S 316

Reasonable Notice and Search Act

 

Sponsor: Sen. Russ Feingold, D-WI.

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S 316

Reasonable Notice and Search Act

 

Sponsor: Sen. Russ Feingold, D-WI.


Comments and Text, S. 316

 

S. 316. A bill to limit authority to delay notice of search warrants;

to the Committee on the Judiciary.

Mr. FEINGOLD. Mr. President, today I will reintroduce in the Senate

the Reasonable Notice and Search Act. This bill is nearly identical to

a bill I introduced in the 108th Congress, S. 1701. It addresses

Section 213 of the USA-PATRIOT Act, the provision of that important

statute passed in the wake of the 9/11 attacks that has caused perhaps

the most concern among Members of Congress and the public. Section 213,

sometimes referred to as the ``delayed notice search provision'' or the

``sneak and peek provision,'' authorizes the government in limited

circumstances to conduct a search without immediately serving a search

warrant on the owner or occupant of the premises that have been

searched.

Prior to the PATRIOT Act, secret searches for physical evidence were

performed in some jurisdictions under the authority of Court of Appeals

decisions, but the Supreme Court never definitively ruled whether they

were constitutional. Section 213 of the PATRIOT Act authorized delayed

notice warrants in any case in which an ``adverse result'' would occur

if the warrant were served before the search was executed. Adverse

result was defined as including: 1. endangering the life or physical

safety of an individual; 2. flight from prosecution; 3. destruction of

or tampering with evidence; 4. intimidation of potential witnesses; or

5. otherwise seriously jeopardizing an investigation or unduly delaying

a trial. This last catch-all category could apply in virtually any

criminal case. In addition, while some courts had required the service

of the warrant within a specified period of time, the PATRIOT Act

simply required that the warrant specify that it would be served within

a ``reasonable'' period of time after the search.

It is interesting to note that this provision of the PATRIOT Act was

not limited to terrorism cases. In fact, before the PATRIOT Act passed,

the FBI already had the authority to conduct secret searches of foreign

terrorists and spies with no notice at all under the Foreign

Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and

peek'' authority was not made subject to the sunset provision that will

cause many of the new surveillance provisions of the act to expire at

the end of this year unless Congress reenacts them. So Section 213 was

pretty clearly a provision that the Department of Justice wanted

regardless of the terrorism threat after 9/11.

Perhaps that is why this provision has caused such controversy since

it was passed. In 2003, by a wide bipartisan margin, the House passed

an amendment to the Commerce-Justice-

State appropriations bill offered by Representative Otter from Idaho, a

Republican, to stop funding for delayed notice searches authorized

under section 213. The size of the vote took the Department by

surprise, and it immediately set out to defend the provision

aggressively. Clearly, this is a power that the Department does not

want to lose.

I raised concerns about the sneak and peek provision when it was

included in the PATRIOT Act. I did not, and still do not, believe there

had been adequate study and analysis of the justifications for these

searches and the potential safeguards that might be included. I did not

argue then, however, and I am not arguing now that there should be no

delayed notice searches at all and that the provision should be

repealed. I simply believe that this provision should be modified to

protect against abuse. My bill will do four things to accomplish this.

First, my bill would narrow the circumstances in which a delayed

notice warrant can be granted to the following: potential loss of life,

flight from prosecution, destruction or tampering with evidence, or

intimidation of potential witnesses. The ``catch-all provision'' in

section 213, allowing a secret search when serving the warrant would

``seriously jeopardize an investigation or unduly delay a trial'' can

too easily be turned into permission to do these searches whenever the

government wants.

Second, I believe that any delayed notice warrant should provide for

a specific and limited time period within which notice must be given--7

days. This is consistent with some of the pre-PATRIOT Act court

decisions and will help to bring this provision in closer accord with

the Fourth Amendment to the Constitution. Under my bill, prosecutors

will be permitted to seek 7-day extensions if circumstances continue to

warrant that the subject not be made aware of the search. But the

default should be a week, unless a court is convinced that more time

should be permitted.

Third, Section 213 should include a sunset provision so that it

expires along with the other expanded surveillance provisions in Title

II of the PATRIOT Act, at the end of 2005. This will allow Congress to

determine if the balance between civil liberties and law enforcement

has been correctly struck.

Finally, the bill requires a public report on the number of times

that section 213 is used, the number of times that extensions are

sought beyond the 7-day notice period, and the type of crimes being

investigated with this power. This information will help the public and

Congress evaluate the need for this authority and determine whether it

should be retained or modified after the sunset.

These are reasonable and moderate changes to the law. They do not gut

the provision. Rather, they recognize the growing and legitimate

concern from across the political spectrum that this provision was

passed in haste and presents the potential for abuse. They also send a

message that Fourth Amendment rights have meaning and potential

violations of those rights should be minimized if at all possible. I

urge my colleagues to support this bill.

I ask unanimous consent that the text of the bill be printed in the

Record.

There being no objection, the bill was ordered to be printed in the

Record, as follows:

 

S. 316

 

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

 

SECTION 1. SHORT TITLE.

 

This Act may be cited as the ``Reasonable Notice and Search

Act''.

 

SEC. 2. LIMITATION ON AUTHORITY TO DELAY NOTICE OF SEARCH

WARRANTS.

 

Section 3103a of title 18, United States Code, is amended--

(1) in subsection (b)--

(A) in paragraph (1), by striking ``may have an adverse

result (as defined in section 2705)'' and inserting ``will

endanger the life or physical safety of an individual, result

in flight from prosecution, result in the destruction of or

tampering with the evidence sought under the warrant, or

result in intimidation of potential witnesses''; and

(B) in paragraph (3), by striking ``a reasonable period''

and all that follows and inserting ``7 calendar days, which

period, upon application of the Attorney General, the Deputy

Attorney General, or an Associate Attorney General, may

thereafter be extended by the court for additional periods of

up to 7 calendar days each if the court finds, for each

application, reasonable cause to believe that notice of the

execution of the warrant will endanger the life or physical

safety of an individual, result in flight from prosecution,

result in the destruction of or tampering with the evidence

sought under the warrant, or result in intimidation of

potential witnesses.''; and

(2) by adding at the end the following:

``(c) Reports.--

``(1) In general.--On a semiannual basis, the Attorney

General shall transmit to Congress and make public a report

concerning all requests for delays of notice, and for

extensions of delays of notice, with respect to warrants

under subsection (b).

``(2) Contents.--Each report under paragraph (1) shall

include, with respect to the preceding 6-month period--

``(A) the total number of requests for delays of notice

with respect to warrants under subsection (b);

``(B) the total number of such requests granted or denied;

``(C) for each request for delayed notice that was granted,

the total number of applications for extensions of the delay

of notice and the total number of such extensions granted or

denied; and

``(D) on an aggregate basis, the nature of the crime being

investigated for each request for delay of notice that was

granted or denied.''.

 

SEC. 3. SUNSET ON DELAYED NOTICE AUTHORITY.

 

(a) PATRIOT Act.--Section 224(a) of the USA PATRIOT Act of

2001 (Public Law 107-56; 115 Stat. 295) is amended by

striking ``213,''.

(b) Amendments.--The amendments made by this Act shall

sunset as provided in section 224 of the USA PATRIOT Act of

2001.