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New Search Law Likely to Provoke Fourth Amendment Challenge
Josey1
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New Search Law Likely to Provoke Fourth Amendment ChallengeBy Marcia Coyle - National Law Journal 10.30.01
CAN the POLICE break into your Lawyer's Office & Records?*"No Sunset Clause" to stop open-season, illegal searches in passed Anti-Terrorist Bill. (A Back-Door to Seize Countless Assets and Prosecute Citizens and Corporations)*Illegal Searches Allowed under passed legislation--for any type of criminal investigation--not just Terrorist.* " Legislation allows government to go in, conduct a search and then not tell anybody that they've been in one's home, office, and business records"Among the likely court fights over Congress' terrorismpackage is one over so-called sneak-and-peek warrants,according to Fourth Amendment scholars and groups across thepolitical spectrum.The anti-terrorism package enacted in the wake of the Sept.11 attacks contains a provision expanding the authority offederal law enforcement officers to conduct covert searches.Unlike other provisions broadening law enforcement power,this one does not have a "sunset" or time limit attachedthat would allow the lawmakers to revisit its necessity at alater date. And like many other provisions, thesneak-and-peek language is not restricted to terrorisminvestigations."On the face of things, the connection between thisprovision and terrorism generally is tenuous," says criminalprocedure scholar Tracey Maclin of Boston University Schoolof Law. "It's not tied to cases in which national securityor threats from foreign agents appear to be the focus ofinvestigation. It can apply to any intrusion."It allows the government to go in, conduct a search andthen not tell anybody that they've been in one's home."Like much of the anti-terrorism package, what the JusticeDepartment wants with covert searches is "partly necessary,"says Stephen Saltzburg of George Washington University LawSchool, a member of the American Bar Association's Taskforceon Terrorism and Law."I think most people would agree that in some limitedsituations, these sneak-and-peek warrants make sense," hesays. "It's the breadth that concerns people and they're notpersuaded the government can do this for any kind of awarrant."Because of that breadth, the law will be challenged underthe Fourth Amendment, predicts Timothy Lynch, director ofthe Criminal Justice Project at the libertarian CatoInstitute.Prior to the anti-terrorism package, nothing in the criminalcode authorized secret searches for physical evidence, saysRachel King, legislative counsel to the American CivilLiberties Union. In fact, Rule 41(d) of the federal Rules ofCriminal Procedure still requires officers conducting a search to "leave a copy and receipt at the place from which the property was taken."The Supreme Court in 1977 held that an officer, absent exigent circumstances, must knock and announce his presencebefore serving a search warrant.But delayed notice of searches has been authorized in twoinstances: The federal wiretap law -- Title 18 -- permitsdelayed notice for searches of oral and wire communications,as does the Foreign Intelligence Surveillance Act forintelligence gathering."In terms of regular, run-of-the mill criminal searches forphysical evidence, our position is they don't have any authority to do it," King says. "To me, it is the ultimate power grab."The terrorism law permits delayed notice of a search if acourt finds reasonable cause to believe that immediate notice of the warrant may have an adverse result on an investigation. The warrant must provide for giving notice within a "reasonable period," which could be extended by a court for good cause.The Justice Department argued that the existing law is a mixof inconsistent rules, practices and court decisions that vary from jurisdiction to jurisdiction. It said the anti-terrorism provision resolves the inconsistency by establishing a uniform, statutory standard for all cases.The department also relied on a 1990 decision by the 2nd U.S. Circuit Court of Appeals. In U.S. v. Villegas, 899 F.2d 1324, the court upheld a covert search where no physical evidence was seized in a drug investigation. But the court said that certain safeguards are required for covert searches, such as a showing of reasonable necessity for the delayed notice.The 9th Circuit, also in a drug case, earlier found a covert search unlawful under Rule 41 and under the Fourth Amendmentbecause the warrant contained no provision for notice. A delay in notice, the court said, should not extend beyond seven days except upon a strong showing of necessity. The court allowed the evidence in under the "good faith" exception to the exclusionary rule. U.S. v. Freitas, 800 F.2d 1451 (1986).Beyond a handful of court rulings, there is little authorityto support secret searches, Saltzburg says."A fair statement would be that because the Supreme Courthas a knock-and-announce rule, the court's assumption ismost searches are not going to be secret," he says. But, hesays, "I think there is a good argument to be made that itdoesn't make sense to say you can delay notice on wiretapsbut can't delay notice on any other physical search. That kind of distinction is arguably backward because tapes can go on for months and people have enormous interest in knowing about them."Some critics across the political spectrum agree with Saltzburg that the covert-search provision might have been more palatable with restrictions."It should be tied to terrorism investigations," says Phil Kent, president of the conservative Southeastern Legal Foundation. "And the extraordinary power requested should be temporary."In the end, Boston University's Maclin says, "It's all a question of how we view the Fourth Amendment. The amendment's essential purpose is to control the discretion of government officials to intrude in our lives. How many judges, particularly where criminal contraband is discovered, are going to say the government's request is unreasonable? They're not going to do it."The Supreme Court has not focused on notice under the FourthAmendment as much as it has on probable cause and reasonablesuspicion, says Fourth Amendment scholar Yale Kamisar of theUniversity of Michigan Law School. "As long as the policehave probable cause or individualized suspicion to do this,the Court could say there's no reason to tell you," he says."But I'd hope not. People ought to know what's taken fromthem so they can at least prepare a defense."The problem may be getting a challenge before the SupremeCourt, adds the Cato Institute's Lynch. "Having Congresscodify this power strengthens the department's hand when thewarrants are litigated. And if the department sees apotential legal challenge in front of them, they may offerplea bargains to eliminate the threat."That's why we find this so worrisome. It may take 10 yearsor more before this power is invalidated, " said Boston University Law Professor Tracey Maclin http://www.sierratimes.com/archive/files/oct/30/armc103001.htm
