NCJ Number
165228
Journal
FBI Law Enforcement Bulletin Volume: 66 Issue: 2 Dated: (February 1997) Pages: 27-32
Date Published
1997
Length
6 pages
Annotation
This article examines the emergence of the sneak and peek warrant as a viable law enforcement technique and reviews court cases that have addressed the legal issues involved in the execution of such warrants.
Abstract
The author also offers suggestions for meeting the demands of the Fourth Amendment and Rule 41 when using a sneak and peek warrant. The first reported case that involved the reviews of a sneak and peek warrant was United States v. Freitas. In this case, DEA agents obtained eight warrants to search numerous sites used in a large-scale methamphetamine operation. Before the warrants were executed, agents applied for and obtained a sneak and peek warrant for one of those locations to "determine the status of the suspected clandestine methamphetamine laboratory." When issuing the sneak and peek warrant, the magistrate used a traditional warrant form but crossed out the portions that required a particular description of the items to be seized and an inventory. The warrant contained no notice requirement. The appellate court agreed with the district court that the agents violated the Fourth Amendment by their failure to provide notice, but the court recognized that not all surreptitious entries are unconstitutional. The court held that a sneak and peek warrant must be based on a demonstrated need for covertness and "provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry. Such time should not exceed 7 days except upon a strong showing of necessity. The need for covertness may be justified on numerous grounds. The more common justifications for delayed notice of surreptitious searches are the desire to locate unidentified co-conspirators and the flight risk of the subjects; however, probably the most compelling reason to delay notice of a search was shown in United States v. Ludwig. This case involved the need to protect the confidential source's safety until all the subjects could be located and arrested. After reviewing court cases that pertain to various reasons for extensions of the notice requirement, the article considers a remedy for violations of the notice requirement and suggestions for ensuring the admissibility of evidence. 24 notes