A Patriot Act provision sold to the American people as a crucial tool in the "war on terror" was used by federal officials to investigate a marijuana-smuggling operation using a cross-border tunnel between British Columbia and Washington state, the Seattle Times reported. Law enforcement officials obtained a "sneak and peek" warrant, which allowed them to enter and bug the tunnel without informing the suspects that a search warrant had been issued. Traditionally in American jurisprudence, search warrants require that the subject be notified immediately when a search has been conducted.
"Sneak and peek" warrants were especially contentious during debates around passage of the Patriot Act in late 2001. They allow such searches to go unannounced for months after the fact. In its Patriot Act reauthorization bill, the Senate Judiciary Committee approved language that would greatly restrict their use. The House has already passed its version of the bill without those changes; the Senate will act when it returns after the August recess.
Civil libertarians criticize "sneak and peak" warrants as a fundamental insult to traditional American values. "I think that the power that the government has under the Patriot Act... is clearly contrary to the notion underlying the Fourth Amendment," said former US Rep. Bob Barr, a Georgia Republican who was a fierce drug warrior in Congress but who has otherwise been a staunch defender of the Bill of Rights. He currently heads a Patriot Act reform organization Patriots to Restore Checks and Balances. The "sneak and peak" warrants are "being used in cases that have nothing whatsoever to do with terrorism," Barr told the Times.
Doug Whalley, an assistant US attorney in Seattle, said the Patriot Act codified already-existing law, making it difficult to challenge the use of sneak-and-peek warrants in court. Rulings before the act were made on a case-by-case basis, Whalley said, and appeals courts could have ruled the warrants were improperly issued.
"The Justice Department decided to create a statutory right across the board to try and create a national right of law enforcement to create secret searches of businesses and homes, secret seizures of evidence," said Lisa Graves, senior counsel for legislative strategy for the American Civil Liberties Union. The warrants are an attempt to give law enforcement blanket ability to conduct such searches without being held accountable, she told the Times.
In the case of the tunnel, federal officials said they were concerned not only about marijuana-smuggling but also the possibility it could be used to smuggle terrorists or weapons. But that didn't wash with Seattle defense attorney Bob Mahler. "The tunnel has nothing to do with the war on terrorism... There's absolutely no reason why the authorities couldn't have availed themselves of the normal ways possible," Mahler told the Times. "They just didn't feel the need to use the normal, constitutionally mandated processes because they had this new tool that was given to them."