The August 8, 2022 search and seizure at former President Donald J. Trump’s Mar-A-Lago private club/residence by the FBI has put the issues of search warrants, subpoenas, and probable cause at the forefront of political debate and social discourse across the country.
The issuance of search warrants, the actual execution of those warrants (sometimes referred to as “raids”), and the seizures of incriminating evidence occur every day in the United States.
The search warrant process is a legitimate law enforcement tool to secure evidence in a criminal investigation that can be used in future criminal prosecution. They are used every day by state and federal investigators.
For example, on August 22, 2022, the Transactional Records Access Clearinghouse (TRAC) issued a report which found that between January 1 and the end of June of this year, federal prosecutors “made 883 applications to federal judges to authorize search warrants and issue subpoenas or a summons …”
Seventy-four percent of these applications were made pursuant to criminal investigations being conducted by the U.S. Justice Department and the FBI, as was the case with the warrant application made in the Trump criminal investigation.
The TRAC report found that the 2022 number of search warrant applications during the first half of the year is not “unusual,” given that before the COVID pandemic, the average number of such applications was roughly 2,000 per year.
The search warrant process, however, at both the federal and state levels, is grounded in specific constitutional protections guaranteed by the Fourth Amendment.
First, the warrant application seeks “permission” from a judge or a magistrate to allow law enforcement to search a certain place or thing for incriminating evidence of criminal activity. Second, the law enforcement agency seeking the warrant must provide the judge with a probable cause affidavit outlining the reasons why the agency believes evidence of a crime exists at a specific place.
A search warrant, standing alone, is not evidence that a crime has been committed but only that the judge or magistrate believes law enforcement has presented “probable cause” that a crime may have been committed and a location contains evidence of such.
What you should know and do if law enforcement comes to your door:
What If the Police Want to Search Your Cell Phone or Other Electronic Devices
These Fourth Amendment rules are not the entire scope of protections under all circumstances. Some protections apply in given situations but not in others. This is why an attorney should be consulted immediately if confronted with a search warrant.
An important legal caveat is this: do not agree under any circumstances to an “interview” with the police conducting either a residence or electronic device search. The fact that a warrant has been issued gives notice of suspicion of criminal activity. There is no such thing as a “friendly interview” with the police when conducting a criminal investigation. A search is a criminal investigation. A subject of a search should give the police three things: name, identification, and a clear assertion of a request for a lawyer.
Do not speak to law enforcement conducting a criminal investigation without requesting a lawyer. This is your Constitutional right, be proud to assert it.
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