Thursday, May 7, 2015

555

That is the number of requests for issuance of delayed notification (“sneak and peek”) search warrants or requests for extensions of delay in notification made in the District of Kansas in Fiscal Year 2013. So says the Director of the Administrative Office of the United States Courts. There were a total of 135 requests for sneak-and-peek warrants, and 420 requests for extension of notification. Each of the 555 requests was granted. Every single one.
Initially enacted as section 213 of the USA Patriot Act, it was intended to combat terrorism. While the use of sneak-and-peek warrants for purposes other than terrorism investigations has been well documented, see here, here, and here, the extent to which such warrants were used in the District of Kansas was not previously widely known. Recently, several Kansas newspapers recently published an Associated Press story describing Judge James’ redacted order, which we will talk about in just a minute.

The required annual report by the Director of the Administrative Office of the United States Courts does not appear to be available on the US Courts website. The Electronic Freedom Foundation has posted a copy of the report on its web site. According to the report, of the 6,480 sneak-and-peek warrants authorized in fiscal year 2013:
          80% were for drug cases
          5% were for fraud cases
          2% each were for
               sex cases
               racketeering/extortion
               immigration and
               fugitive/escapes.

The number issued for terrorism cases? 39. Yes. THIRTY NINE. That is 0.006% of sneak and peek warrants authorized in fiscal year 2013. Of the 4,649 requests for extensions for delay in notification, 91% were for drug cases. Terrorism cases? 12, or .0025%
In the interest of complete disclosure, George Washington Law School Professor Orin Kerr has argued AO report has been misinterpreted, positing:

The AO numbers are not just reporting sneak-and-peek warrants. Instead, I think the numbers are combining several different kinds of warrants, only a small number of which are sneak-and-peeks.

The statutory authority for sneak-and-peek search warrants is found at 18 U.S.C. § 3103a. Subsection 3103(b) allows a delay in notification that a warrant was executed, provided:
(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705, except if the adverse results consist only of unduly delaying a trial)  [1]  ;
(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
(3) the warrant provides for the giving of such notice within a reasonable period not to exceed 30 days after the date of its execution, or on a later date certain if the facts of the case justify a longer period of delay.
Subsection 3103a(c) authorizes an extension in the delay of notification for:

Good cause shown, subject to the condition that extensions should only be granted upon an updated showing of the need for further delay and that each additional delay should be limited to periods of 90 days or less, unless the facts of the case justify a longer period of delay.

As noted above, every single request for extension of delay in notification requested in Kansas during fiscal year 2013 was granted. However, in February, Magistrate Judge Teresa J. James fired a shot across the bow of federal prosecutors, faulting them for untimely and incomplete requests for extensions. In an unusual move, Judge James published a redacted memorandum and order two cases, 14-mj--8219 and 14-mj-8116 (PACER subscription required). In United States v. Cellular Telephone, Judge James strongly criticized the government for missing the statutory deadline to obtain authorization to extend delay of notice(in one instance, by over 4½ months), and for blaming the failures on “calendaring oversight.” Judge James’ independent research also “uncovered 18 occasions in the past two years in which the government filed delinquent requests for such extensions.”
While Judge James found the missed deadline in the cases before her resulted from a clerical error, she criticized the government’s cavalier approach to complying with the statutory requirements for delayed notices:

The numerous delinquent filings identified through very limited investigation indicate a lax attitude on the part of the government with regard to the clear statutory delayed notice requirements. The government’s record in this regard is especially troubling in that in none of the 18 identified delinquencies does the government’s motion represent that it provided the notice required under 18 U.S.C. § 2703 once its authority to delay such notice had expired. In other words, the government repeatedly has disregarded the deadlines for seeking extensions while turning a blind eye to the subject’s right to notice.
Judge James ultimately determined the government had shown excusable neglect in failing to meet its statutory deadline, and granted the out of time motions to extend delay in notice. However, she made two other notable observations. First she commented on the apparent expansion in the use of sneak-and-peek warrants beyond what Congress initially intended, and the necessity of strictly complying with statutory requirements:

Congressional testimony on the Act focused on physical searches of spaces or packages. One commentator states that there is no mention, in any of the discussion of Section 3103a, “that this general authority would also apply to search warrants that did not involve physical intrusions into homes, businesses, and packages. . . [and] [a]s recently as 2011, a congressional report characterized ‘delayed notice search warrants’ as involving covert searches of homes and businesses.” The experience in this Court is that delayed notice warrants typically do not involve searches of places, but instead are directed primarily or perhaps exclusively to cell phone information. In other words, while the law was enacted with the intention that law enforcement would use it to combat terrorism by searching places, it has quickly morphed into a tool for prosecuting drug and other crimes through surveillance. The Fourth Amendment certainly holds a place in the discussion.

The proliferation of Section 3103a warrants and extensions thereof, the lack of Fourth Amendment protection, and the types of offenses in which they are most frequently an investigatory tool all point to the increased need for vigilance on the part of the judiciary. Prosecutors frequently obtain extensions – multiple extensions – of delayed notice merely by reciting in conclusory fashion the same words, that immediate service of a notice of the execution of the warrant would “seriously jeopardize an ongoing investigation.” With such a low threshold, it is “essential that an objective mind of a neutral magistrate weigh the need to invade [a person’s] privacy in order to enforce the law,” and “it is necessary for a § 3103a warrant to strictly comply with the requirements of that section.”
          Second, Judge James ordered:
Now that the government’s awareness of these delinquencies is a matter of record and the Court has provided instruction for future filings, the Court expects the government to be more diligent and puts the government on notice that future missed deadlines in delay orders are much less likely to be viewed as excusable neglect.

Because all other filings in these two cases are sealed, it is unknown whether the government appealed Judge James’ ruling to the District Court.

Senior Judge Monti L. Belot has also previously suppressed a search conducted pursuant to a “sneak and peek” warrant. While noting it “appears that [sneak and peak warrants] are likely constitutional based on Supreme Court precedent,” Judge Belot found the warrant defective because it failed to prohibit the seizure of tangible evidence, and did not include probable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result. See United States v. Tyrone Andrews, D. Kansas case 07-10221-02, Doc. 122. (PACER subscription required).

For more information about the use of sneak-and-peek warrants see:
Sneak and Peek Search Warrants and the USA Patriot Act, The Georgia Defender, (September 2002), Donald E. Wilkes, Jr.
and
From Patriot Act Sneak and Peek to “Sneak and Steal”: Section 213 of the USA Patriot Act, 19 Regent U.L. Rev. 203, Brett A Shumate.

-- David Freund 

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