The Surprisingly Low Standard for a Search Warrant

February 23, 2022

By Sara Kropf

A few days ago, the media reported that former President Donald Trump had classified materials at his Mar-a-Lago residence. As of today, the materials are apparently still there.

If this were anyone other than the former president, I can pretty much guarantee you that the FBI would have executed a search warrant at 6 am, taken every document in the residence, and arrested Mr. Trump.

The government takes the removal of classified materials from government property seriously. And it doesn’t hesitate to execute search warrants to get them back.

You may think it’s difficult to get a search warrant. You may believe that the courts would require a lot of evidence before they let federal agents come into your house and take computers and documents.

I hate to break it to you: it is quite easy to get a search warrant. Like, scary easy.

Here’s the legal standard: A federal judge must “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit … including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that … evidence of a crime” will be seized. Illinois v. Gates, 462 U.S. 213, 238 (1983).

Put another way,  a court will find probable cause to search a residence when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238.

Let’s unpack that standard and talk about how it is applied in real life, not in a dusty law book.

First, the government applies for a search warrant ex parte; that is, secretly. All filings related to it are under seal.

On the one hand, this process makes sense—search warrants are often used when the government is concerned that the target will destroy evidence if he learns about an upcoming search. On the other hand, this process means that the target has no chance to challenge the allegations in the affidavit used to justify the warrant. The magistrate judge (who usually handles these matters) hears only one side of the story. The government can pick and choose what facts to include in the affidavit.

Second, the application is written. It is a one-page form. A sample application is below:

There is a second page with space for the “return,” which is the list of what is taken during the execution of the warrant.

Included with the application is a sworn affidavit by a federal agent, usually from the FBI, but it can also be from any agency, such as an Office of Inspector General. The affidavit will describe the investigation, its results, and the evidence obtained by the government. Generally, the judge will not hold a hearing to question the agent to evaluate his or her credibility, although it is allowed under Federal Criminal Rule 41(d)(2) (“the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.”). Instead, the judge will rely only on the affidavit to issue the warrant.

As explained in Gates, the magistrate judge will determine “the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information.” Hearsay, of course, is inadmissible as evidence at trial because it is much less trustworthy than first-hand evidence. But it is ok to rely on hearsay alone to allow the government to enter your house and take things without your permission.

(At least when hearsay is allowed as evidence in court, the other side gets to cross-examine the witness about the strength her recollection, about bias, about what else may have been said to give context to the hearsay statements. None of that exists during the search warrant process.)

Third, the judge must determine whether there is a “fair probability” that the residence will contain evidence of a crime. In a white-collar case, you can count on the fact that the key evidence will be electronic. It will be documents saved on a computer or emails in the cloud/stored locally. So, if the target is accused of any white-collar crime, you can bet that a magistrate judge will conclude that there is a “fair probability” that a computer in the person’s house will have “evidence of a crime” on it.

Rule 41(c) says that a warrant may be issued to search and seize: “(1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; (3) property designed for use, intended for use, or used in committing a crime; or (4) a person to be arrested or a person who is unlawfully restrained.”

Consider the reach of (3) in particular. If white collar crimes are generally committed using a computer—to send and receive documents, payments, emails—then a house that has a computer “intended for use . . . in committing a crime” meets this standard.

Fourth, the warrant will have certain limitations in it. It will include the date by which it must be executed, usually within 14 days. It will state when during the day it can be executed, usually during “daytime.” It will also state what can be searched for and seized, though that definition can be so broad as to be meaningless. If you are accused of fraud, it may say that the government can seize all computers in the house—even if they belong to your kids or wife.

Fifth, note that the standard says nothing about whether the government has shown that less intrusive means will not achieve the same purpose as the search. The government will often justify why a subpoena will not work (generally saying that the target will destroy evidence or not be cooperative) but it is not a necessary finding by the magistrate judge before giving the government permission to execute a search warrant.

Sixth, you may never see the affidavit in support of the search warrant of your house. As I mentioned earlier, the government applies for a search warrant in secret. Everything related to it is under seal, meaning that the documents are not available on the public docket. Even the target of the investigation–or the person whose house was searched–often will not receive a copy of the affidavit. The government can convince the judge to keep it under seal to protect the “integrity” of the investigation.

How Warrants Are Executed

Sometimes, search warrants are necessary. The government has real, credible evidence that the target will destroy documents or other evidence in the very near future. In my experience in white-collar criminal cases, though, search warrants are often used as much for the intimidation factor as for investigative purposes.

To be clear, the type of warrants I’m describing are not “no-knock” warrants that have received so much (deservedly bad) press recently. Those are different—they allow the government to break into your house with no warning and involve a very high use of force. No-knock warrants are extremely rare in a white-collar case. (I’ve never had a case where the government used one.)

When the government executes a search warrant, it brings agents. Lots of them. They will wear those blue windbreakers, just like on TV. Even if the target is an elderly woman who is accused of Social Security fraud and lives alone, several armed agents will show up to execute the warrant. Yes, they knock first to be let in, but then all those agents walk all around the house, opening drawers and closets and cabinets.

There are good reasons for a show of force, given that the execution of a warrant can go south. But, let’s face it, the show of force is part of the intimidation factor.

Under Federal Criminal Rule 41, warrants must be executed during “daytime,” which is defined in the rule as “the hours between 6:00 a.m. and 10:00 p.m. according to local time.” I’m not sure in what world 6 am is considered “daytime,” but I can tell that this is when warrants are usually executed. The government wants to catch people as vulnerable and confused as possible. Waking someone out of a dead sleep their underwear is a good way to achieve that goal. Sure, they will say it is for the agents’ safety, but it’s also because it will scare your family too.

A search warrant is a great chance for agents to ask you and your family members questions. “Hey, while we’re here, we have a few questions for you.” And, if you or someone in your family answers them, then they can likely use those statements against you. There are times when the person answering questions is not free to leave, and then Miranda warnings are required. But even if you are technically free to leave, no one wants to leave agents in your house and no one will really feel free to leave. Lots of people answer those questions and lots of people get themselves in trouble by making false or incriminating statements.

The government doesn’t give stuff back—at least not quickly. Once the government takes something during a search warrant, you shouldn’t count on getting it back anytime soon. Usually, the government will claim it needs to keep the evidence until the case is over, which may be a few months or a few years away. There are times when I have negotiated successfully for the return of key computers or documents for a company so it can continue to operate as a business but that is very rare.

Challenging a Warrant

Technically, you can challenge a warrant as overbroad or as improperly issued. You can seek a return of materials seized through a warrant under Rule 41(g). you can also seek to suppress the materials seized at trial under Rule 41(h), if the search was unlawful.

In reality, challenging a warrant is nearly always futile. Because the standard is so low, it is extremely unlikely that a court will return anything taken or suppress evidence at trial.

Mr. Trump is lucky he hasn’t been dragged out of bed at 6 am to have agents take every document in Mar-a-Lago.

Published by Kropf Moseley

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