Law Enforcement Tactic Originally Authorized for Anti-Terror Operations Reportedly Being Used in Drug Enforcement Instead

The Fourth Amendment prohibits police from searching a person or their premises, or from seizing their property, without a warrant issued by a court upon a showing of probable cause. The War on Drugs, which began in the 1970s, considerably expanded law enforcement’s powers, and laws passed in the last 15 years as part of the “War on Terror” expanded them even further. Now, tactics that were originally authorized for counter-terrorist activities are primarily used in drug enforcement operations. A bill passed by Congress in 2001 authorized Delayed Notification Search Warrants (DNSWs), also known as “sneak and peek” warrants. Civil rights advocates charge that DNSWs allow law enforcement to engage in what are essentially legalized burglaries of private residences, raising serious Fourth Amendment concerns.

When executing a search warrant, officers must normally follow the “knock-and-announce” rule, meaning they must identify themselves as police and state their purpose before forcibly entering a residence. After executing a warrant, officers must provide the owner of any seized property with a copy of the warrant and a receipt for the property. Fed. R. Crim. P. 41(f)(1)(C). A court may issue a “no-knock” warrant when officers allege exigent circumstances that risk the destruction of evidence. This type of warrant sometimes results in a show of overwhelming force by police, but some courts have begun to restrict this practice on constitutional grounds.

In October 2001, Congress passed the USA PATRIOT Act. The law’s stated purpose was to “provid[e] appropriate tools required to intercept and obstruct terrorism”—giving it the title “PATRIOT” as an acronym. It established procedures for the issuance of DNSWs, which allow the delay of any required notice to the owner of the premises to be searched for “a reasonable period” after the execution of the warrant. Pub. L. 107-56 § 213 (Oct. 26, 2001), 115 Stat. 286; 18 U.S.C. § 3103a(b). A DSNW should “prohibit[] the seizure of any tangible property…except where the court finds reasonable necessity for the seizure.” Id.

This type of warrant could prove useful in time-sensitive terrorism investigations, in which lives might be imminently at stake. The bill did not include any language limiting the use of DNSWs to terrorism cases, though. Soon after the bill took effect, drugs became the primary reason for the issuance of new DNSWs. In multiple cases, officers have reportedly entered residences without notice, seized property, and made it look like a burglary. Homeowners often did not know what really happened until they received notice of indictments on drug charges.

The PATRIOT Act requires the Administrative Office of the U.S. Courts to file annual reports with Congress about DNSWs. Federal courts received 419 requests for new DNSWs in fiscal year 2007 and ultimately approved all of them. By fiscal year 2011, the total was 3,698 requests, with only 10 denials. Fiscal year 2015 saw 9,256 requests, only 22 of which were denied. Drug-related investigations accounted for 72 percent of the requests in 2007, with terrorism accounting for less than one percent. Those percentages were about the same in 2011, and the percentage of requests that were for drug cases was slightly higher in 2015. It seems fair to say that the original stated purpose of DNSWs has been lost.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified criminal defense lawyer, has defended people’s rights against charges in West Texas state and federal courts for more than two decades. To schedule a confidential consultation with a skilled and experienced advocate for criminal justice, contact us today online or at (432) 687-5157.

More Blog Posts:

Sierra Blanca Border Patrol Checkpoint No Longer Has Local Sheriff’s Cooperation for Drug Busts, Texas Criminal Lawyer Blog, January 25, 2017

New Technologies Enable Mass Surveillance on a Scale that Existing Fourth Amendment Jurisprudence Can Barely Conceive, Texas Criminal Lawyer Blog, January 25, 2017

Search of Vehicle Violates Fourth Amendment When Based Solely on License Plate from State with Legal Marijuana, Texas Criminal Lawyer Blog, September 7, 2016


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