October 27, 2021

Volume XI, Number 300

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Three Things You Must Do if You Receive a Search Warrant

Few things in life are more alarming than opening your door to law enforcement officers armed with a search warrant. A search warrant is a legal document that allows law enforcement officers to conduct a search of a particular place. 

Once officers have a search warrant, they are entitled to enter the place to be searched with or without your consent. Given this reality, there is little you can do to prevent a search if officers have a warrant. However, there are still important steps you can—and should—take to protect your interests and prevent exposing yourself to further criminal liability. 

  1. You May Need to Open the Door

It’s a common tendency when law enforcement officers knock on the door asking to come in to refuse their request. However, if police have a search warrant, they do not need your consent to enter your home or business. Thus, the first thing to do is to be sure that law enforcement officers are not just looking to talk to you and actually have a warrant. 

Police officers don’t always need to be completely truthful when investigating a potential crime. However, they cannot lie when it comes to having a search warrant. So, if officers indicate they have a search warrant for your home or business, you should let them in. If you don’t, they could enter through force. 

If law enforcement officers do not have a search warrant, things are very different. In this situation, they can only require you to let them in if there are “exigent circumstances.” For example, if they are chasing a fleeing suspect or there is a legitimate fear that evidence could be destroyed if they do not immediately enter. However, if officers believe there are exigent circumstances, they are not likely going to wait for you to answer the door and give them consent; they may just barge in. 

If you don’t need to let officers into your home or business, don’t let them in. Once law enforcement is in your home, they can seize anything in plain view as evidence. Thus, officers that do not have a warrant will often try to gain access to a person’s home or business by claiming they just want to talk to the owner. Once they are inside, they can seize any evidence, and anything they see that looks suspicious may give them additional evidence to go back and get a warrant. 

  1. Ask to See the Warrant

Under federal law, if asked, police officers have to show a person a copy of the search warrant. However, if you don’t ask, they do not need to provide you with a copy. While the thought of challenging an officer’s authority may come with risks, it is generally a good idea to ask to see a copy of the warrant. 

First, this ensures that the law enforcement officers have a warrant. While officers cannot lie about possessing a warrant, that doesn’t mean it never happens. Second, law enforcement officers are human and may have made a mistake regarding the home or business specified on the warrant. For example, officers could have the address wrong. Or, if the warrant lists a building with multiple units, the officers may be at the wrong unit. Asking to see the warrant could clear up this confusion and may avoid the search altogether.

The warrant will also specify the area that the officers are able to search and what they can look for. Generally, search warrants allow for a search of the areas of a home or business that could uncover the evidence they are looking for. The warrant will list the type of evidence officers are seeking. 

This means that officers cannot necessarily turn your home or business upside down looking in every nook and cranny. For example, if a warrant provides that officers are searching for evidence relating to a financial crime, it would not justify them opening your medicine cabinet and looking through all your pill bottles. Similarly, officers may not be justified in looking through your computer if they are investigating a weapons offense. 

  1. Be Courteous, But Don’t Give Consent

When confronted with a search warrant, most people take one of two approaches. They are either angry and indignant or give the officers consent to search anywhere they ask. In reality, a middle approach is the best way to go. 

On one hand, you need to assert your rights. If you give an officer consent to search an area that is not listed on the warrant, for example, a detached garage, then you give up any right to challenge that search. In other words, if you consent to a search, you cannot later challenge it, even if the officers would not otherwise have been able to search that location. 

If officers come with a warrant to search your home and ask to search your car, you can respond by asking if the car was listed in areas to be searched on the warrant. If it is not, then you are under no obligation to allow them access to the vehicle. 

On the other hand, being too aggressive with the officers is also a dangerous tactic. Law enforcement officers are bound by professional and constitutional standards; however, they are also human and have probably already made up their minds about your involvement in whatever crime they are investigating. Thus, in their mind, regardless of the truth, they are dealing with a criminal, and you should be careful not to play into that narrative. 

Along those lines, if an officer does something that you believe exceeds the bounds of the search warrant or otherwise violates your rights, be careful how you proceed. You have the right to film the officers as they search your home or business. However, there is probably little you can do to physically stop them from searching areas that are not included in the warrant. Instead, your remedy is a pre-trial motion to suppress any evidence they illegally obtain. 

Suppression of Illegally Obtained Evidence

The Fourth Amendment to the United States Constitution provides that all people should be free from unreasonable searches and seizures. Over the years, courts have interpreted this to mean that, absent an exception, law enforcement cannot search a person or area without a warrant. If they do, the evidence is not admissible at trial. Thus, just because law enforcement officers seize evidence does not necessarily mean that evidence can be used against you. 

When confronted with a motion to suppress, the prosecution must prove by a preponderance of the evidence that that the evidence in question was legally obtained. To do so, the prosecutor will call the law enforcement officers who were involved in the search to explain their actions and their justifications. 

A defense attorney will then have the ability to cross-examine the officers, exposing inconsistencies in their story or other potential issues surrounding the execution of the warrant. 

Oberheiden P.C. © 2021 National Law Review, Volume XI, Number 238
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About this Author

Dr. Nick Oberheiden Federal Defense Lawyer Oberheiden PC

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...

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