This blog is the third in a series about interacting with government regulators and is intended to help our clients understand and manage contact and outreach from government regulators, law enforcement, or both.
The Set Up
You or your staff have just opened up business for the day and in walks a team of agents, most likely wearing jackets that prominently display their department affiliation, such as the DEA, FBI, or NYPD. Within law enforcement, these are known as “raid jackets,” and sure enough, one agent steps forward and announces your business is about to be searched. You’re being raided—the target of a search warrant. Now what?
The Law
Other than an eavesdropping warrant, search warrants are generally considered one of the most intrusive forms of intervention that’s available to law enforcement. They are not easily obtained and, indeed, require a showing of reasonable cause. In New York State, the standard is articulated as follows:
Personal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it:
1. Is stolen; or
2. Is unlawfully possessed; or
3. Has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense against the laws of this state or another state . . . or;
4. Constitutes evidence or tends to demonstrate that an offense was committed in this state or another state, or that a particular person participated in the commission of an offense in this state or another state . . .i
A search warrant application must describe with particularity the items sought and the areas to be searched and describe, using particularized facts, reasonable cause to believe those items will be found in the area to be searched. In cases involving anything other than routine street crimes, search warrant applications tend to be long, involved documents due in large part to meet the required legal standard and are typically backed up by a significant amount of case work. To put it simply, if your business is being searched further to a warrant, then it’s in trouble. In all likelihood, it is, and probably has been for some time, the target of a criminal investigation.
Our Advice
1. Call a lawyer—immediately.
Call an attorney experienced in handling criminal investigations and prosecutions. We cannot stress this recommendation enough. If you engage an attorney while the search is taking place, they can help protect your interests and those of your business and help you navigate questions that may arise during the search. They may also be able to visit the location of the search while the search is taking place to learn valuable information about the underlying investigation, including who’s conducting it and the scope of their concerns. Answers to these questions will help guide subsequent decisions you (and your attorney) will need to make about strategy and tactics. A word of caution, though, about immediately sending your attorney to the location of a search warrant execution: Not all law enforcement agencies are receptive to visitors during the execution of a search warrant. They will likely deny the attorney physical access to the search location (even if you’re already inside) and may further refuse to answer questions or engage in any conversation with your lawyer. They may simply refer your attorney to the assigned prosecutor. However, that is helpful, as it provides a needed point of contact for subsequent conversations. Still, if feasible, we highly recommend this step, as its benefits can outweigh the associated expense.
2. If your business is the target of a search warrant, then you can’t stop it from happening.
A search warrant is a judicial order. Barricading the doors or refusing to cooperate is not recommended and, ultimately, will not stop the search. To have reached this point, the assigned agent would have had to have submitted an application to a judge and then appeared in front of the same judge and under oath sworn to the truthfulness of the application. Assuming the judge found the application to contain reasonable cause to justify a search, they would have then issued an order directing the agent to conduct the search and seize the items enumerated within the warrant This doesn’t mean warrants can’t be challenged; they can, but only after the fact. Challenging a warrant typically involves filing a motion to suppress anything seized as a result of the warrant and prohibiting its use against you or against your business in any ensuing criminal case. That happens down the road.
3. While a search warrant is being executed, you’re not absolved of responsibilities.
There are important steps you can implement that will help protect you and your business. You (or your lawyer’s) main task is to gather information without obstructing the search.
a. First, ask to see the lead agent’s identification to confirm their identity. Then ask to see a copy of the warrant itself (i.e., the judge’s order). You are legally entitled to see the warrant, but the agent is not obligated to give you a copy, although they often will.ii Ask for one anyway. You should also ask for a copy of the underlying application, including any accompanying affidavits. However, you may not get either since search warrant applications are often sealed and are often only available upon motion or during discovery.
b. You should speak to your employees and advise them to cooperate in the search by facilitating the search team’s ability to locate records or items they’re entitled to seize or by opening containers they’re entitled to search. Your failure to cooperate will result in the search team looking high and low or breaking into containers to locate what they’re legally entitled to search and seize. If the agent has the legal authority to search your safe, you’re better off opening it rather than waiting for a locksmith to show up and drill out the lock, thereby damaging your safe.
You should not converse with any agent about substantive matters. While you and your employees should facilitate the agent’s efforts to satisfy the terms of the search warrant, you and your employees are not obligated to answer questions about the agent’s underlying investigation. Law enforcement typically uses search warrant executions as an opportunity to further develop their case by conducting field interviews. You’re not obligated to assist in this effort. Instead, upon arrival of law enforcement, its best to send all your non-essential employees home for the duration of the search. Unless they are under arrest, they are not obligated to stay. It is also best that you yourself avoid any substantive conversation with the agent. Ideally, if your attorney is available by phone or at the scene, you should refer all questions to your lawyer.
