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

• Author: Witmer-Rich, Jonathan
• Position: III. The Flaw in the Sneak and Peek Statute through Conclusion, with footnotes, p. 150-179

3. THE FLAW IN THE SNEAK AND PEEK STATUTE

   The statutory grounds for conducting a covert, delayed notice search largely mirror the Fourth Amendment "exigent circumstances" doctrine. Part III.A sets forth the current standards, under [section] 3103a, for delayed notice searches, and compares them to the "exigent circumstances" doctrine. Part III.B explains the core problem with this model: the "exigent circumstances" doctrine is a fundamentally ineffective way to regulate covert searching.

   1. Current Regulation of Delayed Notice Search Warrants

      Delayed notice search warrants did not originate with the USA PATRIOT Act. At least as early as 1985, some courts issued search warrants expressly authorizing a covert entry of a physical space for purpose of searching. (114) There were only a few judicial decisions analyzing the legality of this practice. (115) The Ninth Circuit held that covert searches implicated the Fourth Amendment but that they were permissible so long as notice was provided within seven days and so long as investigators showed "necessity" for the search. (116) The Second Circuit took a more permissive approach, questioning whether "notice" had any basis in the Fourth Amendment and stating that investigators need only show "there is a good reason for the delay." (117)

      After the attacks of September 11, 2001, the DOJ sought--and was granted--express statutory authority to conduct "sneak and peek" searches through section 213 of the USA PATRIOT Act, codified at 18 U.S.C. [section] 3103a. (118) The DOJ has argued that under the current statute, "delayed-notice warrants can be used ... only in extremely narrow circumstances." (119) This is not true. As explained below, the current statute authorized delayed notice searches in almost any case in which law enforcement wishes to conduct one.

      In drafting the delayed notice search warrant statute, Congress looked to another statute--the Stored Communications Act--to come up with the list of justifications for a covert search. Instead of drafting new language unique to delayed notice search warrants, Congress provided that contemporaneous notice can be delayed when the government shows that notice would cause an "adverse result," as defined in [section] 2705 of the Stored Communications Act. (120) The warrant must require notice within thirty days of execution, although that time is subject to extension. (121) In practice, over half of all delayed notice warrants involve delays of ninety days or more. (122)

      An "adverse result," for purposes of obtaining a delayed notice search warrant, consists of any of the following:

      (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. (123)

      The first four items on this list--subsections (A)-D)--closely resemble the Fourth Amendment categories of "exigent circumstances." Subsection (A), preventing danger to the "life or physical safety of any individual," is substantively the same as the "emergency aid" type of "exigent circumstance." "Under the 'emergency aid' exception, ... 'officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.'" (124) This exception includes circumstances in which obtaining a warrant would create a danger of physical harm to the police themselves, not only to third parties. (125)

      Subsection (B), "flight from prosecution," is equivalent to the next exception, which allows warrantless searches when in hot pursuit or otherwise to prevent the escape of a suspect. (126) This type of "exigent circumstance" has more broadly been described as including any action required to prevent the escape of a suspect (not merely when in hot pursuit). (127)

      Subsection (C), "destruction of or tampering with evidence," mirrors the third type of exigent circumstance: the need '"to prevent the imminent destruction of evidence,'" which "has long been recognized as a sufficient justification for a warrantless search." (128)

      The fourth statutory exception, "intimidation of potential witnesses," is not found in the traditional list of "exigent circumstances." Broadly speaking, however, this exception is similar to concerns over the destruction of evidence. In both cases, the concern is ensuring that the Fourth Amendment does not enable the suspects to obstruct justice or subvert the proper purposes of the search. Subsection (D), then, seems a logical application of the "destruction of evidence" exception to the context of delayed notice search warrants.

