Patriot Act "Secret Search" Used in Domestic Drug Case

[BJMoose]

There’s an interesting case working its way through the federal court at Wichita, Kans. Story from The Wichita Eagle .

Basically, ATF used the Patriot Act to obtain a “secret search warrant” to toss the crib of a guy they thought was supplying cocaine to the local chapter of the Crips. Counsel for the defense (Charlie O’Hara seems to be Wichita’s token civil liberties lawyer) is arguing that evidence from the search should be tossed because secret search warrants obtainable under the Patriot Act should be used only for national security matters.
Okay. Ignoring for the nonce the question of whether the Patriot Act sucks eggs, should these “secret search warrants” be issued for anything not involving national security, or is this just another case of someone being given an inch and then grabbing the whole damned yardstick?

[bannerrefugee]

This is a rather unsurprising development. Unfortunately I would be surprised if this has not already happened but not been publicized.

[Two_and_a_Half_Inches_of_Fun]

@BJMoose

Okay. Ignoring for the nonce the question of whether the Patriot Act sucks eggs, should these “secret search warrants” be issued for anything not involving national security, or is this just another case of someone being given an inch and then grabbing the whole damned yardstick?

Is this covered in the text of the Patriot Act?

[E-Sabbath]

Sadly, it is probably technically legal, eg, allowed by the wording of the Patriot Act.

However, it may be unconstitutional. This thing has legs, we may get another Miranda. Remember, Miranda was scum.

[BJMoose]

@Two and a Half Inches of Fun

Is this covered in the text of the Patriot Act?

I can’t say. Ya gotta figure O’Hara wouldn’t be arguing that the search was illegal if the law specifically said it could be used in drug enforcement cases. But this wouldn’t be the first time some legistature wrote a law that was vague.

[Bricker]

The deal is this: they obtained a warrant and permission not to notify the target of their search for up to ninety days after exercising the warrant.

It’s up to the courts to decide, but I don’t see anything blatantly unconstitutional about delaying the notification of the target of a search warrant for ninety days. It’s going to turn on what the courts consider “reasonable,” and it doesn’t seem unreasonable to me.

NEVER revealing the search would strike me as unreasonable. Ninety days? no.

[spazattak]

@Bricker

The deal is this: they obtained a warrant and permission not to notify the target of their search for up to ninety days after exercising the warrant.

It’s up to the courts to decide, but I don’t see anything blatantly unconstitutional about delaying the notification of the target of a search warrant for ninety days. It’s going to turn on what the courts consider “reasonable,” and it doesn’t seem unreasonable to me.

NEVER revealing the search would strike me as unreasonable. Ninety days? no.

What kind of time lines would someone who wanted to defend against a case be looking at if they weren’t notified of any investigation till they were arrested and immediately charged? Isn’t that basically giving the prosecution a 3 month advantage? Would the defense have time to go through everything prior to trial?

[BJMoose]

Well, Two and a Half Inches of Fun’s question inspired me to do a little searching. Some relevant law (as usual for me, cutting and pasting web text sometimes iradicates the original formatting; sorry; I cleaned the USC citations up a bit):
from USA PATRIOT ACT:

SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.
Section 3103a of title 18, United States Code, is amended–
(1) by inserting (a) IN GENERAL- ' before In addition’; and
(2) by adding at the end the following:
(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if-- (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);
(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 of its execution, which period may thereafter be extended by the court for good cause shown.'.

18USC3101:

From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 3, 2005]
[Document not affected by Public Laws enacted between
January 3, 2005 and July 7, 2006]
[CITE: 18USC3103]

             TITLE 18--CRIMES AND CRIMINAL PROCEDURE

                   PART II--CRIMINAL PROCEDURE

               CHAPTER 205--SEARCHES AND SEIZURES

Sec. 3103. Grounds for issuing search warrant–(Rule)

         See Federal Rules of Criminal Procedure

Grounds prescribed for issuance of search warrant, Rule 41(b).

