* The Liberty Tree *
columnist: Jake Morphonios

Topic: Patriot Act
USA Patriot Act for Dummies - Part 2

---

Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap on American citizens to obtain evidence of crime without proving probable cause, as the Fourth Amendment explicitly requires.

---

by Jake Morphonios
(Conservative Libertarian)
Thursday, March 27, 2008

2. More secret searches

For centuries, common law has required that the government can't go into your property without telling you, and must therefore give you notice before it executes a search. That "knock and announce" principle has long been recognized as a part of the Fourth Amendment to the Constitution.

The Patriot Act, however, unconstitutionally amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed. This means that the government can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property - and not tell them until later.

Notice is a crucial check on the government's power because it forces the authorities to operate in the open, and allows the subject of searches to protect their Fourth Amendment rights. For example, it allows them to point out irregularities in a warrant, such as the fact that the police are at the wrong address, or that the scope of the warrant is being exceeded (for example, by rifling through dresser drawers in a search for a stolen car). Search warrants often contain limits on what may be searched, but when the searching officers have complete and unsupervised discretion over a search, a property owner cannot defend his or her rights.

Finally, this new "sneak and peek" power can be applied as part of normal criminal investigations; it has nothing to do with fighting terrorism or collecting foreign intelligence.

3. Expansion of the intelligence exception in wiretap law

Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap on American citizens to obtain evidence of crime without proving probable cause, as the Fourth Amendment explicitly requires.

A 1978 law called the Foreign Intelligence Surveillance Act (FISA) created an exception to the Fourth Amendment's requirement for probable cause when the purpose of a wiretap or search was to gather foreign intelligence. The rationale was that since the search was not conducted for the purpose of gathering evidence to put someone on trial, the standards could be loosened. In a stark demonstration of why it can be dangerous to create exceptions to fundamental rights, however, the Patriot Act expanded this once-narrow exception to cover wiretaps and searches that DO collect evidence for regular domestic criminal cases. FISA previously allowed searches only if the primary purpose was to gather foreign intelligence. But the Patriot Act changes the law to allow searches when "a significant purpose" is intelligence. That lets the government circumvent the Constitution's probable cause requirement even when its main goal is ordinary law enforcement.

The eagerness of many in law enforcement to dispense with the requirements of the Fourth Amendment was revealed in August 2002 by the secret court that oversees domestic intelligence spying (the "FISA Court"). Making public one of its opinions for the first time in history, the court revealed that it had rejected an attempt by the Bush Administration to allow criminal prosecutors to use intelligence warrants to evade the Fourth Amendment entirely. The court also noted that agents applying for warrants had regularly filed false and misleading information.

Other articles by Jake Morphonios:

USA Patriot Act for Dummies - Introduction

USA Patriot Act for Dummies - Part 1

False Child Sex Abuse Allegations - Lesson 1

Did you like this article?
If you did, Thumb It!
6 thumbs so far

2008 Jake Morphonios, all rights reserved.
Published: Thursday, March 27, 2008
Last modified: Thursday, March 27, 2008

The views expressed in this article are those of Jake Morphonios only and do not represent the views of Nolan Chart, LLC or its affiliates. Jake Morphonios is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

Report violation by Jake Morphonios of Nolan Chart LLC's terms of use policy.