A search warrant is issued based upon a written affidavit setting forth the probable cause that a crime has been committed and that evidence of the crime will be found within the premises to be searched. Law enforcement is authorized to conduct a search only if there is a warrant or if there is consent. The affidavit is almost always sealed by the court when the search warrant is issued and will rarely be unsealed (until and unless a criminal prosecution actually takes place or case is declined). All that means is that you may never know the “probable cause” for the search and may only know it at a much later date.
The Federal Rules of Criminal Procedure, Rule 41 (and of course case law), provides the starting point for search and seizure. So for instance: “The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.” Fed. R. Crim. P. 41(f)(1)(c). The agent must present proper identification and keep the identification in plain view at all times.
Most importantly, the search must be conducted in strict accordance with the search warrant.
And so how do you know that the search was done in strict accordance to the search warrant? Here is what you do as the preparation begins well before a search warrant is ever issued.
- Know and understand the agency’s enforcement priorities, including policies and procedures.
- Identify and designate appropriate company officials to deal with search warrants.
- Prepare a detailed plan on what to do, how to do it and how to follow-up.
- When the search warrant is presented, GET A COPY OF IT!!
- READ THE SEARCH WARRANT.
- Identify the precise areas/premises to be searched – it must be specified in the search warrant.
- You should accompany the agent at all times as best you can; however, DO NOT OBSTRUCT THE SEARCH.
- Take notes.
- Make sure you get a complete detailed inventory for everything taken under the search warrant.
One cautionary note, when following the agents around, do not get in their way, that could be construed as obstruction of justice.
Finally, DO NOT DESTROY documents or advise employees to destroy documents.
More later.
As always, feel free to contact me at walter.james@jamespllc.com
WDJiii