X. Practical Justifications for Exemption
First, it must be remembered that both Title III and FISA permit delayed applications for warrants, after surveillance has begun. Also, the case law has long permitted law enforcement action to proceed in cases in which the lives of officers or others are threatened in cases of “hot pursuit”, border searches, school locker searches, or where emergency situations exist. See generally Warden v. Hayden, 387 U.S. 294 (1967); Veronia School District v. Acton, 515 U.S. 646 (1995); and Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990).
Indeed, in Zweibon, Judge Wright enumerates a number of Defendants’ practical arguments here (including judicial competence, danger of security leaks, less likelihood of criminal prosecution, delay, and the burden placed upon both the courts and the Executive branch by compliance) and finds, after long and careful analysis, that none constitutes adequate justification for exemption from the requirements of either FISA or the Fourth Amendment. Zweibon, 516 F.2d at 641. It is noteworthy, in this regard, that Defendants here have sought no Congressional amendments which would remedy practical difficulty. As long ago as the Youngstown case, the Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable. (56) The Youngstown court made short shift of that argument and, it appears, the present Defendants’ need for speed and agility is equally weightless. The Supreme Court in the Keith (57) , as well as the Hamdi (58) cases, has attempted to offer helpful solutions to the delay problem, all to no avail.
