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Fourth Amendment Sneak Attack - 'Outrageous' New Search Measure

By Dave Kopel of the Independence Institute
5-22-00

            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 methamphetimines. 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 methamphetimine 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 methamphetimines 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, nd 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 methamphetimine 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. _____

            Full bill: http://cryptome.org/s486rfh.txt

            [DOCID: f:s486rfh.txt] 106th CONGRESS 2d Session S.
            486

            _______________________________________

IN THE HOUSE OF REPRESENTATIVES
            January 27, 2000 Referred to the Committee on the Judiciary, and in addition to the Committee on Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

            _______________________________________

            AN ACT

            To provide for the punishment of methamphetamine laboratory operators, provide additional resources to combat methamphetamine production, trafficking, and abuse in the United States, and for other purposes.

            Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

            SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

            (a) Short Title.--This Act may be cited as the `Methamphetamine Anti-Proliferation Act of 1999''.

            [Excerpt]

            SEC. 301. NOTICE; CLARIFICATION.

            (a) Notice of Issuance.--Section 3103a of title 18, United States Code, is amended by adding at the end the following new sentence:

            ``With respect to any issuance under this section or any other provision of law (including section 3117 and any rule), any notice required, or that may be required, to be given may be delayed pursuant to the standards, terms, and conditions set forth in section 2705, unless otherwise expressly provided by statute.''.

            (b) Clarification.--(1) Section 2(e) of Public Law 95-78 (91 Stat. 320) is amended by adding at the end the following:

            ``Subdivision (d) of such rule, as in effect on this date, is amended by inserting `tangible' before `property' each place it occurs.''.

            (2) The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act.

            ----------------------------------------------------------------------

            From the U.S. Code Online via GPO Access

            [wais.access.gpo.gov]

            [Laws in effect as of January 27, 1998]

            [Document not affected by Public Laws enacted between

            January 27, 1998 and January 5, 1999]

            [CITE: 18USC3103a]

            TITLE 18--CRIMES AND CRIMINAL PROCEDURE

            PART II--CRIMINAL PROCEDURE

            CHAPTER 205--SEARCHES AND SEIZURES

            Sec. 3103a. Additional grounds for issuing warrant

            In addition to the grounds for issuing a warrant in section 3103 of this title, a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense in violation of the laws of the United States.

            (Added Pub. L. 90-351, title IX, Sec. 1401(a), June 19,
            1968, 82 Stat. 238.)

            Codification

            Pub. L. 90-351 enacted section 3103a of this title as part of chapter 204, and Pub. L. 90-462, Sec. 3, Aug. 8, 1968, 82 Stat. 638, corrected the chapter designation from 204 to 205.

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