Fourth Amendment Sneak Attack

Reno's outrageous Secret Searches measure

By Dave Kopel, of the Independence Institute

5/18/00 9:50 a.m., National Review Online. More by Kopel on the Fourth Amendment and on federal criminal laws.

The Reno Department of Justice is very good at being sneaky. The DOJ's lobbyists are on the verge of successfully sneaking into law a provision which will authorize federal agents to stealthily enter people's homes, search the homes, and not tell anyone.

The Secret Searches measure is so outrageous that it would have no chance of being enacted as a bill on its own, when subjected to public scrutiny and debate. So instead, the DOJ has nestled the Secret Search item deep inside a long bill dealing with methamphetamines. The measure is further disguised with the innocuous title of "Notice Clarification."

Subject to virtually no public discussion, the Secret Searches item has already passed the Senate, hidden inside the methamphetamine giant S. 486. Next week, the House Judiciary Committee will take up H.R. 2987, the House version of the Senate bill, which also contains the buried clause on Secret Searches (section 301). The federal bankruptcy reform bill (which has passed both houses, and is currently in a conference committee) likewise has the hidden Secret Searches language.

If the Secret Searches provision became law, it would apply to all searches conducted by the federal government, not just searches involving methamphetamines or bankruptcy.

When conducting searches, federal agents are currently required to announce their presence before entering, and to provide an inventory of any items they take. Because the person whose home or business is being searched knows about the search, he can exercise his Fourth Amendment rights, and make sure that the police have a properly-issued search warrant. He can also see if the search is being conducted according to the warrant's terms — i.e., the police are searching only for items authorized by the warrant, they are searching the right address, etc.

But under a Secret Searches law, federal police could enter a person's home surreptitiously, conduct a search, and not tell the homeowner until months later.

Even months later, the police would not have to provide an inventory of "intangible" items which were taken in a search. So if the police entered your home secretly, and photocopied your diary or made a copy of your computer hard disk, they would never have to inform you of their actions.

Should the Secret Searches item be deleted from the methamphetamine and bankruptcy bills, it is likely that Clinton will try to sneak the item into a gigantic budget bill, during the Congressional Republicans' annual fall appropriations surrender. Take note: In a previous Congress, Clinton was able to obtain authority for warrantless wiretaps — which had been defeated after public debate earlier in the year — by hiding the authority in the year's omnibus budget bill.

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