You are a business lawyer sitting in your law office and get a telephone call from a client. He tells you there are several federal agents at his company premises with a search warrant for documents and computers and they are proceeding to open file drawers and are downloading computers. Twenty five years ago when agents only executed search warrants on bookmaker joints, fencing operations, or warehouses containing stolen goods, this call to a business lawyer would have been unlikely. Times have changed with the nature of white collar crime, and federal prosecutors routinely obtain search warrants for what lawyers would call legitimate businesses. This is advice to the business lawyer with commercial clients who gets such a call. (This article is confined to federal search warrants. Search warrants by state authorities are similar, but space considerations limit this article to federal search warrants.)
Initially you should be aware that a search warrant is not a subpoena, and you cannot attempt to stall the agents or impede them. The issuance of a search warrant means that the corporation or its officers are likely targets of a criminal investigation. It means that the prosecutors have convinced a neutral magistrate there is evidence of a crime which is located on the premises. A more sinister implication is that the prosecutors may suspect that material may be destroyed if the company is served with a subpoena to produce documents.
You can’t put off taking action. The agents will not delay their search while you seek advice. Call a criminal lawyer immediately; however since time is of the essence you may not have that opportunity; you may receive this call after working hours or early in the morning. You must take some steps immediately.
If the premises being searched is nearby, get there immediately. If you can’t get there in 30 minutes you need to get information from company personnel on site, and give instructions to them by phone until you arrive.
Ask to speak with the agent in charge of the search. Assume a cooperative attitude. The agents will proceed regardless of whether you are antagonistic or professional. You will learn more if your approach is professional.
If you are able to get to the premises, ask to see a copy of the warrant, or have an employee read it to you over the phone. It won’t tell you much except give you an idea of the possible violations involved, and the area to be searched. The description of the area to be searched is important because this limits the search. Determine if the agents have the correct location. Occasionally they go to the wrong location in areas where the addresses are not clearly marked. Insure that the area of the premises to be searched described on the search warrant is well defined and understood by the agents. If there is some dispute or ambiguity, this should be resolved by contacting the Assistant United States Attorney in charge of the investigation or the issuing magistrate. If neither are available, inform the agents of your objection. This may cause them to seek guidance. Once the agents are put on notice that they are exceeding the scope of the warrant, the good faith exception to items improperly seized is much more difficult to establish.
The real information as to who is alleged to have committed a crime, and how it was accomplished, is contained in the affidavit for the search warrant which will not be given to anyone at the site. These are filed with the clerk of the court and are public record. Unfortunately, often the affidavits are sealed pursuant to government motion to protect the identity of confidential informants. Getting those unsealed is a formal and very difficult task. Ask the lead agent if he is the affiant. If he is, he knows exactly what the agents are seeking. He might respond with some helpful information if asked,” What exactly are you looking for?”
Ask the agent if there are any personal search warrants for any employees. If not, the employees are free to leave the premises. Officers executing a search warrant have the right to attempt to interview the employees, but may not detain them. Direct the employees to leave the premises. Any such interviews may produce damaging admissions. If any personnel must remain for crucial operational reasons, you should seek an agreement with the agents that they will not attempt to interview them. If they will not agree you should insist, as the company attorney, to be present and suggest that the interviews take place at a more convenient time. You should be present at any interview. Keep a key supervisory employee on the premises to observe what is taking place, and what materials are being confiscated. The employee should take notes of what is being seized as well as you, if you are able to be present. Insure that a detailed list is made of the material seized. The officers are required to leave an inventory of what has been seized, but these are usually in summary form, and generally will not be informative.
If the agents ask the location of certain documents or items, and you know the whereabouts are within the location to be searched, and that they will be located eventually, direct them to the location. It better that they find them quickly rather than having the agents rummaging through company files and seizing other documents or items which might later prove incriminatory. If the documents are outside the search parameter, or located elsewhere, you and the employee have no obligation to tell them they exist or where they are located.
A word of caution as to dealing with the agents. Some federal law enforcement agencies such as the FBI and the Drug Enforcement Agency, execute search warrants on a regular basis and their agents are skilled in the process. According to David E. Richter, of Cloud, Feehery & Richter, a former FBI agent, many of the federal administrative agencies have been granted law enforcement authority. Their agents seldom execute search warrants and often make unintentional, but serious mistakes. Richter advised that when dealing with these administrative agencies, exercise extra caution and if in doubt as to their actions, do not hesitate to inquire if the procedure is authorized. It may cause them to seek guidance, and at least you have made a record of your objection.
The government may obtain authorization to seize a computer for off-site review if it can establish an on-site review is impractical. In the alternative, agents can search a computer on site and copy files specified in the warrant, or can make a mirror image of the entire hard drive, take it off site, restore it to another hard drive, and then seize the data specified in the warrant. You should examine the warrant and determine what computer files are authorized to be seized, and what method is intended to be used. If in doubt, or it appears the method will compromise the hard drive, contact the Assistant United States Attorney in charge of the investigation. If these details cannot be negotiated and a compromise cannot be accomplished, the issuing magistrate should be contacted and formal objection made. If the magistrate is unavailable, or the method of seizure is still objectionable, a formal emergency written motion should be filed with the magistrate as soon as possible. (Search warrants for computer files will be the subject of a more detailed future article.)
You have the responsibility to insure that no attorney client privileged material is seized, and if so, the best record is made of the seizure. If you become aware of the seizure of attorney client privileged material, inform the agents, and seek an agreement to isolate those materials until you can speak with the Assistant United States Attorney in charge of the investigation. The object is to seek an agreement to exclude the material from the search pending an agreement by both counsel or a decision by the magistrate. If this is not possible telephone contact should be made with the magistrate for a protective ruling. Regardless of these contacts, a written objection should be delivered to the magistrate. The object is to keep the agents from viewing the privileged material.
As soon as the search is concluded you should interview all the relevant personnel. The object is to determine what was the object of the search, and how the company or its personnel may be involved in criminal activity. Debrief witnesses to the search as soon as possible. Employees present at the search scene should be interviewed individually, not only about their observations of the search, but also as to any reasons they believe there is evidence of illegal activity in the company records. As with all memoranda of internal corporate investigations, these interviews should be reduced to writing containing counsel’s impressions, so as to preserve maximum protection under the attorney client and opinion work product privileges. You should determine:
- What files or areas especially interested the agents;
- What questions did the agents ask regarding file locations or particular files;
- Did the agents make any statements suggesting that other offices or companies were also being searched or other sites would likely be searched in the future;
- Did the agents make any statements referring to particular company officers, or particular company procedures;
- Determine if any of the employees had been contacted by the agents prior to the search;
- Determine which regular employees were absent that morning, and the reasons for their absence. [Be on the lookout for a cooperating individual who may be a government source.
You should assume that news of the search will become public. Federal Rule of Criminal Procedure 41(g) presumes public access to search warrant petitions. While government officials are forbidden to disclose the identities of firms or persons under investigation, you cannot depend on this restriction to control disclosures about the investigation. Experienced criminal defense counsel know that news reports appear in the media within a very short time of the search warrant.
The prudent course is to prepare a statement for the company to release if contacted by the media that confirms that there has been a search and that the company is cooperating. The statement should be limited to this information. Most important, engage an experienced white collar criminal defense lawyer as soon as possible. It is very likely that grand jury subpoenas for company officers and personnel will soon be forthcoming. This is a complicated area and experienced criminal counsel is a necessity.
