Business Law News
By: William A. Coates
Roe Cassidy Coates & Price, P.A.
The past ten years have seen an emphasis on prosecutions of corporations and their employees by both federal and state authorities. If the pronouncements of the present administration in Washington are to be believed, this emphasis will only increase in the coming years. Most corporations do not keep investigative or criminal counsel on retainer. As a result, civil attorneys who represent corporate clients may well be the first person the client contacts when an agent with a badge appears at the corporate door. This agent may be demanding for both documents and information. Needless to say, counsel who is not versed in criminal matters should immediately contact an attorney who has specialized knowledge in this area. In the interim, civil counsel need to be proactive in order to protect the client and to avoid jeopardizing the clients rights.
A subpoena in a criminal investigation must be issued by either a federal or state grand jury. If an investigator appears with such a subpoena, the client should accept the subpoena and relay it to counsel forthwith. In all probability, the subpoena will call for the production of certain documents. Depending upon how far the investigation has progressed, the agent serving the subpoena may attempt to interview company personnel while he or she is on the premises. Do not allow this to happen. The service of a subpoena does not give an investigator the power to compel conversation. Such cooperation at this time will not avoid the subpoena.
Investigating agents, particularly those of the Federal Bureau of Investigation, are trained interrogators. Their job is to obtain evidence and information. Investigators obtain most of their information from individuals who are ignorant of their rights. An agent may threaten to inform higher corporate authority of alleged non-cooperation in what, the agent will surely contend, is a most serious investigation. Remember an individual has no duty to answer questions propounded by an investigator. While cooperation with an investigation is always an alternative, cooperation without the advice of counsel is, to say the least, foolhardy. The client should obtain the business card of the agent and politely decline to speak with him at that time. Above all, corporate officials should never consent to any sort of search or viewing of the premises by an agent who has no warrant to do so.
THE SEARCH WARRANT
The Fourth Amendment to the United States Constitution guarantees the right to be secure in ones person, house, papers, and possessions. A business is entitled to this same Fourth Amendment protection.
A search warrant must be supported by probable cause. In other words, the warrant must be supported by sufficient information to form a belief that evidence of a crime is situate on the premises. The application in support of a search warrant must be made to a neutral magistrate. The application is usually in the form of an affidavit, but may be based upon oral sworn testimony taken by the issuing magistrate. The magistrate may base a finding of probable cause on hearsay evidence, if supported by reliable independent information. The officer seeking the warrant must demonstrate there is probable cause to believe: (1) An offense has been or is about to be committed, and (2) items related to the offense will be found at the premises to be searched. The warrant must identify and describe the place to be searched, as well as the property to be seized.
Seizure of corporate business records does not violate the Fifth Amendment privilege against self-incrimination, as a corporation has no Fifth Amendment privilege. An agent executing a warrant for specified documents may necessarily examine papers within a designated area to determine whether they fall within the scope of the items to be seized.
Investigators use search warrants for a number of reasons. Search warrants eliminate the possibility of document destruction and may guarantee the discovery of evidence which might not otherwise be produced due to, inter alia, a narrow reading of a subpoena. Use of a search warrant provides investigators an opportunity to confront potential targets outside the presence of counsel. It also allows investigators to more easily identify and contact employees who they believe are most likely to provide information. Additionally, the execution of a search warrant allows investigators to observe the premises and see how business is conducted. Use of a search warrant can encourage potential targets to cooperate, and publicity resulting from the search can further the ends of the investigation.
WHAT TO DO WHEN THE AGENT ARRIVES WITH A WARRANT
(1) Advise the client to obtain a copy of the warrant and any supporting affidavits. Have your client read the warrant to you over the telephone. Concentrate on the premises to be searched and the items to be seized. Your client should obtain proper identification of all the agents involved in the execution of the warrants, and if possible, obtain business cards. Instruct the client not to make any statements to the investigators.
(2) Ask to speak to the supervising agent and discuss with him the scope of the warrant. Request a delay of the search until you can arrive on the scene; although, this is rarely granted. If there are privileged documents on the premises, advise the agent of their existence. Advise the supervising agent that you have instructed your client not to speak to him or his investigators. Never agree to an expansion of the search warrant beyond the scope of the items set forth. Go to the scene as soon as possible.
(3) Instruct your client to monitor all aspects of the search. If possible, an employee should be dispatched with each group of investigators to record by video, or other means, all aspects of the search. While observance of the search is permitted, no one should ever attempt to physically interfere with the investigators.
(4) After the search, investigators are required to leave an inventory of the items seized. Be sure to compare the inventory with your understanding of what items were seized. If there are discrepancies, request the inventory be amended. If the investigator refuses, make a notation of this effect, noting the specifics, the refusal, and the identity of the agent involved.
You may be asked whether company employees should consent to an interview by an investigator. In the best of all worlds, no one would talk to an investigator until counsel has a thorough understanding of the nature and scope of the investigation. Unfortunately, you will not be operating in such a situation. If an individual is a target of the investigation (one on whom the investigation has focused), he should not agree to an interview absent consultation with counsel. Employees who are merely witnesses (and at this stage it may be difficult to discern who is a witness and who is a target), should be advised that the decision is uniquely theirs. While employees may speak with an investigator if they wish, they have an equal right to decline to do so. Like every citizen, corporate employees have the absolute right to consult counsel prior to speaking with any government investigator.
Finally, in order to minimize this problem, consideration should be given to simply closing the facility and releasing all employees not involved in monitoring the search. This will prevent easy access to employees by the investigators and reduces the likelihood that an employee will speak with an investigator absent legal consultation.
A corporation and its employees have valuable rights which can be compromised if not safeguarded early in the investigation. Counsel who is familiar with the issues surrounding search warrants and interrogations can play an integral role in securing and preserving his clients rights and prerogatives.