Dramatic Expansion of Sneak-and-Peek Warrants Since 2000

by TChris

One of the more obnoxious devices enshrined in the Patriot Act is its expansion of authority to conduct "sneak-and-peek" searches. A law enforcement agent conducting a typical "sneak-and-peek" enters a dwelling surreptitiously, snoops around, and leaves without ever notifying the resident that a search has occurred. The Justice Department wants you to believe that it rarely uses the powers conveyed by the Patriot Act, including sneak-and-peeks, but that just isn't true.

Disclosure of a 75 percent increase in secret wiretaps and ”sneak and peek” searches since 2000 is likely to provide ammunition for civil liberties groups determined to modify the USA Patriot Act when Congress begins two months of debate on the law Tuesday.

Last week, the administration reported to Congress that in 2004 the government requested and won approval for a record total of 1,754 special warrants for secret wiretaps and searches of suspected terrorists and spies.

The administration would like you believe that the Patriot Act is a tool wielded only against terrorists. Also untrue.

[T]he FBI also uses the warrants in ”plain vanilla” criminal investigations that have nothing to do with terrorism. ... The warrants have been used to break into homes, offices, hotel rooms and cars, install hidden cameras, search luggage, eavesdrop on telephone conversations, intercept emails, and gain access to safe deposit boxes.

Even Congress doesn't know the whole truth, because the FBI won't reveal the full extent of its use of sneak-and-peek warrants.

The FBI does not release details of its ”sneak and peek” activities, so little is known about them outside the agency. Even the relevant committees of Congress are not informed except in the annual reports the FBI is required to submit. And members of Congress have complained that the information they receive is too general.

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    Re: Dramatic Expansion of Sneak-and-Peek Warrants (none / 0) (#1)
    by scarshapedstar on Tue Apr 05, 2005 at 04:36:00 PM EST
    Gee, whodathunkit? I'd never expect the Bush Administration to overstep its bounds when it knows it can't be held accountable...

    What does the 4th Amendment law have to say about this? I don't mean that question rhetorically, either. I'm assuming the government has an at least plausible theory as to why the Constitution allows this, does anyone know what it is? Is it simply that the 4th Amendment requires that a warrant be issued, but not that it be served on the person being searched?

    Re: Dramatic Expansion of Sneak-and-Peek Warrants (none / 0) (#3)
    by Peter G on Tue Apr 05, 2005 at 06:07:54 PM EST
    Alex: Great question. Here's some basics for you. The Constitution only says (in the second clause of the 4th Amendment, known as the "Warrant Clause") that "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." That doesn't say when a warrant is necessary in the first place, nor how the search is to be carried out. The first clause of the Amendment says that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." Most of what we consider to be Fourth Amendment rights are judicial interpretations of the first-clause term "unreasonable," based (one hopes) on a deep understanding of what limits on police powers would tend to make "the people" be "secure" in their "persons, houses, papers, and effects." One thing that can make a search, whether with or without a warrant, "unreasonable" is the manner of its execution. Advance notification of the person whose place is to be searched is sometimes required (in other words, no-knock authority is the exception) and subsequent notice is always required. How promptly is a matter of reasonableness, according to the courts. Since entry into a private home is almost always deemed "unreasonable" without a warrant, judicial approval for a "sneak and peek" warrant is necessary for most S&P searches. The advance judicial approval is worth little in practice, since most warrants are virtually rubber-stamped. The real limits are imposed by those whose privacy was affected challenging the searches after the fact, by lawsuit or by motion to suppress (if evidence was found). Because of the geometrically greater psychological effect of having been secretly searched, and the similarly enhanced chance of abuse going undetected, civil libertarians believe in highly restricted authority, at best, for s&p warrants. For these reasons, in fact, the House of Representatives voted overwhelmingly a year or two ago to defund execution of the sneak and peek provision of the PATRIOT Act. I seem to remember (didn't look this up again), that the Senate might even have voted for the same restriction. Unfortunately, the so-called "leadership" then stripped the provision out in the Conference Committee (IIRC) called to iron out unrelated differences between other provisions of the bills that passed the two Houses.

