opinion

When the Government Comes Knocking

When the Government Comes Knocking
J. D. Obenberger

The execution of a search warrant is obviously serious business, one in which the naked power of the state is brought to bear on a business or home, overriding the privacy and peaceful repose of the persons working or dwelling at the location which is the target of the search.

It is a shocking event that can inspire feelings of helplessness and despair. Because its consequences can be catastrophic and because such tremendous government power was sometimes abused, the power to issue and execute search warrants was regulated by the founding fathers in the Bill of Rights, by the Congress and state legislatures, and by rules of court.

To hire people who lead irregular lives bordering on crime endangers you because they are subject to threats and intimidation to betray you, and their fear, or pressure by those asking the questions, may lead them to invent accusations against you. If you are smart, you will not hire them.

The very most important thing to say is to be prepared for the execution of a search warrant long before it may take place, with the hope that it never takes place.

The second most important thing to say is that issues and arguments concerning the legality and validity of a search warrant and the method of its execution are never resolved with an agent on a doorstep or inside a home or office, but in a court of law.

Attempts to do so will almost always play to the disadvantage of the persons whose premises are being searched. Indeed, there are vital, sometimes critical and case-dispositive things that can be done early on, at the outset.

They should never educate the executing officers how to correct what might be fatal flaws in the execution and give them a chance at course correction. They are never done on the spot, nose to nose with a guy holding a badge and a warrant. They are usually, if not always, done by a lawyer who has a strategy and enough experience to navigate a course that may get you safe passage through these rocks.

The third most important point is that, as we say in Chicago, an indictment is not a conviction — and a warrant is many notches down from an indictment. You may not even, yourself, be the target of the investigation; it can be enough that someone thinks that evidence of crime is in your possession.

Some warrants slip past judges and magistrates with malarkey averments that are really intended to be fishing expeditions or even naked harassment in the end, decorated with enough frosting to resemble probable cause.

Sometimes, if the charges seem serious enough, if the immediate circumstances are presented as being dire enough, and if the judge or magistrate is a quart low in critical thinking at the moment when the supposedly-supporting affidavit hits him, such warrants can slip through the system. Some are the result of sloppy misunderstandings and undue credulity; law-abiding people do become the targets of search warrants by honest mistake sometimes. So, do not be discouraged if you are searched and do not become fatalistic.

Be smart, make no mistakes, and start engineering plans to get past the encounter. But be aware that judgment mistakes by the judge are the very hardest factors to assail in challenging a warrant; the suppression rules are mainly designed to check abuse by law enforcement agents in presenting untruths to a neutral magistrate and in unreasonably executing the warrant.

The actual text of the warrant itself, especially if it fails to describe with particularity and permits a rambling general search, also opens doors to attack.

The constitutional principles and the laws and rules that regulate the execution of search warrants are aimed at striking a balance, perceived as reasonable by the lawmakers, between the legitimate power of law enforcement to seize and utilize the fruits, evidence and instrumentalities of crime versus the potential for over-handed, abusive and unreasonable application of state power against citizens and their private places.

The law in this area has largely been made by courts on a case-by-case basis, emerging from particular sets of facts and from them, announcing more general principles that are followed by lower courts and taught to prosecutors and law enforcement agents.

It is no exaggeration to say that many hundreds of gallons of ink have been used to print explanations that try to generally sort out the results of these cases, the cases that sift and winnow out the acceptable and reasonable search from the kinds of unreasonable searches that cannot stand because they violate fundamental rights.

It is, in the end, those many gallons of ink that separate our society from the police state; it is only the power of reviewing courts to suppress the results of illegal and unreasonable searches (and in appropriate case, award damages for the violation of civil rights) that can deter illegal abusive police practices and preserve liberty in our country.

To preserve those liberties, the Constitution itself demands that no search warrant be issued except upon sworn testimony and that the warrant identify with particularity the place to be searched and the things to be seized; nothing is to be left to the discretion of the officer or agent executing the warrant; I have personally suppressed at least one warrant calling for the seizure of “obscene materials” that failed to define what that term meant; instead, he or she is to act as the instrument of the court to inspect for the contraband, evidence, or gains derived from criminality which have been described in the warrant with particularity and refraining from search in places which cannot contain them; a warrant calling for the seizure of an automobile does not authorize the opening of a suitcase.

It must be added, however, that contraband and evidence of crime in plain view, in a place where an officer or agent has a lawful right to stand, may be seized, even if they are not described in the warrant, so long as the agent has probable cause to believe that the items fall into those categories.

