Stephen T. Smith

Search Warrant Execution Response Procedures

Copyright – All Rights Reserved

• Should state or federal authorities enter your facility with a search warrant, do not obstruct them or resist in any way, but first ask for the following information:
  
  1. Identification of the officers (most carry business cards).
  2. A copy of the warrant authorizing the search, and any accompanying affidavit. It is particularly important to ask to see and copy the affidavit if it is available. Typically though the affidavit is sealed by the court.
  3. Give them the name of legal counsel and ask that they wait until legal counsel arrives before they conduct the search. They have no obligation to wait and probably will not, but you should request this in any event.
  4. Do not consent to the search and do not resist or impede it. The authorities may ask you to consent to the search and to sign a form acknowledging your consent. Do not do it. You may jeopardize the ability of your lawyers to challenge the legality of the search at a later time. If they have a warrant and if it is valid, they have the right to search and don’t need consent.
     
• Have someone immediately call legal counsel.

• Request the officers to refrain from interviewing employees until legal counsel arrives.

• Designate one on-scene spokesperson for the company.

• Make a record of everything said by investigating officers. Designate a person other than the company spokesperson to use an audio or video recorder (if such can be done without obstruction of the officers) or take written notes of each of these requests and everything said by the officers who are executing the warrant or interviewing employees. It will be difficult to recollect in correct detail and order these events without contemporaneous notes being taken by someone other than the company’s spokesperson. Photograph or videotape the search and seizure if such can be done without obstruction of the officers.

• Immediately assemble all company managers, or employees in the area to be searched, and give them the following information and instructions:
  
  1. Notify them that a search warrant is being executed by federal/state officers.
  2. Advise them that employees have a right to decline to be interviewed until an attorney is present. Do not instruct employees to refuse to be interviewed, but make sure they are told that they do not have any obligation to talk with the agents.
     
• Have managers assemble all employees. Inform all employees of the information received from the company’s spokesperson. Also inform the employees that a company spokesperson has been designated and identify that person.

• Dismiss all nonessential employees for the day, or if possible, the length of the search. Obviously, discretion must be exercised here to ensure that the facility continues to operate at an acceptable level.

• Read the warrant. The warrant will describe, often in detail, the areas of the facility, which the investigators have been authorized to search and the items, which they are authorized to seize. Give them access to those areas in the order in which they wish to see them. If the officers want to inspect an area of the facility not covered by the warrant or seize a document or object not covered by the warrant, you cannot prevent them from doing so, and you should not argue with them about the scope of the warrant. However, state to the agent that in your view, the documents or areas are not covered by the warrant and you are permitting them to search under protest. If the search exceeds the scope of the warrant, the attorneys for the company may later challenge the legality of the search and the seizure of the items.

• Designate a person in each area of the facility to inventory all documents being removed. Federal and state rules of criminal procedure require that law enforcement officer provide a written inventory of all items removed. However, these inventories are often sketchy and uninformative. The company should attempt to make its own inventory of items removed. The inventory should be delivered to the designated company spokesperson.

• Request the investigating officers to allow company personnel to photocopy all essential documents removed. Make careful note of a refusal to allow this request. This information will be essential in any defense efforts to obtain return of seized documents or copies of those documents.

• Cooperate in the document production, but you have no obligation to assist the agents in conducting the search. Do not try to conceal or destroy any documents. Cease all regularly scheduled destruction of documents. Do not erase anything from computers. Should the agents inquire about location of documents and ask where certain documents are located, answer their questions truthfully, but again do not sign any “consent” and do not state that you are “agreeing” to provide anything voluntarily. It is one thing to unlock a file cabinet upon request, but you should not take the agents on a tour of the facility, explain your operations, or the documents they have been authorized to seize. It is their obligation to specify the documents sought, and it is your obligation not to obstruct their access to such documents. Simply provide them with the documents or objects they demand.

• Should the agents wish to see “privileged documents” — documents to and from attorneys — tell them those documents are privileged and ask them to wait until your attorneys arrive to speak with them about this issue.

• Make a list of documents or equipment essential to ongoing business. Provide the agents with a copy of this list and ask them to allow copies of those documents to be retained by the company or copies of computer programs, disks, etc. to be made for the company’s use. Keep a copy of this list for your lawyer.

• Attempt to remain calm.  Cooperate as necessary, but do not volunteer information. Do not submit to questioning without a lawyer present. Do not try to interfere with the officers or use abusive language.  Be courteous and professional at all times.

• Be prepared for possible media coverage. Before speaking with the media, confer with counsel, if possible. If inquiries regarding the investigation are made by members of the press, state that there is much you want to say, but that you must refer all inquiries to your attorney. Advise all employees and managers to do the same.

• After the search is completed, all employees present during the search should be asked to prepare memos documenting the circumstances of the search, including their recollection of everything that was said by the agents, any statements or responses by any employee, times that the search began and ended, an inventory of materials seized, and any other facts that the lawyers might need in future proceedings. These memos should be immediately marked “privileged and confidential — attorney-client communication,” assembled and delivered to the company’s lawyer.