Monday, August 13, 2007

Oh, but they'd never abuse it!

Shiny new "Sneak 'n' Peek" warrants of the type authorized by the (hilariously misnamed) P.A.T.R.I.O.T. Act were used to round up East Tennessee rednecks, not one of which owns a Semtex Sweater.

It'll be interesting to watch the "My Party, Right Or Wrong" crowd twist as they try to explain this away as a righteous part of the War On A Noun.

(Hat Tip to Michael Silence.)


Kevin said...

I really do prefer the term "Semtex Underoos."

Jayson said...

Pisses me off, too. I think that surveillance is great to stop idiots who want to blow stuff up. However, it ALWAYS gets used to snoop on some politician's pet peeve, i.e., the war on drugs, the war on illegal gambling, the war on asparagus, whatever. Honestly, i'd rather have the drugs, gambling, and asparagus free-flowing without the surveillance and keep my own eye out for terrorists.

But why should i be surprised by government overstepping its powers? And a better question: when should we say "enough" the old-fashioned way? Because it's not like they're inclined to stop. Ever.

Cameron Bailey said...

Figuring out how to abuse powers is the way government types of all stripes have fun. I disagree with assertions in the article that our Congressmen would not have voted for the Patriot Act had they known it would be used outside of terror investigations. They knew full well that it would be used against ordinary people, and delighted in having the opportunity to pass it without serious voter blowback.

phlegmfatale said...

Sometime during the Clinton administration, I had a neighbor who worked for a "home security" alarm system company as an operator. When a contracted client's home alarm went off, she had to call the client and verify a false alarm and/or call emergency services to the client's home. Well, one day she told me that a customer of her company was being cased out by a three-initialed government investigative body, and that they had to de-activate the alarm system when the guy left home, and then re-activate it when they goons left the property. This made me re-think the whole idea of a third party providing home security for me. I mean, holy shit, if just any government agency can override your contract with your "security" provider and you are kept in the dark while they knowingly allow people into your home, what is the point, anyway?

Matt G said...


Probable cause. [check.]

By warrant issued. [check.]

With judicial review. [check.]

I'm not trying to argue for or against it... I'm just asking: how is this unconstitutional? It satisies the 4th Amendment.

(And, no-- I've never even seen a Sneak 'N' Peak warrant. For that matter, I've seen damned few search warrants.)

--Matt (A major critic of the "Patriot Act")

Matt G said...

Er, that's "satisfies".

ChuckAtPodunkOutpost said...

Nothing like getting it from both sides...

Gambling establishment becomes the target of a sneak-and-peek warrant for being the "victim" of corrupt local law enforcement.

Anonymous said...

Perhaps it does not violate the LETTER of the law. However, it shure as heck violates the SPIRIT.

Just because some guy in black robes signs a piece of paper does not make it a reasonable search. If you want to search my property, then serve me the warrant and search it politely with me standing there armed just as heavily as you. That ensures honesty on both sides. If you break in, whether you leave behind evidence of your presence or not, that is unreasonable. What guarantee do I have of your honesty? How can anything "recovered" be admissable in an unbiased court without oversight on premises during the search?

Oh, and I don't buy the whole officer safety excuse. Police officers are not entitled to any more safety than the rest of the populace. If the "boys in blue" get to be armed, the rest of us ought to as well. I have seen way too many "bad" cops.

Comrade Misfit said...

As one of those who was opposed to the first "USA PATRIOT ACT", I hate to sat "I toljaso".

Nah, scratch that. It gives me great pleasure to say it.

Tam said...

I hope you're not saying "I told you so" to me.

Anonymous said...

Is it all worth mentioning that these types of searches (with a warrant no less) were conducted long before 9/11 occurred, let alone the Patriot Act was passed? The Patriot Act codified a lot of things that were SOP. For better or worse, the Patriot Act isn't responsible for this/

Tam said...

Yes, but what isn't codified may be at least challenged in court, SOP or no.


7.62x54r said...

Is anyone really surprised?

Tam said...

