23 September 2004
The ACLU calls this report "one-sided propaganda:"
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=16528&c=206
Source: http://www.usdoj.gov/dag/patriotact213report.pdf
[11 pages.]
______________________________
U.S. Department or Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
SEP 22 2004
The Honorable J. Dennis Hastert
Speaker
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker:
On July 13, 2004, the Department provided you with a copy of a recent report entitled "Report From The Field: The USA PATRIOT Act at Work." We are pleased to provide you with the enclosed supplemental report, "Delayed Notice Search Warrants: A Vital and Time-Honored Tool for Fighting Crime." This report highlights the importance and successful use of delayed notice search warrants. The report also addresses unwarranted concerns that have been raised regarding the constitutionality of this law enforcement technique that has been recognized and upheld by the courts for more than three decades.
The USA PATRIOT Act has been invaluable to the Department of Justice's efforts to prevent terrorism and make America safer while at the same time preserving civil liberties. By passing the USA PATRIOT Act, Congress provided taw enforcement and intelligence authorities with important new tools needed to combat the serious terrorist threat faced by the United States. Specifically, the Act enhanced the federal government's ability to share intelligence, strengthened the criminal laws against terrorism, removed obstacles to investigating terrorists, and updated the law to reflect new technologies used by terrorists.
During the early stages of criminal investigations, including terrorism investigations, keeping the existence of an investigation confidential can be critical to its success. To keep from tipping off suspects, in appropriate circumstances the government can petition a court to approve a delayed-notice search warrant, and thus avoid tipping off the suspect to the existence of a criminal or terrorist investigation. A delayed-notice warrant is exactly like an ordinary search warrant in every respect except that law enforcement agents are authorized by a judge to temporarily delay giving notice that the search has been conducted. The USA PATRIOT Act established a uniform nationwide standard for use of delayed-notice search warrants to ensure an even handed application of Constitutional safeguards to all Americans. Unfortunately. the public debate about how delayed-notice warrants work and why investigators need them has featured a great deal of misinformation.
The Honorable J. Dennis Hastert
Page Two
Along with the other materials the Department has provided to Congress, we hope this report will serve to be informative to you and your constituents about the truth regarding our efforts in the war on terror, and our ever present battle against violent crime and drugs. It is vital that Congress act on the basis of facts rather than fictions. To that end, the Department is fully committed to providing Congress with the information it needs to inform its deliberations.
The progress made by the Department to date in the war against terrorism would not have been possible without the tools and resources provided by Congress. The Department is grateful for the strong support it has received from Congress and looks forward to working closely with Congress to ensure that the key tools contained in the USA PATRIOT Act do not expire at the end of 2005.
If we can be of further assistance regarding this or any other matter, please do not hesitate to contact this office.
Sincerely,[Signed]
William E. Moschella
Assistant Attorney General
Enclosure
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Delayed-Notice Search Warrants:
A Vital and Time-Honored Tool for Fighting Crime
Introduction
During the early stages of criminal investigations, including terrorism investigations, keeping the existence of an investigation confidential can be critical to its success. Tipping off suspects to the fact that they are under investigation could cause them to flee prosecution, destroy evidence, intimidate or kill witnesses or, in terrorism cases, even accelerate a plot to carry out an attack.
One vital tool for avoiding the harms caused by premature disclosure is the delayed-notice search warrant. A delayed-notice warrant is exactly like an ordinary search warrant in every respect except that law enforcement agents are authorized by a judge to temporarily delay giving notice that the search has been conducted.
Although delayed-notice warrants are a decades-old law enforcement tool, they have received increased attention since the USA PATRIOT Act established a uniform nationwide standard for their use. Unfortunately, the public debate about how delayed-notice warrants work and why investigators need them has featured a great deal of misinformation.
This paper explains how delayed-notice warrants actually work, why they are critical to the success of criminal investigations of all kinds, and what setbacks law enforcement would suffer if this well-established and important authority were limited or eliminated. It also details the time-honored judicial doctrine authorizing delayed notice in certain circumstances, as well as the USA PATRIOT Act's role in harmonizing standards for using delayed-notice warrants. Finally, to demonstrate the importance of delayed-notice warrants in real-world law enforcement, this paper highlights some post-USA PATRIOT Act investigations in which delayed-notice warrants were vital to the investigations' success.
The Need for Delayed-Notice Search Warrants
In the vast majority of cases, law enforcement agents provide immediate notice of a search warrant's execution. However; if immediate notice were required in every case, agents would find themselves in a quandary in certain sensitive investigations: how to accommodate both the urgent need to conduct a search and the equally pressing need to keep the ongoing investigation confidential. Consider, for example, a case in which law enforcement received a tip that a large shipment of heroin was about to be distributed and obtained a warrant to seize the drugs. To preserve the investigation's confidentiality and yet prevent the drugs' distribution, investigators would prefer to make the seizure appear to be a theft by rival drug traffickers. Should investigators be forced to let the drugs hit the streets because notice of a seizure would disclose the investigation and destroy any chance of identifying the drug ring's leaders and dismantling the operation -- or to make the alternative choice to sacrifice the investigation to keep dangerous drugs out of the community? What if immediate notice would disclose the identity of a cooperating witness, putting that witness in grave danger?
