Pubdate: Wed, 21 Mar 2007
Source: Atlanta Journal-Constitution (GA)
edbarr0321.html
Copyright: 2007 The Atlanta Journal-Constitution
Contact: http://www.ajc.com/opinion/content/opinion/letters/sendletter.html
Website: http://www.accessatlanta.com/ajc/
Details: http://www.mapinc.org/media/28
Author: Bob Barr, For the Journal-Constitution
Note: Former congressman and U.S. Attorney Bob Barr practices law in
Atlanta.

IN MOST CASES, IT WON'T HURT COPS TO KNOCK

During congressional debates over the USA PATRIOT Act in 2001, and
over its reauthorization five years later, much of the debate centered
on a provision known by critics as "sneak-and-peek warrants."

Supporters of the expansive powers granted federal law enforcement in
the post-911 legislation preferred the more bureaucratic and benign
term, "delayed notification search." Both sides agreed that the power
incorporated in the legislation --- to carry out a search of a
person's home or business without being required simultaneously to let
the homeowner or business owner know a search was being or had been
conducted --- is an extremely powerful law enforcement tool.

The debate surrounding sneak-and-peek searches was indeed a furious
one. I testified more than once before Congress in support of
legislation to limit this power.

However, neither I nor others seeking to restrict the ability of the
government to obtain such powerful tools of evidence-gathering
believed the government should not have such power. I simply had
concluded --- based on my experience as a U.S. attorney and as a
criminal defense attorney, and armed also with knowledge gleaned from
extensive study of such issues as a member of the House Judiciary
Committee --- that the circumstances in which agents should be allowed
to apply for such an invasive method of gathering evidence should be
carefully limited.

One of the authorities I cited in defense of a more limited
sneak-and-peek power was Supreme Court Justice Clarence Thomas. Thomas
had written only a few years before that the notion of requiring
agents to provide contemporaneous notice of their intent to execute a
search warrant --- absent a good reason otherwise --- was but a
reflection of fundamental fairness and due process.

This concept was itself hardly a radical idea, and was fully
consistent with the bases on which the Fourth Amendment to our
Constitution was crafted, as a limitation on the power of the British
Crown to authorize and execute search warrants for anything, anytime,
anywhere against the colonists.

Requiring then, as many federal courts had done over the years, that
agents must announce themselves before executing a warrant, so as to
allow the "victim" of a search to at least know his home or business
was being searched, was simply a way --- basically the only way ---
the person or the court would be able to determine the search was not
"unreasonable" as the Bill of Rights provides.

After all, if people don't know their home or office has been
searched, they will not be able to establish whether the search passed
constitutional muster. Of course, if the government could show the
judge issuing the search warrant that there was a good reason to delay
notice until some finite point after the search was conducted --- so
as not to jeopardize an important, ongoing investigation or to prevent
destruction of evidence or injury --- federal judges almost always
would grant the government's request for a delay.

Under such an arrangement, matters proceeded quite well. The sky did
not fall simply because agents normally had to announce their
intentions. However, the post-9/11 panic led to a dramatic easing of
the rules normally requiring search warrant notice.

The current debate in Georgia surrounding limitations on the ability
of state law enforcement officers to execute so-called "no-knock
warrants" is strikingly similar to the debate over federal
sneak-and-peek warrants. If one listened only to the law enforcement
side, then indeed one would conclude that the sky will come crashing
down if officers have to meet a burden only slightly more onerous than
under the law that prevails at this time. Of course, it was that
current law, making it extremely easy to obtain a "no-knock warrant,"
that led to the tragic death of Kathryn Johnston in late 2006.

Legislation introduced by state Sens. Vincent Fort (D-Atlanta) and
Jeff Mullis (R-Chickamauga) proposes to change current Georgia law, by
requiring simply that before police can secure a no-knock warrant they
must show probable cause that to announce their entry would pose a
danger to life or limb.

While some may claim that such an amendment will cause the sky to fall
on law and order in Georgia, thankfully the Senate Judiciary Committee
has concluded otherwise.

If a majority of senators and representatives under the Gold Dome
agree with the Judiciary Committee and pass this modest reform to our
state's no-knock warrant law, lives of law enforcement officers, as
well as occupants of homes to be searched, will be saved. And, the sky
will not fall.

Former congressman and U.S. Attorney Bob Barr practices law in
Atlanta.
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