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Cleveland-Marshall College of Law Professor Jonathan Witmer-Rich spoke on delayed notice searches, known as "sneak and peek" searches, at the March 20 Criminal Justice Forum lecture hosted at Cleveland-Marshall. Witmer-Rich's work on the subject, "The Rapid Rise of Delayed Notice Searches, and the Fourth Amendment 'Rule Requiring Notice'," will be published in a 2014 volume of the Pepperdine Law Review."
Sneak and peek searches have been used by law enforcement for some time, but a definition was laid out in the 2001U.S. Patriot Act, with delayed notice searches allowed in circumstances where notice would cause an “adverse result.” These covert searches are primarily used by the Drug Enforcement Administration, with 74 percent of searches without notice related to drug investigations.
Courts have sided with the notion that notice is not required by the Fourth Amendment, but Witmer-Rich disagrees, believing that "covert searches invade the core principles of the Fourth Amendment."
According to Witmer-Rich, the issue is that as the statute is currently applied, police can manufacture potential adverse results in almost every instance.
"If you do a search and decide to not arrest the subjects or seize the evidence at that time, it will always jeopardize that the evidence will be destroyed in the future," explained Witmer-Rich.
The use of delayed searches is on the rise, with 5,601 reported in 2012, up from just 174 in 2006 — though some of that rise is accounted for by GPS and cell phone tracking. Witmer-Rich suggests curbing the use of delayed notices searches through judicial ruling or new statute, by requiring law enforcement to show a necessity to conduct a covert search because of the likelihood that a basic search would be unlikely to succeed.
Before joining the Cleveland-Marshall faculty in 2009, Witmer-Rich practiced at the Federal Public Defender's Office, where he represented defendants charged with a wide range of federal crimes. He also represented several detainees at the Guantanamo Bay detention facility in habeas corpus proceedings. Witmer-Rich's research focuses on criminal procedure and criminal law theory and he teaches courses in criminal law, criminal procedure and law and terrorism.
The one-hour lecture is the third of four Criminal Justice Forums during the 2013-14 academic year. Each forum features a nationally recognized scholar and/or practitioner presenting a public lecture on a current issue in criminal law.