This dilemma is especially acute in terrorism investigations, where the slightest indication of government interest can lead a loosely connected cell to dissolve, only to re-form at some other time and place in pursuit of some other plot. Should investigators who receive a tip of an imminent attack decline to search the suspected terrorist's residence for evidence of when and where the attack will occur because notice of the search would prevent law enforcement agents from learning the identities of the remainder of the terrorist's cell, leaving it tree to plan future attacks?
Fortunately, because delayed-notice search warrants are available in situations such as these, investigators do not have to choose between pursuing terrorists and criminals and protecting the public safety. Like any other search warrant, and as required by the Fourth Amendment, a delayed-notice search warrant is issued by a federal judge upon a showing of probable cause that the property to be searched for or seized constitutes evidence of a criminal offense. A delayed-notice warrant differs from an ordinary search warrant only in that the judge specifically authorizes the law enforcement officers executing the warrant to wait for a limited period of time before notifying the subject of the search that the warrant has been executed.
Delayed-Notice Search Warrants: A Longstanding Law Enforcement Tool
Delayed-notice search warrants are nothing new. Judges around the country have been issuing them for decades in circumstances where there are important reasons not to provide immediate notice that a search has been conducted. Such warrants have been squarely upheld by courts nationwide in a variety of contexts -- from drug trafficking investigations to child pornography cases.
Long before enactment of the USA PATRIOT Act. the Supreme Court expressly held in United States v. Dalia that covert entry pursuant to a judicial warrant does not violate the Fourth Amendment, rejecting the argument that it was unconstitutional as "frivolous."1 Since Dalia, three federal courts of appeals have considered the constitutionality of delayed-notice search warrants. and all three have upheld them.2 In 1986, in United States v. Freitas, the Ninth Circuit considered the constitutionality of a search warrant allowing surreptitious entry to ascertain the status of a methamphetamine laboratory without revealing the existence of the investigation. While the court ruled that the covert search was permissible. it further held that the warrant's failure to specify when notice must be given was impermissible. The court set as a standard that notice must be given within "a reasonable, but short, time" and ruled that that period could not exceed seven days absent "a strong showing of necessity."
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1 See Dalia v. United States, 441 U.S. 238 (1979); see also Katz v. United States, 389 U.S. 347 (1967}.2 See United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000).
Four years later, the Second Circuit reached a similar conclusion but articulated a different standard. In United States v. Villegas, the court considered the permissibility of a search warrant authorizing delayed notice of the search of a cocaine factory because the primary suspect's coconspirators had yet to be identified. The court held that delay is permissible if investigators show there is "good reason" for the delay. The Second Circuit agreed with the Ninth Circuit that the initial delay should not exceed seven days but allowed for further delays if each is justified by "a fresh showing of the need for further delay."
In 2000, in United States v. Simon, a decision that stemmed from a warrant to seize evidence of child pornography, the Fourth Circuit also ruled that delayed notification was constitutionally permissible. In that decision, though, the court ruled that a 45-day initial delay was constitutional.
In short, it was clear long before the USA PATRIOT Act that judges have the authority to authorize some delay in giving the notice of a search warrant's execution that is required by Rule 4l of the Federal Rules of Criminal Procedure -- but the law governing issuance of delayed-noticed warrants was a mix of inconsistent rules, practices and court decisions varying from jurisdiction to jurisdiction.
Section 213 of the USA PATRIOT Act
In enacting the USA PATRIOT Act, Congress recognized that delayed-notice search warrants are a vita1 aspect of the Justice Department's strategy of prevention -- detecting and incapacitating terrorists, drug dealers and other criminals before they can harm our nation. Section 213 of the Act, codified at 18 U.S.C. § 3103a. created an explicit statutory authority for investigators and prosecutors to ask a court for permission to delay temporarily notice that a warrant has been executed.
As discussed above, section 213 did not create delayed-notice search warrants, which have been issued by judges on their own authority for years. In fact, in a Texas drug-trafficking investigation, a court that had authorized a delayed-notice search warrant before enactment of the USA PATRIOT Act authorized a further delay of notification after enactment of the USA PATRIOT Act without modifying the procedure or justification for doing so.
Nor did section 213, as some critics have claimed, expand the government's ability to use delayed-notice warrants or authorize law enforcement to search private property without any notice to the owner. Rather, section 213 merely codified the authority that law enforcement had already possessed for decades and clarified the standard for its application. By doing so, the USA PATRIOT Act simply established a uniform national standard for the use of this vital crime-fighting tool.
Under section 213, delayed-notice warrants can be used only upon the issuance of an order from an Article III court, and only in extremely narrow circumstances. A court may allow law enforcement to delay notification only if the judge has reasonable cause to believe that immediate notification would result in danger to the life or physical safety of an individual, flight from prosecution, destruction of or tampering with evidence, intimidation of potential witnesses, or other serious jeopardy to an investigation or undue delay of a trial.3 As such, section 213 provides greater safeguards for American's civil liberties than did the hodgepodge of pre-USA PATRIOT Act standards for delaying notice, which did not uniformly constrain judges' discretion as to what situations justified delays.
