Matthew T. Mangino
GateHouse Media
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.
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