The prospect of federal agents knocking on your door can be an incredibly daunting and anxiety-inducing experience. The confusion and stress accompanying such a scenario could easily lead one to make mistakes that exacerbate the situation.
Knowing your rights in this situation could determine whether you're ultimately charged with a crime or whether any criminal charges end in a conviction or an acquittal.
If your home has been raided by federal law enforcement, it likely means they had a search warrant, and you may have been arrested. Now, you need to prepare how to deal with the federal investigation. How and why did the agents get a search warrant? You must first understand the search warrant procedure to answer this crucial question.
A federal magistrate judge has to issue a warrant if the government can show probable cause for the search they are requesting. The judge could receive evidence of probable cause through a sworn affidavit or testimony.
Notably, it usually takes little time for agents to get a search warrant if they have evidence of probable cause. Still, prosecutors might wait a significant amount of time in complex white-collar cases before executing a search warrant.
In the search warrant process, the affidavit is written by a federal agent investigating the case, and it will typically include some background information about the agent and the investigation. The affidavit will list some alleged facts the agent claims will establish probable cause for the requested search.
An Assistant United States Attorney (AUSA) will review the warrant application and present it to a federal judge. It's an ex parte proceeding, which means the person whose property will be searched has no right to be involved.
The signed search warrant is then delivered to the federal agents for execution within a specific time frame. Let's discuss how to respond to a federal raid in a way that safeguards your interests while also complying with the law.
What To Do During a Federal Raid
A federal raid is typically a meticulously planned operation conducted by law enforcement officials to gather evidence of alleged federal crimes. Remember these key points if you ever find yourself in this unsettling situation.
Federal raids are typically designed to be intimidating. Agents aren't just looking for physical evidence; they also know that catching you off guard may result in your saying or doing something else that they can use to bolster their case against you.
While it's natural for emotions to run high during a raid, resist the temptation to react. Maintaining your cool can help you think clearly and prevent any unintentional action that may complicate matters.
Examine the Warrant
The Fourth Amendment of the U.S. Constitution safeguards citizens against unreasonable searches and seizures. For a search warrant to be valid, federal agents must convince a neutral judge that there is probable cause—a reasonable belief based on facts and circumstances—that a crime was committed and evidence related to the crime is likely located in your home.
Federal agents are legally obligated to present a search warrant during a raid. Make sure you carefully read and verify the details on the warrant. Check the names, addresses, and list of items earmarked for seizure. You don't have to be at home when the warrant is executed.
Suppose you are present when a search warrant is executed. In that case, you should always ask to see a copy of the warrant. Suppose the warrant does not accurately describe the place to be searched, is not signed by a judge, or fails to meet the requirements listed above, you can refuse to allow the search.
The law restricts agents from searching for and seizing only the items listed on the warrant. The requirements for a federal search warrant are found in the Fourth Amendment and Federal Rule of Criminal Procedure 41. The warrant must state the following:
- The person or property to be searched;
- The person or property to be seized, and
- The magistrate judge to whom it must be returned;
Further, the warrant must also command the federal agents to do the following:
- Execute the warrant within a specified time (no longer than 14 days);
- Execute the warrant during the daytime hours unless the judge authorizes execution at another time for good cause; and
- Return the warrant to the magistrate judge in the warrant.
Notably, there are also requirements for how a warrant must be executed, such as the following:
- Note the exact date and time the warrant was executed, and
- An inventory of the property seized by providing a receipt to the person whose property was searched, or a receipt must be left at the location.
The federal agent executing the warrant must also return it to the magistrate judge with an inventory of the seized items.
Call a Federal Defense Attorney Immediately
Contact your attorney and let them know a raid is ongoing as soon as it's feasible. While agents don't have to wait for your attorney to be present, if you can get the attorney on the scene, it will add an extra layer of protection for you during the search, ensuring the agents stay within the bounds of the law and helping you avoid any actions or statements that could incriminate you.
Any attempt to interfere with the agents or obstruct their work can lead to additional charges. Respect their authority and allow them to carry out their duties as specified in the warrant.
Even if you believe the warrant is invalid but the agents proceed to search anyway, it is essential not to become verbally or physically aggressive with them as it will always worsen the situation. You may be able to challenge the search warrant in court.
Document, Observe and Remember
Keep a mental record of the agents' identities, actions, and any potential irregularities during the raid, including any agents exceeding the warrant's authority. If it's feasible, jot down notes. This information may prove valuable later.
Write down all the details you can remember, as you will need to give this information to your federal criminal defense lawyer later.
Can I Capture Video of the Raid on My Smartphone or Security System?
Technically, yes...but with some caveats. Generally speaking, you have the right to record law enforcement officers performing their duties in public and your own home, including during a raid on your property, as long as you do not interfere with their operations.
This action is protected under the First Amendment. However, different states have laws about how to do this, and you should be aware that filming the agents in a confronting manner could be construed as an act of provocation, potentially making a bad situation worse. Here's what you need to know if you choose to videotape:
- Stay clearly out of the agents' way. You may not interfere with their actions or obstruct them, physically or otherwise.
- Announce your intentions. Many states prohibit secret recordings, including California, which is a "2-party consent" state. Make sure the agents know you are recording them. If the raid occurs in California and agents refuse to consent to your taping of the raid, you could be violating state law even while claiming your First Amendment rights.
Because of the potential volatility and "gray areas" involved with recording a raid, we recommend you do so only under the advice of an attorney.
Knowing Your Rights
Finally, if federal agents raid your home, you must be aware of your rights—and enforce them, if necessary, as discussed below.
You have the right to remain silent. You don't have to answer any questions during the raid—and it's in your best interest not to do so. Simply refer the questions to your attorney, and never converse with agents without your attorney present.
You have the right to refuse entry without a warrant or ID. Agents must show you valid identification and a valid warrant before entering.
If they don't show you these, you have the right to say no—and if they enter anyway, any evidence they collect is inadmissible. You can refuse the search or seizure of anything not explicitly listed on the warrant.
Just because the government has enough evidence for a search warrant does not mean they have enough to convict you. Remember, the standard of proof for obtaining a criminal conviction is beyond a reasonable doubt.
The information in the search warrant affidavit could be wrong. Federal agents make mistakes and might put false or misleading information in their search warrant affidavits.
Just because your home was searched does not automatically mean you will be charged with a federal crime. Perhaps the search results were different from what the prosecutors and agents expected.
Perhaps your lawyer can negotiate with the federal prosecutor prefiling to avoid charges. Our firm has been involved in several investigations where our client's homes or businesses were searched, and no charges were ever filed. You can contact us for a case review by phone or via the contact form. Eisner Gorin LLP has offices in Los Angeles, California.