How Easy is It for the Fbi to Secure a Search Warrant
If your home has been raided by federal law enforcement and you are reading this page, it likely means you have not been arrested. If that is so, you are already in a better position than some people.
You can start preparing now to resolve the federal investigation that led to the search as favorably as possible.
The first thing is to recognize is that you have been through a stressful situation that would rattle anyone. Federal agents have just violated the sanctity of your home and rifled through your personal belongings. Perhaps you were even physically restrained.
It's normal to feel stressed and even traumatized.
We have represented many people who have been in your situation and many of them never saw the inside of a courtroom, let alone a jail cell. Here are our answers to many of the common questions they asked us:
How did the agents get a search warrant?
To understand where the warrant came from, let's review some search warrant procedure.
A federal judge (usually a magistrate) must issue a warrant if the government can show probable cause for the requested search. The judge can receive evidence of probable cause through sworn testimony, recorded testimony, or sworn affidavit. The last method is by far the most common.
In the typical search warrant process, the affidavit is written by one of the agents involved in the case. It usually gives some background on the agent and the overall investigation. Most importantly, it will set forth the facts the agent claims establish probable cause for the requested search. The search warrant affidavit can run many dozens of pages for complicated cases.
An assistant United States attorney will review the warrant application and present it to a federal judge. It is an ex parte proceeding – meaning the person whose property will be searched as no right to be involved. The signed search warrant is then delivered to the agents for execution within a certain window of time.
Can a search warrant be issued without evidence?
No. If the government does not have evidence to show probable cause, the magistrate judge will deny the request for the warrant.
How long does it take to get a search warrant?
If the government has evidence to show probable cause, it does not take long to get a search warrant. The agents and prosecutor simply have to type it up and present it to a judge. Most courts have a duty magistrate available at all times to sign search warrants.
How long it takes the government to work up probable cause is a different matter. Some investigations may go for months or years before the government has enough evidence to get a warrant.
In more complex cases, particularly white collar investigations, agents and prosecutors may choose to wait a significant period of time before executing search warrants. They do this because once a search warrant is executed, the cat is out of the bag. The target of the warrant now knows there is an investigation, and can begin taking proactive steps. Delaying the execution of the warrant can allow prosecutors to continue to investigate the case without tipping off the target.
What does a search warrant look like?
What are the search warrant requirements?
The requirements for a federal search warrant come from the Fourth Amendment, and Federal Rule of Criminal Procedure 41.
The warrant must state with particularity
- The person or property to be search
- The person or property to be seized, and
- The magistrate judge to whom it must be returned
The warrant must also command the agents to
- Execute the warrant within a specified time no longer than 14 days;
- Execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and
- Return the warrant to the magistrate judge designated in the warrant.
There are also requirements for how a warrant must be executed. This includes: noting the exact date and time the warrant was executed and an inventory of the property seized. The seizing agents must also either provide a receipt to the person who's property was searched, or a receipt must be left at the location. The agent executing the warrant must also return it to the magistrate judge, with an inventory of the seized items.
Do agents have to show you the warrant?
Yes, law enforcement agents conducting the search must show you the warrant and give you a copy.
If you are present when a search warrant is executed, you should always ask to see a copy of the warrant. If the warrant does not accurately describe the place to be search, is not signed by a judge, or in some other way fails to meet the requirements outlined above, you can refuse to allow the agents to search.
However, even if you believe the warrant is not valid but the agents proceed to search anyway, it is important not become aggressive–verbally or physically–with police. This will almost certainly make the situation worse.
Instead, especially if your objection to the warrant was not witnessed by another person, accurately write down what you said to the police and what happened. Write down as many details as you can remember. If you later need to challenge the search warrant in court, it will be important to accurately discuss what happened with your federal criminal defense attorney.
Can police search your home if you are not there?
Yes, the police can execute the search warrant even if nobody is present. They must leave a receipt that states what they seized.
Do police serve warrants on weekends?
Yes.
How are search warrants executed?
A significant amount of planning and manpower goes into executing search warrants.