Still, you and your employees have the right to speak to law enforcement, or to refuse to speak to law enforcement (a search warrant does not compel speech), or to consult with an attorney before speaking to law enforcement. You should advise your employees of their rights. If you yourself decide that you want to speak to law enforcement, it’s best to defer that conversation until you’ve had a chance to consult with your attorney and your attorney has had an opportunity to arrange the terms of the interview. Remember, anything you say can be, and likely will be, used against you unless arrangements are made otherwise or you’ve invoked your right to silence.
If your employees decide to speak to law enforcement, you should advise them to answer questions completely, accurately, and truthfullyiii and do not suggest otherwise in word or deeds. Your employees should understand that they can terminate questioning whenever they want. They should further understand that they can answer some questions and refuse to answer others. If an employee decides not to be questioned, their declination should be conveyed politely but firmly. You should also advise your employees that your company will assist them in locating competent counsel should they wish to speak to law enforcement and that it might be in their best interest to speak to counsel before being questioned by law enforcement.
c. You should instruct your employees not to consent to an agent searching specific areas of your business. The agent is limited by the scope of the warrant to where they can search and what they can seize. If, for example, the agent wants to search the basement of your business, but the basement is outside the scope of the warrant, you or your employees should not consent to expanding the search to include the basement. To expand the scope of the search, the agent, absent exigent circumstances, will need to go back to the issuing judge and seek an amended search warrant. This will be time consuming and will likely keep your business shuttered while the agent attempts to do so, but it’s our recommendation that they be compelled to satisfy the required legal standard. Sometimes, when faced with a lack of consent, an agent will simply move on and not expand the scope of their search. At a minimum, you should consult with your attorney prior to consenting to any search being expanded.
d. You should monitor the search. It’s highly likely that the search will be recorded using videotaped and still photography; however, that fact does not preclude you from monitoring the search in real time. Read the warrant. Better still, have your attorney read the warrant. It will specify the locations to be searched and the items to be seized. Notify the agent if they go beyond the scope of the warrant, but don’t try to stop them. Accompany the agent at all times if you can. Document, videotape, and photograph the search if possible. Document which employees or other persons are being interviewed as well as the location and the substance of the questions asked and answers given. All of this may prove helpful down the road when it comes time to challenging the search.
4. A word about essential documents and computers.
Ask to copy any essential documents seized by the agent. Try to obtain copies of any physical samples taken or take simultaneous samples. If the warrant includes the right to search and seize computers, ask whether the agent intends to physically remove your computer(s) or server(s) from the premises or merely image (copy) them on site. Imaging is more typical; however, if the agent physically removes your computer(s) or server(s), it’s critical to learn the name and contact information of the lead agent, lead prosecutor, or both so that your attorney can reach out to them immediately to start a dialogue about obtaining access to your computers. If you run a business heavily dependent upon computer access, the quick return of your equipment may be dispositive of your continued ability to operate.
5. Final points.
a. Don’t speak to the media. Reporters occasionally learn of search warrants through police radio chatter and sometimes show up at search locations. Don’t speak to them, and refer all inquiries to senior management, to your attorney, or both. Anything you say is much more likely to damage your defense than help your defense. Remember: if you or your business are being searched further to a search warrant, a judge has concluded there’s sufficient facts to believe a crime has been or is being committed, evidence of that crime is likely to be found on your premises, or both. Nothing you say in the moment will change that conclusion and make it all go away.
b. The agent is required to prepare and leave an inventory of everything they seized and removed from your premises.iv If the agent doesn’t otherwise offer you one before they leave, ask for one.
c. As a last piece of advice, once the agents leave your business and before you let anyone back in, you should photograph the premises to memorialize how the agents left the scene.
If you have any questions regarding the content of this blog, please contact Chris Shaw, partner, at cshaw@barclaydamon.com, or another member of the firm’s White Collar & Government Investigations Practice Area, Health Care Controversies Team, or Health & Human Services Providers Team.
iSee Consolidated Laws of New York Criminal Procedure Law § 690.10.
iiSee Consolidated Laws of New York Criminal Procedure Law § 690.50.
iiiLying to a federal agent is a separate prosecutable crime. See 18 USC § 1001.
ivSee Consolidated Laws of New York Criminal Procedure Law § 690.50[4].