Courts routinely sign search warrants, says Fairfax criminal lawyer- A lesson from the search of Donald Trump’s home

Courts routinely sign search warrants. As a Fairfax criminal lawyer, I know that the execution of search warrants often turns up very sensitive and person material and information that is irrelevant to the related criminal investigation, and that police often leave the searched premises as if a tornado had hit it. In fact, the tornado can be preferable, because at least the tornado causes damage without snooping. Regardless of your political bent, this month’s Federal Bureau of Investigation (FBI) execution of a search warrant on Donald Trump’s home bears underlining that judges routinely grant law enforcement search warrant applications. Key differences with the search warrant for Trump’s home include issues of presidential privilege, any political motivation or targeting for the search, limits on presidential authority to declassify material, and the high level Justice Department involvement in authorizing the warrant.

What is the legal test for courts to issue a search warrant, and are the warrant application’s targets permitted to weigh in before a judge acts on the warrant application?

The Constitution’s Fourth Amendment provides that 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.” Unfortunately, the Supreme Court provides a low bar for determining probable cause by lower courts, at least in the context of arresting a criminal suspect: “The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances…. We have stated, however, that ‘[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,’…and that the belief of guilt must be particularized with respect to the person to be searched or seized.” Maryland v. Pringle, 540 U.S. 366 (2003). Nowhere in Fourth Amendment jurisprudence nor in Virginia criminal law is the accused or other search warrant target permitted advance notice of a search warrant application, nor of the warrant’s issuance, until the target actually learns of the execution of the search warrant. That places extraordinary, insufficiently checked authority in the hands of law enforcement and prosecutors, where ordinarily the Virginia magistrate or judge reviewing the search warrant application accepts as true the police assertions therein, without inquiring of their accuracy, reliability or veracity.

Virginia search warrants usually are issued without any advance participation of the commonwealth’s attorney / prosecution

Regardless of one’s views of the application, issuance and execution of the recent search warrant on Donald Trump, as a Fairfax criminal lawyer I point out that much more review and thought was given to the Trump search warrant than ordinarily occurs with Virginia police applications for search warrants. The Trump search warrant application goes into much greater depth and detail than most Virginia police search warrants, which is clear even with all the redactions in the Trump search warrant affidavit that was released this week to the public. On top of that, Virginia search warrants usually are applied for to courts without any participation nor advice from commonwealth’s attorney offices lawyers / prosecutors. The Trump search warrant application was not filed before the top federal law enforcement officer — attorney general Merrick Garland — approved of applying for a search warrant. While Garland probably realized that many would decry the Trump search warrant as an example of political motivation and selective criminal investigating, he probably also realized that his not participating in deciding whether to apply for the search warrant could have looked like an exercise in even greater unbridled law enforcement discretion by law enforcement officers and/or line prosecutors.

Will anger over the Trump search warrant lead to tighter controls over the issuance of search warrants, or simply keep business as usual with such warrants?

Considering the ease with which Virginia police can obtain search warrants, it would be great if anger by many people over the Trump search warrant will lead to tighter controls over how and when Virginia courts approve of search warrants. If not, at least the search warrant on the former president’s home can open people’s eyes about how easy it is for law enforcement to obtain such warrants. As to Trump’s claims of presidential privilege against the search, he will have to deal with United States v. Nixon, 94 S.Ct. 3090 (July 24, 1974) , which unanimously permitted the enforcement of a search warrant to obtain oval office tape recordings that were surreptitiously made at the president’s direction (and his predecessor excitedly showed him the predecessor’s oval office taping system), and that led to the then-president’s resignation two weeks later.

What do I do if Virginia police executed a search warrant on my home or other property?

If Virginia law enforcement executes a search warrant on your home or other property, ideally you will call a qualified Virginia criminal defense lawyer to advise you. Fortunately, unless the search warrant orders your assistance with the warrant, you have no obligation to assist (including with providing combinations to open safes at your home or to open your cellphone or computer data). If the search warrant orders you to provide any assistance, you can talk with your lawyer about challenging that in court. Ask police if you are free to leave when they are present to execute a search warrant. By your leaving, you remove any temptation to not assert yourFifth Amendment Constitutional right to remain silent with law enforcement, and you avoid giving unintended hints to police about where to search (for instance by continuing to glance at the bookshelf that contains contraband). Courts can issue search warrants, and you then have the opportunity to defend against them.

Fairfax criminal lawyer Jonathan Katz has been headquartered in Fairfax County for years, successfully defending hundreds of people prosecuted for alleged Virginia criminal and DUI offenses. Call 703-383-1100 for your free initial in-person consultation with Virginia criminal defense lawyer Jon Katz about your court-pending case.