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In recent years, state and federal law enforcement agencies have continued to increase their investigation and prosecution of white-collar crime, including environmental crimes. The search warrant has become a regular method used by authorities to obtain evidence. Law enforcement officers executing a warrant typically arrive at a facility with no prior notice, armed with a search warrant that entitles them to seize original business records, including computer records, and to take soil, air or water samples. Despite the possibility of having law enforcement officers arrive in the administrative suite with search warrant in hand, most business executives and officers lack the training and preparation to deal effectively with a search warrant. As a result, important opportunities to minimize potential criminal or civil liability are missed. In fact, the most valuable evidence gathered during many searches is obtained as a result of the unknowing waiver of important rights by managers and employees. Unless immediately asserted when a search warrant is presented, these rights, such as the right not to grant an interview to the searching officers, can be permanently waived. The purpose of this article is to inform managers of the basic principles that should govern their preparation for, and response to, the presentation of a criminal search warrant at any of their facilities. In addition, related to this article is a Search Warrant Reference Guide that identifies the immediate actions that may be appropriate when a search warrant is presented at a facility, as well as an Interview Guide that sets forth precisely what corporate officers should tell their employees concerning the employees’ right to grant, or not to grant, an interview to law enforcement officers. MISCONCEPTIONS EXIST CONCERNING THE EXECUTION OF SEARCH WARRANTS What is a search warrant? A search warrant issued by a judicial officer — a judge or magistrate — means that the judicial officer has found probable cause to believe that a crime has been committed and that evidence of the crime will be found within the premises to be searched. This finding is based upon a written affidavit setting forth the evidence alleged to support issuance of the warrant. The affidavit is almost always sealed by the court when the warrant is issued and will rarely be unsealed until, and unless, a criminal prosecution actually takes place. Federal and state authorities may also request access to facility records pursuant to their administrative authorities, although this does not involve use of a search warrant. THE GOVERNMENT’S RIGHT TO CONDUCT INTERVIEWS There is no obligation to talk to a law enforcement officer who is serving a search warrant. The warrant creates a right to search for physical evidence, such as documents and objects, not to interrogate subjects. It is improper and may be illegal to instruct your employees not to talk to government agents, however, you may advise them of their right to decline to be interviewed and in certain instances the company may insist that counsel be present during any interviews with company employees. The related Interview Guide specifies how corporate officers should educate their employees on this sensitive subject. ‘MIRANDA’ WARNINGS If corporate officers or employees do grant the searching officers an interview, all statements may later be used against the speaker, and possibly the corporation, regardless of whether Mirandawarnings are given. Unless you are legally in custody, the requirements of Mirandaare irrelevant to the admissibility of your statements. VOLUNTEERING INFORMATION Many employers and managers assume that a search warrant is based upon a “misunderstanding” that can be “cleared up” through explanation at the time the warrant is presented for execution. On the contrary, there is rarely anything to be gained by making a statement to searching officers. At the time a warrant is executed, company officials are generally unaware of the subject of the investigation or of possible witnesses (including individuals within the corporation or facility) and evidence against them or the company. Whatever is volunteered cannot be retracted or modified, regardless of whether or not it is tape-recorded. The prosecutor may attempt to use any errors or misstatements to infer criminal intent on the part of the speaker. It is, therefore, better practice to remove employees from the premises immediately and send them home while the search is being conducted. Also, members of the media often appear on site during the execution of a search warrant and seek to interview employees. Such interviews can provide additional evidence against the company and its employees. Companies should instruct their employees not to speak to members of the media, and instead direct such inquiries to company counsel. PRESENCE OF COUNSEL In California, counsel for a corporation has a right to be present during interviews of corporate employees. Immediately upon the execution of the warrant, corporate counsel or a senior manager should inform the government agents that the company wishes counsel to be present at the interviews and that no interview should occur without corporate counsel present. SAMPLES The search warrant may authorize the agents to take samples on site. Although these samples can form the basis of a later prosecution, the target company may never have meaningful access to the samples. Companies or individuals who are subjected to a search warrant do not have the right to see the information seized during the warrant until after indictment, which may occur months, if not years, after the warrant is executed. By then, the sample likely will be useless because it may no longer contain the relevant physical characteristics that are at issue (e.g., the pollutant may have dissipated). A company or its counsel should consider asking the searching agents to provide the company with split samples (i.e., portions of any samples taken) so that the company can conduct its own analysis of the samples taken. Agents may be