The USA PATRIOT Act at 20:
Sneak and Peek Searches
October 27, 2021
President George W. Bush signed the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act” or Act) on October 26,
2001. Section 213 of the Act, enacted as part of the legislative response to the 9/11/01 terrorist attacks,
authorizes sneak and peek search warrants. “Sneak and peek” refers to the unannounced execution of a
warrant on premises where officers observe, examine, measure, conduct tests, and otherwise
surreptitiously search, but do not seize tangible property, and where officers thereafter delay notice of the
search for 30 days. Notice permits an individual to challenge the legality of the search. It could also lead
to flight, destruction of evidence, or placing a witness in peril.
In FY2020, under the authority of Section 213, courts issued close to 20,000 such 30-day, delayed-notice
search warrants, and approved extended delayed notice beyond 30 days in more than 10,000 cases. Drug
cases accounted for more than 70% of the total number of the delayed-notice warrants issued. Authorities
used delayed-notice warrants in fewer than 250 terrorism investigations.
Background
Prior to the enactment of Section 213, uncertainty marked the legality of sneak and peek searches. As a
general rule, the Fourth Amendment and 18 U.S.C. § 3109 require officers to announce their authority and
purpose before entering to execute a warrant. Notice may be excused for exigent circumstances, such as
the risk of suspect flight or the destruction of evidence. Rule 41 of the Federal Rules of Criminal
Procedure calls for executing officers to leave a copy of the warrant and an inventory of the property
seized on the premises as well as with the issuing magistrate.
The Supreme Court held that the Fourth Amendment did not absolutely preclude officers’ covert entry
into private premises in order to install an otherwise lawful listening device and that “officers need not
announce their purpose before conducting an otherwise duly authorized search if such an announcement
would provoke the escape of the suspect or the destruction of critical evidence.” Despite the Court’s
decision, questions of the validity of sneak and peek searches divided the lower federal appellate courts.
In Frietas, the Ninth Circuit confronted a search warrant that authorized drug enforcement agents to enter
the home of an individual suspected of manufacturing methamphetamine when there was no one there, to
look around but not seize tangible property, and to depart without leaving a copy of the warrant. The court
