Letter to House and Senate Conferees re: Anti-Terrorism Legislation

October 19, 2001

The Honorable Patrick Leahy
433 Senate Russell Building
Washington, DC 20510

The Honorable Orin Hatch
104 Senate Hart Building
Washington, DC 20510

The Honorable James Sensenbrenner
2332 Rayburn House Office Building
Washington, DC 20515

The Honorable John Conyers
2426 Rayburn House Office Building
Washington, DC 20515

Re: Sneak and Peek Search Warrants on Anti-Terrorism Legislation

Dear Members of Congress:

The House and Senate anti-terrorism bills (H.R. 2975 and S. 1510) contain a “delayed notice” provision, section 213, that would greatly expand the government’s authority to conduct covert searches. This means that law enforcement agencies can enter a person’s home or office, search through the person’s possessions, in some cases seize physical objects or electronic information, without the person knowing that law enforcement agents were there. This is a significant change from the way searches have been conducted historically and will diminish privacy protections guaranteed by the Fourth Amendment. We believe this to be an unwise change. We are especially concerned that this very significant change in the conduct of searches governed by the Fourth Amendment is being considered in the context of emergency legislation to respond to the terrorist attack, without either the House or Senate holding hearings to thoroughly consider the ramifications of this change. Furthermore, this provision is not limited to crimes of terrorism, but would apply in all federal criminal cases. Lastly, unlike other provisions of H.R. 2975 that expand the government’s power to search, this provision does not sunset in a few years.

As a general rule, covert searches for physical evidence are illegal. Rule 41(d) of the Federal Rules of Criminal Procedure specifically requires that the officer conducting the search “shall leave a copy and receipt at the place from which the property was taken.” Title 18 of the United States Code only authorizes delayed notice for searches of oral and wire communications (see 18 U.S.C. 2510 et seq.). Nothing in the criminal code permits 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, absent exigent circumstances. See Richardson v. Wisconsin, 520 U.S. 385 (1997).

The Department of Justice claims that the provision in the anti-terrorism legislation will codify the already existing practice of conducting covert searches. It is true that the FBI sometimes conducts covert searches, but that fact is disturbing given its lack of legal authority to do so. The Department of Justice seeks this provision precisely because FBI agents do not have the authority to do what they are doing.

The Department of Justice is correct in stating that the Second Circuit has upheld the constitutionality of this practice, provided that agents did not seize any items. See U.S. v. Villegas, 899 F2d 1324 (2nd Cir. 1990). The Ninth Circuit has also permitted the use of evidence obtained through covert searches; however, the case law is much more convoluted. The first case it considered was United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986). In that case, the district court found that covert search warrants were invalid under Rule 41 and unconstitutional. However, on appeal, the Ninth Circuit held that evidence seized pursuant to the warrant could be used under the “good faith exception” in United States v. Leon, 468 U.S. 897 (1984). Subsequent cases seem to have upheld the concept of covert searches, but have usually found that the criteria necessary to support the search were not met. See United States v. Johns, 851 F.2d 1131 (9th Cir. 1988). Other circuits have not ruled on the constitutionality of covert searches, nor has the Supreme Court. The most that can be said conclusively about the case law on secret searches is that it is limited and confused.

The essence of the Fourth Amendment is that searches be “reasonable” and “specific.” See Berger v. New York, 388 U.S. 41 (1967). Even if a secret search warrant complies with the constitution by specifying a particular place or items to be searched, authorizing law enforcement to conduct covert searches increases the likelihood that the terms of the warrant will be violated.

Failure to notify a person that their home is being searched forecloses any opportunity to assert one’s Fourth Amendment rights. For example, without notice, a person could not point out deficiencies in the warrant, such as that law enforcement officials are searching the wrong home or are searching outside the scope of the warrant. Nor can a person challenge the warrant in court. Although difficult to do, a person can challenge a search warrant by appearing before the court that issued it and asking for the warrant to be suppressed. It is impossible for a person to assert his or her Fourth Amendment rights if the person does not realize they are being violated.

We urge the conferees to omit this provision from the anti-terrorism bills (section 213). If the government insists that it needs this authority, it should urge Congress to hold hearings and carefully consider this provision. Sneaking the provision on to a bill that the Administration knows will pass is playing fast and loose with our Constitution. We hope that you will protect it.

Sincerely,

Laura Murphy, Director
Washington National Office
American Civil Liberties Union

Jim Babke, President
American Liberty Foundation

Rob Carlson
Americans for the Preservation Of Information Security

Tom Deweese, President
American Policy Center

Grover Norquist, President
Americans for Tax Reform

Jerry Berman, Executive Director
Center for Democracy And Technology

Ken McEldowney, Executive Director
Consumer Action

Richard Rahn
Senior Fellow
Discrimination Institute

David Sobel, General Counsel
Electronic Privacy

Bert Ely
Ely and Company

Paul Weyrich, President
Free Congress Foundation

Adrian Day, Editor
Global Analyst

Larry Pratt, Executive Director
Gun Owners of America

Steve Dabach, National Director
Libertarian Party

James Landrith Jr.
Editor and Publisher
The Multiracial Activist and Abolitionist Examiner

Irwin Schwartz, President
National Association of Criminal Defense Lawyers

David Burton
Senior Fellow
Prosperity Institute

Kathryn Serkes, President
Square One Media Network

Sonia Arrison, Director
Center for Technology Studies
Pacific Research Center

Cc:
Senator Ted Kenney
Senator Russ Feingold
Representative Dennis Hastert
Representative Richard Gephardt
Representative Henry Hyde
Representative Dick Armey
Representative Bobby Scott
Representative Barney Frank