Federal Agents at the Door: The First Ten Minutes.

Any answer you give federal agents at your doorstep could potentially become evidence in a federal prosecution. The safest approach is to politely invoke your rights. While it may seem natural to try to explain your innocence at your doorstep, explanations can create additional problems. Rather than explain, you should politely and clearly state that you will not answer any questions without your lawyer present, or that you need to call your lawyer before you will answer. This should stop agents’ substantive questioning. Politely and clearly telling them that you need to talk with your lawyer should also stop agents’ requests to enter. If they present a search warrant, do not resist the search, but do not give them consent to conduct a search simply because you think you would appear cooperative by doing so.

Federal agents visit the homes of targets, subjects, and witnesses in federal criminal investigations. This includes relatives, coworkers, business associates, and other contacts. In all cases, agents visit with the intent to interview the person. By the time federal agents visit you or anyone you know, they will typically have been conducting an investigation for months or years. This means they already have a detailed picture of the case.

You can politely ask the agents who visit your home for their names, agency, and other credentials. Once they identify themselves, you should politely say, “I do not have any questions to answer. I will wait for my attorney to arrive, or you can contact my lawyer, and then talk with them.” Then simply shut the door. At that point, you do not need to answer any more questions from the agents, and you do not need to tell the agents to leave.

Do I have to let federal agents inside?

Do you need to answer your door for federal agents? No, you generally do not need to answer the door for federal agents. Federal agents need legal authorization to enter your residence. Only if they have a search warrant or other specific legal authority (such as an arrest warrant, your consent, or exigent circumstances) can they enter your home without your permission. In most cases, if federal agents are at your home’s doorstep, you do not need to answer the door.

Federal agents need a search warrant to enter your home to perform a search. If federal agents do not have a search warrant to conduct an investigation inside of your home, they may ask to enter. Generally, if you do not have a reason for granting federal agents or other officials entry to your home, you are not required to give them your consent to enter your home. Even if federal agents or other officials present themselves in your home without consent, it doesn’t mean they are legally allowed to enter your residence. However, while you should not hesitate to assert your constitutional rights, granting consent will allow federal agents or other officials to enter your home. At Spodek Law Group we strongly advise against consenting to an entry or search by federal agents.

If federal agents present you with a search warrant, you can’t refuse to let them enter. They can enter your home and search according to the scope of the warrant they obtained. Search warrants are often issued with specific scopes to protect innocent people from unwarranted searches. However, if federal agents have a search warrant to search your home for computer equipment, they can’t typically use that warrant to conduct a search of your safe unless specifically stated.

Federal agents or other federal officials may come to your home to deliver a subpoena. If you or anyone else in your house is served with a subpoena, then you are legally required to respond to that subpoena. This includes providing information, documents, or appearing in court as required. However, delivering a subpoena does not automatically provide authorization to enter your residence or conduct a search of your home.

Exigent circumstances, or situations that are so urgent that immediate action is legally required to preserve evidence or ensure someone’s safety, can authorize agents or other law enforcement officials to enter a home without a warrant. Agents will sometimes try to use exigent circumstances as justification for entering someone’s home without a warrant. However, these claims are often subject to investigation in the criminal legal process and are frequently challenged by the attorneys at our law firm.

Federal agents may claim that they are from certain federal agencies. Before opening your door to these individuals, you should ask them to identify themselves and then verify their identity by calling the published number of the federal agency they claim to be from. A badge or business card alone is not enough to independently confirm that agents are federal agents.

In Payton v. New York, the Supreme Court found that agents can enter a subject’s home with an arrest warrant to effectuate the arrest. However, this is only permissible under certain conditions, and the court also found that agents had to have a warrant if they wanted to force their way inside a subject’s home.

What can I do while agents search my home?

When federal agents or other law enforcement officials execute a search warrant at your home, you should:

• Request a copy of the search warrant.
• Check that the search warrant identifies the correct premises.
• Check that the items being searched for are within the search warrant’s scope.
• Request a receipt for any items that the agents or other law enforcement officials seize during the search.
• Remain silent during the search.
• Do not offer to help with the search.
• Do not interfere with the agents or other law enforcement officials during the search.
• Do not give consent to expand the scope of the search.
• Do not consent to a search of your phone, computer, or other devices unless authorized by the search warrant.

