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Searching Property Under a Federal Warrant – Challenging Legality

By Spodek Law Group | November 29, 2023
(Last Updated On: February 20, 2024)

Last Updated on: 20th February 2024, 10:55 pm

Searching Property Under a Federal Warrant – Challenging Legality

Getting your property searched under a federal warrant can be a stressful and confusing experience. As a property owner, you have certain rights when it comes to challenging the legality of a search warrant and any evidence seized. This article will walk you through the basics of federal search warrants, your options for challenging them, and some key factors to consider.

First off, what exactly is a federal search warrant? Basically, it’s a legal document signed by a federal judge that allows federal law enforcement agents to enter a property and search for specific evidence related to a crime. The warrant has to establish “probable cause” that evidence will be found at the location to be searched.

Federal agencies like the FBI, DEA, ATF, and ICE all have the authority to get search warrants for investigations they are conducting. The warrants allow them to search private property, even if the owner doesn’t consent.

When Can a Federal Search Warrant Be Issued?

There are rules about when a federal judge can issue a search warrant. First, there has to be probable cause that evidence of a crime will be found at the place to be searched. This is a stronger standard than “reasonable suspicion.” Probable cause means there are reasonable grounds to believe the search will turn up evidence based on the totality of circumstances.

Second, the warrant application has to specifically describe the place to be searched and the evidence being sought. Federal agents can’t just search wherever they want looking for anything – the warrant must be limited in scope.

The judge will review the warrant application, including any affidavits describing probable cause. If the judge agrees there is probable cause, they will issue the search warrant.

If federal agents want to search your home, business, or other private property, it’s a good idea to be present during the search if possible. You have the right to be there, and it allows you to observe exactly what the agents are doing.

However, you don’t have to consent to the search – the agents can still go ahead even if you object, based on the warrant. Trying to obstruct or interfere with their search could lead to criminal charges.

While present, you should take notes on what items are seized and where they are taken from. You can also ask to examine the warrant to confirm it is valid. Get contact information for the lead agent to follow up later.

Possible Defenses Against an Invalid Warrant

If you believe there are legal issues with the warrant or how the search was conducted, you may be able to get any evidence seized excluded from being used against you. Some common defenses include:

  • Lack of probable cause – If the warrant application didn’t establish enough probable cause that evidence would be found, the warrant may be invalid.
  • Misleading information – If agents gave false or misleading info to the judge in the warrant application, it can invalidate the warrant.
  • Scope issues – If agents seized items outside the scope of what the warrant authorized, those items may be excluded.
  • Technical errors – Mistakes like the wrong address on the warrant or missing signatures could provide a basis to challenge.

In order to assert one of these defenses, you would need to file a “motion to suppress evidence” in court. This asks the judge to rule on whether the search violated your Constitutional rights and if the evidence should be excluded.

Filing a Motion to Suppress

If you are facing criminal charges and evidence was seized from your property, filing a suppression motion is important to challenge the legality of the search warrant. This motion needs to be filed early on in the case.

The motion itself will lay out the legal and factual arguments for why the evidence should be suppressed. You may need to request a copy of the warrant application and supporting affidavits as part of your defense. It’s also important to cite the relevant case law that supports suppression.

The judge will then hold a suppression hearing where you can argue your motion. Both sides get to call witnesses and present evidence about the warrant application and search execution.

If the judge grants your motion, any evidence seized under the invalid warrant cannot be used by the prosecution. This could significantly impact their case, even resulting in charges being dropped.

Seeking Return of Seized Property

In some cases, you may want to get your actual property back after it was seized by federal agents. This is known as a Rule 41(g) motion for return of property. It’s a separate legal avenue from filing a suppression motion.

With a Rule 41(g) motion, you are requesting the court order the government to return your seized property. It allows you to get your property back before the criminal case concludes. However, the government can keep contraband items or evidence needed for their case.

The motion should identify the specific items seized that you want returned and legally argue why you are entitled to get them back immediately. This can help if the seizure is causing you financial or operational hardship.

Working With an Attorney

Given the complex legal issues involved, it’s highly advisable to work with an experienced criminal defense attorney if your property is searched under a federal warrant. An attorney can carefully examine the warrant to spot potential challenges.

They can also strategically decide whether to bring a suppression motion, Rule 41(g) motion, or both. Your defense attorney may also be able to negotiate with prosecutors for return of certain seized items.

Having an attorney represent you early in the process can make a big difference in protecting your rights during and after a federal search warrant. Don’t hesitate to contact a criminal defense lawyer if you need assistance.

If federal agents arrive at your home or business with a search warrant, here are some tips on what to do:

  • Remain calm and don’t obstruct their search – this could lead to criminal charges.
  • Ask to see the warrant and confirm it is signed by a judge.
  • Note the names and agency of the agents conducting the search.
  • Take detailed notes on what items are seized and where they are taken from.
  • Don’t answer questions or speak about the investigation.
  • Use your phone to photo or video the search if you can safely do so.
  • Don’t consent to the search or sign any documents without legal advice.
  • Call a defense attorney as soon as possible after the agents leave.

Following these tips can help protect your rights while federal agents are searching your property. Contacting an attorney promptly after will allow you to explore legal challenges, if warranted.


Having your property searched under a federal warrant can be alarming and disruptive. However, understanding your legal rights during the search and after can make a big difference. Seeking suppression of illegally seized evidence or return of your property are options to discuss with counsel. With the right legal help, you may be able to challenge the validity of a federal search warrant.

Sources: Challenging a Federal Search Warrant Federal Rules of Criminal Procedure 41 Searches of Private Citizens

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