Judge’s rebuke highlights use of covert searches in Kansas

Published: 29 April 2015

Original Source Kansas City Star – A Kansas judge who publicly rebuked prosecutors for ignoring legal requirements for spying on suspects offered a behind the scenes look into the surge of covert warrants, allowed under a law (The USA Patriot Act) passed after the Sept. 11 terrorist attacks that was intended to fight terrorism and not for routine crime.

U.S. Magistrate Judge Teresa James in Kansas City, Kansas, permitted a rare peek at the sloppy handling of delayed-notice warrant applications when she rebuked federal prosecutors for “willful disregard” of requirements in the law for timely court oversight. The judge said the missed deadlines are a regular occurrence that indicates a “much greater systemic problem.”

She allowed her February ruling to be made public setting tighter guidelines applying to her court. In the process, she called for closer scrutiny by courts of the warrants.

“A tool intended to be used to fight terrorism has been coopted by police for ordinary criminal investigations,” said Christopher Joseph, a Topeka defense attorney for Joseph Hollander & Craft who has represented several clients targeted by them.

They are sometimes referred to as “sneak and peek” warrants because authorities can use them to secretly search homes and businesses, although the court noted they are mostly used today for cellphone searches. The person targeted may not be notified until weeks, months or even later. Notification is delayed because if a suspect were told immediately, evidence such as cellphones could be destroyed. Prosecutors are supposed to seek a judge’s approval for them and for any extensions.

The judge also said Kansas has a “disproportionately high number” of the warrants — 555 for the fiscal year ending in Sept. 30, 2013, according to report by the Administrative Office of the U.S. Courts. That was the third highest in the nation after the more heavily populated southern judicial districts of California and Texas in the high drug trafficking areas along the Mexican border.

The U.S. Attorney’s office in Kansas offered no explanation for the high number of warrant applications for secretive searches in the state. In a statement emailed to The Associated Press, it said prosecutors work diligently with law enforcement investigators to develop strong cases.

“We seek judicial review of all search warrants. And our management team continuously reviews our policies and procedures to ensure we are acting in accordance with the law,” according to that statement.

The number of covert warrant applications nationwide surged to 11,129 in fiscal 2013, the latest year data is available, from 690 in 2007. Judges denied only 11 of them that year.

Congress authorized such warrants in the USA Patriot Act enacted a month after the Sept. 11, 2001, terrorist attacks. Their skyrocketing use since the law was enacted comes at a time of public unease in the wake of former National Security Agency leaker Edward Snowden’s revelations in 2013 about the government’s mass surveillance programs.

“Virtually every federal narcotics investigation involves delayed notice of cellphone searches — voice, text and location. And it is not just used for narcotics investigation,” Joseph said. “Congress did not intend to give prosecutors and police the power to further intrude … for matters unrelated to terrorism.”

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