Information Liberation | August 16, 2007
By J.J. Stambaugh

Just after midnight on May 13, 2004, a small team of FBI agents crept into the legendary Del Rio Cockfighting Pit in Cocke County.

The illegal gambling arena was closed, and agents were able to copy a computer hard drive before slipping away. They didn’t notify the property’s then-owner, Michael Maynard of Hot Springs, N.C., of the search for another three months.

Acting under the authority of the Patriot Act, the agents had obtained a search warrant that allowed them to clandestinely enter the property, search for evidence and not tell anyone about it until the government or a judge was ready to let the owners know they’d been there.

Originally touted as a tool in the struggle against terrorism, the Patriot Act now was being used in the hills of East Tennessee as part of a shadowy war that had been going on for decades, a struggle that pitted the federal government against a homespun Appalachian culture that had churned out generation after generation of proud outlaws.

The use of delayed-notice search warrants, which also are called “sneak-and-peek” warrants, is very rare, according to the most recent figures from the federal government.

As of 2005 — the most recent year for which data is available — the U.S. Department of Justice reported to Congress that less than 0.2 percent of all search warrants involved requests to delay notification.

Such warrants weren’t a new tool that was created by the Patriot Act, according to the Justice Department. The ability to conduct such searches had been upheld by the courts for many years, but the 2001 Patriot Act codified how they are to be used and, according to critics, greatly expanded the conditions under which they can be sought.

To Joe Baker, an attorney who represents alleged Del Rio pit employee Gerald David Allen II, the use of the Patriot Act in domestic investigations is problematic because it was touted as a tool to fight international terrorism.

While Baker said “it would be inappropriate to comment” specifically on his client’s case, he said the use of Patriot Act provisions in cases with no ties to terrorism is questionable.

“When the Patriot Act was enacted, it was done to protect us from the devastation and destruction of terrorism, and I think the lawmakers who passed the law at the time would certainly rethink their votes now, knowing that this powerful tool is being used to investigate nonviolent, small-time criminal offenses,” Baker said.

U.S. Attorney Russ Dedrick, who oversees federal prosecutions in East Tennessee, declined to comment for this story because of pending criminal cases.

The Del Rio search was part of the “Rose Thorn” probe, a massive investigation into public corruption and organized crime in Cocke County.

Based on what federal authorities had heard by the time of the search, the stakes could hardly have been higher, according to court records. Then-Sheriff D.C. Ramsey and several relatives allegedly were milking the Del Rio pit and other illegal gambling operations for cash. The FBI also was looking into drug smuggling and auto theft rings.

When FBI Special Agent Thomas Farrow sought the warrant, he cited the dangers that prompt disclosure might pose to those who were secretly cooperating with federal authorities as well as to the investigation as a whole. One witness, for instance, allegedly had been told their house might be dynamited if they kept asking questions.

But the use of such warrants poses thorny issues about privacy and the constitutional right to be free of unreasonable searches or seizures, according to the American Civil Liberties Union, which has been critical both of the use of sneak-and-peek warrants and how the federal law was changed in 2001.

“This is one of the few provisions of the Patriot Act that was sneaked into the Patriot Act in the middle of the night so that no one knew it was there,” said Michelle Richardson, a legislative consultant for the ACLU’s Washington, D.C., Legislative Office. “It was passed without everyone knowing about it.”

Prior to the Patriot Act, she said, federal courts had held that agents could conduct secret searches and defer notifying the targets for short periods of time in very limited circumstances, such as when someone’s life might be in danger.

“But this broadens it to include (the risk of) interference with an investigation, and this creates a sort of catch-all for law enforcement when it’s inconvenient for them to follow the rules,” she said.

She also said federal authorities aren’t required to release information on how many of the searches are done each year, although in 2005 the government confirmed that only 12 percent of them were related to terrorism.

“The rest are mostly drug cases,” she said. “They don’t even purport that this is a terrorism tool.”

A spokesman for the Justice Department’s National Security Division said he couldn’t discuss particulars of the Del Rio search but did explain the department’s stance on delayed-notification warrants.

Federal authorities believe the section of the Patriot Act dealing with such searches helped strengthen a valuable tool, he said.

“Delayed-notification search warrants are a long-existing crime-fighting tool upheld by courts nationwide for decades in organized crime, drug cases and child pornography,” said spokesman Dean Boyd.

Federal authorities still must convince a federal judge of the necessity of such a search, and judges must periodically review the case to ensure that keeping the warrant secret is required.

“The reasonable delay gives law enforcement time to identify the criminal’s associates, eliminate immediate threats to our communities and coordinate the arrests of multiple individuals without tipping them off beforehand,” he said. “In all cases, law enforcement must give notice that property has been searched or seized.”