Agents at Your Door: What You Have to Do and What You Don't.

1. You Do Not Have to Open the Door

You do not have to open the door if FBI agents (or any other agents) are knocking. You do not have to let them in, and you do not have to answer their questions or listen to their demands.

2. Ask to See the Warrant

The next step is to ask the agents to show you the warrant. If they have one, and if they are authorized to search your home, your business, your cars, or any other property kept there, then they can come in. If they do not have a warrant, then you have the right to tell them to get out, unless there is an exigency or they are acting under consent.

3. Do Not Give Consent for Entry or Search

If the agents do not have a warrant, you should make sure that you have not given them your consent. FBI agents, along with all other federal agents, generally need either a warrant, consent, or an exigency (a situation that requires immediate action to prevent a crime or danger) in order to enter your home, your business, or any other non-public area.

4. Decline to Speak With the Agents

Another important step is to tell the FBI agents that you will not answer any questions without your legal counsel. You are not required to respond to the agents’ questions or demands, and speaking to them is generally not to your advantage.

5. Contact a Federal Defense Lawyer

After you have made it clear to the agents that you need legal representation, contact a federal defense lawyer right away. This is the most important step for handling your case effectively; your lawyer will be able to explain your rights and obligations, and then he or she will be able to make informed decisions regarding how to protect you in the future.

Do I Have to Open the Door for FBI Agents?

If you are inside your house and FBI agents show up at your door, the first thing that you should do is ask for their identification through the door. You should find out what their names are, what agency they are with, and what their badge numbers are. If possible, you should also ask the FBI agents for their business cards. This way, if you ever need to find out why they were at your house or need your counsel to talk to the agent in order to identify them later, you will have all of the information you need in your hand.

With all these things in mind, do I have to open the door to let FBI agents come into my house? Yes and no. FBI agents, like all police officers, are only permitted to enter your house if they have a warrant. However, this is not all that is permitted. Under the case law provided in Kentucky v. King, 563 U.S. 452 (2011), “the police may approach the door and knock as visitors would do. If the occupant opens the door, then the police may inquire about the occupants’ identity and question them.” The court notes, “If the occupant does not answer the door, then the police may not open the door to the house, unless there is a warrant to enter the house.” The same principles apply to FBI agents, and again, even if you open the door, you still have the right not to speak to agents or answer any questions. Additionally, the case of Florida v. Jardines, 569 U.S. 1 (2013), stated, “The police are not entitled to more access to the home than is afforded to an ordinary visitor. . . .. At its most basic level, the Fourth Amendment protects . . .. the home’s surroundings. . .. The use of a trained dog to sniff the doorstep of a home in search of drug evidence was an ‘unconstitutional’ act, as this was not something that an ordinary visitor would do.”

2. Let the Agents Know Where Your Counsel Is

While you can always contact your lawyer through telephone, email, or text message, you can also invite FBI agents to enter your house if you are comfortable doing so and you believe you can quickly find your counsel. Note that however, if you invite FBI agents inside, then that will technically be your consent to enter.

If FBI agents are knocking at your door, and they do not have a warrant to enter, then you do not have to let them in. This means that you should not open the door until you are sure about why they have come to your home.

Keep the following in mind:

• Ask for agents’ identification through the door.
• Inquire about their reason for visiting you.
• If they have a warrant, let your counsel know about this fact immediately.
• If they do not have a warrant, you can decline the entry request.
• If you decide to let FBI agents in, this will count as consenting to a search.
• You do not have to open the door.

What Papers Let FBI Agents Enter, Search, or Demand Records?

1. A Valid Search Warrant

The paper that lets FBI agents come into your home or other property without your consent is a search warrant. In the United States, search warrants must meet strict rules to be considered valid. Under Federal Rule of Criminal Procedure 41, a search warrant must identify “the place to be searched and the persons or things to be seized.”

• The “place to be searched” can be a private residence, a car, an office building, a computer, or any other property.
• “The persons or things to be seized” must also be specific. If the FBI is looking for a particular computer or a specific set of documents, the search warrant must clearly state these.
• The FBI only has authority to search and seize according to the specific terms of the warrant.

2. An Arrest Warrant

An arrest warrant allows FBI agents to take someone into custody. This paper can also authorize the agents to enter the suspect’s residence if the agents believe the person to be arrested is inside. Similar to search warrants, arrest warrants must specify who is to be arrested and where they can be found.

3. A Search Warrant does NOT give FBI agents permission to interview you

Although a search warrant allows the FBI to enter your premises, it does not force you to talk to agents. If agents enter your property with a search warrant, you can still refuse to answer any of their questions, and you can ask that agents leave promptly after they are done with the scope of their warrant.

