The fatal flaws of the 'sneak and peek' statute and how to fix it.

• Author: Witmer-Rich, Jonathan
• Position: Introduction through II. Regulating Departures from Fourth Amendment, p. 121-150

ABSTRACT

In the USA PATRIOT Act, Congress authorized delayed notice search warrants--warrants authorizing a "sneak and peek" search, in which investigators conduct covert searches, notifying the occupant weeks or months after the search. These warrants also sometimes authorize covert seizures--a "sneak and steal" search--in which investigators seize evidence, often staging the scene to look like a burglary.

Covert searches invade the privacy of the home and should be used only in exceptional cases. The current legal rules governing delayed notice search warrants are conceptually flawed. The statute uses a legal doctrine--"exigent circumstances"--that does not make logical sense when applied to covert searching of physical spaces because it permits investigators to manufacture a justification for a covert search in almost any case. Covert searches without sufficient justification run afoul of the Fourth Amendment's "rule requiring notice" and are constitutionally unreasonable.

When confronted with a request for a covert search, courts should ask, "Why is it so important to do a covert search now, while the investigation is still ongoing, rather than a public search later, once police are ready to seize the evidence and arrest the suspects?" But the statute does not pose that question. Instead, the statute merely prompts courts to ask, "Assuming police 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.

Stated differently, courts should be asking whether a proposed covert search is necessary--whether conducting a covert search is the only way to obtain evidence that cannot reasonably be obtained through conventional (and less invasive) investigative techniques.

This Article explains this conceptual error and addresses other flaws in the current statute. It then proposes new legislation that would fix the problems and properly regulate the invasive practice of covert searches and seizures.

CONTENTS INTRODUCTION I. COVERT SEARCHES OF PHYSICAL SPACES: COSTS AND BENEFITS A. Covert Searches Impose Serious Privacy Costs and Implicate Core Fourth Amendment Interests B. The DOJ's Examples for Why the Existing Statute Is Needed Are Not Fully Convincing 1. FISA Already Authorizes Covert Searches in Some Cases Involving International Terrorist Threats 2. The DOJ Examples for Why Section 3103a Is Needed Are Not Fully Convincing II. REGULATING DEPARTURES FROM FOURTH AMENDMENT Baselines A. Necessity and Exigency: Facets of Fourth Amendment Reasonableness B. Deviating from the "Rule Requiring Notice": Regulating Covert Wiretapping III. THE FLAW IN THE SNEAK AND PEEK STATUTE A. Current Regulation of Delayed Notice Search Warrants B. The Fatal Flaw: How "Exigent Circumstances " Functions in Covert Searches C. Justifying No-Knock Searches: Why Exigency Works IV. A BETTER WAY TO REGULATE COVERT SEARCHING: NECESSITY A. The Necessity Requirement B. DOJ Authorization C. The Misplaced Focus on Section 3103a's "Catch-All" Provision 1. Eliminating Subsection (E) Does Not Correct the Problem 2. Eliminating Subsection (E) May Prohibit Covert Searching in Some Cases in Which It Serves a Compelling Government Interest V. REGULATING COVERT SEIZURES A. Mitigating the Danger to Third Parties B. Requiring a Substantial Government Interest for Covert Seizures VI. PROPOSED LEGISLATION CONCLUSION INTRODUCTION

In the USA PATRIOT Act, Congress gave the executive a variety of tools to fight terrorism. One tool was the delayed notice search warrant--a warrant authorizing a "sneak and peek" search, in which investigators could conduct covert searches, notifying the occupant weeks or months after the search. (1) These warrants also sometimes authorize covert seizures--a "sneak and steal" search--in which investigators seize evidence during a covert search, often staging the scene to look like a burglary to keep the government seizure a secret. (2)

From the start, these "sneak and peek" warrants were not limited to terrorism investigations--they apply to any criminal investigation. (3) The statute permits a conventional search--with notice to the occupant--to be converted to a covert search if the police can show exigent circumstances. (4)

This approach is fundamentally flawed. Regulating covert searches through the rubric of "exigent circumstances" constitutes a basic conceptual error. The statute effectively authorizes police to opt for a covert search, rather than a traditional search, whenever they find it convenient or helpful. The current standard gives police almost unlimited power to manufacture a justification for a covert search. This plainly was not Congress's intent in the USA PATRIOT Act.