    Even Congress doesn't know the whole truth, because the FBI won't reveal the full extent of its use of sneak-and-peek warrants. And, in fact, the DOJ can't even make up its mind whether or not it's admitted such usage. Last week, the local AP reported that the DOJ had admitted in a letter to Brand Mayfield's attorneys that it had used the PATRIOT Act against him. Two days later, the AP issued a "correction" at the behest of the DOJ, saying the Feds had not used PATRIOT, but a 1995 Intelligence Authorization Act. Then, yesterday, the Attorney General himself admitted they had used PATRIOT act Mayfield, but only after earlier in the day saying they had not. Ow.

    Re: Dramatic Expansion of Sneak-and-Peek Warrants (none / 0) (#5)
    by kdog on Wed Apr 06, 2005 at 06:31:14 AM EST
    This is an embarassment to a co-called free society.

    Please stop all communication in here. We will make it to where you will not be able to talk to anybody outside your home. Please be aware of this. No news is good news.

    Here's how it works, kiddies... 1. WE don't have a personal right to go into our neighbor's homes ala 'sneek 'n peek'...it's illegal and immoral...(entering without breaking - felony) 2. Because WE don't have that right, we CANNOT delegate WHAT WE DON'T HAVE to a representative group of us (in this instance, the 'FBI'), which said group can somehow magically claim powers it can never possess, because WE could never possess them... (unless, of course, 'might makes right', in which case all bets are off, and we're all effectively slaves to whomever has the current means to force us to do whatever - but you'll never get anyone in gov't to admit that 'might makes right', even though all laws that seem nonsensical are evidence of just that maxim) We can give personal permission to someone to go into our homes when we're not there personally - but we usually have ground rules for them under these circumstances... (take off your shoes, don't leave a mess in the sink if you get something to eat, etc.) When we give this permission to a representative group of us (the 'FBI') to do the same thing, there are always ground rules that also attach, because the need of the group is always less than the rights of the individual (remember that there IS no 'group', if there aren't any individuals to make up said 'group'). THESE ground rules are called a WARRANT, and the prcedures therefore. 3. If something seems like it's 'unreasonable', it probably is - if it offends your sensibilities, or if doesn't seem 'quite right' - then it isn't right... I used to explain it to my kids like this in regards to what a teacher can and can't do (in the classroom or elsewhere) - 'If they (the teacher, or actually, whomever) wouldn't do it while a parent was standing right there at the time, then they shouldn't do it while the parent is not watching (if it's not acceptably 'viewable in the plain light of day' by rational people, THEN IT'S WRONG.) So we all already KNOW it's wrong for our friend, or our gov't, to try to change the rules about coming in our homes after they've already got permission (and when we're not 'home' to correct their erroneous view of the rules- cute! Can you say 'bait and switch', 'Flim-flam', or 'Okey-Doke'?) 4. The Constitution and our rights AREN'T debatable - that's what rights are - fixed, immutable, stable - we can count on them being there, just like the air we breathe, because we had them 'antecedent to all earthly goverments'... If you debate your rights, YOU LOSE, so remember that.. 5. Did you know they also made it illegal, if you found out you'd been 'snuck and peeked, to TELL ANYONE about it - can't even tell your lawyer - so that's a SEPARATE crime? It just doesn't smell any' funnier' than that, does it? (Now the 1st amendment's involved... guess if you're gonna defile the Bill of Rights, might as well do a good job of it). Remember, these laws were 'passed' by people who 'jes wanna help yew', our elected 'do-gooder' representatives... Thankfully, the U.S. Supreme Court long ago defined OUR responsibilities as regards laws that are unconstitutional on their face - these laws are born stillborn, can be ignored and are of no effect. 6. These laws force US to be complicit in breaking other laws (It's against U.S. Code to deny someone their Contitutional rights - 18 USC 251 & 252, for example), and no law can force you to break existing laws (if you're given an unconstitutional 'order' you can disregard it). 7. Rights must be defended actively - life ain't a spectator sport, folks... Smile, if you catch them 'sneekin' an' peekin'' around your place, you're well within your rights to shoot the bastards dead - remember in the final analysis, 'it's better to be judged by 12 than carried by 6'. (C'mon, folks, we're either gonna 'live Free or die' or we're not, so no need to sugarcoat anything - then again, how precious are YOUR rights?) Hope this helps!