Our law firm, Spodek Law Group, can help you understand the difference between a search warrant and an order to interview or testify. The latter, known as a Grand Jury subpoena, is entirely different, and responding to it presents a different set of considerations.

4. Does, With a Search Warrant in Hand, the Subject still have the right to refuse to consent to search?

Yes, you do. With the exceptions described above, if the scope of a search warrant does not specifically authorize FBI agents to search a particular area or item, and they ask you for your consent to search it, you can and should still decline.

5. A Grand Jury Subpoena

A Grand Jury subpoena is an order that forces you to produce records or testify in front of a grand jury. With the exceptions discussed above, responding to a grand jury subpoena is mandatory. However, the Fifth Amendment may still protect you from being compelled to give a testimonial answer that is incriminatory in nature.

6. Who issues search warrants?

Search warrants are usually issued by federal magistrate judges, which is codified in Federal Rule of Criminal Procedure 41. While FBI agents have extensive authority, they do not have the authority to issue search warrants on their own.

Should I Answer FBI Questions at the Door?

1. Invoking Your Right to Silence

In order to invoke your Fifth Amendment right to remain silent, you must do so clearly and unambiguously. A subtle nod, a certain tone of voice, or a cryptic phrase like, “I’m not sure I should answer that,” is not enough. To invoke your Fifth Amendment rights, you should simply tell the FBI agent or police officer: “I am not going to answer any questions without first consulting with my lawyer.”

2. Do FBI Agents Need to Read Me My Miranda Rights?

A common misconception is that FBI agents (or any law enforcement officers) must read the Miranda rights prior to conducting an interview. This is not true. As established by the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), police officers are only required to read the Miranda rights in situations where they are conducting a custodial interrogation. An interview on your doorstep, for example, does not fit the requirements for reading the Miranda rights; the police officer or FBI agent would need to take you into custody before he or she would be required to read your rights.

3. Is it Mandatory to Be Read the Miranda Rights for a Voluntary Interview?

No, it is not mandatory to read you the Miranda rights before conducting a voluntary interview. Police officers and FBI agents routinely conduct interviews, and these voluntary statements are fully admissible in court, even if the person giving the statement was not read their Miranda rights. It is therefore very important to speak with your lawyer prior to deciding to talk to the police or FBI agents.

4. What Happens if I Tell FBI Agents Lies?

While you cannot, or do not want to, answer the FBI agent’s questions, you should avoid telling a lie in response to any question asked. U.S. Constitution protects you when you choose to remain silent. However, it does not protect you when you make a false statement. 18 U.S.C. § 1001 prohibits making a materially false statement “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States.”

5. Does this Apply to Noncitizens?

Yes, noncitizens have the right to remain silent, the right to refuse to answer questions from FBI agents and other law enforcement officers, and the right to request legal counsel. If you are not a citizen of the United States, you should not answer any questions without speaking to your lawyer, as your answers could have implications for your residency, citizenship, and admissibility into the United States.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

What Should I Do During and After a Search?

1. Don’t Get in Their Way!

If FBI agents are at your home or business with a search warrant, you should do what is necessary to help them carry out the search. However, if the agents ask you to help them or if they make any request that you find objectionable, you should clearly state that you do not consent to the search but are not interfering.

2. Can I Watch the FBI Agents Conducting a Search?

Yes, you can watch the search. If you can watch the search without getting in the FBI agents’ way, you should do so. When the FBI agent finishes executing the search, you should ask for a copy of the search warrant and a detailed list of all the items taken during the search.

However, if the search was part of an arrest and you were taken into custody, then you should not attempt to watch the search, and you should also not attempt to find out what the agents took. Instead, let your lawyer communicate with the police officer or FBI agent in charge of the case to determine what information you need.

3. What Information Should I Preserve Following an FBI Raid?

Following a raid, you will want to be able to provide your lawyer with as much information as possible. This includes:

• The date and time of the raid.
• The FBI agent’s name and other details from his or her business card.
• The FBI agent’s badge number.
• What the agents asked and what you replied.
• Which agents entered which part of the house.
• Which agent looked through which items.
• Which items were taken.
• Which agents arrested you or your associates.
• Which agents searched your cars or other vehicles.
• Which agents questioned you in the police station.

4. What Should I Preserver Following an FBI Raid?

Following a raid, you should preserve all your records, emails, phone calls, records of transactions with your associates and business partners, correspondence with FBI agents, and social-media posts.