A search warrant obtained by the government has to specifically identify the premises to be searched and the items to be seized. When federal agents present you with a search warrant for your home, you should insist on seeing a copy of the warrant and noting the specific premises and items included in the search.

Rule 41(f)(1)(C) of the Federal Rules of Criminal Procedure states that, “The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.” If federal agents or other law enforcement officials search your home, they need to provide you with a copy of the search warrant and a receipt for any property seized.

Generally, if federal agents or other law enforcement officials have search warrants, they do not need to wait for your defense counsel to arrive before they can begin conducting the search in the premises. However, you should still call your defense counsel as soon as you have the opportunity.

While it may be confusing and scary for federal agents to be executing a search warrant at your residence, you should not attempt to hide or destroy any evidence. Hiding or destroying evidence is illegal. This can create additional legal problems for you and can even implicate others in the criminal legal process.

If you are an occupant of a home that is being searched pursuant to a federal search warrant, there is a risk that you could be detained. In Michigan v. Summers, the Supreme Court found that, “For Fourth Amendment purposes, a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”

Generally, federal agents or other law enforcement officials executing a search warrant at your home cannot seize anything outside the warrant’s scope. However, under the “plain view” doctrine, federal agents are permitted to seize incriminating evidence they see in plain view during the execution of a lawful entry.

You may want to record federal agents and law enforcement officials as they search your home. While audio recording agents may have protections under federal and state law, you could still inadvertently trigger liability under state wiretap and eavesdropping laws. When recording agents executing a search warrant, it is vital to speak with your lawyer about the appropriate steps for recording in accordance with the applicable law.

While recording federal agents is permissible under certain circumstances, this protection can be withdrawn if your recording interferes with the search. When executing a search warrant at a residence, federal agents can llimit the access of those present in the premises. If federal agents determine that recording them is obstructing or delaying the execution of the search warrant, you may no longer be allowed to record.

If any of this describes your situation, it is worth talking it through with counsel. Spodek Law Group can be reached at 212-300-5196.

Can agents search my phone or shared rooms?

Can federal agents force you to provide your passcode to unlock your smartphone or computer? Whether agents can force you to provide the password or passcode required to unlock a biometric device involves constitutional issues that are still being debated in various federal jurisdictions. While some jurisdictions maintain that providing passwords or passcodes is compelled testimony and thus protected by the Fifth Amendment, other jurisdictions believe that biometric device-unlocking orders are not compulsory. If you or a member of your family needs to deal with federal agents, you should consult with an experienced defense attorney.

What if your employer owns your computer or phone? If your employer owns the computer or phone you are using and have authorized search by you and third parties, agents can search your computer or phone through your employer’s consent even if you do not consent.

What if a friend, roommate, or other third party consents to a search of your home? A third party may consent to a search if they have actual or apparent authority over the area searched. This may include rooms, closets, and other areas of a home or residence.

What if my spouse or another house member consents? Whether a spouse or another house member has the authority to consent to a search of a particular area of your residence is determined by the mutual use of the area and your access to that area. Whether you and another occupant of the premises share ownership does not automatically mean the other person has the authority to consent. For instance, your spouse may lack the authority to consent to the search of your password-protected phone.

What if a roommate consents to a search? This depends on the roommate’s authority to consent. If your roommate’s authority includes a search of your private bedroom, then your roommate’s consent will allow agents and other officials to enter your private bedroom. However, even if you share ownership of the premises, a roommate generally cannot consent to a search of your private bedroom or office.

Can federal agents visit my house if they have no evidence of a crime? No, generally federal agents cannot visit your home if they have no evidence of any crime. Agents will review information and records that they obtain through grand jury subpoenas and other legal methods. If they believe that there is evidence of any crime being committed in your residence, then they may visit you. However, federal agents do not need to prove a person committed a crime before taking investigative measures.

How do agents execute search warrants? Agents who execute search warrants must abide by Rule 41 of the Federal Rules of Criminal Procedure.

Do I have to answer federal agents' questions?

No, you do not have to answer federal agents’ questions. However, as explained below, you should avoid making statements that could be used against you, although you should not make false statements when federal agents come to your residence.

Do I have to answer federal agents’ questions if I have done nothing wrong?

