With this SWAT blog, we'll answer a question proposed in a previous blog, "When a Traditional Search Warrant May Not Be the Best Choice."

We'll review the potential outcomes of immediately executing a traditional search warrant, discuss an interesting development in search and seizure law, and explain how these changes in the law have given officers a legal tool that will help them to solve complex cases like our scenario. 

Why executing a traditional search warrant is not the best choice:

If a magistrate authorizes a traditional search warrant of Armen's residence, and you execute that search warrant, Armen will know that he's the target of an investigation, even if no one is at the residence when the search is conducted, and no one sees the officers enter or leave the premises. How will Armen find out about the search?

Traditional search warrants have a notification requirement. Officers who execute a traditional search warrant must provide an immediate return on the results of a search. A return is a document that notifies the subject of a search that the search was conducted. The document must disclose whether evidence was taken during the search and what evidence was taken.

Once Armen realizes he's the target of an investigation, Armen may destroy evidence you failed to discover in your search. Armen may flee the jurisdiction. Armen may threaten or harm potential witnesses. He also may tip off his co-conspirators. These associates may destroy evidence, flee the jurisdiction, harass or kill potential witnesses, or otherwise jeopardize your investigation.

Surveillances and information from informants won't get you the information you need:

Officers have failed to infiltrate Armen's social circle and make contacts with his business associates because Armen has no known contacts outside the Armenian community and speaks only Armenian. None of your informants have gotten close to Armen.

You won't get all the evidence you need to uncover the scope of Armen's crimes and to bust Armen's associates unless you get inside his residence.  You'll need to check his e-mail and other computer data, look for photos, for bank statements and other investment records, and for other incriminating evidence.

Is there a legal tool that can help you get the evidence you need? Yes. It's called a covert entry search warrant.

Covert Entry Search Warrants and the USA Patriot Act

Some officers mistakenly believe that the USA Patriot Act only assists law enforcement officers who are conducting terrorism investigations. That's not true. The Patriot Act added many different provisions to the U.S. Code, and some of these provisions apply to criminal investigations that are not terrorism-related. One of these provisions, 18 U.S.C. §3103a, provides statutory authority to use covert entry search warrants.

What's a covert entry search warrant and how would you get one?[PAGEBREAK]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.

Related:

When a Traditional Search Warrant May Not Be the Best Choice