      Subsection (E) authorizes a covert search when notice would "otherwise seriously jeopardizfe] an investigation." (129) This catch-all exception clearly goes beyond the traditional doctrine of "exigent circumstances." Indeed, critics of [section] 3103a have often focused on this subsection (E) "catch-all" provision, and legislators have attempted to remove subsection (E) from [section] 3103a. As explained below in Part IV.C, this focus on subsection (E) is misplaced. The true problem with [section] 3103a lies in subsections (A)-(D).

   2. The Fatal Flaw: How "Exigent Circumstances" Functions in Covert Searches

      A more careful consideration of how delayed notice search warrants operate shows why the doctrine of exigent circumstances, or the related exceptions permitting no-knock searches, do not adequately limit the practice of delayed notice search warrants.

      Many criminal investigations force law enforcement officers to balance two competing concerns: (1) the need to gather evidence, and (2) the need to continue the investigation. (130) These two goals are not always in tension, but often they are. The easiest and most effective ways to gather evidence often involve (or at least risk) tipping off suspects to the existence of the investigation. And when suspects become aware that police are on to them, they often seek to escape, destroy or conceal evidence, or otherwise frustrate any future investigation.

      Covert searching offers a way for investigators to have their cake and eat it too--discovering evidence while keeping the investigation secret and thus ongoing. As the DOJ White Paper states:

      investigators and prosecutors on the front lines of fighting crime and terrorism should not be forced to choose between preventing immediate harm--such as a terrorist attack or an influx of drugs--and completing a sensitive investigation that might shut down the entire terror cell or drug trafficking operation. Thanks to ... delayed-notice warrants ... they do not have to make that choice. (131) The problem with the current statute is that it offers police this option in almost every case, not merely when police have some extraordinary need.

      Consider an ordinary drug investigation. Assume police have developed probable cause to believe that drugs are being manufactured or stored in a given location. With traditional "notice" searching, police have two basic options. First, they could obtain and execute a search warrant now, seizing any evidence and arresting any suspects who are present, but losing most of their opportunity to develop more evidence or identify more suspects. Second, they could elect to continue the investigation, hoping to develop additional evidence and identify new suspects, all the while taking the risk that the evidence will disappear and the suspects will escape. Covert searching offers a third option: execute a covert search and seizure today, keeping the investigation secret and ongoing.

      When should this third option be available? Under [section] 3103a, police have this third option whenever they can show that giving notice of the search would create exigent circumstances--destruction of evidence, danger to the police or others, or escape of a suspect--or otherwise seriously jeopardize the investigation. In practice, this means that the police can obtain a delayed notice search warrant whenever they wish to do so.

      Return to the drug investigation described above. Police would like to enter the suspected home to confirm that drugs are present. They would also like to continue their investigation for another few weeks. If they conduct a regular search--notifying the occupants--but elect not to seize the evidence or arrest the suspects, there is a high likelihood that the suspects will destroy the evidence and escape. Of course, investigators would never do such a strange thing--conduct a search with notice yet elect not to seize the evidence or arrest the suspects. The point is that exigent circumstances inevitably arise--triggering the conditions for a covert search under [section] 3103a--in any case in which police wish to both conduct a search and continue the investigation. Thus, when police wish to conduct a covert search, [section] 3103a authorizes one--not just in exceptional cases, but in any case.

      The current statutory scheme does not require the police to show that there is some good reason to conduct the search now, rather than later, or that there is some important reason not to seize the evidence or arrest the suspects now, rather than later. The statute does not require police to justify their choice of investigative tactics--whether they will arrest the suspects during the search, or whether they will seize the evidence. In short, it allows police to create exigency in almost any case by conducting a premature search at a time when police do not want to seize evidence or arrest suspects.

      A review of the some of the delayed notice search warrant cases decided to date illustrates this problem. In United States v. Christopher, (132) a police officer in St. Croix received a tip that a wooden shack, located on the property of Amobi Christopher, was being used to grow marijuana. (133) On June 27, 2008, the officer obtained a delayed notice search warrant to permit a covert search of...