DRUG-TUNNEL BUST AIDED BY CONTROVERSIAL PROVISION OF USA PATRIOT ACT

As drug smugglers carried hundreds of pounds of marijuana through a tunnel
from Canada to the U.S. last month, federal officials heard every word and
watched nearly every movement with state-of-the-art surveillance.

Investigators were able to surreptitiously install video and audio bugging
devices in the tunnel after receiving a judge's approval to search the
passage under a controversial provision of the USA Patriot Act.

By obtaining a so-called "sneak-and-peek" warrant, law-enforcement
officials were able to enter the tunnel, and bug it, without immediately
telling the suspects a warrant had been issued. Regular search warrants
require that the subject of a search be notified immediately after it has
been conducted.

As Congress prepares to reauthorize some parts of the terrorism-fighting
Patriot Act this summer, some legislators and civil-rights groups say that
power is too broad and want to regulate the ways police can conduct
searches. The Senate Judiciary Committee recently introduced a bill that
would greatly limit how "sneak-and-peek" actions are conducted.

"I think that the power that the government has under the Patriot Act . is
clearly contrary to the notion underlying the Fourth Amendment," said
former U.S. Rep. Bob Barr, a Republican from Georgia who leads the Patriot
Act reform organization Patriots to Restore Checks and Balances.

Sneak-and-peek "is being used in cases that have nothing whatsoever to do
with terrorism," Barr said. When police want to search a suspect's
property, a judge has to determine there is probable cause before issuing a
warrant. After police search the property, they are normally required to
leave a notice with explanations of the areas searched and items removed,
if any.

Under a sneak-and-peek warrant, also known as a delayed-notice search
warrant, a judge authorizes police to search a suspect's property without
leaving any trace they were there. Whalley said investigators arrange the
timeline of the delay with a judge and most often notify suspects within 30
days.

Doug Whalley, an assistant U.S. attorney in Seattle, said the Patriot Act
codified already-existing law, making it difficult to challenge the use of
sneak-and-peek warrants in court. Rulings before the act were made on a
case-by-case basis, Whalley said, and appeals courts could have ruled the
warrants were improperly issued.

But Lisa Graves, senior counsel for legislative strategy for the American
Civil Liberties Union, said that under these warrants, police routinely
don't tell suspects they have searched their homes until months later.
Graves also said the new Patriot Act provisions have been an attempt to
give law enforcement a blanket ability to conduct secret searches without
being held accountable.

"The Justice Department decided to create a statutory right across the
board," Graves said, "to try and create a national right of law enforcement
to create secret searches of businesses and homes, secret seizures of
evidence."

"Federal prosecutors don't eagerly use these methods of surveillance,"
countered Whalley. "The process is very labor intensive. If you watch TV,
they get a search warrant within 10 minutes. Something like this, where you
want to go in and not announce your presence -- if we're lucky, the
turnaround is two days, and that's fast."

When authorities announced the discovery of the tunnel in mid-July, federal
officials said their concern was not only drug smuggling but the
possibility it could be used to transport terrorists or smuggle weapons.

But civil-rights advocates say law-enforcement agencies are abusing their
power.

"The tunnel has nothing to do with the war on terrorism. ... There's
absolutely no reason why the authorities couldn't have availed themselves
of the normal ways possible," said Bob Mahler, a Seattle criminal-defense
attorney. "They just didn't feel the need to use the normal,
constitutionally mandated processes because they had this new tool that was
given to them."

The section of the act containing the sneak-and-peek provisions is not up
for congressional reauthorization this year, but advocates still want it
amended during this series of revisions.

U.S. Sen. Patrick Leahy, D-Vt., ranking member of the Senate Judiciary
Committee, announced last month that the committee unanimously approved a
bill to reform parts of the Patriot Act, including more regulation of
police searches and sneak and peek.

Under the bill, the government would have to notify the target of a
sneak-and-peek warrant within seven days of a search. Week-by-week
extensions could be requested, bringing additional judicial oversight.

Sen. Maria Cantwell, D-Wash., co-sponsored a similar but further-reaching
bill, the Security and Freedom Ensured, or SAFE, Act.

If passed, it would require added judicial oversight, much like Leahy's
bill, and also would limit the grounds for delayed-notice search warrants.
They would be allowed in cases when authorities feared there could be
destruction of evidence, risk of injury, intimidation of witnesses or that
suspects would flee, among other circumstances.