Saturday, March 9, 2013
Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Rapid Rise of 'Sneak and Peak' Searches, and the Fourth Amendment 'Rule Requiring Notice' on SSRN. Here is the abstract:
This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment’s “rule requiring notice.”
Congress authorized these “sneak and peek” warrants in the USA Patriot Act, in 2001, purporting to merely codify existing practice. A quiet revolution in covert searching has ensued. This article presents the first empirical account of the rapid rise in covert searching: from around 25 delayed notice warrants nationwide in 2002, to over 3,700 in 2011, an increase of over fourteen thousand percent. This increase has not been driven by terrorism cases — the data show 75 percent of delayed notice warrants are used in drug cases, and less than one percent in terrorism cases.
To date, most courts have concluded that delayed notice search warrants raise no Fourth Amendment concerns. This article argues to the contrary. As a matter of Fourth Amendment first principles, covert searches infringe on the privacy and sanctity of the home. Moreover, history shows that delayed notice warrants are a modern procedural innovation, and did not exist at common law in the years leading up to the drafting of the Fourth Amendment in 1791. Instead, covert searches presumptively violate the Fourth Amendment “rule requiring notice” — a principle deeply rooted in the history of search and seizure law, and meant to protect against many of the dangers created by covert, delayed notice searching.
In a companion article, I evaluate the statutory regime currently used to regulate delayed notice search warrants, and explain why that regime is facilitating the rapid expansion of this invasive search technique. I also propose new standards that would render delayed notice search warrants constitutionally reasonable, and which would substantially limit the number of covert searches, while preserving the technique for cases involving sufficiently compelling law enforcement interests.