A
little-known police tactic allows cops to covertly enter private
residences, perform searches, seize property, and then leave quietly
without notifying the homeowner. These searches, affectionately known as
“sneak and peek” warrants, have been performed at a rapidly rising rate
since 9/11.
One of many glaring problems with this tactic is the
risk 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.
A little-known police tactic allows cops to covertly enter private
residences, perform searches, seize property, and then leave quietly
without notifying the homeowner. These searches, affectionately known
as “sneak and peek” warrants, have been performed at a rapidly rising
rate since 9/11.
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.Often, the investigators leave the property undisturbed to avoid
detection. After taking what they want and/or leaving wiretaps,
cameras, or other planted devices, they exit quietly so as not to raise
suspicions.
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.
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