The Rapid Rise of Delayed Notice Searches, and the Fourth Amendment 'Rule Requiring Notice'

Abstract

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment’s “rule requiring notice.”

Congress authorized these “sneak and peek” warrants in the USA Patriot Act, in 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5,601 in 2012, suggesting that “sneak and peek” searches are becoming alarmingly common. In fact, it is not at all clear whether true “sneak and peek” searches are on the rise. The data are confounded with other types of searches and thus are failing to capture what Congress intended. This article proposes an amendment to the reporting requirement to fix this problem and allow adequate monitoring of “sneak and peek” searches.

To date, most courts have concluded that delayed notice search warrants raise no Fourth Amendment concerns. This article argues to the contrary. As a matter of Fourth Amendment first principles, covert searches infringe on the privacy and sanctity of the home. Moreover, history shows that delayed notice warrants are a modern procedural innovation, and did not exist at common law in the years leading up to the drafting of the Fourth Amendment in 1791. Instead, covert searches presumptively violate the Fourth Amendment “rule requiring notice” — a principle deeply rooted in the history of search and seizure law, and meant to protect against many of the dangers created by covert, delayed notice searching.

Keywords: fourth amendment, history of the fourth amendment, delayed notice search warrant, notice, covert search, sneak and peek