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CRIMINAL LAW BLOG

Federal Searches Without a Warrant

Posted by Dmitry Gorin | Jan 27, 2022

In the Bill of Rights, which contains the first ten amendments to the United States Constitution, citizens are guaranteed a right to privacy and protection from unlawful search and seizure.

However, that doesn't mean the FBI or other federal investigators won't try to bypass that right or find exceptions to the rule.

If you are being investigated for a federal crime, officials can be pretty aggressive in seeking the evidence they desire, which in some cases includes warrantless searches. The issue of federal searches without a warrant crops up quite frequently in federal cases.

Federal Searches Without a Warrant
If federal agents have probable cause, they can ask a judge for a warrant to search a property.

Although illegal searches can be grounds to make the evidence inadmissible in court and sometimes even dismiss the charges, it often requires the skill of an experienced attorney to make sure the defendant's rights are protected.

When a federal law enforcement agency, such as the Federal Bureau of Investigation or the Drug Enforcement Administration (DEA), has reasons to believe you committed a crime, they can ask a federal judge for a warrant to search your property.

However, to obtain a federal warrant, they must present a written affidavit that details why they believe you committed a crime and the specific reasons why they think the evidence of the crime can be found on the property they are seeking search.

In other words, if you are the target of a federal criminal investigation, you could have federal law enforcement agents show up at your door without prior notice.

Search warrants could be executed any time, but some limits and rules must be followed under federal laws. Our Los Angeles criminal defense attorneys will review the laws below.

The Protections of the Fourth Amendment

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures by law enforcement, including federal officials.

It states that “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and describing the place to be searched, and the persons or things to be seized.”

In other words, the Fourth Amendment prohibits unreasonable search and seizures and requires a search warrant to be judicially sanctioned and supported by probable cause.

The United States Supreme Court has described “probable cause” as a fair probability that evidence of a crime will be found in a particular place.

By this language, federal officials can only search and seize when the following conditions are met:

  • They must establish probable cause to search. In other words, they have a legitimate reason to suspect that laws were broken and that a search may verify that belief;
  • They must procure a search warrant issued by a judge based on that probable cause;
  • The warrant must detail precisely what is to be searched and seized and for what reason. In other words, a warrant doesn't give the official free reign to explore or take anything about you. It must be specific.

The Fourth Amendment protects certain expectations associated with a federal warrant, including searches and other seizures occurring when the reasonable expectation of privacy is infringed, confiscating the property when there is interference, and detaining someone when there is interference with their freedom.

Even when a judge issues federal warrants, it could still be possible to exclude the incriminating evidence.

Exceptions to the Fourth Amendment

The law has been interpreted and reinterpreted by the courts over the years. Federal and state authorities have carved out several exceptions to the warrant rule in which a search or seizure is considered reasonable even though no warrant was issued.

This is the “gray area” where disputes may arise over whether an unlawful search violated the defendant's rights and whether the evidence obtained is admissible in court.

Standard exceptions to the Fourth Amendment include, but are not limited to, the issues listed below.

Consent. If an officer requests to search and consents to it, they effectively waive their right to privacy, and no warrant is needed.

Exceptions to the Fourth Amendment
There are some exceptions to the warrant rule where a search and seizure is reasonable.

No reasonable expectation of privacy. The Fourth Amendment is designed to protect the privacy of citizens.

As long as the person has a reasonable expectation of privacy (i.e., the expectation of privacy is itself reasonable), a warrant is required for search and seizure. In situations where there is no such expectation, no warrant is needed.

For example, a person's home is considered private, while their actions in public are not.

A law enforcement official should have a warrant to search their home for illicit drugs, but if the official observes the person purchasing drugs on the street, they don't need the warrant to search them for drugs.

Lawful arrest. If an official makes a lawful arrest of the person, the right to search the person becomes inherent without the need for a warrant.

In plain view. If law enforcement is in a place where they have a right to be, they can seize suspicious items in plain view without a warrant.

Automobiles. If law enforcement has probable cause to believe a vehicle contains contraband or other evidence of illegal activity, they can search it without a warrant.

This exception exists because it is considered impractical to seek a warrant for an inherently mobile location—plus, car owners have less expectation of privacy inside their vehicles.

Hot pursuit. If law enforcement is chasing a suspect in the open and ducks into a private facility, law enforcement has a right to enter the property in the quest without a warrant.

Did Federal Officials Overstep their Bounds with a Warrantless Search?

This is a question that is often hotly debated in federal cases. According to a paper published by the Vanderbilt Law Review more than 50 years ago, federal officials have at one time, or another convinced the courts to grant them the power to violate almost every aspect of Fourth Amendment protections to the point that the law is nearly moot.

Despite the established exceptions mentioned above, if federal officials search for your person or property without a warrant, they may or may not actually have the right to do so—and you should always consult an experienced federal criminal defense attorney to investigate the incident and fight to protect your rights, if necessary.

It might be possible to challenge the legality of a search and seizure of property or a person. Still, a defense lawyer has first to establish sufficient legal grounds for such a claim.

While federal courts will generally consider all circumstances to evaluate the probable cause for a federal warrant, there are numerous potential issues an experienced attorney can examine to challenge the legality of the federal warrant, such as the following:

  • False statements by agents in support of the affidavit;
  • Probable cause issues to secure the warrant;
  • Unreliable evidence used in support of the affidavit;
  • Credibility of the informant who provided information;
  • The place to be searched;
  • The particular items to be seized;
  • Issues with executing the search warrant.

If the warrant was executed and items were seized that were not listed on the warrant, then your defense lawyer could challenge that evidence from being used against you.

If it can be proven the evidence was obtained unlawfully, then the items could be suppressed, often resulting in a case dismissal by the prosecution.

Just because federal law enforcement agents obtained a search warrant from a judge doesn't automatically mean the warrant was legally valid.

We might show that the warrant wasn't based on probable cause or overly broad in the description where agents could search.

Eisner Gorin LLP is based in Los Angeles County and serves people across the United States for federal offenses. You can contact our office for an initial consultation at (877) 781-1570.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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