On a Quest for Reason: A New Look at Surreptitious Search Warrants

Surreptitious search warrants, which authorize investigating agents to enter one\u27s property and observe the interior without seizing any evidence or providing notice to the owner or occupant of the searched property, have recently been the subject of increased attention by the courts. During the last decade, both the Ninth Circuit and the Second Circuit have upheld as constitutional the use of surreptitious search warrants where agents have provided post-search notice to the targets of the search. The two Circuits have fundamentally disagreed, however, about the underlying legal justification for the notice requirement. In particular, the Ninth Circuit has explained that the notice requirement is compelled by the Fourth Amendment, while the Second Circuit has suggested that the source of the notice requirement can only be found in Rule 41 of the Federal Rules of Criminal Procedure. This note argues that neither the Fourth Amendment nor Rule 41 can be interpreted to require any form of post-search notice. The author proposes that courts reject the categorical post-search notice rule, and instead adopt the reasonableness approach used by the courts in evaluating other Fourth Amendment searches. Under this reasonableness approach, courts should carefully consider and weigh the asserted government interests and necessity for a surreptitious search warrant against the individual privacy concerns implicated by the search. The author suggests that this case-by-case approach to analyzing surreptitious search warrants will provide courts with greater flexibility to consider the numerous legal and policy- based issues that may arise during a surreptitious search