CAN the POLICE break into your Lawyer's Office & Records?*"No Sunset Clause" to stop open-season, illegal searches in passed Anti-Terrorist Bill. (A Back-Door to Seize Countless Assets and Prosecute Citizens and Corporations)*Illegal Searches Allowed under passed legislation--for any type of criminal investigation--not just Terrorist.* " Legislation allows government to go in, conduct a search and then not tell anybody that they've been in one's home, office, and business records"Among the likely court fights over Congress' terrorismpackage is one over so-called sneak-and-peek warrants,according to Fourth Amendment scholars and groups across thepolitical spectrum.The anti-terrorism package enacted in the wake of the Sept.11 attacks contains a provision expanding the authority offederal law enforcement officers to conduct covert searches.Unlike other provisions broadening law enforcement power,this one does not have a "sunset" or time limit attachedthat would allow the lawmakers to revisit its necessity at alater date. And like many other provisions, thesneak-and-peek language is not restricted to terrorisminvestigations."On the face of things, the connection between thisprovision and terrorism generally is tenuous," says criminalprocedure scholar Tracey Maclin of Boston University Schoolof Law. "It's not tied to cases in which national securityor threats from foreign agents appear to be the focus ofinvestigation. It can apply to any intrusion."It allows the government to go in, conduct a search andthen not tell anybody that they've been in one's home."Like much of the anti-terrorism package, what the JusticeDepartment wants with covert searches is "partly necessary,"says Stephen Saltzburg of George Washington University LawSchool, a member of the American Bar Association's Taskforceon Terrorism and Law."I think most people would agree that in some limitedsituations, these sneak-and-peek warrants make sense," hesays. "It's the breadth that concerns people and they're notpersuaded the government can do this for any kind of awarrant."Because of that breadth, the law will be challenged underthe Fourth Amendment, predicts Timothy Lynch, director ofthe Criminal Justice Project at the libertarian CatoInstitute.Prior to the anti-terrorism package, nothing in the criminalcode authorized secret searches for physical evidence, saysRachel King, legislative counsel to the American CivilLiberties Union. In fact, Rule 41(d) of the federal Rules ofCriminal Procedure still requires officers conducting a search to "leave a copy and receipt at the place from which the property was taken."The Supreme Court in 1977 held that an officer, absent exigent circumstances, must knock and announce his presencebefore serving a search warrant.But delayed notice of searches has been authorized in twoinstances: The federal wiretap law -- Title 18 -- permitsdelayed notice for searches of oral and wire communications,as does the Foreign Intelligence Surveillance Act forintelligence gathering."In terms of regular, run-of-the mill criminal searches forphysical evidence, our position is they don't have any authority to do it," King says. "To me, it is the ultimate power grab."The terrorism law permits delayed notice of a search if acourt finds reasonable cause to believe that immediate notice of the warrant may have an adverse result on an investigation. The warrant must provide for giving notice within a "reasonable period," which could be extended by a court for good cause.The Justice Department argued that the existing law is a mixof inconsistent rules, practices and court decisions that vary from jurisdiction to jurisdiction. It said the anti-terrorism provision resolves the inconsistency by establishing a uniform, statutory standard for all cases.The department also relied on a 1990 decision by the 2nd U.S. Circuit Court of Appeals. In U.S. v. Villegas, 899 F.2d 1324, the court upheld a covert search where no physical evidence was seized in a drug investigation. But the court said that certain safeguards are required for covert searches, such as a showing of reasonable necessity for the delayed notice.The 9th Circuit, also in a drug case, earlier found a covert search unlawful under Rule 41 and under the Fourth Amendmentbecause the warrant contained no provision for notice. A delay in notice, the court said, should not extend beyond seven days except upon a strong showing of necessity. The court allowed the evidence in under the "good faith" exception to the exclusionary rule. U.S. v. Freitas, 800 F.2d 1451 (1986).Beyond a handful of court rulings, there is little authorityto support secret searches, Saltzburg says."A fair statement would be that because the Supreme Courthas a knock-and-announce rule, the court's assumption ismost searches are not going to be secret," he says. But, hesays, "I think there is a good argument to be made that itdoesn't make sense to say you can delay notice on wiretapsbut can't delay notice on any other physical search. That kind of distinction is arguably backward because tapes can go on for months and people have enormous interest in knowing about them."Some critics across the political spectrum agree with Saltzburg that the covert-search provision might have been more palatable with restrictions."It should be tied to terrorism investigations," says Phil Kent, president of the conservative Southeastern Legal Foundation. "And the extraordinary power requested should be temporary."In the end, Boston University's Maclin says, "It's all a question of how we view the Fourth Amendment. The amendment's essential purpose is to control the discretion of government officials to intrude in our lives. How many judges, particularly where criminal contraband is discovered, are going to say the government's request is unreasonable? They're not going to do it."The Supreme Court has not focused on notice under the FourthAmendment as much as it has on probable cause and reasonablesuspicion, says Fourth Amendment scholar Yale Kamisar of theUniversity of Michigan Law School. "As long as the policehave probable cause or individualized suspicion to do this,the Court could say there's no reason to tell you," he says."But I'd hope not. People ought to know what's taken fromthem so they can at least prepare a defense."The problem may be getting a challenge before the SupremeCourt, adds the Cato Institute's Lynch. "Having Congresscodify this power strengthens the department's hand when thewarrants are litigated. And if the department sees apotential legal challenge in front of them, they may offerplea bargains to eliminate the threat."That's why we find this so worrisome. It may take 10 yearsor more before this power is invalidated, " said Boston University Law Professor Tracey Maclin http://www.sierratimes.com/archive/files/oct/30/armc103001.htm
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