Are Sneak and Peek Search Warrants Constitutional?
J. Bradley Jansen
October 26, 2001
Congress is considering an anti-terrorism proposal that contains a “sneak and peak” provision that would let the police enter your home or office, search through your things and, in some cases, take your possessions or electronic information, without you even knowing about it. Thought you have a right to be notified that law enforcement agents were going to go through your home? Now the government is going to give itself a “delayed notice” right to conduct secret searches. This change basically turns the understanding of our historical privacy protections guaranteed by the Fourth Amendment on its head.
Of special importance is that our President and Congressmen are considering this significant change without either the House or Senate holding hearings to thoroughly consider its ramifications. Although this reaction is in response to the terrorist acts of September 11th, this sneak and peak provision is not limited to crimes of terrorism, but would apply in all federal criminal cases. The worst part is that, unlike other provisions of the anti-terrorism legislation that expand the government’s power to search, this provision does not sunset in a few years.
Generally, the law specifically requires that the law enforcement officer conducting the search “shall leave a copy and receipt at the place from which the property was taken.” With the exception of delayed notice for searches of oral and wire communications, the law does not allow secret searches for physical evidence. Furthermore, the Supreme Court has traditionally held that an officer must knock and announce his presence before serving a search warrant, barring exceptional circumstances.
While the Department of Justice claims that the sneak and peak provision only codifies existing practice, the truth is that it is only trying to justify the FBI’s current practices since they do not have the authority to do what they are doing.
The Fourth Amendment says that searches should be “reasonable” and “specific.” Letting police conduct covert searches increases the likelihood that the terms of the warrant will be violated. Besides, the secret searches deny us the ability to assert our Fourth Amendment rights. How could we contest faulty warrants when officials are searching the wrong home or are searching outside the scope of the warrant? How could one challenge the warrant in court if not even notified in the first place?
If Congress is not going to take the time to fully consider the implications of the sneak and peak provision now before it passes the anti-terrorism legislation, it should put it on the short list of items that need to be revisited when the dust settles. Our Constitutional protections are too important to give up without even the decency of notice.