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Section 213." Sneak and Peek" Search Warrants

A Summary by Mary DeRosa

Section 213, known as the "sneak and peek" provision, authorizes delayed notice of the execution of criminal search warrants. Section 213 is not subject to the PATRIOT Act's sunset provision. Previously, there was no statutory authorization for clandestine searches of private premises in criminal investigations, although FISA permitted such searches for national security purposes. Courts have allowed delayed-notice searches, however, in a number of criminal cases beginning in the 1980s. Most of these cases involved only the clandestine seizure of intangible evidence (e.g. information or photographs), not tangible property. Section 213 amends 18 U.S.C. section 3103a, which relates to warrants for the search and seizure of evidence of federal crimes, to permit these "sneak and peek" searches. This new authority is not limited to terrorism; it permits delayed-notice searches for any federal crime.

To obtain a "sneak and peek" warrant, the government must give the court "reasonable cause" to believe that providing notice of the search would have an "adverse result." An "adverse result" is defined as (1) endangering a person's life or physical safety, (2) flight from prosecution, (3) destruction of or tampering with evidence, (4) intimidation of potential witnesses, or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. Section 213 permits the warrant to authorize clandestine seizure of tangible property when the court specifically finds that such seizure is "reasonably necessary." A "sneak and peek" warrant under section 213, must provide for notice to the subject "within a reasonable time of its execution, which period may thereafter be extended by the court for good cause shown."

Sneak-and-Peek in the Full Light of Day 
by Heather MacDonald

There is no better place to dissect anti-Patriot Act demagoguery than in the furor around section 213. All the rhetorical techniques used by Patriot Act critics -- "Conceal Legal Precedent,' "Hide the Judge,' "Amend the Statute,' and, most profoundly, "Reject Secrecy' -- come together in the attack on this provision.

Here's how Section 213 works: Let's say an FBI agent has evidence that a Saudi chemical engineering student in Virginia has been communicating with possible Jihadists in Yemen about a local chlorine plant. The Bureau wants to examine the Saudi's computer for evidence of a nascent plot to blow up the facility. However, if the agent shows up at the chemist's door with a warrant to search his hard drive, he will disclose the investigation. The Saudi, if he is indeed a terrorist, will alert his fellow cell members in this country as well as abroad. The cell will destroy evidence of a plot whose investigation could have unlocked a major wing of Al Qaeda. Notifying the Saudi of the government's interest could also put the FBI's lead informant, a Pakistani engineer in Maryland, at risk.

Rather than jeopardizing this major terror investigation, the FBI asks the judge who is issuing the computer search warrant to delay notice of the search to the Saudi. Section 213 allows the judge to grant the delay if he finds "reasonable cause' to believe that notice would result in death or physical harm to an individual, flight from prosecution, evidence tampering, witness intimidation, or other serious jeopardy to an investigation. In this case, the judge will likely allow a delay, since notice could seriously jeopardize the investigation, and would likely result in evidence tampering and witness intimidation.

The delay of notice under section 213 is only temporary, however. The government must eventually notify the Saudi that his computer has been searched "within a reasonable period.'

Section 213 carefully balances traditional expectations of notice and the imperatives of preemptive terror and crime investigations. That's not how left- and right-wing libertarians have portrayed it, however. They present Section 213, which they have dubbed "sneak-and-peek,' as one of the most outrageous new powers seized by former Attorney General John Ashcroft. The ACLU's fund-raising pitches warn: "Now, the government can secretly enter your home while you're away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will. . . . And, because of the Patriot Act, you may never know what the government has done.' Richard Leone, president of the Century Foundation and editor of The War on Our Freedoms: Civil Liberties in an Age of Terrorism, cites the fact that the Patriot Act "allows the government to conduct secret searches without notification' to support his hyperbolic claim that the act is "arguably the most far-reaching and invasive legislation passed since the Espionage Act of 1917 and the Sedition Act of 1918.'

These claims are wrong, but usefully so, since they draw on rhetorical strategies that Patriot Act critics endlessly employ against other provisions of the act. Discredit the following strategies here and you have the key for discrediting the entire anti-Patriot propaganda machine.

--Conceal Legal Precedent.

The idea that section 213 is a radical new power is a rank fabrication. For decades, federal courts have allowed investigators to delay notice of a search in drug cases, organized crime, and child pornography, for the same reasons as in section 213. Indeed, the ability to delay notice of a search is an almost inevitable concomitant of investigations that seek to stop a crime before it happens. But the lack of precise uniformity in the court rulings on delayed notice slowed down complex national terror cases. Section 213 codified existing case law under a single national standard to streamline detective work; it did not create new authority regarding searches. Those critics who believe that the target of a search should always be notified prior to the search, regardless of the risks, should have raised their complaints decades ago -- to the Supreme Court and the many other courts who have recognized the necessity of a delay option.

