by Site Staff
Covert tactics have become legally accepted and increasingly popular.
Burglar or police officer?
Covert Tactics
Sneak and Peek warrants in actuality a more extreme version of the over-used “no-knock” raids that we cover so often. After seeking out a judge’s authorization, police are allowed to secretly break into private property without first announcing themselves or presenting the subject of the search with a signed warrant. Using this variety of warrant, officers intentionally wait until the subject is not present. The operations are performed covertly, and with the intention of masking the fact that any police activity took place.The entire premise encourages government agents to adopt the tactics of criminals in order to gain access to property: breaking and entering, sneaking around, stealing, and risking a surprise confrontation with an unsuspecting civilian.
Legally acceptable in the USA.
Sometimes, however, the agents literally stage the scenes to resemble robberies — sneak and steal operations. In one 2010 case, federal investigators broke into an Cleveland apartment, collected evidence, and then “trashed the place to make it look like a burglary.”
The feds have used similar tactics when searching vehicles. According to a Department of Justice document, DEA agents used a delayed-notice warrant to literally steal a suspect’s car in March 2004. After following the suspect to a restaurant in Buffalo, NY, one agent “used a duplicate key to enter the vehicle and drive away while other agents spread broken glass in the parking space to create the impression that the vehicle had been stolen.” [1]
The government is supposed to eventually tell the subject that a warrant had been served on them, but that may not happen for months or sometimes more than a year. A report by the Director Director of the Administrative Office (AO) of U.S. Courts found that the period of delay in telling the suspect they had been served a warrant ranged from 1 to 455 days. The most common length of delay was 90 days [2].
Terminology and History
Officially, the government has termed these warrants innocuously as “Delayed-Notice Search Warrants.” Calling the tactics what they are — covert home invasions or “Sneak and Peek” searches — would not be helpful for public relations.The man that President Obama chose to head the FBI, James Comey, once explained the etymological spin used by the government to present the tactics in a positive light: “We in law enforcement do not call them [sneak and peek warrants]… because it conveys this image that we are looking through your sock drawer while you are taking a nap.” [3]
In private, the government once used a more honest description of the tactic — back when it was not legally recognized. They were quite literally referred to as “black bag jobs” within the FBI, as Bureau domestic intelligence head William Sullivan revealed in a declassified memo dated July 19, 1966:
“We do not obtain authorization for ‘black bag’ jobs from outside the Bureau. Such a technique involves trespass and is clearly illegal; therefore, it would be impossible to obtain any legal sanction for it. Despite this, ‘black bag’ jobs have been used because they represent an invaluable technique in combating subversive activities of a clandestine nature aimed directly at undermining and destroying our nation.” [4]Mr. Sullivan was clearly aware that the actions were illegal, yet his memo went on to proudly admit that the tactics have been used to destroy political groups operating within the United States.
Governments have certainly been covertly sneaking and spying on their own citizens for all of history. The legal acceptance is the newer, more concerning development.
As law professor Jonathan Witmer-Rich points out, “There is no evidence of judicially-authorized covert searching, through a delayed notice warrant or any similar mechanism, in the history of search and seizure through 1791 [the drafting of the Fourth Amendment].” [6]
The professor also revealed that the first reference to a “Delayed-Notice Search Warrant” did not occur in U.S. case law until 1985 in United States v. Frietas [6].
The constitutionality of covert searches has been challenged in court several times in the modern era, and the searches were always upheld. In Dalia v. United States (1979), the U.S. Supreme Court called the 4th Amendment challenge “frivolous.” Modern courts have followed suit, holding that the tactics pose no Fourth Amendment concerns. And thus signaled the beginning to an era when “black bag” tactics became legitimate.
Although the courts had condoned the formerly dubious warrants, their issuance remained relatively low (at least searches performed on the record). The rarity of the searches changed after the attacks of September 11, 2001. The USA PATRIOT Act laid out a national standard for using Sneak & Peek tactics, and the floodgates began to open for their widespread usage.
Before the USA PATRIOT Act, only two federal circuits had ever acknowledged the practice of Delayed-Notice Search Warrants [6].
Title 18, Section 3103a provides that for any federal search warrant, “any notice required… may be delayed if… the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result.”
According to research done by Professor Witmer-Rich, there were only 25 DSW’s issued in 2002, and in a decade, that number had grown to 5,601 DSW’s issued in 2012 [6]. In fact, sneak and peek search warrants now constitute about 10% of all warrants served by the federal government [5].
Evidence shows that judges are rarely rejecting these warrants. Data in a U.S. Courts Administrative Office report shows that there was a 0.7% chance of a judge denying a request for a sneak and peek warrant in 2010. Out of 2,395 total DSW requests, only 16 were rejected [2].
Institutionalized Injustice
The use of these tactics opens the doors for numerous problems, corruption, and unintended consequences.Secret searches not only reduce/eliminate the privacy and freedom of those targeted in the investigation — who are legally innocent until proven guilty — but also spurs an insecurity within the entire community. As Supreme Court Justice Sonya Sotomayor noted in a 2012 case regarding secret GPS tracking, “awareness that the Government may be watching chills associational and expressive freedoms.”
Another glaring problem is the risk of having police officers barging in on unsuspecting people. Despite investigators’ best efforts to avoid contact, a sneak and peek search could easily be performed while a subject or family member is still present in the house. When the police enter without notice, they will appear indistinguishable from criminal home invaders. Violent confrontations may arise, as they often do with the use of standard “no-knock” warrants.
It is also worth noting that clandestine “black bag jobs” are a perfect working environment for corrupt government agents. If their objective is to stage a robbery, they can quite literally steal property for their own benefit and never report it to the courts. Pocketing cash and valuables would be quite easy for state-sanctioned burglars operating without any witnesses. Officers also have a practically unchecked ability to plant evidence and incriminate the subject.
Indeed, the secrecy and lack of witnesses in these situations makes it incredibly difficult to hold the police accountable for any wrongdoing that might occur.
The problem of Sneak and Peek warrants has been institutionalized by the legislature, and it must be reversed there as well. The courts are unlikely to go against the precedents that have already been established. If clandestine police tactics are of concern to the public, the people must spur a legal change and push back on these advanced state powers.
SOURCES:
1. “Delayed Notice Search Warrants: A Vital and Time-Honored Tool For Fighting Crime,” U.S. Department of Justice. Web. 22 Sep. 2004. [http://www.justice.gov/dag/patriotact213report.pdf]
2. “Report of the Director of the Administrative Office of the United States Courts on Applications for Delayed-Notice Search Warrants and Extensions,” ACLU.org. Web. Accessed 26 Jun. 2014. [https://www.aclu.org/files/assets/aousc_patriot_act_section_213_sneak_and_peek_report.pdf]
3. Comey, James. “Fighting Terrorism and Preserving Civil Liberties”, 40 U. Rich. L. Rev. 403, 410 (2006).
4. Holden, Henry M. FBI 100 Years: An Unofficial History. Zenith Press. 2008.
5. Witmer-Rich, Jonathan. “Covert, Delayed Notice Searching: A Constitutional and Policy Failure — and a Solution,” AmericanBar.org. Web. 05 Oct. 2012. [http://www.americanbar.org/content/dam/aba/events/criminal_justice/Fall2012/Roundtable_WitmerRich_Covert_Searches.authcheckdam.pdf]
6. Witmer-Rich, Jonathan. “The Rapid Rise of Delayed Notice Searches, and the Fourth Amendment Rule Requiring Notice,” SSRN.com. Web. 24 Sep. 2013. [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2226977]
