In times of crisis, the Constitution of the United States comes under scrutiny, particularly the Amendments.  Whether it’s gun rights (2nd Amendment), free speech (1st Amendment), or national security (4th Amendment).  In some cases, the crisis provokes a real Constitutional crisis eg. US citizens of Japanese origin detained during WWII or Nixon’s Saturday Night Massacre.

In a constitutional republic such as the United States of America, there is a fine line between the Constitution and the exigent circumstances of the present moment.  Take for example, 9/11 which led to a dramatic increase in so-called sneak and peek warrants.  A sneak and peek search warrant (officially called a Delayed Notice Warrant and 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.

The Fourth Amendment protection against unreasonable searches and seizures requires the government to both obtain a warrant and to give notice to the person whose property will be searched before conducting the search. The notice requirement enables the person whose property is to be searched to assert her Fourth Amendment rights. For example, a person with notice might be able to point out irregularities in the warrant, such as the fact that the police are at the wrong address, or that because the warrant is limited to a search for a stolen car, the police have no authority to be looking in dresser drawers. The Supreme Court recently affirmed that notice is a key Fourth Amendment protection. However, it has not ruled on the constitutionality of sneak and peek searches.

The major rationale for requiring a warrant before conducting a search is to ensure that a neutral and detached third person – usually a magistrate – will review a warrant prior to issuance. The invasion of privacy must be held to a minimum. In a covert search warrant, there are often no limitations on what can or will be searched. Any protections afforded by a warrant are meaningless when the searching officer has complete and unsupervised discretion as to what, when and where to search and the individual owner is not provided notice so cannot assert and protect her rights.

The government already has the authority, in limited situations, to delay notification, for searches of some forms of electronic communications that are in the custody of a third party. It must show the judge that if the person to be searched is given notice, one of the five things will happen – (1) an individual’s physical safety will be endangered, (2) someone will flee prosecution, (3) evidence will be tampered with, (4) potential witnesses will be intimidated or, (5) an investigation would be jeopardized or a trial unduly delayed.

I guess it depends upon which side of the fence you find yourself when it comes to the sneak and peek warrant.  If you’re law enforcement, you will most likely view it as an invaluable tool.  If you’re an ordinary citizen whose privacy has just been violated, you will see it otherwise.