Do I look surprised?

I've been going on about this since long before 2001...

Any tool in the shed is going to be abused.

Trent said...

I am a die hard republican because I think they are the only chance we have for an even slightly conservative into elected office.
I have been a republican since my first day of voting and I will stay a republican until they drift across middle to left.

That being said this Patriot Act "We don't have to follow the constitution if we call you a terrorist" BS is well BS. This thing was never meant to be used against US Citizenry and anyone who does use it against us should be lynched. Thats all I have to say.

theirritablearchitect said...

"Yes, but what isn't codified may be at least challenged in court, SOP or no."

Call me a cynic, but regardless of the challenge, or the merits of the specific case, too few of these types of things ever result in the enforcement branch getting their pee-pees whacked by the judiciary. They are all in the governmental conspiracy for power together and they know it. They have each others backs, because they fear losing the front of authority, and it should rightly piss off everyone when they put these kinds of power trips on display.

Anonymous said...

Something can be challenged, whether it's SOP or in the USCA. I anticipate a court will uphold these warrants because the Constitution requires a warrant, it doesn't necessarily require a person to know that their property has been searched if there is a legitimate gov't interest to keep that information secret.

The Constitution is a wonderful document, but something can be distasteful and still be within the bounds of the document. That's why the amendment process exists.

Don said...

Matt, your observations about the validity of the warrant may be true, but the guy they served the warrant against was NOT given the chance to inspect the warrant or challenge it--he wasn't even allowed to know that a warrant had been issued or a search conducted.

The issue is that there's no 4th Amendment warrant protection if law enforcement can get the warrant and execute it without having to SHOW the suspect that it's legitimate.

Let's say you're the one investigating this cockfighting ring. You've got your case made, and you make the arrest, you show up in court on the appointed date. There you witness the cockfighting POS you arrested testifying that he has evidence that clears him completely.

But he won't show it to the court. Says he doesn't have to. They should know that he's not going to abuse this privilege.

The judge and jury don't look impressed, so the accused takes a different tack:
"OK, your honor, all I ask is a reasonable delay since it might interfere with my defense if I had to give you the information now, but I'll tell you what. You order me released today, and I promise to come back here with the evidence in 120 days. Scout's honor!"

I should add here that the defendant doesn't get to abuse this power; no sir! He has to show all his evidence to his defense attorney (like the judge, an incorruptible officer of the court and guardian of justice)

Do you see where I'm coming from, here? That would be outrageous.

Anonymous said...

Yes, but what isn't codified may be at least challenged in court, SOP or no.

I was under the impression that most things can't be challenged on Constitutional grounds until it was codified.

Anonymous said...

The issue is that there's no 4th Amendment warrant protection if law enforcement can get the warrant and execute it without having to SHOW the suspect that it's legitimate.

I'm not saying I like it, but I didn't see anything in the 4A that requires you to be shown the warrant at the time of the search.

7.62x54r said...

I anticipate a court will uphold these warrants because the courts are part of the gov't.

Anonymous said...

Thus explaining, I guess, why D.C.'s gun ban was overturned.

As well as Texas' anti-sodomy laws.

After all, the courts are part of the gov't.

I'm not saying that the courts won't uphold it. As noted earlier by mattg, there was probable cause, and a warrant issued subject to judicial review. Seems constitutional to me, but dammit Jim, I'm a statistician not a ConLaw Professor. :-)

I just can't agree that the courts are nothing but a rubber stamp.

Comrade Misfit said...

"I hope you're not saying "I told you so" to me."

No, Tam, I am not. I won't rant on this, I have my own space to do that if I want to.

Anonymous said...

I guess I can be counted in the "My Party, Right Or Wrong" crowd, but I was never under any impression that the Feds wouldn't misuse it. Rather, I expected that the misuses would be outweighed by the potential utility of the law when Jihad comes to these shores. I also suspected that whatever legislation the W Administration penned would be a damn sight better for liberty than anything the Donks would come up with.

