The Investigation

A defendant may be arrested in the course of allegedly committing a crime. But the criminal cases that attract media attention most often involve a protracted investigation prior to a defendant’s arrest. The investigation will generally be conducted by the FBI, but other federal agencies may be involved depending on the nature of the alleged crime (DEA for drug investigations, SEC for securities investigations, etc.).

To obtain a search warrant or arrest warrant, the law enforcement agent and an assistant U.S. attorney will have to make an application to a magistrate judge or district court judge. The applications will be accompanied by an affidavit filed by the lead law enforcement agent, which is meant to provide the judge with evidence of probable cause. Both documents can be valuable for reporters. The application itself – a one-page form – will include information about the defendant, and the affidavit will include an overview of the facts of the case.

To avoid public disclosure of the investigation, search warrant applications generally are sealed, at least until the search is conducted and sometimes until after the arrest is made. While they are sealed, the warrant application will typically show up on the court’s docket under a title that gives away nothing about the substance of the case, such as “In re search warrant application.”

But if a search warrant application is unsealed before an arrest, that provides a valuable lead that an investigation is underway. Courthouse beat reporters should review unsealed warrants on a regular basis. The ways that clerk’s offices file search warrant applications vary greatly from office to office; you’ll have to ask at your courthouse about the easiest way to routinely review the documents.

Prosecutors use three terms to describe people involved in investigations, and it is critical that you distinguish among them. A “witness” is someone who merely has information useful to the investigation. A “subject” of an investigation is a person whose conduct is within the scope of a criminal probe, although they themselves may not be suspected of breaking the law. A “target” is someone who is likely to be indicted. A subject of an investigation can become a target.

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