PART D: Physical Searches

Surveillance Power: Expanding the Scope of the Government?s Surveillance Power

As mentioned in CATEGORY 1: PART A, section 218 expands the government’s FISA authority to conduct physical searches as well as other types of surveillance.   Previously, FISA required that obtaining foreign intelligence be “the purpose” of the investigation.  FISA, 50 U.S.C. ? 1804(a)(7)(B), ? 1823(a)(7)(B). With section 218, physical searches can be done when obtainment of foreign intelligence is “a significant purpose” of the investigation.

USA PATRIOT also provides expanded authority to conduct delayed-notification (“sneak and peek”) searches under traditional law enforcement rules.  Federal Rule of Criminal Procedure 41(f)(4) requires that the officer executing a search warrant “must promptly return it--together with a copy of the inventory--to the magistrate judge designated on the warrant. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.”  Historically, physical searches were also done with “sneak and peek” warrants issued by some federal courts, which allowed officers to secretly enter and search a locale without taking any tangible items and without leaving immediate notice.  With section 213 of the Act, sneak and peek warrants are now statutorily authorized.  Delay of notice is permitted “if the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result” and so long as notice is given with a reasonable period of time, “which period thereafter may be extended by the court for good cause shown”.  Even with the passage of this section, “sneak and peek” warrants are the exception rather than the rule.  In the 39-month period between the passage of the PATRIOT Act and January 1, 2005, federal courts had issued 153 sneak and peek warrants, which constituted less than 0.2 percent of all federal search warrants issued.  Department of Justice, Responses from the Department of Justice to Questions on the USA PATRIOT Act posed by Hon. Scott (July 5, 2005), available at http://judiciary.house.gov/media/pdfs/ScottDOJ2.pdf.  Eighteen of these 153 warrants related to terrorism.  Id.

PATRIOT Act Provisions

• Approves FISA applications for wiretaps or physical searches so long as the gathering of foreign intelligence information is a “significant” purpose of the application (218)
• Provides authority for delaying notice of the execution of a warrant “sneak and peak searches” with a showing that notice would create an “adverse result.” “Adverse result” is defined in 18 U.S.C. ?2705. (213)
• Other relevant provisions affecting the procedures by which authorization for surveillance is obtained, as summarized in CATEGORY 1: PART G.

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