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Monday, July 01, 2013
Sneak and Peek
Thanks to Dan & Co for having me.
My main topic for the month: Sneak and Peek searches, aka Delayed Notice Search Warrants, aka Black Bag jobs.
What’s a sneak and peek search? Simple: the police conduct a covert search of a home or business when the occupant is away. Sometime later, they give the occupant notice of the search—maybe days, weeks or months (today, 90 days is most common).
Covert government surveillance is all the rage these days, but most of the discussion focuses on high-tech surveillance that involves packet switching and $2 billion NSA data centers in the Utah desert. Sneak and peek searching is old school—any fool with a crowbar can break into your house while you are gone and look through your stuff. Even the smug Amish have to worry about the FBI secretly looking through their handcrafted cabinets.
So check this out—the government has discovered that "breaking into people's homes while they are away" is a very useful tool. There's been a (largely unnoticed) explosion in sneak and peek searches in the past 6+ years:
The chart is from my forthcoming article, Jonathan Witmer-Rich, 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 on SSRN. (Data for FY 2012 will be available sometime this month; I'll share it with you when I have it; I'll bet anybody $37.33 that the number goes up not down.)
Back in 2005, in a speech at U. Richmond Law School, James Comey—President Obama’s nominee for FBI Director—said that “[w]e in law enforcement do not call them [sneak and peek warrants] . . . because it conveys this image that we are looking through your sock drawer while you are taking a nap.” James Comey, Fighting Terrorism and Preserving Civil Liberties, 40 U. Rich. L. Rev. 403, 410 (2006).
Ha ha! What a ridiculous image! Of course police do not do this while you are taking a nap. You might wake up and discover them! Otherwise, this is a pretty good description of a covert search—police secretly looking through your sock drawer, when you are away. Police do not like that image. It's alarming because it's accurate.
Here's what I will be doing in my posts this month:
1. Giving a more detailed empirical description of the rapid rise of sneak and peek searching.
2. Looking at the history of sneak and peek searching (aka "black bag" jobs).
3. Arguing that notice is part of Fourth Amendment reasonableness, and so delayed notice warrants require serious Fourth Amendment scrutiny. Most lower courts to date have rejected this proposition, at least in the context of delayed notice search warrants.
4. Arguing that the current statutory regime is a total failure, and is facilitating the explosive growth in covert searching.
5. Giving some solutions to limit the number of covert searches that can be done, while still preserving this tool for when it is really important.
Posted by Jonathan Witmer-Rich on July 1, 2013 at 10:12 AM in Constitutional thoughts, Criminal Law | Permalink
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Comments
Thanks. There's something you should check out before going with your numbers: Do the number of sneak and peek warrants include e-mail warrants served on ISPs? There's at least a chance that the trend you're seeing is really about the rise of warrants for e-mail accounts (which do not require notice on the customer), not the rise of sneak-and-peek warrants.
Here's my thinking. In 2008, the SDNY reported only 5 requests for sneak and peek warrants: http://big.assets.huffingtonpost.com/SneakAndPeakReport.pdf
Three years later, in 2011, the number is 347 -- an incredible increase in just three years. During that same time, there has been a major change in the law relating to warrants in one increasingly important area, e-mail. In the old days, before about 2004, the view of DOJ was that it could obtain the contents of e-mail accounts without a warrant, and it almost always did so. In 2004, the 9th Circuit decided a case that at least arguably required a warrant as a matter of statute for e-mail in the Ninth Circuit. Starting in 2004, a few ISPs started to hold out and demand that DOJ get warrants for e-mail, especially in the Ninth Circuit. In 2007, the Sixth Circuit decided a case (later overturned on procedural grounds en banc) requiring a warrant for e-mail from an ISP on 4th Amendment ground. Then, in 2010, the Sixth Circuit squarely ruled that obtaining e-mails requires a warrant on Fourth Amendment grounds. All the major ISPs were watching the litigation closely and started demanding warrants for e-mail when the 6th Circuit decision came down in 2010. Now all the major ISPs do so. That may matter because under the statutory scheme, the warrant requirement for e-mails does not require notice to the subscriber.
