The August 8, 2022 search and seizure at former President Donald J. Trump’s Mar-A-Lago private club/residence by the FBI has put the issues of search warrants, subpoenas, and probable cause at the forefront of political debate and social discourse across the country.
The issuance of search warrants, the actual execution of those warrants (sometimes referred to as “raids”), and the seizures of incriminating evidence occur every day in the United States.
The search warrant process is a legitimate law enforcement tool to secure evidence in a criminal investigation that can be used in future criminal prosecution. They are used every day by state and federal investigators.
For example, on August 22, 2022, the Transactional Records Access Clearinghouse (TRAC) issued a report which found that between January 1 and the end of June of this year, federal prosecutors “made 883 applications to federal judges to authorize search warrants and issue subpoenas or a summons …”
Seventy-four percent of these applications were made pursuant to criminal investigations being conducted by the U.S. Justice Department and the FBI, as was the case with the warrant application made in the Trump criminal investigation.
The TRAC report found that the 2022 number of search warrant applications during the first half of the year is not “unusual,” given that before the COVID pandemic, the average number of such applications was roughly 2,000 per year.
The search warrant process, however, at both the federal and state levels, is grounded in specific constitutional protections guaranteed by the Fourth Amendment.
First, the warrant application seeks “permission” from a judge or a magistrate to allow law enforcement to search a certain place or thing for incriminating evidence of criminal activity. Second, the law enforcement agency seeking the warrant must provide the judge with a probable cause affidavit outlining the reasons why the agency believes evidence of a crime exists at a specific place.
A search warrant, standing alone, is not evidence that a crime has been committed but only that the judge or magistrate believes law enforcement has presented “probable cause” that a crime may have been committed and a location contains evidence of such.
What To Do When Law Enforcement Appears With Warrant
What you should know and do if law enforcement comes to your door:
- Police must have a warrant to enter the residence unless the occupants consent.
- The warrant must specify the address of the residence.
- A judge or magistrate must sign the warrant.
- The warrant must have a deadline to be conducted.
- The warrant must list the items the police can seize.
- The warrant must specify suspected criminal activity for search.
- Generally, police must “knock-and-announce” presence before entering a residence.
- Exceptions to the “knock and announce” rule include: pursuit of suspect, reasonable suspicion someone is in threat of harm inside the residence, or reasonable suspicion that evidence will be destroyed if the police give a “knock and announce” alert.
- The resident subject to the search may ask to see a warrant before its execution.
- Search should be conducted in a respectful and reasonable manner.
- Police can search only the places described in the warrant.
- Stored or locked items not specified in the warrant cannot be searched.
- Evidence of criminal activity in “plain sight” may be seized.
- Police may enter other areas not specified in the warrant only if someone is in danger or threatened harm in those areas.
- Police may search for evidence not specified in the warrant only if they have reasonable suspicion the evidence could be destroyed before a second warrant can be obtained.
What If the Police Want to Search Your Cell Phone or Other Electronic Devices
- Fourth Amendment protections extend to your cell phone, computer, and other electric devices.
- A judge or magistrate may issue a warrant to search a specific electronic device upon a probable cause showing that the device contains evidence of a crime. This type of search can be conducted even if owner of device is not the subject of the underlying criminal investigation.
- The police must have a warrant to search any electronic device detailing the specific incriminating evidence suspected of being on the device.
- There are two exceptions to the warrant requirement for electronic devices: 1) you give “consent” to search, and 2) the device is under immediate threat of destruction.
- As a general rule, consent to search should never be given without first consulting with an attorney. This is your Constitutional right and should not be waived without the advice of counsel.
- Fourth Amendment protections diminish considerably within what is known as the “100 mile border zone.” Searches at the border do not require a warrant, probable cause, or even some reasonable suspicion of criminal wrongdoing to trigger an investigatory stop and search. The border zone rule allows for some limited inspections and searches of electronic devices, but there is considerable disagreement among the courts about whether a more intrusive, forensic examination can be conducted without some heightened suspicion of criminal activity.
- The subject of a search should assist the police in conducting the search of an electronic device, such as providing them with passwords or encryption keys, but they may not interfere or impede the investigation.
- The police may take the electronic device with them and conduct a more thorough search at a law enforcement facility pursuant to the warrant to search.
These Fourth Amendment rules are not the entire scope of protections under all circumstances. Some protections apply in given situations but not in others. This is why an attorney should be consulted immediately if confronted with a search warrant.
An important legal caveat is this: do not agree under any circumstances to an “interview” with the police conducting either a residence or electronic device search. The fact that a warrant has been issued gives notice of suspicion of criminal activity. There is no such thing as a “friendly interview” with the police when conducting a criminal investigation. A search is a criminal investigation. A subject of a search should give the police three things: name, identification, and a clear assertion of a request for a lawyer.
Do not speak to law enforcement conducting a criminal investigation without requesting a lawyer. This is your Constitutional right, be proud to assert it.