Responding to a Search Warrant
By Gregory W. Marcum, managing attorney Marcum PC
Introduction to Search Warrants in Simple Terms
A search warrant is a legal document signed by a state or federal judge to compel a landowner to allow law enforcement officials to enter and search certain property of a citizen or corporate entity. Normally warrants are supported by an affidavit sworn to by an investigator or agency official listing the facts and information that are the basis for the search.
Developing a plan for responding to a search warrant is a good risk management practice. If you need help on developing such a plan consider the following points:
Search Warrant Respond Basics
- When you are asked for consent to the search simply say, “No, you do not consent.” You need time to contact your attorney.
- Ask questions, stall, bluff, and do your best Perry Mason impression to get the agents to wait until your outside counsel arrives at the scene. (Normally its not a murder or national security issue so waiting is not outside the norm).
- Ask each agent for their identification. Take note of their name, badge numbers, agency contact info, etc.
- You are entitled to read the search warrant and if its is available the supporting affidavit. If they hold it up take it and read it.
- Do not say or do anything to suggest you intend to remove, dispose, or conceal any tangible property such as documents, equipment, personal items, etc. Agents are very firm about this.
- If possible have your team members monitor, watch, and make notes about the agents’ actions during the search. Whether you can cell phone video them or live stream the event is still an open question.
- If documents are seized from your files you should firmly ask to make copies, but don’t be surprised if the agents refuse or ignore you.
- If any seized documents or information constitute privileged attorney-client information you can attempt to preserve the privilege by arguing or refusing to disclose. You or your attorney can immediately call the judge who issued the warrant to argue for retention of or at least copies of the privileged information.Get a receipt from the lead agent or person in charge of the search. They should be agreeable to a receipt that essentially inventories the seized items.
Requests for Employee Interviews
If agents arrive and ask to interview company employees you should not instruct employees to refuse the requests. Don’t do anything in front of agents that they could construe of such an instruction. However,
- Employees have the right to refuse to be interviewed, but they do have the obligation to provide their name and identification to the requesting agent.
- An employee can agree to an interview with or without an attorney or counselor at law.
- Listen to what the agents say to the employees up until the point that agents exclude management or supervisory personnel from the interview.
- If employees agree to be interviewed the Company has the right to provide an attorney for the employee and this should be a written policy within the Personnel Manual.
- Understand that anything said by employees or management personnel will be used against you in a criminal prosecution or in a civil/administrative proceeding. Unless there is an arrest there is no requirement that you be read a Miranda warning.
Search warrants or interview requests are very important, but they are not a reason to panic. Keeping a cool head and thinking clearly about your prior planning is the best thing you can do. Turn the tables by asking the lead agent or better yet the prosecuting attorney:
- What is the subject matter of the investigation?
- What evidence are the agents looking for?
- Are any specific persons considered witnesses, subjects, or targets of the investigation?
- Don’t be afraid to argue a subpoena accompanying a search warrant is overly burdensome or seeks irrelevant information.
- Don’t be afraid to try to negotiate a narrower scope of inquiry – do this firmly but nicely.
- A person can assert a 5th Amendment right against self-incrimination, but a corporate entity cannot.
We are blessed to live in interesting times. Don’t make things more difficult by failing to plan.