CA2: No 4A requirement for SWs being issued with notice to target

Search warrants are usually issued ex parte, and there’s no Fourth Amendment justification for advance notice to the target of the search. It avoids warning the target to destroy or hide evidence or flee. United States v. Leeper, 2026 U.S. App. LEXIS 24432 (2d Cir. Aug. 13, 2026):

Moreover, the suspect (if he is not already in custody) could flee the jurisdiction once he is given notice of the search warrant application, thereby thwarting the collection of the DNA from him or any future criminal prosecution. Even if the suspect is in custody, any non-incarcerated co-conspirators would have their own opportunity to flee, especially if the warrant application were made known to them and revealed that the investigation was well-developed and additional arrests were imminent. See Application of Dow Jones & Co., Inc., 842 F.2d 603, 611 (2d Cir. 1988) (“[T]argets learning of their possible indictment might flee or tamper with … witnesses.”). Indeed, these compelling law enforcement interests in protecting the confidential details of an ongoing criminal investigation are precisely why government applications for search warrants typically remain sealed until after the target is arrested.

Other courts have similarly recognized the compelling government interests in maintaining the confidentiality of search warrant applications while an investigation is pending. For example, in Mater of EyeCare Physicians of America, 100 F.3d 514 (7th Cir. 1996), companies whose premises were searched pursuant to warrants filed a motion to have the search warrant applications and affidavits unsealed to allow them to assess whether to challenge the government’s search. Id. at 515. In affirming the denial of the motion, the Seventh Circuit noted that disclosure of the affidavits would breach the secrecy of the grand jury investigation and outlined other potential adverse ramifications from such a disclosure:

Additional consequences in disclosing the sealed affidavits include: the identity of unnamed subjects not yet charged would be revealed; there may be mistaken notions concerning who might and might not be cooperating with the government or who may be subjects; there may be misunderstandings about the parameters of the government’s investigation; the privacy of the innocent and the implicated would be threatened; and the cooperation of present and potential witnesses could be compromised or influenced. … We agree with the magistrate judge and the district court that disclosure of the affidavits might very likely impair the ongoing criminal investigation.

Id. at 519; see also Media Gen. Operations v. Buchanan, 417 F.3d 424, 429 (4th Cir. 2005) (holding that there was no right to view the sealing orders for the search warrant prior to the execution of the warrant and emphasizing that “[a] rule to the contrary would endanger the lives of officers and agents and allow the subjects of the investigation to destroy or remove evidence before the execution of the search warrant”); In re Search Warrant for Secretarial Area Outside Off. of Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (“[T]he very objective of the search warrant process, the seizure of evidence of crime, would be frustrated if conducted openly.”). It is likewise not hard to imagine how one or more of these adverse consequences to an ongoing criminal investigation could potentially result from the disclosure of a search warrant application to collect DNA from a suspect, even when the suspect is in custody.

In addition to the damage that could arise from disclosure of the details of the search warrant application, the delay that would inevitably result from pre-seizure notice and an opportunity to be heard could similarly impede criminal investigations where time is often of the essence and any delay could jeopardize public safety. See generally In re Sealed Case, 77 F.4th 815, 828 (D.C. Cir. 2023) (“Time is of the essence when the government seeks evidence needed in a criminal case, so there may be litle opportunity to fully litigate a substantial constitutional claim while holding in abeyance the execution of a search warrant.”). Importantly, in many instances, the delay could be substantial because a suspect may need time to retain an attorney, the attorney will then need time to prepare a motion to which the government will need to respond, and the court may be required to hold an evidentiary hearing. As the Supreme Court has explained, “[t]his Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (collecting cases); see also Parrat v. Taylor, 451 U.S. 527, 539 (1981) (“[E]ither the necessity of quick action by the State or the impracticality of providing any meaningful pre-deprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, can satisfy the requirements of procedural due process.”); accord Catanzaro v. Weiden, 188 F.3d 56, 61-63 (2d Cir. 1999). Those are precisely the circumstances present here.