The warrant must be executed reasonably, and, except in exceptional circumstances determined by a judge, that means execution during the daytime and after a knock an announcement of the agent or officer’s purpose in executing a warrant.

There is no right to refuse entry to an agent bearing a warrant who announces the same; where entry has been substantially delayed or refused, the courts have consistently found that forced entry to the premises was reasonable.

It is generally not the law that the executing agents mush afford the persons present an opportunity to carefully read the search warrant before it is executed; the cases say that it’s enough that they identify themselves and provide a sufficient basis to demonstrate their lawful authority; displaying a badge, announcing their warrant, and leaving a copy of the cover sheet of the warrant behind them have been held sufficient display of the indicia of authority to amount to a reasonable execution.

There is a right also to receive a copy of the “return,” or a list of the things taken, but no recent federal case holds that the inventory must immediately be produced on the spot.

The warrant implies the power to open all things that may contain the items described in the warrant and this may include damage or destruction of furniture or other items. There is a right to ask the issuing court for the return of seized materials that were unlawfully taken.

The Supreme Court has held that the executing agents have a lawful power to temporarily detain the persons who are present (or who are in the immediate vicinity, in the actual process of leaving the premises) and who may interfere with the execution or who endanger them.

Agents, having the interests that they do, will frequently search or pat down the body of those persons — claiming that it is for protection of the agents. They may also move you and the other persons present to another (nearby) location and separate you. The courts back this up. If a pat-down discloses contraband, a criminal case is likely to ensue.

Being the kind of persons they are, on the mission they serve, these agents or officers will also frequently use such detention as a forum to question the persons present to make a criminal case against someone — and sometimes to berate, intimidate, and threaten people into making statements that injure themselves or the people they work for.

Because this is not technically an arrest, it can be expected that many agents will omit reading Miranda rights to these detained persons. They may, in fact, wrongly threaten these detained persons with obstruction of justice for failure to answer their questions.

The following succinct list highlights what, perhaps, are the most important search warrant points for an adult operator to keep in mind:

1. If you think that there is even a fair possibility that one day you may be the target of a search warrant, you need to have an ongoing, retained, relationship with a lawyer who is known to take your calls immediately, night and day. This is not the time or place to recount exactly what he can do for you, but if he is experienced and clever, there are moves available to him at that moment that can make a day and night difference for you.

Potential, serious, cases have dropped away, in my experience, because of non-obvious things done by the attorney during or in the immediate aftermath of a search warrant execution.

2. Think about your employees and associates, even those who work in other locations. They just may also get the same knock on the door in a synchronized raid. You should think about them long before the knock on the door comes.

To hire people who lead irregular lives bordering on crime endangers you because they are subject to threats and intimidation to betray you, and their fear, or pressure by those asking the questions, may lead them to invent accusations against you. If you are smart, you will not hire them.

If you are smarter, you will subject your staff to drug testing and discontinue dealings with those whom you know to be vulnerable to extortion and threat. They should know that in any criminal case involving the business, their representation will be assured. But be careful. It is almost always a crime to tell people not to cooperate by answering law enforcement questions, and doing so may be used as evidence of your guilty knowledge.

On a different plane is educating persons about their rights to remain silent abstractly, or to educate them that if they choose to talk with law enforcement, the agent will take notes, your employee will not see those notes, and that somewhere down the line, the agent may claim falsely that the employee said things that he did not; that sometimes, people get threatened for refusing to testify as to what is in those notes: the problem does not exist if no interview took place.

All of this is delicate enough, and danger-prone enough, that any and all information in this area is best conveyed through a lawyer, maybe in writing, long before a search warrant is executed.

3. You need everything that’s important for you to be backed up off premises. Everything. If money is on their mind, as it usually will be in this area, the warrant will authorize them to take your checkbook and credit cards, perhaps even valuables and jewelry. (I have seen 6 a.m. searches start with the seizure of wedding rings while their owner stood in tears, in a bathrobe, looking on.)

How will you continue financial dealings without them until they can be replaced? You need the tools of doing your job and living your life available to you at all times, and that means keeping those essential tools available even if everything in your home is taken. Checkbooks. Files on servers. Lists of passwords. Medications. If you need it to live and function, back it up elsewhere.

4. Don’t keep illegal contraband — illegal drugs, guns, or any evidence of crime — in any premises that have a fair possibility of being searched.

