Search warrant: What to do when feds come knocking
The agents are knocking at your door, badges are flashing in your face, and you’ve just been handed a search warrant. Even if you didn’t do anything wrong, they think you did, and they intend to check you from top to bottom.
As the raids on Nashville, TN-based Columbia/ HCA over the past year have shown, this is not a paranoid scenario. And if a search does happen, it is definitely not a time when you want to improvise. You need your managers and employees to understand what they should — and should not — do if the worst happens and the FBI shows up with a warrant. Here are some quick do’s and don’ts on handling a search from Amanda Mott, JD, an attorney with von Briesen, Purtell & Roper, in Milwaukee.
DO:
- Ask the investigators to wait until the employee-in-charge arrives. This employee could be the compliance officer, the provider’s counsel, an on-call administrator, or the CFO. He or she will be the one to negotiate with the agents.
- Request copies of the warrant and the affidavit providing reasons for why the warrant was issued.
- Ask for an opportunity to confer with counsel before the search commences. If your attorney can be reached by phone, put him or her directly in touch with the lead investigator.
- Cooperate with the investigators, but do not consent to the search. The employee-in-charge should inform the lead investigator that the provider objects to the search because the search will violate the rights of the provider and its employees.
- If you can’t reach counsel, contact the prosecutor handling the case and ask that the search be stopped. Try to negotiate alternatives, such as ensuring that evidence will be left undisturbed. If the prosecutor won’t stop the search, ask him to delay it until you can get a court hearing.
- Negotiate an acceptable methodology with the investigators to minimize disruptions and keep track of the process. This can cover the sequence of the search, whether copies can substitute for originals, and whether you’ll have access to seized records. Disputes regarding the scope must be brought to the attention of the prosecutor or the court to be settled. No one should attempt to prevent investigators from searching areas they claim to have the right to search.
(Remember that federal investigators generally have the right to seize evidence of crimes that is in their "plain view" during a search regardless of whether such evidence is described in the warrant.)
- Keep track of all documents given to investigators as well as the information they contain.
- Make sure that employees understand that they don’t have to speak to the investigators, but must provide the documents requested in the warrant.
- Send all but essential personnel home, or temporarily reassign them to other areas.
- Designate selected employees to remain with the employee-in-charge to monitor the search. Investigators should never be left alone on the premises, and no employee should be left alone with the investigators. Several individuals will be probably be needed to monitor the different areas being searched simultaneously.
If a monitor is ordered to leave, contact the lead investigator. A person should be ordered to move only if he or she is in the way, but not because agents want to conduct their search unobserved.
- Object to any search of privileged documents. Try to negotiate a methodology to protect the confidentiality of any privileged information pending a resolution of these objections. For example, you might segregate the privileged documents from other files and put them in sealed envelopes, which agents won’t open and read until a court has decided the matter.
- Keep a record regarding the search. Ask each investigator for proper identification, including their business cards. List the names and positions of all the investigators with the date and time. Verify the list with the lead agent and request he or she sign it. Monitor and record the manner in which the search is conducted. Note in detail the precise areas and files searched, the time periods when each of them was searched, the manner in which the search was conducted, the agents who participated, and which files were seized.
- If possible, videotape the search. If the investigators claim the taping interferes with the search, the employee-in-charge should make a record of the refusal. Do not persist if the agents have warned that they regard the taping as an interference.
- If possible, make a record and a copy of all records seized. If this is not possible, before the agents leave the premises, request an inventory of the documents seized. Download copies of files from hard drives of computers, and copy diskettes, especially if the material is essential to your ongoing operations.
DON’T:
- Alter, remove, or destroy permanent documents or records. In fact, once you’re aware of an investigation, even routine destruction of records must stop.
- Obstruct or interfere with the search. But while they should cooperate, employees should also clearly state that this does not constitute consent to the search.
- Consent to an expansion of the search. The employee-in-charge should point out limitations on the premises to be searched and on the property to be seized. Avoid expansion beyond the proper scope of the search from confusion or overreaching.
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