Covert entry search warrants are like regular search warrants, but the notification requirement is delayed.
To acquire one, you have to have probable cause to search and fulfill the other requirements for getting a traditional search warrant. With a covert entry search warrant, you also have to convince the judge that you need a delay in providing a return to the subject of the search. To get that delay, in your affidavit, you need to include facts that show that there will be a potential adverse result from notification.
What is an adverse result? This definition can be found in 18 US Code §2705. It's what could happen if officers executing a search warrant provide an immediate return. That notification might result in the life or physical safety of an individual being endangered; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial.
The notification requirement is not eliminated — it's just delayed. For how long? As long as the judge deems necessary. The length of the delay depends upon the facts and the circumstances of the case. The statute provides that extensions of the delay of notification can be granted. If the judge isn't convinced that notification will cause a potential adverse result but you meet the requirements for getting a traditional search warrant, the judge can authorize a traditional search warrant.
Why do some people call covert entry search warrants "sneak and peek" warrants?
There are two types of covert entry search warrants. One type authorizes officers to clandestinely enter the subject's home, look around, access e-mail and other computer files, and copy or photograph what is seen. The officers are not permitted to seize anything. That's why this type of warrant is known as a "sneak and peek."
The other type of covert entry search warrant allows officers to seize evidence that's listed in the warrant. If you want authorization to seize evidence, you need to make this request when you apply for the warrant—you need to convince the magistrate that there is a reasonable necessity for the seizure of evidence. The magistrate will decide whether to authorize the seizure.
In our hypothetical case involving Armen, a covert entry search warrant would give officers the legal authority to sneak inside Armen's residence. The clandestine peek at his computer records and other evidence likely would lead to a treasure trove of information. Later, when they need probable cause to apply for arrest warrants or for search warrants that authorize the seizure of evidence, officers could use incriminating information they found during the sneak and peek.
To avoid tipping off the subject, anything moved during a covert entry search (such as a stack of papers), needs to be put back in its original place. And search team members need to be careful to leave no trace of themselves on the premises.
Covert entry search warrants are a valuable tool, particularly in the beginning of complex investigations involving multiple subjects. Use sneak-and-peek warrants to collect information that uncovers hidden assets, identifies criminal associates, and identifies victims.
When a Traditional Search Warrant May Not Be the Best Choice