(June 25, 1948, ch. 645, 62 Stat. 819.)

18USC2705:

From the U.S. Code Online via GPO Access [wais.access.gpo.gov] [Laws in effect as of January 3, 2005]
[Document not affected by Public Laws enacted between January 3, 2005 and July 7, 2006]
[CITE: 18USC2705]
TITLE 18–CRIMES AND CRIMINAL PROCEDURE
PART I–CRIMES
CHAPTER 121–STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS
Sec. 2705. Delayed notice
(a) Delay of Notification.–(1) A governmental entity acting under section 2703(b) of this title may-- (A) where a court order is sought, include in the application a request, which the court shall grant, for an order delaying the notification required under section 2703(b) of this title for a period not to exceed ninety days, if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or (B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, delay the notification required under section 2703(b) of this title for a period not to exceed ninety days upon the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result described in paragraph (2) of this subsection. (2) An adverse result for the purposes of paragraph (1) of this subsection is-- (A) endangering the life or physical safety of an individual; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or (E) otherwise seriously jeopardizing an investigation or unduly delaying a trial. (3) The governmental entity shall maintain a true copy of certification under paragraph (1)(B). (4) Extensions of the delay of notification provided in section 2703 of up to ninety days each may be granted by the court upon application, or by certification by a governmental entity, but only in accordance with subsection (b) of this section. (5) Upon expiration of the period of delay of notification under paragraph (1) or (4) of this subsection, the governmental entity shall serve upon, or deliver by registered or first-class mail to, the customer or subscriber a copy of the process or request together with notice that-- (A) states with reasonable specificity the nature of the law enforcement inquiry; and (B) informs such customer or subscriber-- (i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place; (ii) that notification of such customer or subscriber was delayed; (iii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and (iv) which provision of this chapter allowed such delay. (6) As used in this subsection, the term ``supervisory official’’ means the investigative agent in charge or assistant investigative agent in charge or an equivalent of an investigating agency’s headquarters or regional office, or the chief prosecuting attorney or the first assistant prosecuting attorney or an equivalent of a prosecuting attorney’s headquarters or regional office.
(b) Preclusion of Notice to Subject of Governmental Access.–A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in-- (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of potential witnesses; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. (Added Pub. L. 99-508, title II, Sec. 201[(a)], Oct. 21, 1986, 100 Stat. 1864.)

excerpt from 18USC2703:

From the U.S. Code Online via GPO Access [wais.access.gpo.gov]
[Laws in effect as of January 3, 2005]
[Document not affected by Public Laws enacted between January 3, 2005 and July 7, 2006]
[CITE: 18USC2703]
TITLE 18–CRIMES AND CRIMINAL PROCEDURE
PART I–CRIMES
CHAPTER 121–STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS
Sec. 2703. Required disclosure of customer communications or records

---

(b) Contents of Wire or Electronic Communications in a Remote Computing Service.–(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection-- (A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; or (B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity-- (i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or (ii) obtains a court order for such disclosure under subsection (d) of this section; except that delayed notice may be given pursuant to section 2705 of this title. (2) Paragraph (1) is applicable with respect to any wire or electronic communication that is held or maintained on that service-- (A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such remote computing service; and (B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

---

Offhand it appears this provision is not limited to national security cases, but it’d take an extended romp through the United States Code to settle that question for certain. (This is how lawyers earn their keep. )

[BrainGlutton]

@Bricker

The deal is this: they obtained a warrant and permission not to notify the target of their search for up to ninety days after exercising the warrant.

It’s up to the courts to decide, but I don’t see anything blatantly unconstitutional about delaying the notification of the target of a search warrant for ninety days. It’s going to turn on what the courts consider “reasonable,” and it doesn’t seem unreasonable to me.

NEVER revealing the search would strike me as unreasonable. Ninety days? no.

Before the PATRIOT Act, how often were warranted searches carried out in secret, and kept a secret, even briefly, from the suspect or the owner of the premises?

