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Covert Entry Search Warrants (podcast transcript)

Solari: Hi. This is Jenna Solari from the FLETC Legal Division. I’m here today with Mr. Keith Hodges, also from the Legal Division to talk to you about some more legal tools for your investigative tool box. Mr. Hodges, let’s talk about covert entry search warrants as provided in the USA Patriot Act. Now I’m pretty sure I’ve also heard these referred to as sneak and peek warrants. Can you start us off with a little background about these?

Hodges: Sure. The USA Patriot Act amended or added a lot of provisions to the US Code. One of the amended provisions was 18 US Code §3103a concerning procedural requirements when executing search warrants. Now you remember from your training that after you execute a search warrant we have to leave a return. The amendment permits officers, with a magistrate’s approval, to delay providing a return on the results of a search. Covert entry warrants have been around for a long time and the value of the Patriot Act is that it now provides specific statutory authority to use them.

Solari: Well I think you’ve already given me a little bit of a preview, but how specifically does a covert entry search warrant differ from a regular search warrant?

Hodges: That’s a killer question. Covert entry warrants are exactly the same as a regular warrant, except that with a covert entry warrant, the officers request, and the magistrate can authorize, a delay in providing a return to the subject of the search and that return as we’ve already said, advises the subject of the search that a search was conducted and if evidence is taken from the search, what evidence was taken. Now, the officers still have to convince a magistrate there’s probable cause to search and they must still execute and serve a return. But the main difference of a covert entry warrant and a traditional search warrant is that there’s a delay in providing a return to the target of the search.

Solari: Well it seems like that the provision then would be primarily useful in an investigation where the officers don’t want to tip off the subject of the search.

Hodges: Jenna, that’s exactly its value. If officers immediately execute a return, the subject will know he is the target of an investigation. And when that happens, the defendant will have a chance to destroy evidence that was not discovered, and he may tip off his criminal partners, flee the jurisdiction, threaten witnesses or otherwise possibly jeopardize the investigation.

Solari: Well that makes sense then. Now why the nickname, why have some commentators called covert entry warrants sneak and peeks?

Hodges: I’ll tell you it’s not necessarily an inaccurate description. A covert entry warrant comes in two types. In the first type, agents can enter the target’s home, look around, take pictures, go through files, hop on the computer to look at emails or data, and make copies of what’s seen. The scope of their looking around will be based on the facts in the affidavit and what the magistrate approves. In this type of covert entry warrant, the agents are not authorized to seize anything. So, a sneak and peek is not a bad way to characterize this type of covert entry warrant. In the other types of covert entry warrants, the officers are specifically allowed to seize evidence that’s listed in the warrant.

Solari: Well now how would the officers know which type of warrant they have? In other words, how do they know whether they can seize evidence?

Hodges: Well it depends on whether the officers asked the magistrate to seize evidence, and the justification provided to the magistrate that requested the cover entry warrant. Now a magistrate can authorize a delay in return notification if reasonable cause is shown that providing immediate notification of the search will have an adverse result. If that’s all that’s shown, in other words, all the officers have is reasonable cause; the officers can only get a sneak and peek. They can’t seize evidence. If however it’s shown that there’s a reasonable necessity for a seizure of evidence, then the magistrate can authorize not only the entry and a delay in the return, but also the seizure of evidence.

Solari: Alright, well let’s back up one second. You just said that if the agents can show a potential adverse result from notification then they can get a sneak and peek warrant. Now what is an adverse result, and could you give me some examples?

Hodges: Sure. That term is defined in 18 US Code §2705. An adverse result means that if the officers provide an immediate return after execution of the warrant that immediate return might endanger someone’s life or physical safety, or it might cause flight from prosecution by the bad guys notifying their confederates, it may result in the tampering or destruction of evidence, or result in the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation or unduly delay a trial. This provision that provides us the authority to delay giving notification is a really valuable tool and if you think you’re going to go in and you need to execute a search warrant especially, a sneak and peek just to look around, and don’t want to tip off the confederates this is the tool to use.

Solari: This sounds like a great tool. Now how long the return could be delayed?

Hodges: Well for as long as the judge decides, and the statute also allows for extensions. It all depends on what facts are provided to the magistrate and what the magistrate decides to do.

Solari: Alright, so again just sort of grounded in reasonableness I guess. Now because this provision is in the USA Patriot Act, there’s gotta be a catch, so is it fair to say that this search warrant, this sneak and peek, has to somehow be connected to a terrorism investigation?

Hodges: Well as you well know, many Patriot Act provisions are terrorism-related, but not this one. While certainly useful in terrorism investigations, covert entry warrants can be used whenever officers can articulate an adverse result and the judge approves the covert entry warrant. It doesn’t have to be a terrorism investigation.

Solari: So just to be clear then, a magistrate could under the right circumstances approve a covert entry warrant in a fraud case that has nothing to do with terrorism?

Hodges: Yes, exactly. For example, if I have a probable cause that Joe is engaged in a fraud scheme with several other persons and that evidence of that scheme is located in his house, I might request a covert entry warrant to look around to determine the scope of the fraud, who are the actual or future fraud victims, where the proceeds of the fraud are being concealed, and very importantly, who the co-conspirators are. By using the covert entry warrant, I can see the evidence without tipping off criminal associates and causing them to flee or destroy evidence.

Solari: That’s a really powerful tool. Now in some public reporting, we’ve had people argue pro and con certain provisions of the Patriot Act. I think I’ve heard these warrants actually described by some of the people on the con side as nothing more than legalized burglary. Can that fairly be said to be an accurate description of sneak and peek warrants?

Hodges: I kind of like it, but I would tend to emphasize the word “legalized,” which would further mean there is no burglary; and I have read those claims and there are three things that opponents to covert entry warrants want to ignore. First, while the statutory provision wasn’t codified until 2001, these warrants have been around and used by the courts for a long, long time. Secondly, I think the operative word in “covert search warrant” is warrant. Like any search warrant, it has to be approved by a magistrate and supported by probable cause. And as we discussed earlier, the only difference between a covert entry and garden variety search warrant is that an immediate return - that immediate notification after execution of the warrant - is not required and the notification can be delayed. And finally is that for a covert entry warrant to be useful, the search has to be conducted when no one’s at home. The fact is there’s never been a requirement that a person be at home when a search warrant is executed.

Solari: That makes sense to me. These covert entry warrants appear to be an extremely useful tool for law enforcement officers, it seems they come in especially handy at the beginning of an investigation by not jeopardizing what comes later - like you said by tipping off confederates.

Hodges: Well I agree. Now, of course, with a garden variety warrant which requires an immediate return, the investigation can be severely impaired because the suspects know that officers are investigating. Covert entry warrants prevent that from happening. In addition, in complex cases with many defendants and wholesale concealing of evidence at various locations, these warrants can be used to ensure that all the defendants are identified and all the evidence is found. And again I like to remind folks of a couple things. First, it does not have to be a terrorism-related investigation; it can be for general crimes. Secondly, there two different types of covert entry warrants; one is a straight sneak and peek when you get to go in and look around, the other type is that you are actually allowed to actual seize evidence. And lastly, it’s the magistrate judge who is going to decide whether or not you get a sneak and peek. And so if you need a sneak and peek or a covert entry warrant, we need to include that in the affidavit and specifically tell the judge that that’s what you want, how long you want a delay for, and to articulate your reasons for that.

Solari: Well thank you Mr. Hodges for outlining for us the provisions and requirements of covert entry a/k/a sneak and peek warrants. I really appreciate that. Those of you out there who want to listen to some other of our podcast can find them at our website which is located at www.fletc.gov/legal.