What should you do if a police officer comes to your home or office with a search warrant?
Be polite. Do not get in the officers' way, do not get into an argument with them or complain, even if you think your rights are being violated. Never insult a police officer. But you should say "I do not consent to this search." If they are properly authorized, they will search anyway. But if they are not, then you have reserved your right to challenge the search later.
Ask to see the warrant. You have a right to examine the warrant. The warrant must tell in detail the places to be searched and the people or things to be seized, and may limit what time of day the police can search. A valid warrant must have a recent date (usually not more than a couple of weeks), the correct address, and a judge's or magistrate's signature. If the warrant appears incomplete, indicates a different address, or otherwise seems mistaken, politely point this out to the police.
Clearly state that you do not consent to the search. The police don't need your consent if they have a warrant, but clearly saying "I do not consent to this search" will limit them to search only where the warrant authorizes. If possible, have witnesses around when you say it.
Do not resist, even if you think the search is illegal, or else you may be arrested. Keep your hands where the police can see them, and never touch a police officer. Do not try to leave if the police tell you to stay — a valid warrant gives them the right to detain any people that are on the premises while the search is conducted. You are allowed to observe and take notes of what the officers do, though they may tell you to sit in one place while they are conducting the search.
Don't answer any questions. The Fifth Amendment guarantees your right not to answer questions from the police, even if they have a warrant. Remember that anything you say might be used against you later. If they ask you anything other than your name and address, you should tell them "I choose to remain silent, and will not answer any questions without a lawyer." If you say this, they are legally required to stop asking you questions until you have a lawyer with you.
Take notes. Write down the police officers' names and badge numbers, as well as the names and contact information of any witnesses. Write down, as best you can remember, everything that the police say and everything you say to them. Ask if you can watch the search, and if they say yes, write down everything that you see them search and/or seize (you may also try to tape or take pictures, but realize that this may escalate the situation). If it appears they are going beyond what is authorized by the warrant, politely point this out.
Ask for an inventory. At the conclusion of the search, the police should typically provide an inventory of what has been seized; if not, request a copy but do not sign any statement that the inventory is accurate or complete.
Call a lawyer as soon as possible. If you don't have a lawyer, you can call EFF and we'll try to find you one.
If the police believe a computer is itself evidence of a crime — for example, if it is stolen or was used to commit a crime — they will usually seize it and then search its contents later. However, if the evidence is just stored on the computer — for example, you have computer records that contain information about the person they are investigating — instead of seizing the whole machine, the police may choose to:
Search the computer and print out a hard copy of the particular files they are looking for (this is rarely done)
Search the computer and make an electronic copy of the particular files
Create a duplicate electronic copy of all of the computer's contents (this is called "imaging" or creating a "bitstream copy" of the computer hard drive) and then search for the particular files later
"Sneak and Peek" Search Warrants Are Easier to Obtain Than They Used to Be
Generally, police officers serving a warrant must "knock and announce" — that is, give you notice that they are the police and are serving a warrant (although they might not do this if they reasonably suspect that they will be put in danger, or that evidence will be destroyed, if they give such notice). If they have a warrant, they can enter and search even if you aren't home — but they still have to leave a copy of the warrant and an inventory of what they seized, so you'll know that your place was searched.
However, thanks to the USA PATRIOT Act, it is much easier for law enforcement to get permission from the court to delay notice rather than immediately inform the person whose premises are searched, if agents claim that giving notice would disrupt the investigation. Since the goal is not to tip the suspect off, these orders usually don't authorize the government to actually seize any property — but that won't stop them from poking around your computers.
The delay of notice in criminal cases can last months. The average delay is 30 to 90 days. In the case of super-secret foreign intelligence surveillance to be discussed later, the delay lasts forever — no one is ever notified, unless and until evidence from the search is introduced in open court.
The risk of being targeted with such a "sneak-and-peek" warrant is very low, although rising quickly. Law enforcement made 47 sneak-and-peek searches nationwide from September 2001 to April 2003 and an additional 108 through January 2005, averaging about fifty per year, mostly in drug cases. We don't know how many foreign intelligence searches there are per year — it's secret, of course — but we'd guess that it's much more common than secret searches by regular law enforcement.
Secret searches can be used to install eavesdropping and wiretapping devices. Secret searches may also be used to install a key-logging device on your computer. A key-logger records all of the keystrokes that you make on the computer's keyboard, for later retrieval by the police who installed it. So if you are concerned about government surveillance, you should check your office computers for new added hardware that you don't recognize — especially anything installed between the keyboard and the computer — and remove it. A hardware key-logger often looks like a little dongle in between the keyboard plug and computer itself. Keyghost is an example of a hardware key-logger.
However, the government also has the capability to remotely install software key-loggers on your computer — or search the contents of your hard drive, or install surveillance capability on your computer — using its own spyware. There were rumors of such capability a few years ago in news reports about a government software program code-named “Magic Lantern” that could be secretly installed and monitored over the Internet, without the police ever having to enter your house or office. More recently, news reports revealed that the government had in one case been able to hack into a computer remotely and install software code-named “CIPAV” (the "Computer and Internet Protocol Address Verifier"), which gave the government the IP addresses with which the infected computer communicated.
In response to a survey, all of the major anti-spyware companies claimed that their products would treat government spyware like any other spyware programs, so you should definitely use some anti-spyware product to monitor your computer for such programs. It's possible that a spyware company may receive a court order requiring it not to alert you to the presence of government spyware (several of the companies that were surveyed declined to say whether they had received such orders), but you should still use anti-spyware software if only to protect yourself against garden-variety spyware deployed by identity thieves and commercial data harvesters.
There Are Many Fourth Amendment Exceptions to the General Rule of Warrants