--Hide the Judge.

The cascades of anti-section 213 vitriol contain not one mention of the fact that the FBI can only delay notice of a search pursuant to judicial approval. Instead, the opponents suggest that under section 213, the government can unilaterally and for the most nefarious of purposes decide to conceal its investigative activities. There is no greater check on arbitrary government power than judicial review; for that reason, the Patriot Act is shot through with judicial review requirements. Good luck finding any acknowledgement of these constitutional checks in the Patriot Act diatribes, however.

Indeed, the ACLU implies that federal investigators can not only unilaterally delay notice, but can choose what and whether to search, without any judicial oversight: "Now, the government can . . . seize any items [from your home] at will,' it blares. But section 213 allows a warrant to issue only if a judge finds a "reasonable necessity' for it—the executive's arbitrary "will' has nothing to do with it.

--Amend the Statute.

Anti-Patriot lore has it that section 213 allows the government to permanently conceal a search. The section "allows the government to conduct secret searches without notification,' cries Richard Leone. This conceit rewrites the section, which provides only for a delay of notice, not its cancellation. A warrant issued under section 213 must explicitly require notice after a "reasonable' period of time. This key feature of the section is completely suppressed by the critics.

--Reject Secrecy.

Most of the attacks on the Patriot Act emanate from a single source: the critics do not believe that the government should ever act in secret. In their world, if the FBI has received a tip about a possible Al Qaeda cell in Phoenix that may be planning to detonate a dirty bomb in Las Vegas, the Bureau should seek a wiretap warrant in open court, with notification to the cell members. If intelligence agents want to search the group's apartments, they should inform the cell in advance to give them an opportunity to challenge the search. Court TV could broadcast the legal wrangling between the cell's attorneys and intelligence agents; legal experts could provide running commentary about the likely scope of the FBI's investigations.

This transparent approach may satisfy those on the left and right who believe that the American people have no greater enemy than their own government, but it fails to answer the major question: how would it possibly be effective in protecting the country? The Patriot Act critics fail to grasp the distinction between the prosecution of an already committed crime, for which notice requirements were primarily crafted, and the effort to preempt a catastrophic attack on American soil before it happens. For preemptive investigations, secrecy is of the essence. Opponents of the Patriot Act have never explained how they think the government can track down the web of Islamist activity in public. Given that section 213 and other sections are carefully circumscribed with judicial checks and balances, it is in fact the secrecy that they allow that most riles the opponents.

Congress should not listen to such misguided attacks. Section 213 is not a new power, it is not an unchecked power, it is not a permanent power. Temporary secrecy during a preemptive investigation, executed pursuant to judicial oversight, is constitutional and indispensable.

James X. Dempsey Replies

Section 213 is a perfect example of a good idea gone too far. It is also a perfect example of how the PATRIOT Act has been used in an effort to expand government powers, without suitable checks and balances, in areas having nothing to do with terrorism. Finally, it illustrates how, when rhetoric is left behind, it is possible to frame appropriate checks and balances for what, by any definition, are some especially intrusive powers.

As a starting point, of course, in serious investigations of international terrorists, the government should be able to act with secrecy. But guess what proponents of Section 213 never mention? In international terrorism investigations, even before the PATRIOT Act, the government already had the authority to carry out secret searches. The Foreign Intelligence Surveillance Act was amended in 1994 to allow secret searches in intelligence investigations, including international terrorism cases; before 1994, the Attorney General authorized secret searches in intelligence investigations of terrorist groups without any judicial scrutiny. And during the limited debate over the PATRIOT Act, reasonable voices proposed that secret searches be statutorily authorized in criminal investigations of terrorism.

As enacted, however, Section 213 was not limited to terrorism cases. It would astound most Americans that government agents could enter their homes while they are asleep or their places of business while they are away and carry out a secret search or seizure and not tell them until weeks or months later. It would especially astound them that this authority is available for all federal offenses, ranging from weapons of mass destruction investigations to student loan cases. That is what Section 213 of the PATRIOT Act authorizes. Indeed, the Justice Department has admitted that it has used Section 213 sneak and peek authority in non-violent cases having nothing to do with terrorism. These include, according the Justice Department's October 24, 2003 letter to Senator Stevens, an investigation of judicial corruption, where agents carried out a sneak and peek search of a judge"s chambers, a fraudulent checks case, and a health care fraud investigation, which involved a sneak and peek of a home nursing care business.

