Several federal agencies rely on search warrants to gather evidence in support of their law enforcement efforts. If you have received a search warrant from the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), Immigration and Customs Enforcement (ICE), or any other federal agency, there is a lot you need to know.
There is also a lot you need to do—including steps you should take immediately in order to mitigate your risk of facing an indictment.
Being served with a federal search warrant is not a matter you can take lightly. While receiving a search warrant does not necessarily mean that you will be indicted—or even that you are necessarily the target of the government’s investigation—now is not the time to take chances.
You need to be very careful to protect yourself (or your company), and you need to do everything you can to both: (i) comply with the search warrant (to the extent you are legally and constitutionally required to do so); and, (ii) ensure that your response to the government’s search warrant does not put you (or your company) in the crosshairs for federal prosecution.
“When you receive a federal search warrant, your entire focus needs to be on making sure the government’s investigation closes without charges being filed. This requires a careful and strategic approach, and it is strongly in your best interests to engage experienced federal defense counsel right away.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
10 Important Facts about Federal Search Warrants
So, you’ve been served with a federal search warrant. What now? Here’s what you need to know about responding to a federal search warrant and defending yourself (or your company) during a federal investigation:
1. You Cannot Ignore the Search Warrant
If you have been served with a search warrant, you cannot simply ignore the fact that the warrant exists. A valid search warrant gives federal agents the authority to enter private premises and seize evidence in accordance with the terms pursuant to which the warrant was issued.
You cannot deny access or refuse to “consent” to a search (at this point, consent is not a factor)—although you can, and should, engage federal defense counsel to intervene immediately.
2. You Cannot Ignore the Government’s Investigation
Just as you cannot ignore the search warrant itself, you also cannot ignore the government’s investigation. Even once the search ends, the investigation will continue. The FBI, DEA, ICE, or other investigating agency may have issued multiple search warrants, and they may be using subpoenas, target letters, and other means of investigation to build a case for federal prosecution.
After being served with a search warrant, you should consult with your (or your company’s) federal defense counsel regarding next steps. You will want to discuss what records and other assets federal agents seized (to the extent that you know), as this will shed light on both (i) why federal authorities executed the search warrant, and (ii) whether grounds exist to challenge the warrant’s execution.
3. You Need to Determine if You Are a Witness, Suspect, or Target
Are federal authorities currently treating you (or your company) as a witness, suspect, or target? This is a critical question that you need to answer as soon as possible. These are all very different propositions; and, if you (or your company) is currently a suspect or target, there are additional steps you will need to take right away in order to try to avoid facing federal charges.
With that said, even if the investigating agency is currently treating you (or your company) as a witness, this could change. As a result, you need to avoid being overly “helpful”—and potentially disclosing information that federal prosecutors could use to substantiate charges.
4. You Need to Determine the Scope and Nature of the Investigation
In this same vein, you also need to determine the scope and nature of the investigation. In certain cases, the investigating agency will provide clues. For example, if the DEA or ICE is investigating, this alone will give you a general idea of the subject matter of the inquiry. However, these agencies (among others) still investigate an extremely broad range of federal offenses; and, if you need to defend yourself (or your company), you need to quickly discern what precise allegations you need to defend against.
5. You May Have Grounds to Challenge the Search Warrant
While search warrants give federal agencies broad investigative authority, this authority is not absolute. Additionally, in order to be valid, a federal search warrant must be based on probable cause. If a federal search warrant is issued without probable cause, or if the federal agents who executed the warrant exceed the scope of their authority, this can potentially provide grounds for filing a motion to suppress.
In addition to the requirement for a search warrant to be issued upon probable cause, federal law also requires that search warrants have sufficient “particularity”. If a search warrant does not allow federal agents to, “with reasonable effort ascertain and identify the place intended,” to be searched, then the warrant is subject to challenge under federal law.
The same is true if the warrant is overly broad in scope with regard to the documents and/or other items that are subject to seizure.
6. Federal Search Warrants Can Authorize Seizure of Hardcopy and Electronic Records
While a federal search warrant cannot be overly broad, the breadth of a federal search warrant can still be fairly extraordinary. A search warrant must be reasonably calculated to lead to the discovery of evidence that is relevant to the government’s investigation. As long as it meets this standard, it can authorize the seizure of voluminous records—both in hardcopy and in electronic format.
In order to comply with a search warrant that authorizes the seizure of electronic files, it may be necessary to provide agents with access to your (or your company’s) devices. In fact, in some cases federal agents may be not only authorized, but also limited, to securing access to relevant files rather than seizing physical storage media. But, giving federal agents carte blanche to access a device presents obvious and untenable risks; and, here too, it is imperative to rely on the advice and representation of experienced federal defense counsel.
7. Federal Search Warrants Can Authorize Seizure of Computers, Phones, and Other Items
Of course, in addition to authorizing the seizure of hardcopy and electronic records, a federal search warrant can also authorize seizure of computers, phones, and other items. Seizure of storage media and other assets presents its own unique set of risks, and individuals and companies served with search warrants must walk a fine line between asserting their legal rights and obstructing the government’s investigation.
Following the seizure of evidence pursuant to a federal search warrant, it is important to try to identify the items seized. This should be done promptly, and effort should be taken to ensure that your list is as comprehensive as possible. The concern here is not so much that the investigating agency will lose something (all seized items should be carefully cataloged and stored in federal custody), but rather ensuring that your (or your company’s) counsel is able to fully review the circumstances of the search and determine whether any challenges are warranted.
8. Evidence Validly Secured Pursuant to a Search Warrant is Admissible in Court
Evidence that federal agents secure in compliance with a lawfully-issued search warrant is admissible in court. If federal agents validly secure incriminating evidence pursuant to a search warrant, then federal prosecutors will be able to use it against you (or your company). Even if you assert your Fifth Amendment privilege against self-incrimination, this won’t be enough to protect you if prosecutors have evidence that has been secured through other lawful means.
However, just because federal prosecutors have evidence, this does not necessarily mean that the evidence is incriminating. In federal criminal cases, prosecutors must prove guilt beyond a reasonable doubt—and this applies to each individual element of each alleged offense. Insufficiency of evidence is among the most common and most effective defenses to criminal prosecution, and this underscores the importance of knowing what evidence the government has against you (or your company).
9. A Federal Investigation Can Lead to a Federal Indictment
Following on our previous point, when federal agents secure evidence pursuant to a valid search warrant, this can lead to a federal indictment. Again, you cannot afford to take chances, and you need to work with your (or your company’s) federal defense counsel to avoid charges by all means available.
10. Obstructing a Federal Investigation is a Federal Offense
As a final point, it is important to understand that obstructing a federal investigation is itself a federal offense. Lying to federal agents, destroying evidence, deleting files, concealing assets, and other illegal acts can lead to prosecution under 18 U.S.C. Section 1519.
This law provides that, “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence [an] investigation . . . shall be fined under this title, imprisoned not more than 20 years, or both.”