Criminal Defense Lawyers

Federal Search Warrant Execution: What to Do During and After the Search

If your home or business has been searched 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 to recognize is that you have been through a stressful situation that would rattle anyone. Federal agents have just entered your home, gone through your personal belongings, and taken property that may be important to you. Perhaps you were even physically restrained during the search.

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.

What Does It Mean That Federal Agents Searched My Property?

A federal search warrant means that a magistrate judge has determined there is probable cause to believe evidence of a crime may be found at your location. This is an important distinction from proof beyond a reasonable doubt, which is the standard required for a criminal conviction.

Under Rule 41 of the Federal Rules of Criminal Procedure, search warrants must be executed within 14 days of issuance. They are typically executed between 6:00 a.m. and 10:00 p.m. unless the judge has specifically authorized nighttime execution.

The fact that agents obtained a warrant does not necessarily mean you will be charged. However, it does indicate that the investigation has progressed to a significant point. Federal prosecutors generally do not seek search warrants unless they believe the investigation is likely to result in charges.

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 has no right to be involved. The signed search warrant is then delivered to the agents for execution within the specified time window.

Did I Make a Mistake by Talking to the Agents?

If you spoke with agents during the search, you may be concerned about what you said. This is understandable.

It is common for agents to attempt to question people during the execution of a search warrant. This is often their only chance to speak with the targets of their investigation before those individuals retain counsel. They do not want to pass up this opportunity.

If you did agree to answer questions from law enforcement, this may have an 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 determiing 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 My Statements Excluded?

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.

What Happens to My Property After the Search?

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.

You may be wondering when you will get your property back. In most cases, 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 property is not relevant to the investigation, you should be able to get it back sooner.

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 to go to the court and fight to get the property back.

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.

Can I Challenge the 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 here are a few basic examples:

• The agents deliberately or recklessly included false information in the affidavit
• The agents deliberately or recklessly made material omissions from the affidavit
• The affidavit lacked probable cause
• The probable cause in the affidavit is “stale” (too old to be meaningful)
• The warrant does not specify the place to be searched or items to be seized
• The warrant is overbroad
• There is an insufficient connection between the alleged crimes and the place searched
• The agents’ search went beyond the authorization in the warrant

Warrants can be challenged if they are overbroad. For example, if federal agents are investigating a tax crime committed by one person but get a warrant to search for all documents and seize all computers in the house, regardless of who they belong to, this may be an overbroad warrant and the evidence seized should be excluded.

What Should I Do Right Now?

The most important thing you can do is retain experienced federal criminal defense counsel. An attorney who regularly practices in federal court will understand the process and can begin protecting your interests immediately.

Here is what we recommend:

First: Do not speak to anyone about the substance of the investigation except your attorney. Attorney-client privilege only protects communications with your lawyer. Everything else may be subject to disclosure.

Second: Do not destroy any documents, delete any files, or attempt to hide any evidence. This could result in additional charges for obstruction of justice.

Third: Write down everything you remember about the search while it is fresh in your mind. Note the time agents arrived, what they said, what they took, and how they conducted themselves. This information may be valuable later.

Fourth: Contact a federal criminal defense attorney as soon as possible. At our firm, we have helped many clients navigate the period between a search warrant and potential charges. In some cases, we have been able to prevent charges from being filed entirely.

If you would like to discuss your situation with us, please call (212) 300-5196. We are available to speak with you about your case.