Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 2005

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 2005 -- (House of Representatives - July 08, 2004)

The SPEAKER pro tempore. Pursuant to House Resolution 701 and rule XVIII, the Chair declares the House in the Committee of the Whole House on the State of the Union for the further consideration of the bill, H.R. 4754.

BREAK IN TRANSCRIPT

Mr. SCOTT of Virginia. Mr. Chairman, I rise in support of the amendment.

[Begin Insert]

Mr. Chairman, I rise in support of the amendment offered by my colleague, the gentleman from Idaho, of which I am a co-sponsor.

The Fourth Amendment provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment's protections against unreasonable searches and seizures are put into practice, in part, by the Federal Rules of Criminal Procedure. Rule 41 specifically requires the government to obtain a warrant before a search is conducted. It also requires that the government give notice to a person whose property was seized during a search, or from whose premises property was seized. And the Supreme Court has traditionally held that an officer must knock and announce his presence before serving a search warrant, absent exigent circumstances such as reasonable belief such notice would jeopardize life or limb, or result in destruction of evidence or escape of the person named in the warrant. Moreover, while delayed notice for searches of oral and wire communications are authorized by law under certain conditions, as a general rule, covert physical searches for physical evidence were not permitted prior to the PATRIOT Act.

The notice requirement enables the person whose property is to be searched to assert his or her Fourth Amendment rights by pointing out irregularities such as the police have the wrong address, or ensuring that only those areas specified are searched, if the area to be searched is a room in a house, that does not include the car in the garage.

The so called "sneak and peek" secret search warrant provision allows law enforcement to conduct a secret search on a person's premises or computer without notice. If they get the wrong house or business and it happens to be yours, you may never know about it. Or if the search is conducted improperly, but nothing incriminating is found, you may never know about it. Sneak and peek warrants provide no sanction for failure to notify the subject of the search or for unlawful activity if nobody is aware of it and if no incriminating evidence is found. Law enforcement personnel will need to validate a search only when property is seized and then delayed notice must be given. Meanwhile, the notice can be weeks or even months after the fact. And in that time period, several searches may have been conducted without any results or continuing justification.

Moreover, this gives law enforcement officials access to someone's personal property and information without the person's knowledge. Law enforcement personnel can search through your drawers, go through your files including medical and financial records, read your diaries, and surf through computer websites you have visited, just to name a few invasive practices. The person conducting the search will have access to very private, very personal, information about you and your family, without your knowledge. And what if the government agent conducting the search happens to be your neighbor or someone you see at the store or at a PTA meeting? Without your knowledge, that person has continuing access to-and knows the most intimate of details about-your life. This level of privacy invasion is unjustifiable.

Preventing terrorism has become a more urgent and necessary goal of law enforcement since the 9/11 tragedies. Yet, we don't want to accomplish for the terrorists something they could not accomplish themselves-reducing the rights, freedoms, and protections our system provides us all. The Otter amendment finds a working middle-ground that will satisfy our country's need for heightened security while at the same time ensuring that our freedoms and protections remain intact. The amendment limits the reasons for sneak and peek warrants to three specific circumstances, when notice would cause either the life or physical safety of a person to be put in danger, flight from prosecution, or the destruction of evidence. It also includes a seven-day time limit for the delayed notice. This time limit creates a pattern of uniformity for those involved in law enforcement and is a reasonable period by which to inform the person subject to the warrant of the clandestine search. In the case where a court finds that notice of the warrant within the seven-day period will lead to one of the three enunciated circumstances, the amendment authorizes unlimited additional seven-day delays. This amendment encourages use of these warrants in appropriate circumstances, will prevent misuse of the practice, and ensures the protection of our civil liberties.

Encouraging the judiciary to issue sneak and peek warrants without offering any meaningful guidance on their use will end in disaster. This amendment is unequivocally American. It recognizes the need to protect our country and our selves. It gives meaning to Section 213 of the PATRIOT Act within the parameters of our democracy so that it can be an effective tool rather than a wasted provision.

Mr. Chairman, safeguarding the rights guaranteed to us by the Constitution is not a partisan issue. I ask my colleagues to join me in support of this essential legislation to protect the rights of all Americans.

[End Insert]