Pubdate: Mon, 01 Aug 2005
Source: Seattle Times (WA)
Copyright: 2005 The Seattle Times Company
Contact:  http://www.seattletimes.com/
Details: http://www.mapinc.org/media/409
Author: Ari Bloomekatz, Seattle Times staff reporter

DRUG-TUNNEL BUST AIDED BY CONTROVERSIAL PROVISION OF USA PATRIOT ACT

As drug smugglers carried hundreds of pounds of marijuana through a tunnel 
from Canada to the U.S. last month, federal officials heard every word and 
watched nearly every movement with state-of-the-art surveillance.

Investigators were able to surreptitiously install video and audio bugging 
devices in the tunnel after receiving a judge's approval to search the 
passage under a controversial provision of the USA Patriot Act.

By obtaining a so-called "sneak-and-peek" warrant, law-enforcement 
officials were able to enter the tunnel, and bug it, without immediately 
telling the suspects a warrant had been issued. Regular search warrants 
require that the subject of a search be notified immediately after it has 
been conducted.

As Congress prepares to reauthorize some parts of the terrorism-fighting 
Patriot Act this summer, some legislators and civil-rights groups say that 
power is too broad and want to regulate the ways police can conduct 
searches. The Senate Judiciary Committee recently introduced a bill that 
would greatly limit how "sneak-and-peek" actions are conducted.

"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 U.S. Rep. Bob Barr, a Republican from Georgia who leads the Patriot 
Act reform organization Patriots to Restore Checks and Balances.

Sneak-and-peek "is being used in cases that have nothing whatsoever to do 
with terrorism," Barr said. When police want to search a suspect's 
property, a judge has to determine there is probable cause before issuing a 
warrant. After police search the property, they are normally required to 
leave a notice with explanations of the areas searched and items removed, 
if any.

Under a sneak-and-peek warrant, also known as a delayed-notice search 
warrant, a judge authorizes police to search a suspect's property without 
leaving any trace they were there. Whalley said investigators arrange the 
timeline of the delay with a judge and most often notify suspects within 30 
days.

Doug Whalley, an assistant U.S. 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.

But Lisa Graves, senior counsel for legislative strategy for the American 
Civil Liberties Union, said that under these warrants, police routinely 
don't tell suspects they have searched their homes until months later. 
Graves also said the new Patriot Act provisions have been an attempt to 
give law enforcement a blanket ability to conduct secret searches without 
being held accountable.

"The Justice Department decided to create a statutory right across the 
board," Graves said, "to try and create a national right of law enforcement 
to create secret searches of businesses and homes, secret seizures of 
evidence."

"Federal prosecutors don't eagerly use these methods of surveillance," 
countered Whalley. "The process is very labor intensive. If you watch TV, 
they get a search warrant within 10 minutes. Something like this, where you 
want to go in and not announce your presence -- if we're lucky, the 
turnaround is two days, and that's fast."

When authorities announced the discovery of the tunnel in mid-July, federal 
officials said their concern was not only drug smuggling but the 
possibility it could be used to transport terrorists or smuggle weapons.

But civil-rights advocates say law-enforcement agencies are abusing their 
power.

"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," said Bob Mahler, a Seattle criminal-defense 
attorney. "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."

The section of the act containing the sneak-and-peek provisions is not up 
for congressional reauthorization this year, but advocates still want it 
amended during this series of revisions.

U.S. Sen. Patrick Leahy, D-Vt., ranking member of the Senate Judiciary 
Committee, announced last month that the committee unanimously approved a 
bill to reform parts of the Patriot Act, including more regulation of 
police searches and sneak and peek.

Under the bill, the government would have to notify the target of a 
sneak-and-peek warrant within seven days of a search. Week-by-week 
extensions could be requested, bringing additional judicial oversight.

Sen. Maria Cantwell, D-Wash., co-sponsored a similar but further-reaching 
bill, the Security and Freedom Ensured, or SAFE, Act.

If passed, it would require added judicial oversight, much like Leahy's 
bill, and also would limit the grounds for delayed-notice search warrants. 
They would be allowed in cases when authorities feared there could be 
destruction of evidence, risk of injury, intimidation of witnesses or that 
suspects would flee, among other circumstances.
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