Recently Texas state and local governments raided a raw milk drop-off site in Austin. Since that time, a number of consumers have asked what their rights would be during this type of government action. FTCLDF General Counsel Gary Cox provides answers.
When it comes to the alternative food movement, it is usually the farmer against whom the government takes enforcement action. However, there are many examples where a person allows their driveway, front door stoop, or back porch to be used as a drop-off point for locally produced, nutrient-dense foods. In some of these examples, the government has attempted to “raid” the person’s home by arguing that the person’s driveway or other drop-off point is a “facility,” “distribution,” or “storage” center that is not licensed or in possession of a permit. This article attempts to define and explain your rights as a consumer in such a situation.
All persons are protected against unreasonable searches and seizures under the Fourth Amendment. What this means is that the government cannot search your property or seize any of your possessions without a warrant. This is a very powerful protection, yet it is also a double-edged sword: while you have the right to tell any government official to leave your property, if you do so, the government can obtain a search warrant from a court of law and then come back onto your property.
Deciding whether or not to allow the government onto your property is a difficult decision to make. On the one hand, you want to protect yourself and defend your rights. On the other hand, you do not want to make the government mad and then have them resort to their unlimited resources. If a warrant is issued, it entitles the government to search anywhere and seize anything on your property as long as it is described in the warrant. It is a drastic and escalated remedy, so do not make this decision lightly.
Suppose you are a consumer and you are a member of a buyer’s club or you are a member of a raw milk herdshare. You allow your driveway to be used as the drop-off or collection point for raw milk bottles or for the delivery and pickup of food club products. The government shows up and wants to confiscate everything. You are certainly within your rights to demand they leave your property and not seize anything. If they do not leave, you can call the local sheriff’s department and inform them that you have a trespasser on your property. Either the government will leave and not come back, or they will leave and then come back with a search warrant.
If the government comes back with a search warrant, here is what you need to do, or not do, during the course of the raid:
- Read the warrant. It must describe “with particularity” the locations to be searched and the items to be seized. Do not let the government agents go anywhere that is not described in the warrant, and do not let them seize any property that is not described in the warrant.
- Demand a copy of the “inventory,” which is required if the government takes or seizes anything that belongs to you. The inventory is basically a list of all the items that are seized during the raid.
- Document the raid. Use a camera, take notes, use a video camera, whatever you need to do to document the raid. But in any event, follow the course of the inspection and document what the government does.
- Do not hinder, thwart, obstruct or delay the search and seizure. Keep a respectful distance and document their actions as they execute their raid, but in no event do you want to hinder, thwart, obstruct or delay their search. You can get arrested if you do so.
- Do not make any statements. You do not have to “cooperate” with the government as they conduct their raid. Keep silent, and do not talk to the government agents. Simply follow them and document what they do. In fact, if you want to, you can simply leave the premises and leave the government to its own devices.
- Do not open any locked doors or buildings. If any are already locked, you are not under any duty to “open” the doors or buildings. If the warrant has language in it that authorizes the government to use “any and all force necessary” to gain access to the premises, then the government can cut off locks and break doors and into locked buildings. However, if this language is not in the warrant, then you are not under any duty to open these locked places.
Finally, once the raid is over, there are some things that you should do, as well:
- Review the inventory for accuracy. If there is a discrepancy, then contact the government agents and ask for a clarification, in writing.
- Ask for the return of your seized items. Check your state’s laws to see if you have the right to have your items returned to you within a certain period of time.
- Contact your local newspaper or other media and tell them about the event. Explain why you should not have been the subject of a search warrant (after all, you simply used your driveway as a drop-off point. You don’t manufacture or sell or distribute any agricultural products, so why should you be raided?) and how it is that the government is overreacting.
- Contact your local elected officials, such as mayor, city council, and supervisors. Attempt to enlist their support so they can contact the government and express their displeasure with what the government has done to a law-abiding citizen.
- Follow up with the government to see what their next course of conduct will be. They will probably not tell you, but still it is a good idea to stay in touch with them.
Hopefully this article gives you some insight into what your rights are under the law and you are not confronted with this situation.
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