When confronted with a request for a covert search, courts should ask, "Why is it so important to do a covert search now, while the investigation is still ongoing, rather than a public search later, once police are ready to seize the evidence and arrest the suspects?" But the statute does not pose that question. Instead, the statute merely prompts courts to ask, "Assuming police 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.

Stated differently, courts should be asking whether a proposed covert search is necessary (as that term is used in the context of wiretapping under Title III)--whether conducting a covert search is the only way to obtain evidence that cannot reasonably be obtained through conventional (and less invasive) investigative techniques.

The "sneak and peek" statute is thus plagued with a fundamental error. By choosing the concept of "exigency" rather than "necessity," Congress failed to achieve its stated goal of creating a uniform national standard that would provide clear legal authority for covert searching, while limiting the practice to unusual cases of exceptional importance. (5) In 2005, Congress passed a reporting requirement meant to track the number of "sneak and peek" searches conducted annually. (6) Unfortunately, the data on "sneak and peek" searches appear to include information on other types of searches--such as GPS tracking, cell phone location searches, and covert searches of e-mail--making it impossible to determine the frequency of "sneak and peek" searches. (7)

By creating such a lenient standard, Congress also created constitutional problems. A covert search represents a deviation from the Fourth Amendment's "rule requiring notice"--the presumption that contemporaneous notice is required for a search to be "reasonable." (8) The current statutory standard fails to adequately justify deviating from this Fourth Amendment baseline, rendering covert searches under the existing statute unreasonable and therefore unconstitutional.

Covert searches and seizures must be effectively regulated because they impose serious privacy intrusions. Covert government searches of homes and businesses intrude into the heart of Fourth Amendment protection--the privacy and sanctity of the home. The practice of covert searching diminishes the privacy of the entire community because no one knows when or if the government has searched their private spaces. As Justice Sotomayor has recently pointed out, "[ajwareness that the Government may be watching chills associational and expressive freedoms." (9)

Covert seizures carry additional risks. When police want to both seize evidence and keep the search and seizure secret, they ordinarily stage the seizure to resemble a burglary. (10) Thus, the occupants believe they have been burglarized by unknown criminals rather than targeted by a government criminal investigation. If the occupants are violent criminals, there is a serious risk that they will retaliate against someone they suspect of having committed the burglary. The current "sneak and peek" statute, which authorizes covert seizures as well, does not appear to recognize this risk and does nothing to force investigators and courts to justify and mitigate the risk of harm to third parties.

It is not surprising that the "sneak and peek" statute--enacted quickly, as one small part of the USA PATRIOT Act, and with minimal deliberation--is conceptually flawed. This Article explains the core problems with the statute and proposes new legislation that would fix these errors. Grounding covert searches in the concept of "necessity" rather than just "exigency" would effectively limit this invasive practice and would go a long way toward rendering covert searching constitutionally reasonable.

Part I examines both the costs and benefits of covert searching with delayed notice search warrants. Part II examines the concepts of "necessity" and "exigent circumstances," surveying their constitutional origins and differences and establishing a conceptual framework for evaluating the sneak and peek statute. Part III uses this framework to explain why the rules set forth in the current statute--18 U.S.C. [section 3103a--are fatally flawed. Section 3103a uses the concept of "exigent circumstances"--a doctrine that totally fails to effectively regulate and limit the practice of covert searching with delayed notice search warrants. Because [section 3103a permits covert searching without requiring a sufficient showing to justify bypassing the Fourth Amendment baseline of notice, covert searching under [section 3103a amounts to an unreasonable search.

Part IV proposes a solution, invoking the concept of "necessity"--that covert searching should be permitted only as a last resort when conventional Fourth Amendment...