At the same time, you must be careful not to destroy or alter any evidence or attempt to influence any witness. If FBI agents execute a search and find any evidence of illegal activity, you could be exposed to criminal prosecution. However, if you alter evidence or attempt to cover it up, you could expose yourself to separate criminal liability under federal obstruction laws or other charges. Additionally, you should refrain from making any public posts and updating your social-media accounts as these posts can be easily collected by FBI agents as evidence to be used against you.

Why Would FBI Agents Show Up at My Home?

1. What Types of Investigations Does the FBI Conduct?

The FBI has jurisdiction over more than 200 categories of federal offenses. When FBI agents show up at your home or business, it could be related to any number of federal issues. The FBI has divided its investigations into a number of branches, which includes:

• National Security
• Cyber Crime
• Violence and Public Safety
• Corruption and Civil Rights
• White Collar Crime
• Drugs, Gangs, and Violent Crime
• Terrorist and Other Federal Investigations

2. Why Are FBI Agents Visiting?

When FBI agents come to your home or business, they are there to:

• Speak with you.
• Interview you as a witness, subject, or target.
• Subpoena records or other documents.
• Execute a search warrant.
• Arrest a person.

The FBI agents themselves may not be able to disclose the nature of their investigation if it is ongoing, or they may decline to answer your questions in order to prevent you from trying to obstruct their investigation.

• Witnesses are individuals whose information is required for an ongoing federal investigation.
• FBI agents only arrest the targets of their investigations.
• Subjects are individuals whose conduct or actions are relevant to an FBI investigation, and whose status could change to the target.

A person’s witness or subject status will change to a target if the FBI agents or prosecutors find evidence that he or she may have criminal liability under one or more federal charges.

Our firm can work with the FBI to determine whether you have been listed as a witness, subject, or target. We can also work with prosecutors to limit the scope of their investigation and to protect our clients when possible.

3. Are Federal Investigations Always Conducted by FBI Agents?

No, other federal agents may also be involved. Depending on the charges involved, federal agents from the Drug Enforcement Administration (DEA), the Internal Revenue Service (IRS), the Office of Inspector General (OIG), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the Department of Homeland Security (DHS), the United States Secret Service (USSS), and other agencies may show up.

4. Does an FBI Visit Mean Charges Will be Filed?

Not necessarily. A visit by FBI agents can be for several reasons. However, it is best to let your lawyer get in contact with the agents to determine the nature of their investigation and your legal situation.

Can a Lawyer Challenge or Sue Over an FBI Visit?

1. Communications With Federal Agencies and Prosecutors

Defense counsel can communicate with federal agents, prosecutors, and other government officials on behalf of their clients. If you have been visited by FBI agents, have been arrested, or have been served with a subpoena, speak with a lawyer. Your lawyer can find out why FBI agents show up, and your lawyer can take steps to protect your rights.

2. Is it Possible to Seek Damages under Section 1983?

Section 1983 of Title 42 of the United States Code is a federal statute that allows individuals to seek damages from state actors for violating their constitutional rights. The statute does not apply to federal agents or the FBI.

3. Bivens Claims

When an individual seeks damages from federal agents, he or she must file what is known as a Bivens claim. In the case of Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971), the Supreme Court established a cause of action for damages against federal agents for violating an individual’s constitutional rights. A Bivens claim seeks damages from the federal officer or agent’s individual assets; it is not a claim against the FBI itself.

4. Federal Tort Claims Act (FTCA)

Under the Federal Tort Claims Act (FTCA), an individual who has been harmed by a federal agent may sue the United States government for damages. The FTCA allows some tort suits seeking to hold the United States liable for negligence or other misconduct by federal employees.

Similar to state sovereigns, the United States has sovereign immunity. Sovereign immunity bars individuals from suing the federal government unless the government waives its immunity. The FTCA serves as a waiver of the federal government’s sovereign immunity; however, the Act contains statutory limitations that bar suit in certain cases. For example, if you file a lawsuit for damages from a search or arrest by FBI agents, the lawsuit must be grounded in negligent performance or misconduct by the agents rather than intentional torts or constitutional violations.

5. Administrative Exhaustion

Like most tort claims, lawsuits under the FTCA require that the plaintiff first exhaust all of their administrative remedies. This includes filing the appropriate form with the agency’s administrative process, and if the agency denies the claim, filing your suit in federal district court.

A suppression motion is a request to the court to exclude certain evidence from the trial or from the grand jury proceedings. For example, if an FBI agent conducted an illegal search and obtained evidence that violated your Fourth Amendment rights, your lawyer can seek to suppress that evidence. If a judge grants a suppression motion, the FBI will not be able to use the evidence in court.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.