Are Sneak and Peek Search Warrants Constitutional?

By J. Bradley Jansen
October 26, 2001

Congress is considering an anti-terrorism proposal that contains a "sneak and

peak" provision that would let the police enter your home or office, search
through your things and, in some cases, take your possessions or electronic
information, without you even knowing about it. Thought you have a right to be
notified that law enforcement agents were going to go through your home? Now the
government is going to give itself a “delayed notice” right to conduct secret
searches. This change basically turns the understanding of our historical privacy
protections guaranteed by the Fourth Amendment on its head.

Of special importance is that our President and Congressmen are considering this
significant change without either the House or Senate holding hearings to
thoroughly consider its ramifications. Although this reaction is in response to
the terrorist acts of September 11th, this sneak and peak provision is not limited
to crimes of terrorism, but would apply in all federal criminal cases. The worst
part is that, unlike other provisions of the anti-terrorism legislation that
expand the government’s power to search, this provision does not sunset in a few
years.

Generally, the law specifically requires that the law enforcement officer
conducting the search “shall leave a copy and receipt at the place from which the
property was taken.” With the exception of delayed notice for searches of oral
and wire communications, the law does not allow secret searches for physical
evidence. Furthermore, the Supreme Court has traditionally held that an officer
must knock and announce his presence before serving a search warrant, barring
exceptional circumstances.

While the Department of Justice claims that the sneak and peak provision only
codifies existing practice, the truth is that it is only trying to justify the
FBI's current practices since they do not have the authority to do what they are
doing.

The Fourth Amendment says that searches should be “reasonable” and “specific.”
Letting police conduct covert searches increases the likelihood that the terms of
the warrant will be violated. Besides, the secret searches deny us the ability to
assert our Fourth Amendment rights. How could we contest faulty warrants when
officials are searching the wrong home or are searching outside the scope of the
warrant? How could one challenge the warrant in court if not even notified in the
first place?

If Congress is not going to take the time to fully consider the implications of
the sneak and peak provision now before it passes the anti-terrorism legislation,
it should put it on the short list of items that need to be revisited when the
dust settles. Our Constitutional protections are too important to give up without
even the decency of notice.