What a federal search warrant allows
Federal search warrants are governed by Federal Rule of Criminal Procedure 41. Usually a magistrate judge issues the warrant after agents show probable cause. The warrant describes the place to be searched and the items agents may seize.
Under Rule 41, agents can seize evidence of a crime, contraband or the fruits of a crime, and property designed, intended or used to commit a crime.
- IssuedA judge signs the warrant and sets a time for execution of no more than 14 days.
- ExecutedAgents search during the daytime, 6:00 a.m. to 10:00 p.m., unless the judge authorizes another time for good cause.
- InventoryAn officer prepares an inventory of what was seized.
- Copy and receiptAgents give you a copy of the warrant and a receipt, or leave them at the place searched.
What to do during the search
- Stay calm. Do not obstruct, argue with or physically interfere with the agents.
- Ask for the warrant. You are entitled to a copy of the warrant and a receipt for the property taken.
- Do not answer questions. Agents often try to interview people during a search. You can say you want to speak with a lawyer first.
- Do not destroy anything. Hiding or deleting records to impede an investigation is a separate crime under 18 U.S.C. § 1519, punishable by up to 20 years.
- Take notes when you can. Record names, times, rooms searched and anything said.
You can be polite and still decline to answer questions.
After the search
A search often means agents are also interviewing employees, sending subpoenas or preparing charges. Talk to a lawyer before speaking with anyone else involved.
For a business, a search raises questions about employee interviews, ongoing operations and which records are still available. Employees may need their own lawyers.
Getting your property back
Rule 41(g) allows a person aggrieved by an unlawful search and seizure, or by the deprivation of property, to move for the return of that property. The motion must be filed in the district where the property was seized.
The court must take evidence on any factual issue needed to decide the motion. If it grants the motion, the court may set reasonable conditions to protect the government’s access to the property for later proceedings. Sometimes a lawyer can arrange copies of records or the return of devices with the prosecutor without filing a motion.
Challenging the search later
If charges are filed, a defendant can ask the trial court to suppress evidence from a search. Rule 41(h) says that motion is made under Rule 12. Whether a challenge is available depends on the warrant, the supporting affidavit and how the search was carried out.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985, and Victor E. Rocha, who was admitted to The Florida Bar in 1983 and speaks Spanish. Together they have more than 100 years of combined experience.
The firm can contact the agents and prosecutor after a search, seek the return of property and examine the warrant for problems that may matter later. The first consultation is free and confidential. Call (954) 648-8965.