Feingold Introduces Bill to End 'Sneak & Peek' Searches

Sen. Russ Feingold has introduced a bill in Congress to end the end sneak and peek searches authorized by the Patriot Act:

Section 213 of the USA-PATRIOT Act, the provision of that important statute passed in the wake of the 9/11 attacks that has caused perhaps the most concern among Members of Congress and the public. Section 213, sometimes referred to as the ``delayed notice search provision'' or the ``sneak and peek provision,'' authorizes the government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched.

What's wrong with sneak and peeks?

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.)

Don't get your hopes up, though. In July, 2003, the House voted to end the practice, but even that wasn't enough.

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  • ... Don't get your hopes up, though. Right. Here is what "sneak and peek" looks like for those who haven't seen it yet. Enjoy. Apparently caught the scumbag in the act. No notification so far. Warning: rather angry rant here - those things are highly unpleasant. --- BTW - does anyone knows what this is? Came from an FBI file. Mail, luggage, house search or what? Inquiring minds want to know.

    Hey good work February 12, but the government will use it no matter what is said, it now is part of the national ideals and its policy of our non government and it will always be used on us for all kinds of evil little things. and "H" Its right our of the third world ideals of government.

    Nice try. Sneek and peek predated 9/11, Patriot only added terrorists to the list.

    Marc is incorrect. While Title III (the statutes governing interception of communications) authorize delayed notice of interceptions of electronic, wire and oral communication in limited situations, as I mentioned in the post, there was no corresponding provision in current law authorizing secret searches for physical evidence. See here and here.
    The government already has the authority, in limited situations, to delay notification, for searches of some forms of electronic communications that are in the custody of a third party. It must show the judge that if the person to be searched is given notice, one of the five things will happen - (1) an individual's physical safety will be endangered, (2) someone will flee prosecution, (3) evidence will be tampered with, (4) potential witnesses will be intimidated or, (5) an investigation would be jeopardized or a trial unduly delayed. Section 213 would take an extremely limited authority and expand it so that it would be available in any kind of search (physical or electronic) and in any kind of criminal case. The standard that law enforcement must show - that an investigation will be jeopardized - is a very low one. Law enforcement agents will seek to delay notification whenever it is to their advantage to do so. Over time, the delayed notice "exception" would become the rule and would deal another serious blow to the privacy protections afforded by the Fourth Amendment.

    4th amendment as I think it was originally written: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Any questions?

    Has Alberto written an interpretation of the 4th amendment? I probably misunderstand it.