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3 See 18 U.S.C. § 2705(a)(2).
In no case does section 213 allow law enforcement to conduct searches or seizures without giving notice that the property has been searched or seized. Rather, section 213 expressly requires notice to be given, and merely allows agents, with a judge's approval, to delay notice temporarily for a "reasonable period" of time specified in the warrant. No delay beyond this specified time is allowed without further court authorization.
Section 213 also prohibits delayed-notice seizures where searches will suffice. The provision expressly requires that any warrant issued under its authority must prohibit the seizure of any tangible property or communication unless the court finds there is "reasonable necessity" for the seizure.
Important Real World Benefits of Delayed-Notice Warrants
Delayed-notice warrants issued under section 213 over the course of the last three years have been invaluable in actual law enforcement investigations of crimes ranging from drug trafficking and money laundering to international terrorism. Although some of its uses cannot be discussed publicly because they have occurred in ongoing investigations or involve classified information, this section provides a number of examples of section 213's use that demonstrate just how vital the authority codified there is to effective law enforcement.
I. Terrorism Investigations
Delayed-notice warrants have played critical roles in a number of investigations of the activities of terrorists and their supporters in the United States.
Examples:
II. Drug Investigations
The usefulness of delayed-notice search warrants is not limited to terrorism investigations. In fact, they have been particularly useful in the investigation of drug conspiracies because drug-trafficking operations often involve tenuous connections among participants that dissolve at the slightest hint of an investigation, as well as evidence that is quickly and easily destroyed and cooperating witnesses who are placed at great risk if the existence of an investigation is disclosed.
Examples:
III. Investigations of Other Serious Crimes
Delayed-notice warrants have also played critical roles in investigations of a variety of other serious criminal activities.
Examples:
During the investigative phase of what became a major drug prosecution in Pennsylvania, investigators using a wiretap learned of a counterfeit credit card operation. At prosecutors' request, the court issued a delayed-notice search warrant for a package of counterfeit cards scheduled for delivery to the business of one of the drug suspects. This successful search enabled investigators to secure evidence of the credit card fraud and to notify banks that certain accounts had been compromised but to do so without immediately disclosing to the suspects either the existence of the wiretap or the investigation itself. Delaying notification of the warrant's execution allowed for immediate action to prevent possible imminent harm from the credit card counterfeiting scheme while maintaining the temporary confidentiality of the drug investigation, which was not yet ripe for disclosure. As a result, prosecutors were able to secure multiple convictions in both the drug prosecution and the credit card prosecution.
A delayed-notice search warrant allowed agents investigating an international money laundering operation to secure evidence of the conspiracy without jeopardizing their investigation. An extensive network of perpetrators was laundering more than $20 million per year in proceeds from a black market peso exchange operating in New York, Miami and Colombia, Israeli drug trafficking, and California-based tax evasion. Before the investigation was made public, investigators learned that the main suspect was shipping a large volume of cash from Miami to New York. The court approved a delayed-notice warrant, which allowed agents to photograph the money -- memorializing its existence for use in prosecuting the conspiracy -- without compromising the confidentiality of the ongoing investigation.
Conclusion
Both before and after the enactment of section 213 of the USA PATRIOT Act, immediate notice that a search warrant has been executed has been standard procedure. As has always been the ease, delayed-notice warrants are used infrequently and judiciously only in appropriate situations where immediate notice likely would harm individuals or compromise investigations, and even then only with a judge's express approval. As demonstrated by the examples above, however, the ability to delay notice that a search or seizure has taken place is invaluable when those rare situations arise. The investigators and prosecutors on tile front lines of fighting crime and terrorism should not be forced to choose between preventing immediate harm -- such as a terrorist attack or an influx of illegal drugs -- and completing a sensitive investigation that might shut down the entire terror cell or drug trafficking operation. Thanks to the long-standing availability of delayed-notice warrants in these circumstances, they do not have to make that choice.
[DOCID: f:publ056.107]
[[Page 271]]
UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS
REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT ACT) ACT OF
2001
[[Page 115 STAT. 272]]
Public Law 107-56
107th Congress
[Excerpt]
SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.
Section 3103a of title 18, United States Code, is amended--
[[Page 115 STAT. 286]]
(1) by inserting ``(a) In General.--'' before ``In
addition''; and
(2) by adding at the end the following:
``(b) Delay.--With respect to the issuance of any warrant or court
order under this section, or any other rule of law, to search for and
seize any property or material that constitutes evidence of a criminal
offense in violation of the laws of the United States, any notice
required, or that may be required, to be given may be delayed if--
``(1) the court finds reasonable cause to believe that
providing immediate notification of the execution of the warrant
may have an adverse result (as defined in section 2705);
``(2) the warrant prohibits the seizure of any tangible
property, any wire or electronic communication (as defined in
section 2510), or, except as expressly provided in chapter 121,
any stored wire or electronic information, except where the
court finds reasonable necessity for the seizure; and
``(3) the warrant provides for the giving of such notice
within a reasonable period of its execution, which period may
thereafter be extended by the court for good cause shown.''.