5. Everything password protected, always. Do not give it up except by precise judicial order to do so, and only after you are represented by an aggressive attorney. Use of a password tends to be used as evidence to establish knowledge and control.

6. If they announce that they are law enforcement with a warrant, let them in, ask nicely for a copy of the warrant, and call your lawyer. (You break no laws by asking to see the warrant. But if they think the delay is unreasonable and that the evidence is evaporating on the other side of the door, don’t be surprised to see the use of violent force to gain entry.) Don’t call anyone else.

If they won’t let you call your lawyer, be nice about it, but insist in a polite tone, and every once in awhile repeat the request. In the case of a synchronized raid, they do not want you alerting anyone else about whom they may have an interest; they also may hope to flip you, and that becomes less valuable if others know that they are rummaging through your things.

7. Don’t be surprised if you are taken out of the premises or even if they apply restraints; they may remain in place for hours, even if you are not arrested then and there; the cases give them a low hurdle in justifying this. This is also their tool to apply more stress on you to question or manipulate you for their purposes. They are trained to capitalize on this stress to achieve the results they want to achieve.

8. Don’t try to destroy or secrete evidence or contraband. It is a crime to do so. Don’t interfere with them or permit anyone else to do so. Let them do their job. You will not stop them anyway, and you will only make things worse for yourself by trying.

9. Do not be aggressive. They are holding all the cards at that precise moment.

10. If you have a pet, especially a big dog, tell them and offer to get it under control and away from them. If you have children, try to get their cooperation to remove the children to a safe area.

11. If you are not ushered out, and have the chance to observe, pay close attention to the sequence and nature of what they are doing. It will help your lawyer.

12. Don’t consent to anything except on advice of counsel. Nothing. This includes consent to search rooms that are used exclusively by other persons or members of your family. If they ask for consent, it is some clue that they are not sure that the warrant authorizes the intrusion. Don’t eliminate their doubt by affirmative consent. If bad stuff is found there, you are likely to be tagged with its possession, and for that proposition, item A in evidence against you is the consent you gave for the search of that room. They will probably search it anyway; but don’t create a case against yourself.

13. Don’t answer any question that it not immediately related to their safety and well-being. If you are armed, it is probably prudent to tell them that immediately in a very, very calm tone, explaining that you comply with any laws touching on this. They will disarm you. It is not in your best interest for any of them to be harmed. Refer everything else to your lawyer. It is not rude to refuse. It is patriotic. Brave Americans fought and died for your right to remain silent. Refer them to your lawyer and be a patriot, too.

14. If they ask for keys for locks or combinations to safes, be aware that if the items identified in the warrant may be located within, they will, if necessary, destroy them to gain access. Be also aware that having the keys or combination are an acknowledgment of control, which sometimes might be an issue in play, but no longer an issue in play once you give it up.

15. If your state requires a license or registration for firearms or evidence of a prescription for drugs or needles, and if you have them present, there is no harm in tendering those documents.

16. Don’t have any underage images on your computers, ever. Not even the ones in National Geographic or on some remote German beach. None. While I’m on the subject, don’t ever let anyone else ever use your computer, for fear of exactly the potential of this taking place without your knowledge.

17. Make sure your phone is password protected. No, not a fingerprint. A real password. Yes, it’s a pain in the butt, and yes, they can retrieve many communications from your phone and internet provider, but not everything. Your privacy is just as valuable to you as you make it, and as cheap and inexpensive as you permit it to become.

18. Establish a written policy for the routine destruction of old data in compliance with the law and adhere to it. However, do not knowingly destroy the evidence of a crime.

19. The places where search warrants are executed are dangerous places. In at least one adult entertainment case, a law enforcement gun went off and created a hole in a floor. Outside the few adult search warrants, guns in the hands of executing agents or officers have gone off to kill or injure people, including agents. Be very careful.

Did I mention, do not act aggressively? Did I mention that they are holding the cards? Did I mention to save all of your arguments for a more appropriate forum and time? Perhaps I did. There is no harm in repeating these cautions, and perhaps some benefit.

Joe Obenberger is an adult industry attorney serving clients throughout the country, in Asia and in Europe, from Chicago. None of the foregoing is intended as legal advice, but as general legal education of the public at large. Nor does any of the foregoing establish any attorney-client relationship with any reader. He may be contacted by phone in his office at (312) 558-6420 or by email at obiwan@xxxlaw.net. His website is XXXLaw.com.

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