Grace Under Pressure: Fifteen Steps You Should Take to Manage Successfully a Search of Your Client's Office Pursuant to a Federal Warrant

By Marcellus A. McRae, Brian C. Goebel & Mark Mermelstein*

Originally published on August 2, 2002

Introduction

One day you may receive a telephone call from a panicked client telling you that federal agents have entered the client's offices, seized control of the premises, started questioning the employees, and announced that they are executing a search warrant. If you receive that call, what should you do?

This article attempts to answer that question by providing guidance to those confronted with the task of responding to the execution of a search warrant. It is not intended to be a comprehensive examination of the Fourth Amendment, the Federal Rules of Criminal Procedure, or any other federal or statelaw relating to the execution of search warrants. Although this Article focuses on federal law, many of the principles discussed also apply to searches conducted by state officers. Likewise, although the Article discusses the search of corporate offices, many of the objectives and steps described apply to searches of individual residences.[1]

Discussed below are severalobjectives that you should have in mind as you manage a search of your client's office. Although a defense attorney cannot prevent or completely eliminate the disruption associated with a search, focusing on these objectives should help you to minimize that disruption and to place your client in the best possible legal position following the search. This Article then suggests fifteen steps that you should take before, during, and after a search in order to meet these objectives.

Objectives For Managing a Search

There are severalobjectives that you should have in mind as you manage a search of your client's office, including:

Gain as much control over the flow of information to the government as is legally possible;

Verify that the search is constitutional and lawful;

Protect any privileged documents;

Obtain information from the government concerning the scope of the search, the underlying investigation or circumstances that prompted the search, and your client's status in the investigation;

Minimize the disruption caused by the search; and

Position the client to seek appropriate relief after the search

Fifteen Steps You Should Take To Achieve These Objectives

Before leaving the office you should:

advise your client of his rights and determine the identities of the prosecutor and agent-in-charge ("AIC")of the search;

consider contacting a criminal defense lawyer;

contact the AIC and ask her to refrain from starting the search and interviewing employees until you arrive, and

assemble your team and marshall your legal resources.

After arriving at the scene of the search, you should:

introduce yourself to the AIC;

advise your client'semployees of their rights and determine if there are any privileged documents in the office;

ask your client to inform its non-essential employees that they are free to leave if they are not in custody;

obtain and review a complete copy of the search warrant;

protect privileged documents;

negotiate the conditions of the search;

obtain information about the agents and the investigation;

keep a record of the search; and

keep a record of theitems seized.

After the search is concluded, you should:

assess your client's legal position in light of the search, and

consider appropriate motions.

What You Should Do Before You Leave Your Office

Laying the groundwork for a successful response to a search begins before you leave your office. Your principal focus at this stage of the search should be on placing yourself and the client in a position where you will be able to protect your client's interests when you arrive at the scene of the search.

Step 1: Advise The Client of Its Rights and Determine the Identity of the AIC

Before you hang-up the telephone and head to the scene of the search, you should inform your client of hisrights.: You should tell your client contactthat (i) neither the company nor any of its employees have any obligation to talk with agents or to answer their questions; (ii) he has the right to inform the agents that all questions be directed to the company's counsel; (iii) he has a right to request that the company's counsel be present during any discussions with the agents; and (iv) no employee has any obligation to create any documents or to sign any documents prepared by the agents. But you should caution him that employees cannot destroy, alter, conceal, or remove any company records during or after the search.[2]

You should also determine whether your client has consented to the search or been asked to consent to the search. The government may attempt to obtain consent for the search even though it also possesses a warrant. This is because consent, if validly obtained, may provide an alternate basis for the search and may, in effect, prevent your client from later challenging the warrant or the seizure of privileged materials.[3] It may also enable the government to conduct a broader search than the one authorized by the warrant.[4] Your client is not required to consent to the search and should be advised not to do so.[5] If your client has already consented to the search, you should advise the client to retract its consent immediately in order to force the government to end the search or to comply strictly with the terms of its warrant.

Once your client understands its rights, you should ask your clientto obtain the identities of the prosecutor and the AIC . There may be instances during the search where you need to have discussions with the prosecutor rather than the AIC. You should also ask your client to obtain amobile telephone number for the AIC. Typically, an AIC will have a mobile telephone number where she can be reached by counsel during the search.

If your client has been served with a copy of the search warrant, you should ask him to fax the warrant to you immediately. When you receive the warrant, you should make several copies and bring them with you to the search. In addition, you should have another attorney from your firm begin reviewing the warrant to make sure that it complies with all constitutional and statutory requirements.

Step 2: Contact A Criminal Defense Lawyer

If you are not experienced in criminal matters, you should consider contacting a criminal defense attorney to assist you in managing the search.

Step 3: Contact The AIC and Ask Her To Refrain From Starting The Search And Interviewing Employees Until You Arrive

If possible, you should contact the AIC before you leave your office to inform her that you are counsel for the company and that you will be arriving at the scene of the search shortly. You should request that the agents postpone the search until you have arrived at the scene, and have had an opportunity to speak with the employees and to review the warrant. You should also inform the AIC that you would like the government to refrain from conducting any employee interviews until you have arrived, and that you would like to be present during any employee interviews.[6]

The AIC may not agree to delay the search pending your arrival. In that event, you should explain that the brief delay will allow you to obtain information that will facilitate a proper search, such as whether the client stores privileged documents within the office. You may also want to explain that the exclusionary rule gives the AIC a strong incentive to allow you to review the warrant before the search begins in the event that you discover a defect in the warrant. If these arguments fail to persuade the AIC to delay the search, you should ask to speak to the prosecutor supervising the investigation.

Step 4: Assemble Your Team and Marshall Your Legal Resources

If possible, you should bring another attorney from your firm with you to the search. You should both have mobile telephones. Having another attorney at the scene enables you to effectively coordinate actions and communications with the agents conducting the searchand the company's employees. Events often occur at a swift pace during the execution of a search warrant, and it may be necessary to have two or more people at different locations to manage the search effectively.

In addition to a mobile telephone, there is one other item that you should never go to a search without: A synopsis of the Fourth Amendment and the law relating to search warrant procedures.[7] Once you arrive at the scene, you need to be in a position to determine quickly whether there are any questions as to the legality of the search.

Likewise, if it is possible, you should also have another attorney from your firm standing by to perform tasks as they arise, such as analyzing the constitutionality of the search warrant. During the course of a search, issues may also arise that require immediate legal research. For example, the AIC may press you for specific legal authority supporting your assertion that the search is improper or is being conducted unreasonably. It may also be necessary to draft and file emergency pleadings with the issuing Magistrate.

What You Should Do At The Scene Of The Search

The scene of a search is often chaotic. When you arrive, you may be confronted with a panicked client and panicked employees. Even worse, you may find that your client's employees are being interviewed by the agents conducting the search. In perhaps the worst case scenario, you may also find your movements restricted by hostile agents who view your presence as an annoyance and who are not willing to provide you with any information. As a result, it is critical that you remain focused on your objectives and that you understand your role at the scene of the search.

Step 5: Introduce Yourself to the AIC

The first thing you should do when you arrive at the search is introduce yourself to the AIC and advise her that you represent the company, if you have not already done so. Likewise, if you have not already done so, you should also obtain...