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Feingold: Sneak and Peek is About Drug Cases

Sen Russ Feingold, leading the charge for a filibuster of the Patriot Act renewal legislation, confirms what we suspected all along: The Sneak and Peek provisions of the Patriot Act are about drugs, not terrorism. A Sneak and Peek, if you are new to the jargon, is where a law enforcement agent enters a dwelling surreptitiously with a warrant, snoops around, and leaves without ever notifying the resident that a search has occurred. There has been a 75% increase in sneak and peeks since 2000.

From his prepared statement on the Patriot Act renewal legislation, read on the Senate floor last night:

Don’t be fooled for a minute into believing that this power is needed to investigate terrorism or espionage. It’s not. Section 213 is a criminal provision that could apply in whatever kind of criminal investigation the government has undertaken. In fact, most sneak and peek warrants are issued for drug investigations. So why do I say that they aren’t needed in terrorism investigations? Because FISA also can apply to those investigations. And FISA search warrants are always executed in secret, and never require notice. If you really don’t want to give notice of a search in a terrorism investigation, you can get a FISA warrant. So any argument that limiting the sneak and peek power as we have proposed will interfere with sensitive terrorism investigations is a red herring.

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  • Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:03 PM EST
    Yeah...that was the subject of my rant below in another thread about the Patriot Act...Feingold was debating some Florida congressman on the Jim Lehrer News Hour the other night and this doofus all of a sudden starts talking about how great it would be to use all of these disputed Patriot Act provisions to go after "meth". After hearing this guy do the torture shuffle a few minutes before justifying the torture we don't condone except in the few instances where a ticking bomb terrorist is involved, yadda yadda, it was getting really surreal...

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#2)
    by Patrick on Sat Dec 17, 2005 at 01:07:03 PM EST
    What changes? Prior to the Patriot Act law enforcement could get a sneak and peak warrant.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:03 PM EST
    What changes? Prior to the Patriot Act law enforcement could get a sneak and peak warrant.
    True, but law enforcement was not allowed to seize the evidence without immediate notification of the seizure (receipt of items seized). Section 213 eliminates that notification requirement.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#4)
    by MikeDitto on Sat Dec 17, 2005 at 01:07:03 PM EST
    I read an interesting scholarly article (I can;t find it now) that says that the sneak and peek provision was intentionally written so that just about every warrant would somehow violate the rules, banking on the idea that judges would routinely make "good faith" exceptions and thereby render the rules meaningless over time. The argument was basically that thanks to sneak and peek, eventually all the rules governing all searches and seizures would be universally rendered meaningless. The paper didn't argue that it is actually working, but that it was the intent of the people who wrote the provision. It cited specific examples, both hypothetical and real, that I found pretty compelling. And scary.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#5)
    by MikeDitto on Sat Dec 17, 2005 at 01:07:03 PM EST
    macromanic: The paper I read was specifically talking about that rule, IIRC.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#6)
    by Patrick on Sat Dec 17, 2005 at 01:07:03 PM EST
    Mac, Seizing evidence kinda negates the sneak and peak aspect of the warrant wouldn't you say. If there was evidence that was so compelling you had to seize it, then you've kinda shot yourself in the foot keeping the secret anyways. Oh, well, IMO it's much ado about nothing.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:03 PM EST
    Section 213 eliminates that notification requirement.
    Actually, section 213 can potentially eliminate that requirement. It doesn't just outright eliminate it.
    "(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure;
    Reasonable necessity is very broad and legal precedent regarding this language could go either way depending on the judge. This language is a little too ambiguous IMO.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:07:03 PM EST
    Oh, well, IMO it's much ado about nothing.
    Inserting ambiguous language into law is not, "much ado about nothing." It creates problems.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#9)
    by scarshapedstar on Sat Dec 17, 2005 at 01:07:03 PM EST
    Seizing evidence kinda negates the sneak and peak aspect of the warrant wouldn't you say. If there was evidence that was so compelling you had to seize it, then you've kinda shot yourself in the foot keeping the secret anyways.
    Yeah, clearly they'll say "By golly, I've been the victim of a sneak-and-peek search! I shall complain to the originating government agency!"

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#10)
    by scarshapedstar on Sat Dec 17, 2005 at 01:07:03 PM EST
    Inserting ambiguous language into law is not, "much ado about nothing." It creates problems.
    Never in history has there been an incident where too much government power caused a problem.

    Never in history has there been an incident where too much government power caused a problem.
    Talk about a sweeping statement! Can you back that one up?

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#12)
    by MikeDitto on Sat Dec 17, 2005 at 01:07:04 PM EST
    Nicole, I'm pretty sure scar was being ironic.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#13)
    by Peter G on Sat Dec 17, 2005 at 01:07:04 PM EST
    Nicole, Meet Irony. Irony, meet scarshaped ... As for the sneak "seizure" -- what happens during a sneak 'n peek is often surreptitious photography, scanning of documents, and even cloning of computer data. It need not leave a trace (or the noticeable absence of any object) to be a seizure. Before PATRIOT, there were a few cases allowing s'n'p searches, but no rule or statute. Their validity in non-extraordinary circumstances was very much in doubt under Federal Criminal Rule 41 and the "reasonableness" requirement of the Fourth Amendment. PAT-Act 213 makes them essentially routine, or at least tries to.

    Peter G, Is section 213 of the PA only available to federal law enforcement?

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#15)
    by Peter G on Sat Dec 17, 2005 at 01:07:04 PM EST
    macro: Yes, it amends 18 USC 3103a, which authorizes the issuance of warrants to find evidence of any "criminal offense in violation of the laws of the United States." (The latter phrase means federal laws.) That is where you'll find it in any copy of the United State Code since 2001. Of course, where the feds pioneer in cutting constitutional corners, eager state legislators are likely to follow.

    Re: Feingold: Sneak and Peek is About Drug Cases (none / 0) (#16)
    by Patrick on Sat Dec 17, 2005 at 01:07:04 PM EST
    Inserting ambiguous language into law is not, "much ado about nothing." It creates problems.
    There is little about the English language that is unambiguous. I guess I could have been more clear..... Peter G. So photographing the interior of a building constitutes a seizure? I would agree copying computer files would get you there, but I dunno about photographs.

    There is little about the English language that is unambiguous.
    Pat, I couldn't agree with you more.
    I guess I could have been more clear.....
    That was good... You made me laugh... But only if you meant what I think you meant ;-) However...
    Their validity in non-extraordinary circumstances was very much in doubt under Federal Criminal Rule 41 and the "reasonableness" requirement of the Fourth Amendment. PAT-Act 213 makes them essentially routine, or at least tries to.
    Definitely not, "much ado about nothing."