Section 213 fails in its stated purpose of establishing a uniform statutory standard applicable to sneak and peek searches throughout the United States . For a number of years, under various standards, courts had allowed delayed notice or sneak and peek searches. The term "sneak and peek,"by the way, was not contrived by opponents of the PATRIOT Act "before the PATRIOT Act, it was used by FBI agents, DOJ officials, and judicial opinions. Rather than " codifying existing case law under a single national standard to streamline detective work,"Section 213 confuses the law. Rather than trying to devise a standard suitable to breaking and entering into homes and offices for delayed notice searches, Congress in the haste of the PATRIOT Act merely incorporated by reference a definition of "adverse result"adopted in 1986 for completely unrelated purposes, concerning access to email stored on the computer of an ISP. Under that standard, not only can secret searches of homes and offices be allowed in cases that could result in endangering the life of a person or destruction of evidence, but also in any case that might involve "intimidation of potential witnesses"or "seriously jeopardizing an investigation"or "unduly delaying a trial."These broad concepts offer little guidance to judges and will bring about no national uniformity in sneak and peek cases.

Section 213 also leaves judges guessing as to how long notice may be delayed. The Second and Ninth Circuits had adopted, as a basic presumption, a seven day rule for the initial delay. Section 213 says that notice may be delayed for "a reasonable period."Does this mean that lower courts in the Ninth Circuit and the Second Circuit no longer have to adhere to the seven day rule? At the least, it suggests that courts outside those Circuits could make up their own rules. "Reasonable period"affords judges considering sneak and peek sneak and peek searches no uniform standard.

If, as Section 213 supporters claim, sneak and peek searches are a "time-honored tool,"and if courts "around the country have been issuing them for decades,"as DOJ claims, why did the Justice Department push so hard in the PATRIOT Act for a Section 213 applicable to all cases? The answer, I believe, is that the sneak and peek concept stands on shaky constitutional ground, and the Justice Department was trying to bolster it with Congressional action "even action by a Congress that thought it was voting on an anti-terrorism bill, not a general crimes bill.

The fact is, there is a constitutional problem with Section 213: The sneak and peek cases rest on an interpretation of the Fourth Amendment that is no longer valid. The major Circuit Court opinions allowing sneak and peek searches date from the 1986, United States v. Freitas, 800 F.2d 1451 (9th Cir.), and 1990, United States v. Villegas, 899 F.2d 1324 (2d Cir.). These cases were premised on the assumption that notice was not an element of the Fourth Amendment. United States v. Pangburn, 983 F.2d 449, 453 (2d Cir. 1993) starts its discussion of sneak and peek searches stating: "No provision specifically requiring notice of the execution of a search warrant is included in the Fourth Amendment."Pangburn goes on to states, "The Fourth Amendment does not deal with notice of any kind ... ."

Yet in Wilson v. Arkansas, 514 U.S. 927 (1995), in a unanimous opinion by Justice Thomas , the Supreme Court held that the knock and notice requirement of common law was incorporated in the Fourth Amendment as part of the constitutional inquiry into reasonableness. Notice is part of the Fourth Amendment, the court held, directly repudiating the premise of the sneak and peek cases. Wilson v. Arkansas makes it clear that a search without notice is not always unreasonable, but surely the case requires a different analysis of the issue than was given it by those courts that assumed that notice was not a part of the constitutional framework for searches at all. A much more carefully crafted set of standards for sneak and peek searches, including both stricter limits of the circumstances under which they can be approved and a seven day time limit, is called for.

Section 213"s attempted codification of the sneak and peek authority went too far. To fix it, Congress should leave the statutory authority in place but add several limitations:

  • Section 213 only requires a judge to find "reasonable cause"to believe that an adverse result will happen if notice is not delayed. "Reasonable cause"doesn"t even mean that the harmful result is likely. For such a momentous decision, "probable cause"to believe would be a more appropriate standard.
  • Congress should narrow the circumstances in which notification may be delayed so that Section 213 does not apply to virtually every search. Under Section 213, the government need only show that providing notice would seriously jeopardize an investigation or unduly delay a trial. This "catch-all"standard could apply in almost every case and therefore is simply too broad for this uniquely intrusive type of search. Congress should allow sneak and peek searches only if giving notice would likely result in: danger to the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; or intimidation of potential witnesses.
  • Congress should require that any delay in notification not extend for more than seven days without additional judicial authorization. Section 213 permits delay for a "reasonable time"period, which is undefined in the statute. Pre-PATRIOT Act case law in the Ninth and Second Circuits stated that seven days was an appropriate time period. Indeed, DOJ"s internal guidance recognizes that seven days is the most common period, but also suggests that it may seek much longer delays. Congress should set a basic seven day rule, while permitting the Justice Department to obtain additional seven-day extensions of the delay if it can continue to meet one of the requirements for authorizing delay in the first instance.
  • Finally, Congress should require the Justice Department to report on it"s use of the "sneak and peek"power. The Attorney General should report the number of requests for delayed notification, the number of those requests granted or denied, and the number of extensions requested, granted and denied, so that Congress and the public can determine if this technique is being narrowly applied.

