Search Warrants

Post: Fighting Federal Search Warrants

Florida Search and Seizure Laws

Federal Search warrant

The federal search warrant at the center of the controversy over the FBI’s recent surprise visit to former president Trump’s Mar-a-Lago home involves one of America’s bedrock principles. The Fourth Amendment to the United States Constitution established “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” 

Critics questioned the motives and methods of the U.S. Department of Justice, casting the search as a lawless intrusion by overreaching government agents, while federal law enforcement officials defended the action as entirely legal and proper. 

The practical application of Fourth Amendment protections has evolved over the years as court decisions set the parameters of law enforcement powers and the rights of citizens. While the courts have engendered policy shifts in favor of one side or the other in accordance with the political climate, basic Fourth Amendment protections remain inviolate. Case law dictates very specific procedures, rules, and guidelines the government must follow in search and seizure actions.

Federal Search Warrant Requirements

Federal law enforcement officials will seek a search warrant when there is an urgent need to obtain evidence in a criminal investigation. They may have reason to believe that critical material will be tampered with, hidden, or destroyed, and it appears unlikely that they can obtain the evidence by less intrusive means, such as using a subpoena or summons. When they can document these concerns and prove that a search will yield evidence of criminal activity, they may apply to a magistrate or a judge for a search and seizure warrant. They do so by submitting a sworn affidavit laying out the reasons for the federal search warrant.

This is known as showing “probable cause.” It’s an essential feature of the Fourth Amendment because it prevents law enforcement from acting on their own to conduct an intrusive search of a person or their property, home, business, vehicle or electronic devices. The judge or magistrate is seen as a neutral third party who, in addition to requiring probable cause, can impose certain restrictions to safeguard the rights of the subject of the search. The search request must be specific as to the location and the materials sought.

  1. Florida Search Warrants

Most state laws regarding search warrants adhere closely to federal law and the Fourth Amendment. However, some states have modifications. Florida’s constitution, for example, adds a clause against “the unreasonable interception of private communications by any means.” 

The main difference, of course, is one of jurisdiction. When you are on the receiving end of a search warrant issued by a federal judge, you need an attorney with experience defending against federal criminal charges. The most common type of federal criminal case involves violations of immigration law: illegal entry, illegal re-entry, smuggling immigrants, or visa fraud. The second most common federal criminal prosecutions involve drug trafficking – the manufacture, sale, transportation or possession of illegal drugs, mainly fentanyl, methamphetamine, and cocaine.

Challenging the legality of search warrants is often crucial to a successful defense against federal drug and immigration charges. Prosecutors must be able to prove that any evidence against you was collected in a legal manner. An attorney who knows the Federal Rules of Criminal Procedure may be able to challenge a federal search warrant for any number of technical defects. If a federal search warrant is found to be defective, the evidence against you may be suppressed under the Exclusionary Rule.

In the case of the Mar-a-Lago search warrant, it appears that federal law enforcement officials were fully aware of the political implications of the action and were very careful to follow the letter of the law. As the legal experts at Lawfare write, “In order to get court authorization for the search warrant, federal investigators would have needed to demonstrate that there was probable cause to believe that a crime had been committed and that evidence of the crime could be found at the former president’s Florida estate.”

Criminal defense attorney The Rivas Law Firm