Sneak and Peak Warrants: Legal Issues regarding Surreptitious Searches
Crawford, Kimberly A., The FBI Law Enforcement Bulletin
Searches and seizures conducted pursuant to validly authorized and executed search warrants are very common law enforcement practices. The canons regulating such searches and seizures at the federal level are found in the Fourth Amendment to the U.S. Constitution(1) and Rule 41 of the Federal Rules of Criminal Procedure.(2)
The Fourth Amendment provides the general requirements that all searches and seizures be reasonable and that all warrants be based on sworn probable cause, particularly describing the place to be searched and the items to be seized. Rule 41 imposes more specific regulations regarding the authorization and execution of search warrants, such as authority to issue, authority to serve, time restraints, and notice requirements.
The prescriptions contained in the Fourth Amendment and Rule 41 are well-established and routinely followed by law enforcement officers. There are occasions, however, when a legitimate law enforcement activity does not fit squarely within the realm of a traditional search, and the government's ability to comply with conventional constitutional and statutory warrant requirements is questionable. Specifically, the use of "sneak and peek" warrants by law enforcement officers has raised questions regarding compliance with the Fourth Amendment prohibition against unreasonable searches and the Rule 41 notice requirement.
This article examines the emergence of the sneak and peek warrant as a viable law enforcement technique and reviews cases that have addressed the legal issues involved in the execution of such warrants. Additionally, it offers suggestions for meeting the demands of the Fourth Amendment and Rule 41 when employing a sneak and peek warrant.
A Viable Law Enforcement Technique
Sneak and peek warrants allow law enforcement officers to lawfully make surreptitious entries into areas where a reasonable expectation of privacy exists, search for items of evidence or contraband, and leave without making any seizures or giving concurrent notice of the search. The technique is particularly useful in controlled substance manufacturing cases.(3)
When conducting an investigation into the illegal manufacturing of controlled substances, law enforcement officers may want to enter premises to confirm the presence of precursor chemicals or to assess the stability of a clandestine lab without divulging the investigation or jeopardizing the potential for further investigation. Under such circumstances, employing a traditional search warrant, which requires notice at the time of execution, would be self-defeating. A sneak and peek warrant, however, would satisfy the legitimate law enforcement purpose by allowing the search to occur without concurrent notice.
The Notice Requirement
Because nothing is disturbed or physically seized(4) during the execution of a sneak and peek warrant, surreptitious searches are arguably less intrusive than the traditional search pursuant to a warrant. However, the covert nature of sneak and peek searches has made reviewing courts wary(5) and caused them to impose strict delayed-notice requirements.
The first reported case involving the review of a sneak and peek warrant was United States v. Freitas.(6) In Freitas, DEA agents obtained eight warrants to search numerous sites used in a large-scale methamphetamine operation. Before those warrants were executed, agents applied for and obtained a sneak and peek warrant for one of those locations to "determine the status of the suspected clandestine methamphetamine laboratory."(7)
When issuing the sneak and peek warrant, the magistrate used a traditional warrant form but crossed out the portions requiring a particular description of the items to be seized and an inventory. The sneak and peek warrant contained no notice requirement.
After executing the sneak and peek warrant, agents used information obtained during the surreptitious search to obtain extensions that would allow them to briefly delay the execution of the remaining eight warrants. …