The case agent (i.e. the agent leading the investigation) will assemble a search warrant "team." It may be composed of agents from multiple federal agencies and from state law enforcement. For some of the agents, executing the search warrant will be the only thing they do in the investigation.
The amount of force and firepower the agents use depends on the type of case and what they have been told about the likelihood of resistance. However, even in white-collar cases where the threat of resistance is low, the team will come in with an impressive show of force.
Agents and prosecutors will always claim this show of force was necessary, but often it is not. Experienced criminal defense lawyers know that the agents know that this is a shocking and intimidating experience for people. Agents executing search warrants often try to interview their targets at the same time. It is no surprise that people in a state of fear, caught off-guard, will not be able to carefully consider their decisions. They will often talk to agents, or make statements to agents, that are later used against them. We talk about these situations in much more detail further in this article.
The different agents on the team will have different roles. Usually someone is responsible for photographs while other agents are dispatched to various sections of the house. A "seizing agent" receives the property the agents identify as being covered by the warrant.
Meanwhile, other agents may secure the property, temporarily detain the occupants of the house, or conduct interrogations (more on this later).
What happens after a search warrant is executed?
The agents will package the materials and transport them to one of their field offices. The agents and the supervising assistant United States Attorney will review the evidence. If there are computers, phones, or other digital devices, the agents will download and review the contents. The evidence can be used for probable cause to get additional warrants, or simply stored until trial.
If charges are brought, the prosecutor will provide this evidence to the defense as part of the discovery process.
If the government has enough evidence for a search warrant does that mean they have enough to convict me?
Just because the government had enough evidence for a search warrant, it does not mean they have enough to convict you. As mentioned above, the standard of proof for obtaining a search warrant is "probable cause." The standard of proof for obtaining a criminal conviction is "beyond a reasonable doubt," which is a much higher standard.
Moreover, the rules of evidence do not apply to search warrant affidavits. For example, search warrants can contain hearsay, which would not be admissible at trial.
Finally, the information in the search warrant affidavit may simply be wrong. Federal agents are human beings who make mistakes or, in certain rare and unfortunate cases, put deliberately false or misleading information in their search warrant affidavits. Read on to learn about how search warrants can be challenged in court.
Will I definitely be charged?
You will not necessarily be charged. The first question to ask is: are you sure it was you they were after? If multiple people live in your home, perhaps you were not the target.
Secondly, even if you are the main target of the investigation, you may not be charged. A criminal investigation that has gotten to the point of executing search warrants is pretty far along, but it may still be years away from conclusion. Perhaps the results of the search were not what the prosecutors and agents were expecting.
If you are able to retain counsel for your defense, that person may be able to help you proactively convince the government you are not guilty of a crime. At our firm, we have been involved in several investigations where our clients' homes or businesses were searched, and no charges were ever filed.
What if I made statements to law enforcement during the search?
As we described above, it is common for agents to attempt to question suspects in the course of performing a search.
This is often the agents' only chance to question the targets of their investigation before the targets retain counsel, and they do not want to pass it up.
If you did agree to answer questions from law enforcement, thus may have a negative impact on your case because the statements can be used against you. On the other hand, it may not be nearly as bad as you think. What you said to agents, of course, is very important in determining how it will affect the case, if it ever gets to court.
You should discuss your statements with your attorney and assess the likely impact on your case.
Can I have the statements I made during the search excluded if there is a trial?
You may be able to have your statements excluded. Individuals in law enforcement "custody" have a Fifth Amendment right to remain silent. They must receive Miranda warnings before being questioned.
Courts have held that even individuals who are not under arrest can be effectively in law enforcement custody during a search. It depends on the particular tactics used by law enforcement during the interrogation. If you were in custody and did not receive Miranda warnings, you may be able to exclude your statements.
Of course, law enforcement is well aware of the law and the searching agents have probably received training on how to conduct interrogations without triggering the Miranda requirement. Nevertheless, there are more than a few reported cases of interrogations in the context of a search warrant being thrown out, so you should definitely discuss this possibility with your attorney.