I also suppose I fail the libertarian purity test, but I consider the choice betwixt a party that promises 70% of what I want and has a 50% chance of being elected, versus a party that promises 10% of what I want and has a 50% chance of election, versus a party that promises 100% of what I want and has a 0% chance of election, to be a no-brainer.

Tam said...

Earth-Bound Misfit,

Thank god.

I was afraid you might be one of those binary thinkers that believes that because I loathe the pinko tofu-sucking collectivist tools that make up the Democratic Party, then I must be some Jeezo-nazi Bushbot.

Two dimensional thinking like that bores me to tears. (But does seem to dominate the political mindsets, such as they are, of the person on the street.)

Comrade Misfit said...


Naw, you don't strike me as being a BushBot. If you were, I'd have beat feet early on, instead of "blogrolling" you (if that's a verb, I'm still new at this crap).

I do tend to rail more at the Republicans, but what the hell, they're in charge. I didn't have much good to say about Clinton, either, when he was the preznit.

Anonymous said...

All parties manage to find ways to screw up spectacularly ... including the libertarians.

They just find different areas to screw up in.

Anonymous said...

Dude, I don't know what your talking about.

The Libertarians on campus throw righteous parties.

Matt G said...

"Matt, your observations about the validity of the warrant may be true, but the guy they served the warrant against was NOT given the chance to inspect the warrant or challenge it--he wasn't even allowed to know that a warrant had been issued or a search conducted."

Uh, Don? No one EVER gets to challenge a search warrant's validity before it's served. When the men with big feet and tin badges show up on your doorstep with a warrant, the deal is done. There is a court order, and they'll serve it, whether you as a criminal or a completely and utterly innocent party deserve it or not.

Whether you oppose it or not.

Similar example: I'm about to get a warrant for the arrest for a local ne'er-do-well for Driving While License Suspended. Now, I'm not going to hunt him down, tell him that I'm about to present a P.C. Affidavit to the local J.P., and invite him to come oppose it. I'm just going to do what I always do, and take my PC Aff to the judge, swear that what I wrote on it was true, and obtain a warrant. I will then file it with the local sheriff's office, and keep a look-out for him. If I find him, great-- I'll take him to jail. If I don't, then someone else will get him, next time they run him. When his arrest occurs, it will be at the behest of the judge that I took the PC Affidavit to. The cop making the arrest must serve the warrant, once it's been confirmed. There will be no argument, until the trial.

If I lied, he gets off, I lose my badge, and I get charged with aggravated perjury. If I told the truth, but my evidence just wasn't good enough to provide proof beyond a reasonable doubt, the case is dropped. It seems like a fair trade-off to me.

Neal is right-- those warrants did occur before Patriot.

I'm not sure if I like them as a rule, or not. I can for damned sure see where they'd be a godsend for organized crime rings.

We had a ring stealing appliances. We got a search warrant, and searched a shed where some of their booty was kept. Poof! All our other suspected sites after that turned out to be empty, and everyone had their stories ready. If we could have sneaked in with a warrant, photographed the contents of the shed, sneaked back out, and checked the other sites, we could have gotten them all. As it was, we managed to arrest about 25% of the thieves in the ring, and only recover about 10% (maybe) of the stolen goods.

And here's the deal: the guy whose shed got searched didn't have the option of opposing the search. He just got to know about it. He was on the phone before our guys were halfway through the shed.

And I'll be honest with y'all-- I get a little nervous when I hear people talking about the "spirit" of the law, when black-letter law is right there in the Constitution:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Where does the spirit of the law there imply that we have to inform suspects of searches?

Should we also inform suspects that we've obtained court-ordered wiretaps?

Again, I'm just asking.

7.62x54r said...

All parties tend to screw up for one reason. They are participating in gov't!

Anonymous said...

This type of governmental behavior is heading down a steep, slippery, dangerous slope. What lays at the bottom is quite ugly, as history reminds us.


Tam said...