Serious question, I’ve never worked for a district attorney’s office. I suppose it could be commonplace. But it’s something I never even heard of before 2001.

[mlees]

@BrainGlutton

Before the PATRIOT Act, how often were warranted searches carried out in secret, and kept a secret, even briefly, from the suspect or the owner of the premises?

Serious question, I’ve never worked for a district attorney’s office. I suppose it could be commonplace. But it’s something I never even heard of before 2001.

A wiretap (with permission via warrant) is kept secret from the suspect under surveilance. Isn’t a “wiretap” a search for evidence?

[BrainGlutton]

@mlees

A wiretap (with permission via warrant) is kept secret from the suspect under surveilance. Isn’t a “wiretap” a search for evidence?

Indeed. But I was thinking of a physical search. One where the cops discreetly break into your house while you’re gone and carefully put everything back in order before they leave.

[Bricker]

@spazattak

What kind of time lines would someone who wanted to defend against a case be looking at if they weren’t notified of any investigation till they were arrested and immediately charged? Isn’t that basically giving the prosecution a 3 month advantage? Would the defense have time to go through everything prior to trial?

I cannot imagine a situation in which the defense would not be given all the time it needed to prepare – that is,if the defense said, “We lost three months of prep time because of this warrant dealie,” and the court failed to give them those three months, they’d surely have a successful appeal.

[Bricker]

@BrainGlutton

Before the PATRIOT Act, how often were warranted searches carried out in secret, and kept a secret, even briefly, from the suspect or the owner of the premises?

Serious question, I’ve never worked for a district attorney’s office. I suppose it could be commonplace. But it’s something I never even heard of before 2001.

I never encountered it professionally – of course, as a public defender, I wasn’t handling the kinds of cases that would warrant that sort of attention.

But I certainly heard of it, most often in RICO cases against mafia figures.

[mlees]

From here: http://blogs.abcnews.com/theblotter/2007/06/as_part_of_its_.html

In 1995, most of the FBI’s secret search operations were related to criminal investigations, according to the document. Last year, close to 90 percent of such operations were for national security matters, it asserts.

So, pre-9/11, the FBI did do some secret searches.

[Two_and_a_Half_Inches_of_Fun]

@Bricker

The deal is this: they obtained a warrant and permission not to notify the target of their search for up to ninety days after exercising the warrant.

It’s up to the courts to decide, but I don’t see anything blatantly unconstitutional about delaying the notification of the target of a search warrant for ninety days. It’s going to turn on what the courts consider “reasonable,” and it doesn’t seem unreasonable to me.

NEVER revealing the search would strike me as unreasonable. Ninety days? no.

Why is there a constitutional issue in regard to revealing that a search has been conducted? The text of the 4th Amendment deals with protecting against unreasonable searches being conducted, not with whether a search has to be revealed.

Is there case law on this point?

[E-Sabbath]

Well, I was thinking it might touch on the Reasonable Expectation of Privacy as noted in Katz, insofar as one’s home is considered a private area, not to be bugged by police at their whim. (See: the case with the infrared searching of people’s houses)
The court has ruled that there is no expectation of privacy (and thus, no search) when police in a helicopter hovering 400 feet above a person’s home perform surveilance. The inverse of this, that there is a expectation of privacy, when the police are not noted, is a potential argument.

Privacy is a bit of a unstated right: one not given to the Feds, but retained by the people and the states. What gives them the right to look at my things while I am not aware of it? The potential certainly would create a chilling effect on free speech, just to start with. And assembly, of course. And it creates a greater risk of self incrimination. It underlies many of the stated rights but…

Well, as I said, a good lawyer could possibly push this all the way to a Miranda level.

[Two_and_a_Half_Inches_of_Fun]

@E-Sabbath

Well, I was thinking it might touch on the Reasonable Expectation of Privacy as noted in Katz, insofar as one’s home is considered a private area, not to be bugged by police at their whim. (See: the case with the infrared searching of people’s houses)

Did that case involve a validly issued warrant?