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Black bag jobs were sold as a necessary tool to fight terror, but they're being used mainly against people who have nothing to do with that.
One night in 2006, somebody broke into the home of suspected Cleveland drug dealer Chevalier "Chevy" Robinson, making off with $2.8 million in cash and a half-ton of marijuana. A furious Robinson suspected the rip-off was the work of a rival dealer and vowed to kill him for the theft. He even played CSI investigator, trying to lift finger prints off a broken window pane.
It was to no avail. It turned out Robinson hadn't been hit by a rival drug dealer or some neighborhood break-in artist. Instead, the black bag specialists who burgled his place were not criminals at all—they were cops.
And Robinson only found out the hard way: When he was indicted on numerous drug charges the following year. Then he learned he had been burgled by the DEA. And it was legal.
"The idea was to make the search look like a burglary so the suspected drug trafficker Chevalier Robinson, would think he was the victim of a break-in and not the subject of a major law enforcement investigation," Ohio Attorney General Richard Cordray told the Cleveland Plain Dealer as part of the newspaper's investigaive report shining a light on the shady practice.
It turns out Robinson—and a whole lot of other people—had been the subject of an intrusive law enforcement technique known as the "sneak and peek" search and seizure, which had been sold to the American people as a vital tool in the war on terror, but has instead been used primarily against domestic law violators, especially people in the drug trade.
Immediately following the 9/11 attacks against the United States, Congress passed the Patriot Act, which expanded the powers of federal agents as they prosecuted the war on terror. But in a move that has received little notice, agents have used one particular provision of the act not to fight terrorism, but to wage their war on drugs—with tactics right out of a totalitarian police state.
The Patriot Act contains a provision called Delayed Notification Search Warrants (DNSW), also known as "sneak and peek" warrants. Using "sneak and peek" warrants, law enforcement officers across the country are making a mockery of the Fourth Amendment's protections against unreasonable search and seizure. They do so by in essence burglarizing homes without the owners even knowing they have been searched and items seized or surveilled.
"A law intended to be used to fight terrorism has been used for years to allow police to arrest drug peddlers, trampling on the Constitution along the way," ACLU National Security Project staff attorney Patrick Toomey told AlterNet. "Entering into a person's unoccupied home without giving notice to the homeowner violates a person's privacy, and further, violates the Fourth Amendment's search and seizure protections."
Toomey isn't alone in decrying the use of the "sneak and peek" provision in drug cases. In an article in the National Law Journal, Boston University School of Law professor Tracy Maclin also criticized the practice.
"It's the ultimate power grab," Macklin wrote. "Drugs are not tied to cases in which National Security or threats from foreign agents appear to be focus of investigation."
Early Objections
The Patriot Act flew through Congress, being signed into law by President Bush less than a month after the 9/11 attacks, but even in the fevered state of post-attack responses, some Democratic members of Congress questioned the breadth of Section 213, the sneak and peek provision. Although the Justice Department argued that it was needed to "fight terrorism" and to avoid "tipping off terrorists," the provision expressly reserved the right to use such warrants for any "criminal offense in violation of the laws of the United States"—not just in cases of suspected terrorism.
Section 213 proved contentious to Democrats concerned with a sudden broadening of federal investigatory powers.
"This bill is not just limited to terrorism," said Rep. Bobby Rush (D-VA). "Had it been limited to terrorism, this bill could have passed three or four weeks ago without discussion."
"There may be justification for delaying notification of a search warrant sometimes, but in all criminal investigations? What does that have to do with terrorism?" protested Rep. Jerrold Nadler (D-NY), whose district included the World Trade Center.
"The bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism," warned Sen. Russ Feingold (D-WI).
But the patriotic steamroller made short shrift of such concerns, and sneak and peek became the law of the land.
Ye Shall Know Them by Their Deeds
A few years later, it was clear what sneak and peek was being used for, and it wasn't to fight terror. Even during the Bush administration, congressional hearings found that sneak and peek was being used mainly not to fight terrorism, but to bust drug criminals. Those hearings also demonstrated growing concern that the legally-sanctified burglaries violated citizens' Fourth Amendment rights.
