Federal Law May Permit “Secret Searches” of Homes

In recent years, the PATRIOT ACT has broadened the powers law enforcement have to intrude into our personal lives.  One way this has been implemented is through the use of “secret” or covert search warrants.  A covert search warrant authorizes officers to enter a premise when nobody is present, to search for specific evidence and possibly photograph or videotape it, and to leave without taking anything or giving notice that a search occurred. There is no California law upholding the use of covert search warrants; Judges should exercise extreme caution when considering use of such warrants, particularly because Police Officers who execute a search warrant must leave a receipt for any property taken. Penal Code §1535.  According to one Long Beach Criminal Attorney, some federal courts have ruled that officers who execute covert search warrants can effectively seize intangible property (such as visual images and information that evidence exists). U.S. v Freitas (9th Cir 1986) 800 F2d 1451, 1455. Legal opinions recommend delaying notice that the search occurred for up to seven days. More recent federal law permits up to 30 days’ delayed notice. 18 USC §3103a(b)(3) (as amended by USA PATRIOT Act; Fed Crim Rule 41(f)(3).

Federal law suggests the following procedure:

• The probable cause affidavit contained within the search warrant must show that a covert search is  necessary; and

• Special instructions must authorize the police officers to conduct covert search and excuse compliance with notice requirements until a specified date.

One Response to Federal Law May Permit “Secret Searches” of Homes

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