Even with these changes, sneak and peek searches, especially of homes, stand on shaky constitutional ground except in investigations of the most serious crimes. Judicial caution is necessary. The reasonable changes outlined above would leave the statutory authority in place but bring it under more appropriate limitations and oversight, affording law enforcement a useful tool in extraordinary cases but preserving the constitutional norm reflected in both Supreme Court decisions and popular TV dramas: "Police! Open the door. We have a warrant."

Heather MacDonald Responds

Mr. Dempsey"s response conforms flawlessly to the anti-Patriot act template. He relies on the two central tropes: Conceal Legal Precedent and Hide the Judge.

Mr. Dempsey implies that section 213 is a radical new power: "It would astound most Americans that government agents could enter their homes while they are asleep or their places of business while they are away and carry out a secret search or seizure and not tell them until weeks or months later. . . . That is what Section 213 of the PATRIOT Act authorizes." No, that is what federal judges have authorized for decades; section 213 merely codifies those precedents. If such a law enforcement power is "astounding," Mr. Dempsey should have challenged those precedents long ago. And this delayed notice capacity might appear less "astounding" if Mr. Dempsey acknowledged as an initial matter that agents can delay notice only after convincing a judge that notice would have an "adverse result," such as harm to an individual or witness intimidation.

It is irrelevant that section 213 is not confined to terrorism investigations; neither were the precedents that it codified.

Mr. Dempsey"s efforts to find "confusion" in the section"s language are unconvincing. Such terms as "intimidation of potential witnesses" or "seriously jeopardizing an investigation" are no more "confusing" than any other statutory or constitutional mandate. All statutes require judges to fit legislative language to the facts of a case; if no interpretation were necessary, we could use computers to rule on disputes.

It is perfectly appropriate that section 213 allows judges discretion as to what a "reasonable period" for delay is. Mr. Dempsey worries that this discretion will allow judges to "make up their own rules." Welcome to the common law! Congress rightly decided that it lacked the foresight to predict in every case how long a witness"s life might be at risk, say, from a search target.

Wilson v. Arkansas, 514 U.S. 927 (1995), poses no threat to delayed notice authority. The Court emphasized that the "Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Those interests include situations, the Court said, "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given."

Mr. Dempsey claims that Wilson now requires a probable cause standard for the judicial finding of "adverse result." The Court has already rejected that argument in Richards v. Wisconsin, 520 U.S. 385 (1997), however. The "reasonable suspicion . . . standard--as opposed to a probable cause requirement--strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no knock entries," the Court said.

The grounds for delaying notice are appropriate and need not be amended. Mr. Dempsey thinks that "seriously jeopardizing" an investigation is not a valid reason to delay notice. This position offends common sense and is contrary to the law. U.S. v. John, 508 F.2d 1134 (8th Cir. 1975); cert. denied, 421 U.S. 962 (1975), found that ensuring the continued effectiveness of a criminal investigation satisfied the "good cause" requirement for delaying notice of a Title III wiretap under 18 U.S.C. 2518(d).

In conclusion, Section 213 does not "expand government powers," as Mr. Dempsey claims; nor does it lack "suitable checks and balances"—judicial review is the cornerstone of the section. Delayed notice is an imperative power for terrorism investigations, as well as for other criminal investigations where notice may imperil persons or the pursuit of justice.

James X. Dempsey The Last Word?

It is clear that the PATRIOT Act standard is simply too liberal. As the prior essay points out, in the first 19 months under the under current Section 213 standard, no judge ever denied a government sneak and peek request. Far from wanting to "hide the judge,"supporters of a more balanced approach want to give judges clearer authority to approve secret searches when necessary while ensuring that the exception does not swallow the rule.

Supreme Court decisions in Wilson v. Arkansas and Richards v. Wisconsin make it clear that the constitutional rule is prior notice of searches, through knock and announce. The Court allowed an exception to this rule, upon "reasonable suspicion,"by allowing police to provide notice as they were entering when they faced a life-threatening situation or the destruction of evidence. Notice in Wilson and Richards was immediate, it just wasn"t given in advance. If "reasonable suspicion"is the standard for delaying notice by minutes, probable cause should be the standard when notice is delayed for days or weeks.

As noted, the Justice Department has reported to Congress on its use of Section 213. Codifying this practice would allow Congress and the public to assess in years to come if the standard is too strict or too liberal. The fact that a defender of the PATRIOT Act would oppose routine reporting on how it is working shows the unreasonableness of the "don"t change a comma"position.