Still, then-FBI Director Robert Mueller defended the practice, saying sneak and peek warrants were "an invaluable tool in the war on terrorism and our efforts to combat serious criminal conduct."
Things didn't get any better under Obama. As federal court filings showed, in the year between October 1, 2009 and September 30, 2010, some 3.970 sneak and peek warrant requests were filed. Of those, 3,034 were for drug cases and only 77 were for terrorism cases. That means about 98% of all sneak and peek warrants had nothing to do with the ostensible reason the provision was passed.
Following years showed similar figures. In 2010-11, drugs accounted for 5,093 of 6,775 warrant requests, while terrorism was cited in only 31 cases. The following year, terrorism-related warrants jumped—to 58. By 2013, the number of sneak and peek warrant requests had more than doubled from just two years earlier, to more than 11,000. Of those, all but 52 were for drugs.
The figures also showed that the warrant application process was pretty much a rubber stamp. Only 11 requests out of the more than 11,000 were rejected. That's a 99.9% success rate for warrant requests. And they showed that the average delay for investigators to give notice to a homeowner that their property had been searched often extended over 60 days; the longest notification delay extended well over a year to a whopping 546 days.
What's so bad about sneak and peek?
Search warrants are employed to protect citizens from a lawless state. Fourth Amendment case law requires that before police or other government agents search a dwelling, they must first obtain a warrant issued by a judge, and upon executing the warrant give proper notice to the person whose property targeted for a search. The law also requires that they inventory every item taken, and cannot search for or seize items not mentioned in the warrant.
Under federal practice, police must notify property owners of a search within seven days unless they can show the court the necessity for the delay and that early notification would jeopardize an investigation.
But police operating with sneak and peek warrants are not required to give timely notice to a property owner, and they are allowed to seize any items suspected of a crime without notifying the owner. In police sneak and peek operations so far, they have taken drugs, cash, jewelry, and other valuables, and they ransack the home or business to fool the subject of the search into believing they've been victimized by burglars.
"Sneak and peek searches made to look like burglaries are not constitutional and raise Fourth Amendment problems beyond the covert search and seizure itself," Cleveland Ohio State University Professor of Law Jonathan Witmer-Rich told AlterNet. "The constitutional question is whether the Fourth Amendment requires police to give notice of a search at the time of conducting the search," Witmer-Rich said, citing US 9th Circuit Court of Appeals precedent that sneak and peek searches without notification can be unconstitutional.
They are also potentially dangerous, Witmer-Rich said. "A covert seizure by the government makes the victims of a seizure feel like they been burglarized and if the targets of a seizure are violent criminals, there is a high risk they will try to retaliate against whoever they believe stole their drugs or money."
Prior to the Patriot Act's Section 213, nothing in the criminal code authorized secret searches for physical evidence, said Rachel King, legislative counsel for ACLU. The section "radically" expanded the power of police and agents in narcotic cases to secretly enter someone's home while they're not there to search for evidence of a drug crime."
"Rule 41(d) of the Federal Rules of Criminal Procedure still requires officers conducting a search to leave a copy of the receipt at the place from which the property was taken," King said. "When officers are operating under a Section 213 warrant, they're not required to leave an inventory receipt because the scheme is to not let the person know they been inside their home.
FBI and Justice Department officials have taken a more sanguine view of sneak and peek.
"There are many provisions in the Patriot Act that can be used in the general criminal law," said Mark Corallo, a Bush Justice Department spokesman. "And I think any reasonable person would agree that we have an obligation to do everything we can to protect the lives and liberties of Americans whether it's from terrorists or garden-variety criminals."
And don't call it sneak and peek, complained FBI head James Comey. "We in law enforcement do not call them Sneak-and-Peek warrants ....because it conveys this image that we are looking through your sock drawer while you are taking a nap."
Beyond Bugging
Before the Patriot Act, federal agents' ability to enter homes or businesses surreptitiously and without notifying the subject was limited to properly warranted break-ins to install bugging devices, or when obtaining cell phone records, text messages and computer emails.
