House Votes to Repeal 'Sneak and Peek' Searches

By a vote of 309-118, the House of Representatives voted today to add a provision repealing Patriot Act secret searches, called "sneak and peaks," to a $37.9 million funding bill.

The move would block the Justice Department from using any funds to take advantage of the section of the act that allows it to secretly search the homes of suspects and only inform them later that a warrant had been issued to do so.

Supporters of the change say that violates both the U.S. Constitution and the long-standing common law "knock and announce" principle -- which states the government cannot enter or search private property without first notifying the owner.

"Not only does this provision allow the seizure of personal and business records without notification, but it also opens the door to nationwide search warrants and allowing the CIA and NSA to operate domestically," said the amendment's sponsor, Idaho Republican Rep. C.L. "Butch" Otter.

The provision is Section 213 of the Patriot Act, "Authority for delaying notice of the execution of a warrant."

Section 213 is often referred to as the “sneak and peek” section. It authorizes surreptitious search warrants , seizures upon a showing of “reasonable necessity” and eliminates the requirement of Rule 41, Fed. R. Crim.P. that immediate notification of seized items be provided.

Delayed rather than immediate notification is authorized if the Court finds reasonable cause to believe that immediate notification may have an adverse effect, such as by jeopardizing an investigation. In such event, notice must be given within a “reasonable time.” While Title III authorizes delayed notice of interceptions of wire and oral communications, there is no corresponding provision in current law authorizing secret searches for physical evidence.

The effect of this provision is to allow the police to enter and search a home without telling anyone they have done so, seriously undermining the Fourth Amendment and one’s ability to mount a fourth amendment challenge to the search or any other kind of defense.

Section 213 is not limited to terrorism investigations. It applies to the search and seizure of any property or material pursuant to a search warrant “that constitutes evidence of a criminal offense in violation of the laws of the United States.” There is no sunset provision for this section.

[Source: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: An Analysis by Stanley Mailman; Jeralyn E. Merritt; Theresa M. B. Van Vliet; Stephen Yale-Loehr (published by Lexis Publishing and available on line through the link above or the Lexis.Com bookstore.)

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