Sorry Matt, I've gotta disagree with you on this one (and I'm not at all sure what the Founding Fathers would have thought of wiretaps)

1) The Bill of Rights is not set up to make things easy for the police. It is set up to make things deliberately hard for the police. States where the police have it easy are, what? ;)

2) Pointing out an instance where it would be useful does not move me. I can think of many things repugnant to the constitution (letter or spirit) that would be very useful. I don't worry about a technique's uses, I worry about its potential abuses.

3) "Secret Searches", "Secret Warrants", "Secret Courts", "Secret Police"... Where does it stop? "Secret Prisons"? "Secret Executions"?

Don said...

In the end, Tamara, if things don't change miraculously for the better?
Secret squirrels.

Matt, the short answer is "yes."

The 4th Amendment does not specifically mention presenting the warrant to the accused, just as the 2nd Amendment does not specifically mention specific types of arms which are protected, nor does it define the word "infringed."

The 4th Amendment DOES list three requirements for a warrant to be valid. It has to be issued based on probable cause, it has to be supported by oath or affirmation, and it must "particularly" describe the places to be searched and the things or people being sought.

Now, it's all well and good to require that, but if the only person in the whole process who has a personal stake in protecting the target's interests is not even allowed to know that there's any search being performed, how on Earth is he expected to hold anyone accountable for the fact that his warrant was, for instance, signed ahead of time as part of a stack of warrants left with a clerk so a judge wouldn't have to get up in the middle of the night? (Which DID happen--the story was on TFL at the time.)

Your black letter of the law makes that particular law unenforceable. The law enforcement agency is required to do three things before obtaining the warrant, but they are not required to prove that they've done those three things. That's not a requirement at all.

I'm not talking about challenging a warrant's validity before you're allowed to search, and I think maybe you know that. I'm talking about things like calling my lawyer right away instead of going about my business in blissful ignorance for months.

I realize this doesn't establish a Police State (tm) It's just closer to that end of the continuum than I'd like.

It sure is a shame those Watergate plumber guys couldn't have gotten one of these warrants. Then G. Gordon Liddy wouldn't have gone to jail and nobody would have to hear him on the radio or look at his calendars.

Don said...

The difference is this:

Open Warrant, Served Openly:
Outraged Citizen:
"Was that warrant issued by a judge?!?"
Copper Pete:
"Yes, yes it was. Here's his signature right here. You can call the courthouse to confirm."
OC: "All right, but where's your probable cause?!?!!"
CP: It's written right here. Officer Brother observed you hauling an unusual amount of hydroponic gardening equipment and high-powered lamps into your house. This is his signature, where it says he affirms that it's true. That's like taking an oath in court."

Secret Warrant, Secretly Served:

OC: "I think I'll have a shake with lunch today." :)
CP: "Yeah, enjoy it while you can, fish."
OC: "What di-"
CP: "Nothing."

Anonymous said...

Don, my understanding of the search is this:

Cop: We have a warrant to search this house.

Owner: Was it issued by a Judge?

Cop: You going to let us in or are we going to have to arrest you?

Owner: Wait a minute...

Cop: Fine, you're under arrest and you can take it up with the judge.


but if the only person in the whole process who has a personal stake in protecting the target's interests is not even allowed to know that there's any search being performed, how on Earth is he expected to hold anyone accountable

The sneek-n-peek doesn't allow for never-disclosure, only delayed-disclosure. The subject does still have to be notified.

Sigivald said...

Well, I won't try and call it part of the war on "terror", and I'm not a Republican, but I don't see any problem with delayed notification under the criteria given under PATRIOT.

Sections of PATRIOT limited to "terrorism" were explicitly so-limited in the text, with references to things like "Designated Terrorist Organisations" and "persons engaged in terrorist acts"; other sections are general law enforcement.

I blame people selling the whole thing as if it was all and only about "terrorism".

Trent: They're following the Constitution. Delayed notification doesn't violate it; if you think it does, well, your copy must be different from mine, because mine sure don't mention anything about it.

One can honestly and fairly argue, like Tam does, that it's a bad idea to have delayed notification, but there's no strong argument that it's unconstitutional.

