Louisville and Lexington Federal Investigation Defense Lawyer
Assisting Clients in Responding to Federal Search Warrants
One of the most effective methods of obtaining information in a Federal Criminal Investigation is the use of judicially approved search warrants. These warrants, which typically are served by a small army of Federal Agents, are common to many businesses regardless of their size. This article will briefly discuss some practical considerations that a company should consider if the government unexpectedly knocks on the door.
Generally speaking, the laws concerning the use of search warrants do not require that any emergency circumstances exist in order to obtain the warrant. Rule 41 of the Federal Rules of Criminal Procedure provides that a search warrant can be obtained simply when there is probable cause to believe that a crime has occurred and that there may be evidence of the crime located in the place to be searched.
After your client calls, typically in a panic and advising that the Agents are at the front door, counsel should be prepared to travel quickly to the location of the business while the search is being conducted. After counsel arrives at the business and identifies his/her purpose, try to find out which Agent is in charge and get some dialogue going. The attorney should also obtain the name of the Assistant United States Attorney who is responsible for this investigation. Agents report directly to the U.S. Attorney's Office in these investigations. While the attorney certainly does not want to create the impression that he or she is obstructing justice, there should be some effort made to view which areas of the business are being searched and what documents are being obtained. In the world of electronically stored data, it is not uncommon that computers and their hard drives are seized as part of the process of serving a search warrant. Efforts a should be made to retrieve electronically stored data as quickly as possible so that the interruption of the business can be minimized.
The attorney should also get a copy of the search warrant and review its contents to see if the search and seizure is exceeding the scope of the warrant. Pursuant to Rule 41 of the Federal Rules of Criminal Procedure, affidavits are typically attached to these search warrants. The affidavits are usually prepared by Agents who summarize interviews with individuals or review of documents, all of which support probable cause. If you can get the affidavit you will be further along in understanding what is going on. However, it is quite likely that these affidavits will be sealed at least for the present time.
As part of any effort to monitor the search, Counsel should be on the lookout for any privileged documents that may be contained in rooms or filing cabinets. These typically involve correspondence and communication from the company's regular counsel and are frequently intermingled with non-privileged materials. Most Federal Agencies are aware of the problems with their reviewing privileged information and should be agreeable to segregating out privileged communication, including that contained on a computer, so that a separate "taint" team can review the documents at a later time.
Finally, the serving of a search warrant on a company is rarely telegraphed and almost always catches the business and its employees off guard. From the Agent's perspective, this provides an excellent opportunity to interview company employees in a way that they may not be able to do in the future. While Counsel should never instruct a company's employee not to participate in an interview, it should be stated that the employee can have counsel present during an interview and that any interview should be withheld until an attorney is provided.
These are some very basic suggestions to consider in the event a search is conducted on a business. Never hesitate to call our Louisville office at 502-589-7616 or our Lexington office at (859) 554-4038 if you would like to discuss this further.