FBI Search Warrant at My Home or Business: Your Rights

The warrant authorizes the search. It does not suspend your rights during one.

A federal search warrant is a court order, issued by a magistrate or district court judge upon a showing of probable cause, authorizing law enforcement agents to enter a specified location and seize specifically described items. The authorization is real and it is enforceable. Agents who arrive with a valid warrant are authorized to enter whether or not you consent. That authority has limits that are frequently not communicated to the person whose home or business is being searched.

Your Rights at the Moment of Entry

When agents arrive to execute a search warrant, you have the right to read the warrant before the search commences. Agents are required to present it. Review it. Confirm that the address on the warrant corresponds to the location being searched. Note the date of issuance and the date of execution; a warrant that is stale may be subject to challenge. Identify the property described in the warrant as subject to seizure. Items outside that description are not, in principle, subject to seizure under the warrant’s authority, though the plain view doctrine creates exceptions.

You have the right to remain silent throughout the search. Agents conducting a search will frequently ask questions: where is the router, where are the financial records, who has access to this room. You are not required to answer any of them. The warrant authorizes the search. It does not compel your assistance or your commentary.

Do Not Interfere, Do Not Consent to Expansion

Do not physically interfere with the execution of a valid warrant. Interference with federal agents in the performance of their duties is an independent federal offense, and the consequences of physical resistance to a warranted search vastly exceed whatever might be lost or gained by the resistance itself.

Interference is different from assertion of rights. Calmly noting that agents are examining materials outside the warrant’s scope, requesting to contact counsel, and declining to answer questions are not interference. They are the appropriate exercise of rights that the warrant’s execution does not abrogate.

Do not consent to a search of areas or materials not covered by the warrant. Agents who ask for consent to examine additional items or areas are acknowledging that the warrant does not cover them. Consent to that expansion waives whatever protection the warrant’s limitations would have provided.

The warrant is a boundary. Agents may operate within it. They may ask to go beyond it. The decision about whether to permit that extension belongs entirely to you.

Contact Counsel Immediately

The moment you are aware that agents are present with a warrant, attempt to contact counsel. If agents are already inside and you are present, you may ask to be permitted to make a phone call. The execution of a search warrant is not a custodial arrest, and you are not under the same constraints as an arrested individual, but you are in a situation that requires legal guidance that none of the agents present are in a position to provide you.

Counsel who can reach the scene during the search can observe the items being seized, note any overreach in the warrant’s execution, and speak with the agent in charge about the scope of the authorization. Counsel present during the search is not counsel obstructing the search. The distinction is clear and agents conducting professional searches understand it.

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After the Search

Agents are required to leave a receipt for items seized. Review the receipt against the warrant’s description. Discrepancies between what the warrant authorized and what was taken form the basis for subsequent legal challenges. Items seized outside the warrant’s scope may be subject to a motion for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure.

The search, however disruptive, is a discrete event. What follows it, including the government’s review of seized materials, any grand jury proceedings to which those materials are presented, and any charging decisions that result, is the process that counsel can most affect.

The first call after the agents leave is the most important call of the day.