"We would use a warrant to install cameras and recording devices inside a home or other property owned by suspected drug dealer," former DEA New York office Special-Agent-in-Charge Lewis Rice told AlterNet. Rice boggled at the notion agents could in essence burglarize drug dealers. "We never used this kind of warrant. This is something new to me."
But they would have if they could have, and it would have helped, said former DEA Special Agent Joe Toft, who once ran the DEA's effort to kill or capture Colombian drug lord Pablo Escobar.
"If I could've used sneak and peek warrants it would've been extremely helpful and much easier to make a case on drug dealers," said Toft, who, along with former Houston DEA Special-Agent-in-Charge Javier Pena recently appeared on the History Channel documentary Facing Pablo.
Antoine Jones' Story
Antoine Jones knows about being burgled by the government. His life sentence on drug trafficking charges was overturned in a landmark 2012 decision because federal agents placed a GPS trafficking device on his vehicle without a warrant, but he's still sitting in federal prison on another, 15-year federal sentence.
Jones is writing a book and documentary titled Pro-Se Litigator, about his horrific experiences involving how government agents either lied, broke the law repeatedly, produced informants during trial that he never seen or met and, yes, burglarized his properties to build a case against him. And he's working with film director Tangie B. Moore, executive producer of Hollywood Hearts,on the tentatively titled United States v. Antoine Jones, based on his true-life legal battles.
"I want people to know I am not anti-government; I am a patriot who believe in the United States Constitution," Jones told AlterNet. "My experience and belief is the Patriot Act is what former President George W. Bush put into place to allow the government to spy on citizens and to obtain warrants to sneak into the homes of private citizens without their knowledge or consent."
Jones recalled how federal agents burglarized his properties without a warrant during their attempt to connect him to a Mexico-based drug trafficking network. "ICE agents executed sneak and peek searches to enter my home twice on Myrtle Avenue on February 27, 2004, and on February 28, 2004. Both times, they used the back window to enter, and neither time did they give notification. We first learned about the break-ins during discovery phase of the trial," Jones pointed out.
According to federal court proceedings, agents also raided Jones' Summit Park Circle apartment on February 8, 2004, without probable cause, a search warrant, or a sneak and peek warrant. And they hit another Jones property, a warehouse in Hampton Park, searching it, taking photos, and never leaving any notification—as required by law.
"I only learned of this search during the discovery phase of trial," Jones explained.
Federal Courts Have Upheld Covert Searches Similar To Sneak and Peek Warrants
While the US Supreme Court has yet to address sneak and peek searches, federal appeals courts have upheld similar practices. In U.S. v. Heal, DEA agents obtained a sneak and peek warrant to surreptitiously search Heal's home in a meth probe, only to find Heal's girlfriend at home. Their clandestine cover blown, some of the agents secured the house and detained the girlfriend, while others ran off to get a normal search warrant allowing them to seize marijuana-growing equipment they found during the raid. Evidence presented in the case showed how the DEA originally planned to take three pounds of meth from Heal's residence and make it appear to be a burglary to ignite a war with rival drug dealers.
Heal was convicted on drug charges, and his attorney appealed, arguing the evidence should be suppressed because the "conventional search warrant was illegal in part because the facts were based on fruits of the first (federal sneak and peek) warrant."
The 9th Circuit disagreed, noting in a brief opinion that "a surreptitious entry warrant is valid if it adequately describe the property to be seized and.....if it includes a notice requirement."
Similarly, in a 1990 case, U.S. v. Villegas, the 2nd Circuit upheld a covert search where no tangible evidence was seized, but also ruled that covert searches should be subject to certain safeguards, such as showing a reasonable necessity for delayed notification.
But the appeals courts are not in full agreement on the proper scope of surreptitious searches. In
U.S. v. Freitas, the same 9th Circuit found in a meth lab case that a covert search is unlawful because the warrant contained no provision for timely notice to the person whose property was searched. "A delay in notice should not extend beyond seven days except upon a showing of necessity," the appeals court held. Still, in Freitas, the appeals court allowed the tainted evidence under the "good faith" exception to the exclusionary rule.
