Matthew T. Mangino
April 20, 2018
The nation’s capital is a living, breathing civics lesson. The Fourth, Fifth and Sixth Amendments are tossed around more in Washington D.C. these days than in the average high school civics class. Nearly every journalist and talking-head has a spin on the nuances of the hottest issue in town, the Fourth Amendment’s prohibition against unlawful search and seizure.
Setting aside the intricacies of the attorney-client privilege, there are constitutional matters outside the beltway that should raise concern.
Here is something to think about. Federal law permits delayed-notification search warrants commonly referred to as “sneak and peek” warrants. The procedure allows investigators to search a house, business, car, or other property — seize evidence — and not tell anyone, but a judge, about it.
A normal search warrant like the one served on President Donald Trump’s attorney — depending on who you listen to — Michael Cohen requires prosecutors to set forth, in writing, the legal basis for seeking a warrant. This document, commonly referred to as an “affidavit of probable cause” is presented to a judge.
If the judge finds there is a legal basis for the warrant, the request is approved and a written warrant is served on the target of the search. After the search is concluded an inventory of what was seized is handed to the homeowner, car owner or business owner.
Typically search warrants are not secret. Maybe an affidavit can be sealed to protect the identity of witnesses or informants, but a search was always disclosed to the subject of the search. That all changed in 2001.
According to The Oregonian, delayed warrants mean agents can avoid tipping off suspects and jeopardizing an investigation, while potentially provoking them into revealing drug suppliers or other connections when it appears someone has stolen their “stash.”
What that means is that the police can conduct a search and make it appear like a burglary. The “victims” of the burglary can’t go to the police — “someone stole my drugs” doesn’t go over well with investigators.
The concern with delayed notice warrants is that they were never intended for use in domestic criminal activity.
In the wake of the 9/11 terrorist attacks against the United States, Congress swiftly passed the Patriot Act, which expanded the powers of federal agents as they prosecuted the war on terror.
Section 213 of The Patriot Act provides for “sneak and peek” search warrants. In the name of fighting terrorism “sneak and peek” warrants, allow law enforcement officers to circumvent Fourth Amendment’s protections.
According to the Electronic Frontier Foundation, in 2014 out of approximately 11,000 “sneak and peek” warrants only 51 were used for terrorism. A significant majority were used for domestic drug investigations.
The alleged “victims” of “sneak and peek” warrants scramble when their stash turns up missing. They probably owe money to someone higher-up the chain and they’re mad as hell that someone would rip them off, after all who’d want to steal off a hard-working drug dealer. That scenario can create a lethal firestorm that puts innocent people in danger.
In Oregon, the manager of a storage facility was held at gunpoint by two thugs after the authorities carried out a “sneak and peek” warrant and removed 500 pounds of marijuana from a storage locker.
The owners of the marijuana — having never been served with a search warrant — assumed the manager had something to do with its disappearance.
According to The Oregonian, agents with the Drug Enforcement Administration, deliberately made the confiscation look like a burglary, in an effort to intensify the investigation.
“The danger of violence is obviously real, and this case makes it very evident. Someone could have been killed,” Jonathan Witmer-Rich, a law professor at Cleveland State University told The Oregonian. “I think it illustrates this is a dangerous tactic, and the law is not requiring police to reduce such risks.″
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE