By Jonny Lupsha, Wondrium Staff Writer
The FBI has searched former President Trump’s Florida residence. The search was conducted in relation to classified documents removed from the White House during the former administration. Search warrants must meet several constitutional requirements.
On August 8, FBI agents executed a search warrant on former President Trump’s Florida residence, Mar-a-Lago. The search was the latest in a long chain of events related to the former president’s alleged removal of sensitive documents from the White House and the investigation into said removal.
In the two weeks since the search, fiery debate either supporting or condemning the FBI’s actions has aired out on television and social media: On the one hand, the former president took to his social media platform, Truth Social, to share an article calling the FBI “fascists”; and on the other hand, Trump’s own national security advisor, John Bolton, said that the former president is “almost certainly” lying about the reasons he had the classified documents at his Florida residence.
One key facet is the search warrant itself. The warrant, which has since been leaked to media outlets, cited possible crimes such as obstruction of justice and violating the Espionage Act as reasons for the raid. In order to understand this story, it’s vital to look at the requirements a search warrant must meet.
In the video series Law School for Everyone, Professor Joseph L. Hoffmann, the Harry Pratter Professor of Law at the Indiana University Maurer School of Law, details the warrant process.
Basic Warrant Requirements
If a search warrant is required for a search to be considered constitutional and not a violation of someone’s Fourth Amendment rights, which cover the right to privacy pertaining to search and seizure, the warrant must meet several requirements.
“First, the officer who presents the warrant application to the judge or magistrate must swear, by oath or affirmation, the truth of whatever facts are stated in the application,” Professor Hoffmann said. “Second, those facts must provide enough information for the magistrate to make an independent decision about whether or not to issue the warrant.”
Third, the magistrate must be “neutral and detached.” In other words, free from any incentive or bias toward making one decision over another. This relates to the requirement that warrants can’t be issued directly by prosecutors, which would violate the United States’ neutrality principle. Fourth, the warrant must be drafted to describe specifically what will be searched for and where.
Executing a Warrant
“There are also rules for the proper execution of a warrant, most notably, that police must ‘knock and announce’ their presence before trying to enter a home or other premises,” Professor Hoffmann said. “The Supreme Court has held that entering without knocking and announcing is only allowed under special circumstances, such as when the police ‘reasonably suspect’ it would be dangerous or futile to do so, or that evidence is being destroyed inside.”
Hoffmann noted that the USA Patriot Act, which was enacted after the September 11 attacks, authorizes special “sneak and peek” warrants. This means the police can search a residence while the resident is away from home and then inform them after the fact. The most important requirement, though, is that a warrant be based on “probable cause.”
“Probable cause doesn’t actually mean that a crime is probable,” he said. “It means there’s a ‘fair probability,’ or a ‘substantial chance,’ of a crime.”
Law School for Everyone is now available to stream on Wondrium.