(And note that these searches are not "secret"; notification is required, but it can be delayed.

After all, cops with a warrant can search your house if you're not home, even without that provision, if they leave a note and a copy of the warrant, right?

The search, in either case, happens without you knowing at the time, and the latter is not obviously repugnant to the Constitution. I argue that the former isn't, either, given judicial oversight - remember that the Cops aren't the Courts, and the entire point of the Warrant provision in the 4th is that they're separate! Otherwise the warrant system itself would be useless as a protection.)

Anonymous said...

Actually, I think that my property being searched and a note being left is repugnant to the Constitution. OTOH, based on my reading of the Constitution and it's supporting documents, as weel as the history of that time, I expect that a bunch of our founding fathers would agree with me. But then they had lived through a de facto police state.

Why do you have a problem with my mentioning the "spirit" of the Constitution? Haven't you heard of the spirit of the law vs the letter fo the law? Typically the spirit of the law is the driving force and the letter of the law is the best attempt at codifying that spirit.

7.62x54r said...

I always figured the letter of the law was what people followed when they didn't care for the spirit of the law.

Comrade Misfit said...

"I always figured the letter of the law was what people followed when they didn't care for the spirit of the law."

You done broke the code, bucko.

Matt G said...

Funny-- I always figured that the letter of the law is what we followed first, then we could use the spirit of the law to figure out how to follow the letter of the law. Meaning, in what manner.

For example, I completely agree with Tamara that the spirit of the Bill Of Rights is to throw obstacles into government's way.

Warrants have been issued in this nation under only judicial review for better than two centuries under administrations of folks that helped frame the Constitution.

Don, you're darn tootin' that there have been some abuses of the process! I'm unhappy with that fact, as well. But, funny thing-- what you're referring to (stack o' signed blank warrants) was and is an illegal abuse, requiring a conspiracy between the magistrate and the cop. Changing the procedure wouldn't stop abuses from occuring-- they already were breaking the law; why would a new procedure stop them?

I think that there's a lot of people here that are confused about criminal procedure as it occurs, and as it has occured.

[And I friggin' refuse to accept advice on interpretting our Constitution from an idjit who regularly espouses that "Anarchy is the only way."]

7.62x54r said...

I guess when you don't have a leg to stand on name calling is a good substitute.

Don said...

Yu-Ain-Gonnano, you're still talking about what happens at the moment the warrant is served. That's not what I'm talking about. These "secret" warrants give the agency months before they have to notify the target that he got searched or that assets were seized.

Not before, after. See what I'm saying here? Not before.


Matt, you're right, those things I mentioned are illegal, but again, if they'd been able to do those things in secret instead of openly, then the debate about whether they were legal or not wouldn't even have happened.

This kind of search doesn't go quite that far, since they are required to tell the target about it eventually, but that means that any discussion of what they've done and why is also deferred to "eventually" status. I don't like it, that's all.

Don said...

OK, another attempt at analogy.

Does your state have an open meetings act? I bet it does. Mine does. Why?

Because even though most people don't pay attention to what happens when a county board meets, for example, important stuff does get decided there. And we have very definite rules about how it's supposed to get decided.

But those rules are worthless if we aren't allowed to observe the meetings. These laws are also referred to as "sunshine" laws.
Again, if it's done in secret, you might as well forget about whether what was done was legal or fair. It's impossible to know at that point.

Matt G said...

But when pretty much any warrant is obtained, it's "secretly" obtained (well, the defendant isn't there to plea his side). When it's served, he doesn't have the right to stop it.

I find this highly ironic that I'm in the position of defending a piece of criminal procedure that others are finding to be draconian.

JL said...

"If you want to search my property, then serve me the warrant and search it politely with me standing there armed just as heavily as you."

It'll be a cold day before I search a house and allow the property owner to stand there with a weapon watching. Sorry but this job is dangerous enough. Go read the Officer Down web page if you disgree.

Memphis said...

I honestly didn't even know that there was such a thing