Drake Law Review
covert seizure, warrant, law enforcement
In a covert government seizure, police secretly enter a home when no one is present and seize contraband, often staging the scene to look like a burglary. These covert seizures are authorized by delayed notice search warrants. This Article identifies two serious problems with this practice and proposes reforms.
The first problem is that a successful covert seizure will likely provoke violent retaliation against innocent third parties. If the target of the covert seizure--say a drug dealer--believes someone has stolen a valuable drug stash, the dealer will seek to kill or harm whomever they believe conducted the burglary. The statute authorizing covert seizures does nothing to address this grave danger to the safety of third parties, some of whom are wholly innocent bystanders.
The second, deeper problem relates to why police conduct covert seizures at all. According to the government, covert seizures allow police to seize evidence while maintaining the secrecy of an ongoing investigation, permitting that investigation to continue. But in many cases, that rationale is suspect. Law enforcement agents are not naïve. They know that covertly burglarizing a drug stash might quickly lead to violent retaliation. This means that often they also know that they cannot wait long before arresting the suspects.
If police know that a covert seizure is likely to prompt violent retaliation, thus necessitating quick intervention, why conduct the seizure covertly in the first place? In these cases, the answer cannot be what the government tells us--to allow law enforcement additional days, weeks, or months to continue the investigation--because the government knows that this will be impossible.
This suggests a different, hidden rationale for covert seizures, one that is far more troubling and constitutionally objectionable. In conducting some covert seizures, law enforcement may simply intend to poke the hornet's nest--provoke an immediate reaction from the suspects, leading to additional, more serious criminal charges beyond those supported by the pre-existing conduct. This hidden practice should be recognized and expressly forbidden.
This Article proposes several reforms to the warrant process: giving magistrates a more robust oversight role over covert seizures, requiring law enforcement to identify and mitigate risks of harm created by covert seizures, and prohibiting the use of covert seizures as a tool to provoke additional criminal conduct.
Witmer-Rich, Jonathan, "Reforming the High-States Gamble of Covert Government Seizures" (2021). Law Faculty Articles and Essays. 1203.