is some merit to the criticism stated above—the USA Patriot Act as a whole was clearly sold to the public, and to legislators, as a tool to combat terrorism; yet section 3103a is far more commonly used in drug and other investigations.  That said, the DOJ was always clear that section 3103a would authorize delayed notice warrants in any type of criminal investigation, not only terrorism cases, and legislators (at least some of them) understood this (and some complained about it):

-Representative Jerry Nadler (D-NY-10), whose district includes the site of the World Trade Center, in October 2001:  “There may be justification for delaying notification of a search warrant sometimes, but in all criminal investigations?  What does that have to do with terrorism?”

-Representative Spencer Bachus (R-AL-6), in September 2001:  the delayed notice search warrant provision “doesn’t just involve terrorist activities.  This involves all Americans.”

-Senator Russ Feingold (D-WI), in October 2001: “the bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism.  One provision would greatly expand the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search.”    

The critics were outvoted.  Welcome to the legislative process.

Another issue:  how long can police wait until they notify the occupant that they searched her home or business?  With “black bag” jobs, the answer was, “Let’s never tell.”  The DOJ originally sought authorization for a 90-day delay, subject to extensions.  Congress rejected that request and instead initially required notice to be given “within a reasonable time” after executing the warrant.  Senator Patrick Leahy stated his hope that this would ordinarily be within seven days.  In 2005, the statute was amended to provide for delay of up to 30 days, subject to extension. 

The action is in those final three words.  What the DOJ failed to get written into the law they have nonetheless succeeded in getting in practice.  From 2007-2011, the most common period of delay authorized by issuing courts (including extensions) is 90 days.

Table 1

Next post:  What does the Fourth Amendment have to say about all this?  (Preview:  “The Fourth Amendment does not deal with notice of any kind.”  United States v. Pangburn, 983 F.2d 449, 453-54 (2d Cir. 1993).)

Posted by Jonathan Witmer-Rich on July 10, 2013 at 02:52 PM | Permalink


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While I think you mean "Sneak and peek", the title of your article in SSRN is listed as "Sneak and peak", and it is "sneak and peak" on the actual download of your article. Also, the link to your article in this post is broken.

Posted by: anon | Jul 10, 2013 10:00:42 PM

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