Witmer-Rich Writes in Pepperdine Law Reivew on “Sneak and Peak” Searches

 

Professor Jonathan Witmer-Rich

Professor Jonathan Witmer-Rich

The Pepperdine Law Review has accepted C|M|LAW Professor Jonathan Witmer-Rich’s article, The Rapid Rise of “Sneak and Peek” Searches, and the Fourth Amendment “Rule Requiring Notice.”  The article examines delayed notice search warrants, authorized in the USA Patriot Act, permitting police to conduct covert searches of homes and businesses, only notifying the resident of the search weeks or months later.  The article presents the first empirical account of the rapid rise in covert searching:  from around 25 delayed notice search warrants nationwide in 2002, to over 3,700 in 2011, representing approximately ten percent of all federal search warrants.  Most courts to date have held that covert searching raises no Fourth Amendment concerns.  Witmer-Rich argues to the contrary, based on Fourth Amendment first principles, an historical analysis of search and seizure at the time of the founding, and a re-examination of the Supreme Court’s so-called “knock and announce” rule.  In a separate article, still in progress, Witmer-Rich explains why the current statutory regime governing delayed notice search warrants has facilitated the dramatic increase in the practice of covert searching, and proposes legal reforms that would substantially limit the number of delayed notice warrants, while still preserving the technique for cases involving sufficiently compelling law enforcement interests.

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