Yesterday, history was made when the FBI executed a search warrant on former president Donald Trump’s home in Florida. While much is unknown outside of the statement released by the former president, it is interesting to think about the 4th Amendment of the U.S. Constitution, the laws surrounding warrant searches and seizures and how this could have unfolded.
I’ll start by saying that this is not a political blog; this is a legal blog. I am staying politically neutral here and discussing the 4th Amendment and search warrants.
Given that there is a lot of interest around search warrants, I thought we could discuss what they are, where they come from and how they are executed in order to better understand this situation here. To start, take a look at the language of the 4th Amendment of the United States Constitution:
“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 particularly describing the place to be searched, and the persons or things to be seized.”
One thing to understand is that the U.S. Constitution doesn’t reserve rights for people. What it does is provide protections to people from the federal government. It limits the way government can operate and dictates which laws Congress can pass as to prevent encroachment on inherent rights that we the people have.
So, with that, let’s pull apart the language of the 4th Amendment. While it does not assign rights, many parts of the constitution recognize rights of the people. For example, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” is recognized by the 4th Amendment. The part of the amendment that actually demands or prohibits action is the next few words: “shall not be violated, and no Warrants shall issue . . .” Of course, there are some exceptions that follow the–what seems to be–strict prohibition in the preceding language. Lastly, looking to the final sentence “and particularly describing the place to be searched, and the persons or things to be seized” this requires that law enforcement narrow the scope of a search warrant to only the place needing to be searched and the things that they will need to take.
What are unreasonable searches and seizures?
Well, to start, all searches and seizures that occur without a warrant are presumptively unreasonable. However, federal and state courts around the country have published opinions and provided exceptions to the warrant requirement and have used legal doctrine to gut the protections of the 4th Amendment in no small way. While this specific topic of the 4th amendment is important, and there is a lot to talk about regarding warrant requirement exceptions, that is not important in the instance of the FBI search of Donald Trump’s house because the FBI did indeed get a warrant.
To get a search warrant, the FBI would need to go before a federal judge and submit a sworn affidavit that (1) provides facts that, if true, would provide probable cause that a crime has been committed and (2) provide information that suggests that evidence of that crime is in the place to be searched. While there are broad suggestions as to what the FBI could have been looking for here, we are still unsure of what the affidavit of the search warrant outlined for the judge.
One thing that can be safely assumed is that the judge that looked at this warrant looked at it long and hard.
The scrutiny that must have been given to the FBI affidavit by the judge here is irregular. This makes sense given the unprecedented nature of executing a search warrant to search a former sitting president’s home. However, shouldn’t all search warrants be given great scrutiny? I can tell you from experience, they are not and often times there are big mistakes made on search warrants and their accompanying affidavits. The problem is that the remedy for such a violation is decided in what’s known as a Frank’s hearing and if it’s found that law enforcement lied in the affidavit for the search warrant, the search warrant is reexamined without the false information for probable cause. If no probable cause is found to exist without the false information, the search was done illegally because there was in fact no probable cause for the search.
One of the things that is being discussed and is highly contentious was whether or not notice was given to anyone before the search warrant was executed upon Donald Trump. Also, it is reported that he wasn’t home at the time of the search.
Generally, law enforcement can apply for what’s known as a “no knock” warrant that will allow law enforcement to enter a premises with no notice and allow them to forcefully enter the premises is necessary. That said, law enforcement officers are still required to identify themselves. This is often seen on television where a cop yells “police!” and then moves out of the way while a large man with a battering ram plows through the door. No knock warrants must be approved and should only be issued if there is reason to believe that evidence will likely be destroyed absent forcible entry. We don’t know whether or not this was a no-knock warrant, but we do know that the secret service detail was at his home—presumably at the time the search warrant was executed.
As more information comes to light, we will know more about why law enforcement searched Donald Trump’s home. Given the nature of this search, hopefully we will one day see the contents of the affidavit that was looked at by a judge. For now, I’ll be following the situation from afar and analyzing the data as it comes in.
If you or a loved one ever find yourself facing criminal charges or are the subject of a search by law enforcement and have questions, please feel to reach me by call, text (480) 363-0090 or on my contact me page and I’d be happy to answer your questions.