willing to provide split samples because it reduces the risk of evidentiary objections at trial. Of course, for this reason, split samples are somewhat of a double-edged sword because they may limit the company’s ability to question the government’s analysis of the samples. For example, the company may not be able to meaningfully question the government’s analysis of the samples taken if the company’s own testing of the split samples corroborated the government’s results. Nevertheless, split samples are very useful and should be requested because they provide the company with more information about the company’s potential exposure to prosecution. If the agents are unwilling to provide split samples, the company should watch the agents, take careful notes about the location and type of testing conducted by the agents, and attempt to take its own samples. If possible, the company should attempt to videotape or photograph the sample site. Be aware, however, that agents may object to being videotaped. The company should hire an environmental consultant (through counsel) to take similar samples immediately, preferably from the same locations at around the same time that the government took the samples. A consultant is preferred over a company employee because the consultant will appear to be a more objective witness and likely will be more experienced with taking samples. Companies may wish to consider having an ongoing relationship with one or more environmental consultants that can be called upon on short notice to come and take samples in the event of a search warrant or government investigation. The consultant should be retained by company counsel to help the company assert that the consultant’s work should be considered attorney-work product. Even if counsel retains the consultant, such a work-product claim may fail because, among other things, the company may have an independent obligation to report certain test results to government agencies. If such a consultant is unavailable, the company should take its own samples. The company should ensure that it has one or more employees that are trained on how properly to take and preserve samples. Upon taking the samples, these employees should have them quickly and properly delivered to a laboratory for preservation and testing. TRAINING AND PREPARATION Every company can help prepare itself for the execution of a search warrant by doing the following: Designate a senior manager, perhaps the corporate compliance officer, as the regulatory affairs (crisis) manager. The designated officer(s) should also be instructed in advance to contact an attorney immediately should a search warrant be presented at the facility. There is no substitute for having an attorney experienced in criminal law matters respond to the premises or speak with the searching officers by telephone, in order to appropriately assert a company’s rights without the negative implications that may follow if company personnel do so. Keep privileged documents (e.g., attorney-client) segregated, clearly marked as such, and locked. Otherwise, they are likely to be seized along with other non-privileged documents. Keep, and periodically update, a duplicate set of any essential business records at an off-site location. Searching officers will take original documents, copies of which may not be made available during the pendency of the investigation, which can last many months. As part of your compliance training and education program, include at least a short segment on search warrants so that all corporate officers know what to expect if the unexpected happens. ADMINISTRATIVE INSPECTIONS The advice above may be helpful in considering how to respond to administrative inspections, which are more common than criminal search warrants. Proper preparation for an inspection, requesting or obtaining split samples during the inspection, and minimizing government interviews with employees will likely assist in responding to any criminal, civil or administrative action. There are, however, a few important differences to note: Search warrants are subject to constitutional restraints, such as the prohibition against illegal searches and seizures. Administrative inspections also are subject to Fourth Amendment scrutiny; however, in many instances the company’s rights may be affected by other factors. For example, a company may have consented in advance (through a consent decree, permit or other agreement) to certain types of inspections and searches. In addition, certain statutes may provide for government inspections under certain circumstances. A company may wish to understand its rights to object to an administrative inspection prior to a crisis in order to be well prepared. A company may have an obligation under its permits or under applicable law to assist in any inspection by government officials. Therefore, the failure of company employees to participate in any interviews may be a material breach of a permit or applicable law. There are certain limitations on the government’s ability to have its criminal and civil enforcement teams share information from their investigations. Company counsel is not limited as such; therefore the company’s criminal counsel and environmental counsel should certainly coordinate closely to share information and ensure that the government actions are proceeding in proper form. CONCLUSION It is important to identify in advance the specific steps that may be appropriate when confronted with a search warrant at your facility and what is permissible to inform your employees concerning requests from law enforcement for interviews. Please review the Search Warrant Reference Guide and Interview Guide and establish your company’s plan before you are faced with this situation. Manny A. Abascal , Russell Hayman and David J. Schindler are partners with the Litigation Practice Group and Gene A. Lucero is a partner with the Environment, Land & Resources Practice Group at Latham & Watkins LLP (www.lw.com) in Los Angeles. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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