Former FBI agent says Oakland mayor is not entitled to raid warning

OAKLAND, Calif. - In her Monday morning news conference at Oakland City Hall, Mayor Sheng Thao expressed frustration over not getting a heads-up about last week's FBI raid on her home. A former FBI special agent told KTVU that would almost never happen.

"I want to know what probable cause the FBI has," Thao said at a news conference. "What evidence have they collected that justifies raiding the home of a city mayor without notice and without courtesy of a conversation?" 

But Stuart Kaplan, a South Florida-based federal criminal defense attorney and former FBI special agent, told KTVU on Tuesday that if the FBI wants to raid a property, no one is entitled to a "notice" or a courtesy.

"For the obvious reason, we don't want to give them the opportunity to destroy or remove the fruits of evidence that may assist us in building our case against them," Kaplan said.

He did explain what the FBI is required to show, and it's not much. 

Per the FBI's website, agents are required to identify themselves and wear a badge at all times. 

Kaplan said they are required to show a search warrant, which reveals the property they are searching and a signature from a judge.

They are not required – and in fact are legally not allowed – to show you the affidavit that supports the warrant. 

That would reveal the probable cause details of why they are searching the property and what they are searching for.

The only time a search target would see the affidavit is if they are criminally charged. 

Then, that information would be revealed to the public through the office of the U.S. Attorney General.

"That would be the prosecuting agency in the Department of Justice," Kaplan said.

"They will come out and make a statement," he said. "Very rarely will you hear from the FBI in connection with an ongoing criminal investigation."

There are few circumstances, Kaplan said, where a target subject would be aware something is coming.

The FBI could send "target letters" to people who might contribute to an investigation. 

Those target letters, written notification, are usually not for the target subject, but instead for surrounding characters, which Kaplan describes as "low-hanging fruit."

"Target letters are usually sent out, looking for people who want to speak to us to get in early," he explained. "Perhaps to get a benefit of their cooperation or assitance but we don't send target letters to the main focus of our investigation."

Thao did not indicate she received a target letter as part of the FBI raid into her home.

And her former attorney, Tony Brass, told reporters on Friday he had no information that Thao was the "target" of any investigation. 

If the FBI decides never to arrest Thao, then documents related to their investigation of her will never become public – not even to her. 

"By virtue, the case may just end," Kaplan said. "And that person may never find out what's in that affidavit in support of that search warrant."