Federal agents routinely utilize search warrants in corporate criminal investigations. Businesses are accordingly advised to prepare in advance for the possibility that it will be the recipient of a warrant. Adequate preparation for such an event is simple. The company should designate several senior executives to serve as the company’s crisis team. Employees should be advised to call a member of the team in the event that any law enforcement agents appear at the company’s place of business. The team should be instructed to implement the following measures in the face of a search warrant:
I. Immediately contact Legal Counsel and inform them of the situation so that they can come to the business.
II. Identify the Supervising Agents.
The senior member of the crisis team should ask for the credentials of the agents and ask for the supervisor or “agent in charge” of the scene. The supervising agents should be informed that the senior management member is the only person authorized to speak for the company and asked to refer all inquiries relating to the search warrant to that executive.
The senior team member should also examine the supervising agents’ credentials and write down their names and agency affiliation. Knowing which agencies are involved in the investigation is valuable information for the company’s defense lawyer.
III. Obtain and Read a Copy of the Search Warrant/Inquire as to the Nature of the Investigation.
By law, the warrant must describe both the area to be searched and the items that the agents are authorized to seize.
IV. Speak with Company Employees.
Federal agents often use the execution of a search warrant as an opportunity to interview company employees. While the senior member of the management team is meeting with the supervising agents, another member should assemble the employees and advise them that:
- Law enforcement is on the premises to execute a search warrant;
- Questions relating to the search should be addressed to the crisis team members;
- The company does not know the precise nature of the investigation or whether any of the company’s employees are targets of the investigation;
- While the agents may wish to interview the employees, they are under no obligation to speak with anyone;
If an employee does wish to submit to an interview, the employee has the right to consult with an attorney beforehand, and to have the attorney present during any interview;
The company may wish to offer to pay for legal counsel to advise its employees in connection with any interview. This encourages the employees to seek counsel prior to an interview.
V. Send Non-Essential Employees Home.
After the employees have been provided with the information set forth above, all non-essential employees should be sent home. There is simply no benefit to the company from making its employees available to be interviewed by the agents.
VI. Attempt to Coordinate the logistics of the search with Agents to Minimize disruption
The senior team member should discuss the logistics of the search with the supervising agents to attempt to minimize disruption to the company’s business.
VII. Document the Activities of the Agents.
Members of the crisis team should watch and listen to the agents as they execute the warrant to the extent possible. They should take notes on what areas are searched and what items are seized. They should also document any dialogue among the agents that may provide insight into the nature of the investigation.
VIII. Do not Consent to Any Search.
The warrant establishes the scope of the agents’ authority. If Agents request consent to a search of any particular area, container or file, this means that the Agents believe that the search is beyond the scope of the search warrant. Do not provide any such consent. This preserves the Company’s right to seek suppression of any evidence seized in contravention of the warrant.
IX. Do Not Sign Anything. Agents will likely ask a team member to sign an inventory. Do not sign it.
X. Meet with Counsel. As soon as possible after the search, defense counsel should meet with the crisis team Information obtained during the execution of a search warrant can be extremely helpful in devising a strategy to defend the company. Your corporate counsel will then determine whether to hire separate counsel for the company and/or individual employees/executives of the company.
This Post should not be construed as legal advice or legal opinion on any specific facts or circumstances. Additionally, the advice contained herein may not be applicable to companies operating in industries regulated by the government. This post is intended for general informational purposes only, and you are urged to consult an experienced criminal defense lawyer concerning your situation and any specific legal questions you may have.
Pursuant to IRS Circular 230, please be advised that, this communication is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.