If you have done nothing wrong, it may seem natural to answer federal agents’ questions. However, the truth is that any statement you make during a front-porch interview can become evidence in a federal prosecution. If federal agents are at your doorstep with the intention to conduct a criminal investigation, you may become exposed to criminal charges under 18 U.S.C. Section 1001.

What is 18 U.S.C. Section 1001?

18 U.S.C. Section 1001 is a federal statute that criminalizes “false statements and representations to federal authorities.” The statute applies to “any material false, fictitious, or fraudulent statement or representation.” False statement charges are common in federal criminal cases. Even if you have never committed any other crime, making a material false statement to a federal agent can lead to federal criminal prosecution and penalties. With this in mind, it is very important to avoid making any statements or representations that could be used against you in a federal prosecution.

When do federal agents have to give Miranda warnings?

You should be familiar with your right to remain silent. The Miranda warning, the constitutional right to remain silent, is most often given in custodial situations. Miranda warnings apply when a person is in custody and being questioned by law enforcement. However, they do not apply in every conversation with police officers. In a typical doorway conversation, a person is generally not in custody. The conversation is voluntary. Miranda warnings are not required for voluntary interactions.

How do I get a lawyer if federal agents are at my door?

When federal agents execute a search warrant, you can’t force them to provide a lawyer to assist you with the execution. In most cases, before a charge is filed, federal agents are permitted to approach you if you are not in custody. Under the law, you do not have the right to appointed counsel during precharge noncustodial encounters. However, this does not mean that you cannot have legal representation. You are still entitled to retained counsel during all interactions with law enforcement. If federal agents approach you for a voluntary interview, you can politely refuse and choose to consult with your defense attorney.

Do I need to have to prove I did not commit a crime under 18 U.S.C. Section 1001?

If you are charged with a false statement, the government will need to prove that you committed a crime. In cases of false statements under Section 1001, this involves proving that the person knowingly and willfully made a material false statement. Section 1001 willfulness is not just a factual question; it is also a legal question. If you genuinely do not know the truth in response to a federal agent’s questions, your answer cannot be considered a willful false statement under Section 1001. Genuine confusion or a faulty recollection can also defeat the element of willfulness. If you are facing Section 1001 charges, it will be important to talk to your lawyer as soon as possible.

What should I do after federal agents leave?

After federal agents leave your home, your defense attorney will be able to reach out to the agents or federal prosecutors who are involved in your case. Your attorney will be able to protect your constitutional rights, while also playing a proactive role to resolve the investigation without need for criminal prosecution.

1. Reach Out to Your Defense Attorney

When you speak with your attorney, your communications will be protected by the attorney-client privilege. This means that federal agents cannot compel your lawyer to disclose what you have discussed in confidence. This includes calling your lawyer or sending a letter to your lawyer, as long as your communication relates to seeking legal advice from your lawyer. Instead of talking to your coworkers, you should contact your attorney right away.

2. Preserve All Relevant Documents

Along with contacting your attorney, you should make sure to preserve the search warrant, any receipts, and any evidence inventory that the federal agents may have provided. This information will be important for your lawyer, as they will be able to challenge the validity of the search if necessary.

3. Limit Contact with Witnesses

If you see coworkers, friends, family, or other known associates of the federal agents who searched your home, you should be extremely careful. If you talk with witnesses to the investigation, you could inadvertently get in trouble. Witness tampering and obstruction of justice are both criminal offenses. While you are entitled to contact witnesses to the investigation, you should do this under the guidance of your defense attorney.

4. Be Careful about Taking Notes

You may decide to make a memorandum about your interview with federal agents. If you do make a memorandum, it should be clearly marked as a request for legal advice and it should be addressed to your lawyer. Unprivileged personal memoranda can be used as evidence against you in federal criminal prosecutions.

5. Maintain Attorney-Client Privilege

The attorney-client privilege only applies if communications remain confidential. Including a person in your communications who is not essential for the representation may lead to an accidental waiver of your attorney-client privilege. If you want to avoid this, you should speak with your attorney privately.

6. Address Pre-Existing Documents

You may believe that sending a document to your attorney automatically creates attorney-client privilege. However, this is not a universal rule. Preexisting documents do not gain privilege simply because they were sent to counsel or in the course of communication. You will need to discuss this further with your attorney.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.