On August 8, the FBI raided the home of former President Trump. While this set off exactly the kind of fireworks that were to be expected, the level of probable cause necessary to conduct the raid is an important legal matter.
According to The Texas Tribune, prevailing expertise confirms that federal authorities faced an exceptionally high bar in terms of meeting probable cause requirements for an operation of this magnitude to be carried out.
Because probable cause is so integral to our criminal justice system, this is an important example to assess the matter more carefully. If you are facing criminal charges, a Killeen criminal defense attorney can help you determine if probable cause plays a part in your case.
President Trump termed the search a “siege” on his private property, and the Justice Department – for its part – hasn’t had much to say on the role the search plays in its ongoing legal probe. National news outlets, however, share that the search is part of an ongoing attempt to determine if the president took classified documents out of the White House.
While the nature of the federal government’s efforts was outlined in the search warrant provided to the former president prior to the search, he has not shared this information with the public.
It is important to take a moment and consider the gravity of this situation. This is the first time in the history of the United States that federal agents have searched the home of a former president, and the significance of this bold move is not lost on anyone.
Former President Trump equated the search to Watergate (the scandal that erupted when Republican operatives stole into the Democratic National Committee’s offices), which is a common touchstone when discussing criminal political activity on the national level.
High-Ranking Texas Republicans Weigh In
Many high-ranking Republican officials in the State of Texas have come to Trump’s defense. Consider the following reactions from prominent politicians:
When describing the search, Senator Ted Cruz used words like “corrupt,” “what Nixon tried to do,” and “abuse of power” – calling the search the weaponization of the DOJ and FBI in the targeting of President Biden’s political enemies.
Governor Abbott concurred with Cruz’s take on the matter, saying that our nation has never before gone to this governmental extreme to target a former president.
Two United States Representatives from Texas, Randy Weber and Michael Cloud, have expressed their support of the former President.
Other legal experts have emphasized that it is unlikely that federal officials would have issued a search warrant without employing exacting scrutiny regarding probable cause – especially in light of the backlash it was expected to elicit.
A Federal Perspective
Michael Bromwich, a former federal prosecutor who served as the Justice Department’s federal prosecutor from 1994 to 1999, shares his belief that the warrant was obtained by those in the highest reaches of the FBI and Justice Department. Those who obtained the warrant thoroughly understood exactly how controversial the decisive move would be.
While the Justice Department has not elaborated on its position, Bromwich shares that the crimes suspected must be serious and that the supporting evidence must be powerful.
In an interview published by The New Yorker, former federal prosecutor Andrew Weissmann shared that the U.S. Attorney General, Merrick Garland, must have approved the search. Weissmann also stated that Garland had issued an earlier memo requesting that leadership sign off on steps to be taken that involved a political figure.
One of the most significant outcomes of this operation is that it wasn’t leaked until the former president himself shared the news, which speaks to the government’s keen focus on faithfully following the rule of law.
For its part, the White House confirms that it did not receive any advance warning regarding the raid. A federal magistrate judge in Florida issued the warrant to search Trump’s Florida home, Mar-a-Lago.
Why a Search Warrant and Not a Subpoena
The New Yorker helps explain why a search warrant – instead of a subpoena – was issued.
Generally, when the government requires documents from a corporation or private citizen – it does so by either making an informal request or issuing a subpoena. In turn, the entity that is requested to produce the information responds accordingly by gathering the relevant documents and sharing them with the appropriate government agency.
However, when the government doubts the other party’s willingness to comply, it turns to a search warrant instead. In this instance, the search warrant shows that the government may lack confidence in Trump’s compliance with a subpoena. The government may have chosen a search warrant for one of the following concerns:
The concern that Trump might destroy critical documents
The concern that Trump might refuse to recognize the government’s authority over him
The concern that Trump might produce only partial documentation
The concern that Trump might turn to the “act of production” privilege granted by the Fifth Amendment, which ensures our right not to produce documents in our possession when they are self-incriminating
Former President Trump is thought to possess classified documents that he should not have. Issuing a search warrant helps to ensure that Trump cannot use any of the tactics listed above to avoid producing them. With a search warrant, the FBI is able to avoid any chance that they will not get the documents they are asking for. Instead, they can move ahead to simply taking them.