Sneak and Peek: A Case Study in Cleveland
"Chevy" Robinson wasn't the only Cleveland-area drug suspect targeted for sneak and peek searches and seizure, but it took investigative reporting from the Cleveland Plain Dealer for them to figure it out. The front-page story detailed the sneaky tactics used by the feds in a massive September 2010 heroin bust that left 24 people indicted.
Under a headline reading "Cops Turn into Court-Approved Burglars to Crack Drug Ring," the newspaper described a surreptitious raid on suspect Christopher Sapp where "police ransacked Sapp's apartment to make it look like a burglary." The raider took off with a pair of guns, ammunition, a scale, and more than a pound of heroin.
Sapp and his partners didn't have a clue he'd been raided—not robbed—as revealed in phone calls Sapp made to partner Richard Lanier that were recorded by federal agents.
"Hmmm....ugly, know what I'm saying," Sapp said, referring to the "burglary." "I don't know if you can help me out--and I can work something out with you, but it's all bad."
In a later conversation, Sapp was promising to make up the loss.
"I really want to get those playoff tickets, right," referring to drugs, Sapp said on the phone. "So I kinda thought maybe I have a way to half the money up for the tickets, know what I'm saying?" Sapp asked Lanier, adding that he hoped to repay Lanier by the end of the week. "I'm working towards that," he added.
Jimmie Goodgame was another sneak and peek victim. Goodgame had been in the feds' sights for years as a suspected money launderer for Ohio drug dealers. He lived in an $800,000 mansion in a gated community, had bank accounts worth $1.5 million, and owned shell companies holding titles to dozens of luxury cars that he used to portray himself as a legitimate businessman.
When a series of traffic stops of vehicles belonging to Goodgame's companies turned up heroin and, in one case, $500,000 in cash stashed in heat-sealed containers, the DEA got wiretaps on him and his dealers. Those led to the discovery of a Houston-to-Cleveland trafficking network and the unveiling of Cleveland dealers working with Goodgame.
And that led to a series of sneak and peek raids on the dealers' stash houses, creating suspicion and paranoia, as well as a similar sneak and peek search and snatch at Goodgame's mansion. Investigators seized large amounts of drugs, cash, and financial documents that showed how drug money was laundered through Goodgame's shell companies, including one named Goodgame Heavenly Cleaning. After the apparent burglary, Goodgame was mind-boggled that the thieves had managed to disarm his state-of-the-art security system. He'd been gamed.
Columbus Just Says No to Sneak and Peek
Black bag jobs may have been fine for the feds in Cleveland, but cops in Columbus want little to do with them. As reported in the Columbus Dispatch, top commanders in the Columbus Police have issued orders prohibiting their narcotics officers from engaging in the tactic.
Sneak and peek came under scrutiny after a Columbus Police narc working with a federal task force obtained a sneak and peek warrant from a municipal judge to pursue a "hot tip" that a drug money courier was about to clean out his house to destroy evidence. That got the attention of the narc's supervisors and the Columbus Police brass.
Such warrants "are a rarely used investigative tool in central Ohio and there is a lack of understanding throughout the state systems," Narcotics Bureau Commander Gary Cameron wrote in a letter to Police Chief Kim Jacobs.
Police Division legal adviser Jeff Furbee, said the warrants didn't appear to be explicitly permitted under state law, and their use should be by federal, not state, agents.
Cameron said the warrants could also expose officers to great danger and lead to civil rights violations if not properly secured and carried out.
“It’s not a perfect tool for law enforcement,” he said. “The element of danger and the uncertainty of the law forced us to make the policy decision that we’re not going to engage or use that tactic for narcotics investigations.”
But that's not stopping the DEA or other federal agencies, or, for that matter, other state and local law enforcement agencies from resorting to surreptitious break-ins and thefts in the name of the greater good. If Congress won't rein in the relevant sections of the Patriot Act, it'll be up to the Supreme Court to decide whether such tactics really are acceptable in America.
Journalist Clarence Walker can be reached at: newsmediainvestigation@gmail.com
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