Can I challenge the legality of the government's search warrant?
If you are charged with a criminal offense based on the government's search, you can challenge the legality of the search. Your attorney can do this by filing a Motion to Suppress Search Pursuant to Warrant.
There are many potential ways to challenge a search warrant. This in itself is a subject that can fill up not one book, but entire sets of books. But, below are a few basic examples.
What can make a search warrant invalid?
Here is a (non-exhaustive) summary of some of the common challenges to search warrants: 1) the agents deliberately or recklessly included false information in the affidavit, 2) the agents deliberately or recklessly made material omissions of facts from the affidavit that would have defeated probable cause, 3) the affidavit lacked probable cause, 4) the probable cause in the affidavit is "stale", meaning too old to be meaningful, 5) the warrant does not specify the place to be searched and/or the items to be seized, 6) the warrant is overbroad, 7) there is an insufficient connection between the alleged crimes and the place to be searched, 8) the agents' search went beyond the authorization in the warrant.
Let's explore some of these with examples.
Warrants can be challenged if they are overbroad.
For example, let's say federal agents are investigating a tax crime committed by Jones, but they get a warrant to search for all documents and seize all computers in the house, regardless of who they belong to, with no connection to Jones or the crime investigated. This is an overbroad warrant and the evidence seized should be excluded, or "suppressed."
Warrants can also be challenged if the agents do not have probable cause that what they are searching for is at the location to be searched.
Imagine that agents want to search Jones's residence and take firearms. They have interviewed Jones's roommates, friends, and other witness. Every one of these people told the agents that the person does not own firearms. Nevertheless, they get a warrant to search the house for guns. The agents enter the house and search everywhere in the house. In Jones's bedroom drawer, they find a handgun. In this scenario, the agents did not have probable cause that the firearms would actually be at the place to be searched. The handgun would therefore be suppressed as evidence. This would also be the case for anything else they happened to find after searching based on an invalid warrant–for example if they found drugs in the drawer instead.
Agents must also follow the scope of the warrant.
A warrant does not give agents the right to go into someone's home and search for anything they want. Let's say agents got a warrant to search for and seize a large safe. While conducting the search, they start looking in desk drawers, and seize documents. In this case, the agents exceeded the scope of the warrant. Anything they take should be suppressed.
What if law enforcement searched a location other than my residence?
The underlying law of search warrants is basically the same no matter the location of the search.
Here is a non-exhaustive list of search warrant examples we have seen: offices, vehicles, storage units, industrial property, boats.
Our discussion of search warrants above would apply to all of these places, and others.
Computers, phones, and other electronic devices can also be searched subject to a search warrant. There are also search warrants for electronically stored information, like social media accounts. These cases follow the same principles where it comes to a warrant, but they present their own unique issues that we will address in another article.
Can I get a copy of the search warrant and affidavit?
You can get a copy of the search warrant and affidavit. In some cases, however, it might be under seal for a period of time, meaning it not accessible to the public. With the permission of the court, the government can have a search warrant affidavit placed under seal to protect the confidentiality of an ongoing investigation. If you are ever charged, you will receive a copy of the search warrant affidavit in discovery.
Can I get my property back?
If the property seized is not relevant to the investigation, you should be able to get it back. In most cases however, the government will want to maintain possession of the property until the conclusion of the case so it is available for use at trial.
If the government has seized digital devices, you may be able to get them back once the government has had a chance to image the contents. This will depend on the circumstances of the case. Federal Rule of Criminal Procedure 41 allows people who are "aggrieved" by the deprivation of property can go to the court, and fight to get the property back.
If the property is subject to forfeiture, you will not get it back. Property can be forfeited to the government if it was used in a crime or constitutes the proceeds of a crime. Forfeiture is too complicated of a subject for a detailed treatment here. You should discuss with your attorney whether property seized during a search might be subject to forfeiture.
If the government wrongfully withholds your property, your attorney can file a Motion for Return of Property in the district where it was seized.
Source: https://www.burnhamgorokhov.com/criminal-defense-resources/home-searched-federal-agents/
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