The involved judge does not play a role in whether the DOJ issues a subpoena or seeks a search warrant. If a search warrant is sought, however, the judge must carefully weigh the available evidence to ensure that there is probable cause to believe a crime has been committed and that the evidence sought is likely to be found in the location covered by the search warrant.
Search Warrants in Texas
Just like every other state, Texas looks to the Fourth Amendment for guidance regarding both search warrants and arrest warrants.
The amendment states, “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.”
In a nutshell, this means that the law must carefully balance our interests as private citizens and entities with the legitimate interests of the government. If there is enough evidence to support governmental intrusion, a search warrant for a highly specific place and a highly specific kind of evidence may be issued.
When the police have a valid search warrant, the suspect’s civil rights are not violated. If a search does prove to violate a suspect’s rights, it can be deemed illegal, and any evidence found as a result can be kept out of trial.
Search Warrant FAQ
In order to have a better understanding of how search warrants work in Texas, it is a good idea to have the answers to some of the most frequently asked questions.
What is a search warrant?
A search warrant is an order issued by a magistrate in court that grants the officers who hold it to search a specific place for specific evidence. Someone at the place being searched must be provided with a copy of the search warrant, and if any relevant evidence is found, the power to seize it is granted to the authorities.
Every search warrant must include all the following information:
A statement that it was issued by the State of Texas
The date and the hour the warrant was issued
The name and signature of the magistrate who granted it
The specific parameters of what the officers are looking for and what they are allowed to seize
How are search warrants obtained?
For a police officer to obtain a search warrant, he or she must apply for it and must include an affidavit in the request process. This affidavit must demonstrate that the officer has probable cause for believing that a crime was committed. The warrant will only be issued if the evidence rises to this level.
Every affidavit must be signed and submitted under oath by the officer seeking the search warrant and must include all the following:
The specific crime that the officer believes has been committed
Indication of how the specific location to be searched is believed to be connected to the crime
A statement that the specific place for which a search warrant is sought is likely to contain evidence
How are search warrants executed?
Police officers who are in possession of a search warrant execute the search. The process generally involves knocking on the door and announcing themselves, which is known as the “knock and announce” rule. This means that the police typically cannot barge in without giving notice, but exceptions sometimes apply.
When circumstances justify bypassing the knock-and-announce requirement, a no-knock warrant – whereby the police can gain entry without first knocking and announcing themselves – can be issued. While Texas has seriously considered putting more careful limitations on no-knock warrants, none have been forthcoming to date.
The police officers executing the search warrant are required to remain within its scope, which means not venturing outside of the parameters outlined (except under very limited circumstances).
When are search warrants considered invalid?
When a search warrant is found to be invalid, the search can be deemed an illegal violation of the suspect's Fourth Amendment rights. There are two basic categories of invalidation:
The affidavit presented with the request did not establish the probable cause necessary to support the search.
The sworn affidavit of the police officer was not truthful.
The exclusionary rule can apply to any evidence obtained in the execution of a search warrant that is determined to be invalid.
What is the exclusionary rule?
The exclusionary rule is a legal penalty that often applies to searches that are deemed illegal, and its purpose is the exclusion of any evidence that was illegally obtained, such as through an invalid search warrant.
The reach of the exclusionary rule, however, does not end with evidence obtained in the search but, instead, also extends to any evidence that is gathered later (as a result of that original search).
Those facing criminal charges can request that evidence subject to the exclusionary rule be kept out of the trial by filing a motion to suppress evidence.
What is a motion to suppress?
A motion to suppress evidence amounts to a legal request that all evidence obtained illegally be excluded from the case. Such a motion can be filed any time before the court date, and it sets a suppression hearing in motion.
When a motion to suppress evidence is successful, all evidence that is deemed to have been obtained illegally – such as evidence found because of an invalid search warrant – is excluded from the prosecution.
Are search warrants always necessary?
There are very limited situations in which the police are not required to have a search warrant before searching one’s home or property. A few examples of these kinds of situations are listed below:
When there are exigent circumstances that require prompt action, such as when evidence is in danger of being destroyed
When the evidence in question is in an officer’s plain view
When the evidence in question is found in a place where the defendant had no reasonable expectation of privacy
It Is Time to Consult with an Experienced Killeen Criminal Defense Attorney
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable criminal defense attorney with a wealth of experience successfully defending the legal rights of clients like you. If you’re facing a criminal charge of any kind, please do not hesitate to contact us online or call us at (254) 781-42222 for more information today.