I may be way off here, but it would be worth figuring out (if you haven't already) if e-mail warrants are included in the sneak-and-peek numbers. If so, the numbers may reflect greater protection for e-mail searches rather than the rise of sneak and peeks.
Also, have you spoken to any prosecutors in the districts that have apparently started to use these warrants to figure out what happened? If you want me to put you in touch with a lawyer who very recently left the SDNY, I'd be happy to do that.
Posted by: Orin Kerr | Jul 1, 2013 2:07:02 PM
Orin-
The pre-2006 numbers are not as accurate as post-2006, but even the pre-2006 estimates come from internal DOJ reports requested by Congress. So I'm reasonably confident in the federal numbers.
You are right that it is worth emphasizing that this is federal, not state, and of course most search warrants are state. I don't have much info on the state level yet other than to know that at least in parts of California these have clearly been done for a while (although they almost never show up in the caselaw, interestingly). In contrast, Ohio prosecutors I have talked with have never heard of this. That's two data points; in the future I hope to nail down more (folks, let me know if you know whether these are done in your state).
We do know the data by federal district, and it is pretty spread out, although certainly it is more common in some districts than in others. In FY 2011 each of the federal circuits had at least 100 issued (except DC Cir, at 68).
They are more common in higher-population districts (no surprise), although not uniformly. In 2011 the leading districts were SD Cal (351), SDNY (347), ND Ga (Atlanta) (226), and Arizona (175). But only 5 in ND Ill (Chicago) (and only 2 there in 2010). Only 21 in SD Fla; only 12 in MD Fla. On the other side, there were 164 in D. Kansas; 94 in SD Indiana; 54 in ED Wisc; 43 in WD Missouri, to pick some random examples. There do seem to be trends within districts, i.e. some districts (like Chicago) rarely or never use them. Maybe once a district "discovers" these, they tend to start using them more and more. For example, WD Missouri: 16 in 2009, 28 in 2010, and 43 in 2011. But then see D. Oregon, 45 in 2009; 35 in 2010; 18 in 2011.
I should at least touch on Grubbs and Groh in the article, thanks for the comment. I don't think they speak broadly to the question of "notice," but to the narrower issue of "showing a copy of the warrant." The latter is important for the occupant to know the entry is lawful, but a true covert entry raises much broader privacy concerns, as I'll spell out in later posts.
Posted by: Jonathan Witmer-Rich | Jul 1, 2013 1:23:17 PM
Interesting article. On the numbers, my understanding is that you're reporting the federal numbers that DOJ has had to report since 2006 (and which it tried to summarize/guess at for pre 2006). I wonder about two things, though. First, were the pre-2006 numbers likely to be accurate? The spike in federal sneak-and-peeks since 2007 or so is interesting, but I'm not sure the earlier numbers tell us much with any accuracy. Second, given that most warrants are at the state level, it seems important to point out that this is only the federal experience. My sense is that most sneak-and-peeks have been at the state level; when I spoke to prosecutors about this back around the Patriot Act enactment in 2001, my sense was that sneak-and-peeks have been very common in some states (or at least some jurisdictions in some states) since well before the Patriot Act. Of course, it may be that the state numbers are hard or even impossible to obtain. Also, at the federal level, do we know in what district the S&P's have beeb obtained? I wouldn't be surprised if the practice is much more common in some districts than others, and I wonder if we have info on that.
On the doctrine point, I wonder if it is worth mentioning United States v. Grubbs and Groh v. Ramirez's n.5, which say that there is no requirement that a warrant be provided to a target at the outset of a search: That is, that the government doesn't have to show the person the warrant as they are conducting the search.
Posted by: Orin Kerr | Jul 1, 2013 12:10:24 PM
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