The government who?
The government who has a search warrant, open the door.
At this point, it's fair to note that search warrants are never funny. They are a crisis delivered directly to your company's front door. Fortunately, you can prepare for that crisis by planning ahead. During my time as a federal prosecutor, I found that a company's preparation often reduced the fallout when the government came knocking. Now, as a white collar defense attorney, I want to share some thoughts that can help you prepare for a search warrant.
Call outside criminal counsel immediately when the government arrives.
The stakes could not be higher for your company. To obtain a search warrant, the government presented sworn information to a judicial officer establishing probable cause that a crime has been committed and that evidence of that crime is located in your company. It is vital to keep this bad situation from becoming even worse. A brief example will illustrate how a criminal lawyer can help in this regard. A search warrant defines the scope of where the government can search and what the government can seize. The government often seeks to expand its warrant by asking for consent to search additional places, such as a cell phone, an email account, or a car. It is rarely advisable to consent to additional searches. Outside criminal counsel can tell the agents that all consent to search requests must be made directly to them and can be approved only by them. Further, the attorney can explain the consequences of consenting to additional searches. These discussions will call for a careful balancing of the company's desire to cooperate with law enforcement and the compelling need to protect its rights.
Have outside criminal counsel speak to the government's agents on behalf of the company.
The attorney can request the search be delayed until he or she arrives on location and can monitor the search upon arrival. If the agents refuse to delay their search, the attorney can maintain phone contact with the agents as they travel to the location. The agents will likely attempt to speak to executives and employees at the scene. As a general rule, statements made by an executive or employee can be used against those individuals and possibly attributed to the company in later court proceedings. As described below, executives and employees have the right to refuse to answer questions and outside counsel can provide prompt guidance about the advantages and disadvantage of speaking.
Request a copy of the search warrant, an inventory of items seized, and the agent's name and contact information.
Federal law requires the officer executing the warrant to leave a copy of the search warrant and a receipt of any property taken. The warrant lists the crimes that were allegedly committed. The inventory identifies evidence that was seized and removed from the company. This information is essential to understanding what the government is investigating and whether the business can continue its daily operations without the seized evidence. Further, the warrant can guide a company's internal investigation into what happened, who is responsible, and whether anyone violated the law.
Know how to handle your employees, your visitors, and the media.
That plan should be put into writing and distributed to key stakeholders in your company. People should know their role and responsibilities before the government arrives. This knowledge is especially important during COVID-19, when companies have key stakeholders working from home. A few key points:
- The rights of your employees. Employees have the absolute right to refuse to speak with law enforcement agents. They can choose to speak to the agents, but they also have the absolute right to confer with an attorney before speaking and to have that attorney present if they do speak. Employees need to understand that if they choose to speak with law enforcement, they must be truthful or risk being charged with lying to a federal agent. Further, anything they say could be used against them in court.
- The responsibilities of your employees. It is upsetting to see your company searched. Understandably, employees may be uncertain about what they can do. Employees need to understand that they should never attempt to delete a computer file, take a folder home, or shred a document once the government arrives with a search warrant. These acts, even with innocent motives, might be considered an attempt to obstruct the search or the ongoing investigation. Generally speaking, it makes sense to send all nonessential employees home for the day. Outside criminal counsel can communicate with the agents about what items are outside the scope of the warrant and therefore appropriate for employees to take home.
- Your visitors. The patients or customers who are visiting your company deserve prompt attention and professional service. These goals are often unrealistic in the midst of a search warrant. Whenever possible, these visits should be rescheduled for another day.
- The media. Search warrants can draw media attention. We have all seen video footage of agents carrying box-after-box to a nearby van while a company's name is prominently displayed on the television screen. These are excruciating images for a company and its reputation. Given the sensitive nature of a search warrant, there is a compelling need to present strategic messaging. To that end, a single person should communicate directly with all media outlets. That person should be designated in advance and be prepared for the questions the media will ask.
Know if privileged materials are being seized by law enforcement.
For many companies, litigation is a constant. Consulting with lawyers in those cases establishes an attorney-client privilege and generates attorney work product. It is critical for the company to immediately identify whether privileged materials were taken. Outside criminal counsel should be provided with the names of all attorneys who represent the company and will communicate with the government to alert them of privileged materials. This information will ensure that the government establishes a "taint team," which is a special group of agents and lawyers that are tasked with finding and removing all privileged materials so that they are not used as evidence.
There is a well-known saying that "by failing to prepare you are preparing to fail." Common sense tells us that statement is true, but also, that the statement lacks a sense of proportion. Failure comes in different shapes and sizes. For a company, the failure to effectively respond to a search warrant can be catastrophic. Buchanan's White Collar Defense, Compliance, and Internal Investigations group is comprised of attorneys who have decades of experience in the federal and state criminal justice systems. The areas discussed above provide a basic start to your company's preparations. We are available to consult and develop a comprehensive response to search warrants that is tailored to your company's needs. And, you don't have to knock on our door to ask for help, you can just call us.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.