May 19, 2011
An Albuquerque television news report aired earlier this week reveals a steep increase by the federal government in the use of unconstitutional sneak and peek search warrants.
“The warrants have always been around, but their use has spiked since the War on Terror and revamped Patriot Act was signed in 2005,” reports KOAT. “The number of delayed-notice search warrants spiked nationally from nearly 700 in fiscal year 2007 to approaching close to 2,000 in 2009.
See a video report on the KOAT website .
According to KOAT, a majority of the search warrants were not related to terrorism cases. Justice Department figures indicate the majority of the secretive warrants were issued in drug cases.
“While billed as an anti-terror tool, (a sneak-and-peek warrant) had no requirements on it that it precluded it from being used in standard criminal investigations,” Peter Simonson of the ACLU told the news station.
The ACLU said it expects so-called delayed-notice warrant numbers to increase so long as the PATRIOT Act remains law.
Prior to the PATRIOT Act, the Fourth Amendment protected Americans against unreasonable searches and seizures and requires the government to both obtain a warrant and to give notice to the person whose property is to be searched prior to conducting the search. The notice requirement allowed a property owner to assert his or her rights under the Fourth Amendment.
For example, a person with notice might be able to point out irregularities in the warrant, such as the fact that the police are at the wrong address, or that because the warrant is limited to a search for a stolen car, the police have no authority to be looking in dresser drawers, the ACLU  points out. The Supreme Court recently ruled that notice is a key Fourth Amendment protection.
The FBI has has engaged in a similar practice for decades. Commonly known as black bag operations, the practice permitted FBI agents to illegally enter offices of targeted individuals and political organizations.
In 1966, FBI director J. Edgar Hoover claimed he put an end to the prctice  used by the agency since the early 1940s, but in the late 60s and through the 1970s the agency routinely violated the Fourth Amendment under COINTELPRO, the federal effort to undermine political individuals and groups the government opposed. In 1972 in the Plamondon case , the Supreme Court ruled black bag jobs unconstitutional.
The criminal practice came back into vogue following the attacks of September 11, 2001. “The refocusing of FBI operational priorities and the new emphasis placed on intelligence-based activities… has resulted in a dramatic increase” in the demand for black bag jobs, according to an unclassified FBI document. “It does not detail how many of the secret searches it carries out, and the FBI did not respond to comment,” ABC News  reported in June of 2007. It went to Congress that year and demanded $5 million to pay for the surreptitious operations.
The New Mexico report on increased sneak and peek illegal entry in drug and other criminals cases follows a ruling by the Indiana Supreme Court  that residents of that state do not have the right to resist the invasion of their homes by rogue cops.