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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 Mac Donald

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.

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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.

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Heather Mac Donald 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 practicce 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.