Tuesday, February 24, 2015
Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Fatal Flaws of the 'Sneak and Peek' Statute and How to Fix it (Case Western Reserve Law Review, Vol. 65, 2014) on SSRN. Here is the abstract:
In the USA PATRIOT Act, Congress authorized delayed notice search warrants — warrants authorizing a “sneak and peek” search, in which investigators conduct covert searches, notifying the occupant weeks or months after the search. These warrants also sometimes authorize covert seizures — a “sneak and steal” search — in which investigators seize evidence, often staging the scene to look like a burglary.
Covert searches invade the privacy of the home and should be used only in exceptional cases. The current legal rules governing delayed notice search warrants are conceptually flawed. The statute uses a legal doctrine — “exigent circumstances” — that does not make logical sense when applied to covert searching of physical spaces because it permits investigators to manufacture a justification for a covert search in almost any case. Covert searches without sufficient justification run afoul of the Fourth Amendment’s “rule requiring notice” and are constitutionally unreasonable.
When confronted with a request for a covert search, courts should ask, “Why is it so important to do a covert search now, while the investigation is still ongoing, rather than a public search later, once police are ready to seize the evidence and arrest the suspects?” But the statute does not pose that question. Instead, the statute merely prompts courts to ask, “Assuming police conduct a search now but choose not to arrest anyone or seize the relevant evidence, will giving notice of the search likely lead to the destruction of evidence, escape of suspects, or otherwise seriously jeopardize the ongoing investigation?” Viewed this way, it is readily apparent that the answer will almost always be yes.
Stated differently, courts should be asking whether a proposed covert search is necessary — whether conducting a covert search is the only way to obtain evidence that cannot reasonably be obtained through conventional (and less invasive) investigative techniques.
This Article explains this conceptual error and addresses other flaws in the current statute. It then proposes new legislation that would fix the problems and properly regulate the invasive practice of covert searches and seizures.