Sneak and Peek Qarrants and the USA Patriot Act

Sneak and Peek Search Warrants Before the USA Patriot Act

A sneak and peek search warrant (also called a covert entry search warrant or a surreptitious entry search warrant) is a search warrant authorizing the law enforcement officers executing it to effect physical entry into private premises without the owner’s or the occupant’s permission or knowledge and to clandestinely search the premises; usually, such entry requires a stealthy breaking and entering.2

Although neither federal statutory law nor Rule 41 of the Federal Rules of Criminal Procedure (which governs federal search warrants) expressly authorized sneak and peek search warrants, and although the notice requirement of Rule 41 (under which officers serving a search warrant are required to deliver to the occupants, or leave on the premises, a copy of the warrant and a receipt for articles seized) seemingly prohibited sneak and peek warrants, in the 1980's “the FBI and the DEA ... embarked upon a widespread series of [court-authorized] covert entries in a variety of criminal investigations,”3 and by the end of 1984 had persuaded federal judges and federal magistrates to issue at least 35 sneak and peek warrants.4 There are five reported federal appellate decisions, three in the Ninth Circuit and two in the Second Circuit, involving the validity of searches undertaken pursuant to various sneak and peek warrants issued in the 1980's.5

The factual scenarios underlying those five appellate cases, decided between 1986 and 1993, permit us to understand the realities of search practices under sneak and peek warrants. Under those warrants the search occurred only when the occupants were absent from the premises. The entry and the search were conducted in such a way as to keep them secret. The warrants prohibited seizures of anything except intangible evidence, i.e., information concerning what had been going on, or now was located, inside the premises. No tangible evidence was seized. The searching officers usually took photographs inside the premises searched. No copy of the warrant or receipt was left on the premises. The time for giving notice of the covert entry might be postponed by the court one or more times. The same premises might be subjected to repeated covert entries under successive warrants. At the end of the criminal investigation the premises previously searched under a sneak and peek warrant were usually searched under a conventional search warrant and tangible evidence was then seized. Generally, it was not until after the police made an arrest or returned with a conventional search warrant that the existence of any covert entries was disclosed. Sometimes this was weeks or even months after the surreptitious search or searches.

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