Coping With A Government Search

Bill Shanoff

At 5:00 a.m., a fleet of rear loaders began their day. One departing truck narrowly missed hitting a van that darted into the lot. The van pulled up near the office and two men and a woman got out and entered the building. They flashed government badges to a clerk who immediately called the manager.

The manager introduced himself and said the owner was in Europe. One of the agents waved a piece of paper and announced that he had a search warrant for company documents. He then asked the manager to point out where these items were kept. Nervously, the manager did so, and then dashed back to his office where he called the company's attorney who, until that moment, was peacefully asleep.

Until recently, the government rarely used search warrants against legitimate businesses. Now, however, prosecutors are resorting to search warrants, even when they aren't worried about evidence being destroyed or when the subject of the search is not itself under criminal investigation.

A search warrant is more potent than a subpoena. First, if a prosecutor issues a subpoena, the company against whom it is directed can go to court and ask a judge to limit the sought-after items, to extend the compliance time, or to invalidate the entire subpoena. Second, the execution of a search warrant creates an air of confusion and fear that often provides the government with "freebie" information and "cooperating" witnesses.

When asking a judge to issue a warrant, a prosecutor must submit an affidavit indicating that a search will produce evidence or instruments of a crime. A proper warrant describes specific areas to be searched and the items and materials that the agents may look for and seize. The government is not required to show that a less dramatic and intrusive approach would yield the same materials.

A search can be stopped before it gets under way only if the search team leader becomes convinced that it's being carried out at the wrong place. A prosecutor may halt a search and accept another method for attaining sought-after documents or items only if he or she is sure nothing will be hidden or destroyed.

Agents who execute search warrants want to do their job, no matter how much their work plays havoc with normal business routines. The best way to minimize disruption is to cooperate with the search team. But cooperation does not necessarily mean consent. If a company manager gives permission for an invalid or illegal search, the company waives its right to suppress evidence found during the search.

A search team usually divides the job among its members who then go to various places throughout the premises. Company employees should be stationed at each search location to monitor the agents' activities and to inventory the items that are removed. However, agents may forbid the monitoring of the search, insisting that such activity interferes with their work.

Company employees have videotaped government searches when suitable equipment was nearby. In theory, agents who are "on camera" are more likely to act reasonably. Moreover, a video record of the search could settle disputes over how or where a particular item was seized or the legal effect of statements made by company personnel on the scene. Government agents, however, are not very likely to allow the videotaping of a search.

Company employees should not handle any documents or items during the search. Government agents will quickly infer an intent to conceal or destroy evidence. Destroyed or missing documents will be presumed to contain information damaging to the company.

Whenever possible, the company should try to copy materials before they are removed. After the search, the company may have limited opportunities to examine the seized items at the government's offices.

Government agents often use the chaotic atmosphere during a search as a cover for questioning employees. As a rule, a company should strongly urge its employees not to talk informally with investigators. Meantime, if counsel is present, he or she will ask the agents not to interview any employees on the premises. Of course, company employees have the right to speak with government officials - on or off the premises - if they so choose.

In responding to a government search, no one-size-fits-all instructions will work. Nevertheless, every company needs an investigation response plan tailored to the size and nature of its operations. Among other things, the plan should identify individuals to be promptly notified of a search, as well as a strategy if these key people are unavailable.

Although it's hard to predict when government agents will show up, a company need not be a complaisant victim.