D.V.I.: Delayed notice of sneak and peek does not per se require exclusion

Delayed notice of a covert entry under 18 U.S.C. § 3103 does not per se justify exclusion of the evidence. United States v. Christopher, 2009 U.S. Dist. LEXIS 28240 (D. V.I. March 31, 2009):

What constitutes a reasonable time for delayed notice will depend upon the circumstances of each individual case and the Court bears in mind the ongoing nature of the investigation as well as the manner in which the delayed notice search warrant was executed in this case. See id. at 1337. The Court takes into account that, generally, a covert entry search is less intrusive than a conventional search with physical seizure because the latter deprives the owner not only of privacy but also of the use of his property. See Villegas, 899 F.2d at 1337. It is also the Court’s perception that a covert entry search is less intrusive than a wiretap or video camera surveillance because “the physical search is of relatively short duration, focuses the search specifically on the items listed in the warrant, and produces information as of a given moment, whereas the electronic surveillance is ongoing and indiscriminate ….” Id.

Additionally, the Court notes that a violation of Federal Rule of Criminal Procedure Rule 41 or 18 U.S.C. § 3103’s notice requirement does not necessarily call forth the application of the exclusionary rule. See Donovan, 429 U.S. at 438-39; Pangburn, 983 F.2d at 455. “Courts should be wary in extending the exclusionary rule in search and seizure cases which are not of constitutional magnitude.” United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975). A rule of exclusion is properly employed only where the objection goes to the question of the reliability of the challenged evidence or reflects intolerable government conduct which is widespread and cannot otherwise be controlled. See Dunaway v. New York, 442 U.S. 200 (1979); Manson v. Brathwaite, 432 U.S. 98 (1977); United States v. Calandra, 414 U.S. 338 (1974); Neil v. Biggers, 409 U.S. 188 (1972); Mapp v. Ohio, 367 U.S. 643 (1961). The imposition of sanctions requiring the suppression of evidence that results from a search where there has not been compliance with the relevant notice requirements must depend upon the relationship of the violation to the reliability of the evidence seized.

The Court finds it difficult to accept the proposition that a search may be deemed reasonable, and therefore constitutional, during the various stages of application for authorization, execution, and termination, only to be invalidated because of the operation of some condition subsequent, to-wit, a failure to provide notice. See United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973). The procedural requirements for giving notice after execution of a valid search warrant are ministerial tasks and a failure to comply therewith, without more, does not amount to deprivation of Fourth Amendment rights necessitating suppression. Id.; see also Frisby v. United States, 79 F.3d 29, 31-32 (6th Cir. 1996). The Court holds that violations of the notice requirements under Rule 41 or 18 U.S.C. § 3103 will not lead to exclusion unless there is a substantial showing of either (1) incurable prejudice to the defendant or (2) bad faith on the part of law enforcement officers or government agents. See Donovan, 429 U.S. at 438-439; Burke, 517 F.2d at 387; Mark, 2007 U.S. Dist. LEXIS 17878 at *33; see also United States v Hooker, 418 F Supp 476 (M.D. Pa. 1976) (finding that failure of government to properly file inventory under Rule 41 would not require suppression of evidence where error was inadvertent and resulted in no prejudice to defendant).