By John Lee

I love to watch cop shows, especially the ones where the federal agents are tracking down bad guys.  I particularly like the scene in almost every show where the federal agent shows up on the door step of the suspect and shows him a search warrant.  The agents then storm into the suspect’s property and search for illegal contraband or evidence of a crime.  Normally the agents find something and take it away for processing.  Later in the show, if the suspect is found to have not done the crime, his stuff is returned to him.  This is all very exciting TV, but complete fiction.  In real life, at least since the Patriot Act, the government has not been required to produce notice to the suspect before the search, and they are not required to itemize what they took from the suspect’s property.

The U.S. Patriot Act, signed into law by President George Bush after the attacks on 9-11, changed the statutory requirements of a search.  Now the government can sneak into your property without giving you any notice, and take your belongings without letting you know what they took.  Often times there is no more dramatic scene at the front door where federal agents show a search warrant. These searches are referred to as “sneak-and-peek” and “sneak-and-steal” warrants because of the fact the suspect is completely unaware of the government intrusion.

Section 213 of the Patriot Act states in part, “with respect to the issuance of any warrant or court order . . . to search and seize any property . . . any notice required to be given may be delayed . . .” The Patriot Act goes on to say the notice shall be given, “within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.”  These provisions allow the government to enter your property take pictures of your belongings, inventory your possessions, copy the files on your computer, read through your papers and documents, take measurements of the premises and much more.  The purpose of this statutory scheme to to allow the government to check up on you and document the evidence against you without your knowledge because if you were given notice, you may destroy the evidence.

According to Report of the Director of the Administrative Office of the United States Courts on Application for Delayed-Notice Search Warrants and Extensions in 2013 there were over 11,000 requests for Delayed-Notice searches (or time extensions thereof), that’s more than thirty requests relating to Delayed-Notice searches per day. The vast majority off all requests are approved. The average time between the search and notice to the suspect was 64 days.  Of the more than 11,000 Delayed-Notice searches, only 51 were terrorism related, over 9,000 were for drugs.  Several of them were for “wildlife” violations, what is that?  Fishing without a license? In over 5,000 of these Delayed-Notice searches, the notice to the suspect was delayed over 90 days.  It is difficult to say exactly how many search warrants are issued per year, even if 11,000 Delayed-Notice searches is a small percentage of the overall searches, it is still a huge number considering the consequences to the citizen suspect.

This section of the Patriot Act will mostly likely survive any constitutional challenge because for decades prior to the Patriot Act the courts have upheld Delayed-Notice searches on the grounds that giving notice may cause the suspect to destroy evidence.  In numerous decisions, the courts have recognized that the government needs time to gather evidence while the suspect is unaware he is being investigated.

On several occasions the government has hidden the fact that they did a Delayed-Notice search by destroying the suspect’s property and making the search look like a burglary.  The government has also seized drugs from the citizen suspect’s property during a Delayed-Notice search making it look like a rival drug gang had stolen the drugs.  Is cases where the government disguises a Delayed-Notice search as a burglary, the citizen suspect has taken action against a person he suspected of committing the burglary, putting himself and the community at great risk.  It is clear that Delayed-Notice searches that are designed by the government to look like burglaries causes great risk to the suspect and the public at large because they may cause the suspect to retaliate against innocent parties.  Next time you are burglarized, just realize it may not be a criminal wearing a striped shirt and a mask, it may be the boys in blue who visited while you were away.

Each year with thousands of U.S. citizens being subjected to invasive searches of their homes, property, papers, and computers without their knowledge: don’t think your privacy is safe just because the Government is not knocking on your door.  I’m still going to watch the cop shows where they serve the warrant on the door-step, but realize that often it’s just TV fiction.

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