By Zachary Margulis-Ohnuma
If it could happen to defeated former president Donald Trump it could happen to anyone: the feds swooped in and searched his house last week—all 58 bedrooms and 33 bathrooms were up for grabs. Go big or go home.
There was a lawyer there but the resident was out-of-town. FBI agents left the lawyer with a search warrant and a receipt. With much fanfare, the Department of Justice unsealed the warrant and receipt a couple of days later. There was also a warrant application, but that remains shrouded in mystery.
What does all this mean?
Here is the process, which applies to all searches by the feds, from 58-room mansions to searches of cell phones seized on the street during an arrest. Agents start by identifying property to be searched. Most searches require a supervisor in the Department of Justice to sign off on them. The agents and government attorneys have to satisfy themselves there is probable cause to believe not just that a crime has been committed, but that evidence of the crime will be found during the search. Probable cause is a term of art, but basically means that a reasonable person would think that evidence of the crime will be found in the search. That’s more than a hunch, but less than proof.
This is the most interesting part: the probable cause is set forth in the search warrant application, which contains a sworn statement (i.e. an affidavit) from the agent working on the case. The search warrant application is kept secret and submitted to a judge, who can either issue the warrant or deny it. If the judge agrees with the government attorneys that there is probable cause to search the subject premises, and that the proposed warrant is properly drawn—sufficiently particular, not overbroad, authorizing a search during reasonable hours, among many other requirements—the warrant will typically issue. The government then has a certain number of days to “execute” the warrant—i.e. conduct the actual search, and then will file the warrant executed in court.
The warrant itself and a receipt for the seized property are typically left with the owner of the premises searched. But they don’t get to see the warrant application, at least not right away. That’s where the good stuff is, and that’s what everyone wants to see now: what did the government tell the Magistrate Judge Reinhart that convinced him that classified information was inside Mar-a-Lago? The warrant application can reveal all sorts of details about the investigation: who are the informants? What information does the government have? What does the government think the crime was?
If the case ends up in court, the warrant application often does become public as part of the material turned over to the defendant in discovery. That way, the defendant can challenge the search. If the judge got it wrong and should not have signed, and the government acted in bad faith (usually by misleading the judge somehow), the items seized pursuant to the warrant might be suppressed.
If you have been searched by the feds, you need a lawyer. It’s a complicated process, full of nuance. Call us and tell us about the warrant and the receipt they gave you; we will try to figure out what’s in the application, and how we can keep the case out of court—and keep you out of prison.