How to Conduct Yourself During a Search
With the proper preparation, you should be adequately armed to deal with the search. In the event a search warrant is served, notify legal counsel immediately and fax the warrant to legal counsel. Present the agents with a memorandum, pre-prepared, detailing that the company is represented by legal counsel and request that the execution of the search be delayed until legal counsel can be present. Alternatively, put the lead agent on the phone with legal counsel. Read the warrant to determine what officers are authorized to conduct the search, the areas of the office or manufacturing facility authorized to be searched and the items authorized to be seized. Demand a copy of the warrant. Fed. R. Crim. P. 41(d). Request all official identification and record the names of those agents present during the search. Request the affidavit(s) filed in support of the warrant. Accompany investigators on the search; no one should be left unattended. Confine the search to areas designated in the warrant. Provide the agents with the floor plan and identify legally protected files. If a dispute arises about the legal files, direct the agents to segregate the documents and require that they be submitted to a magistrate for in camera review. Agents should not be permitted to interview employees during a search. All inquiries should be directed to a company representative in charge, presumably legal counsel. Employees should be told, in writing and orally, that the agents have no right to interview them; that they are under no obligation to talk to the agents; that until the company and employees know more, it is prudent to defer a decision as to whether to talk to federal agents until they have had the benefit of counsel; and, if appropriate, that the company will provide such counsel after the search has been concluded. Obtain an inventory or receipt of what is seized. The government must file inventories with the court so the court may assess whether the warrant has been executed properly. Id.
A word about split samples; always ask for split samples. Always request the following: receipts describing the sample; a portion of the sample equal in weight and volume; a description of tests to be performed by the government; and the results of all such tests. The failure of the government to comply with such requests may prove useful at trial (for purposes of impeachment) and, in some instances, may preclude the government from using the evidence. See United States “. White, 766 F. Supp. 873 (E.D. Wash. 1991) (relying on statutory requirement in 42 U.S.C. § 6927(a) to provide samples taken in inspections). Additionally, request copies of all photographs taken.
During the course of the search, try to determine what the search is all about according to the case agents. After the search has been concluded, legal counsel and all management representatives involved should memorialize all aspects of the search; specifically, the time and duration of the search, the agents present, the offices searched, the records seized, the employees approached, the employees interviewed and key questions asked.
More later.
As always, if you have any questions, please feel free to give me a call or e-mail me at walter.james@jamespllc.com.
WDJiii