What Happens During a Search?

Good training may protect the company against the shock and awe of a team of government agents executing a search warrant. Expect those agents to be loud and act aggressively as they try to show absolute control over the scene. The agents will likely gather the employees together and relegate them to a specific area of the business. These tactics can shake people into fear and induce some to cooperate in ways that go far beyond the scope of the search, which can expand the investigation.

Company leaders should prepare employees for what happens in a search, and how people may want to respond. If a search takes place, a company representative should ask to see a copy of the search warrant and also the identifying credentials of the people searching. It may make sense for the company to assign a “warrant team” to represent the company in the event of a surprise search warrant. People on the warrant team may have higher levels of training, so they can keep people calm and potentially limit the intrusiveness of the government investigation. The designated leader of the warrant team may want to take the following measures in the event of a surprise search warrant:

1. Contact the company’s designated attorney and corporate leader—which means the team leader should have the appropriate people’s contact information.
2. Request that the agents postpone the search until counsel arrives.
3. Request identification from the people on the search team.
4. Review the warrant and, if available, the affidavit the investigators used to persuade a judge to issue the search warrant.
5. Ask the agents not to begin the search until after they have provided the warrant; although the agents will resist, the request may preserve rights to challenge procedures during later proceedings. A thorough review of the search warrant and possible affidavit may help the leader request that the agents confine their search to the precise scope authorized by the warrant.
6. Proper training may help the leader recognize defects in the warrant, such as a failure to describe the premises to be searched, or what the agents may seize, or the lack of a signature by an appropriate judge.
7. The leader may ask the agents for an opportunity to confer with counsel prior to the start of the search to determine whether the warrant has any defects. If the leader finds defects in the warrant, the leader should point the defects out to the agents and object to the search. Although the agents will likely continue, the objection may preserve the company’s rights. The team leader should go on record to say that the company objects to the search.
8. The team leader should have some level of training on the Fourth Amendment of the Constitution, and how Courts have ruled that warrants must describe places to be searched and things that agents can seize. The team leader should have training that will empower the leader to understand what the agents can and cannot do.
9. The team leader should request the agents to provide an inventory list of everything they’ve seized.
10. If the agents come with a surprise search warrant, the team leader should advise all employees of their rights. Remind people that they have a right to counsel, and if they choose, they may remain silent. Perhaps the leader could direct employees to a link of a cloud-based statement of rights that they may access through smart phones.
11. The leader should strive to protect privileged information that should belong to the company and its law firm.
12. The leader should strive to monitor the search and record the agents’ activities. A good leader may take thorough notes. By memorializing the areas where the agents searched and the materials the agents seized, the leader may provide information that can assist counsel later. Include date and time and any other observation that may be helpful to memorialize the search. If the agents object to video cameras, the team leader should ask the agents to state objections formally to counsel.
13. The company may have the right to record the search by any means, so long as recording does not interfere with the agents’ duties. There isn’t any reason why unobtrusive videotaping, audio taping, or photography would interfere with a search. But since the agents are so intimidating, an untrained workforce may not think to record.
14. Team leaders should not put themselves at risk of being arrested by the law enforcement officers for obstructing the search.
15. Team leaders should request that the agents make copies of any electronically stored materials, rather than removing computer hard-drives, or other computers from the office. The team leader must know how to get backup materials. If possible, the leader should attempt to coordinate with the agents so that the results do not completely obliterate the business’s ability to operate. The company’s attorney should provide specific language the leader may use to preserve all of the company’s rights.
16. After the search, the team leader should provide a full report to the company’s attorney.