Protecting Your Business During a Search Warrant

Responding to Law Enforcement and Safeguarding Your Interests

In this final installment of our series on government investigations, we tackle the most daunting scenario: the execution of a search warrant at your business. Based on a webinar led by David Graham, a seasoned litigator at Gardner Law with firsthand experience navigating search warrant executions, this article offers practical guidance to help FDA-regulated companies respond effectively and protect their interests.

Key Takeaways:

1. Understanding the Exclusionary Rule:

The exclusionary rule is a critical legal principle that can suppress illegally obtained evidence. To preserve your right to challenge evidence later, it's crucial to object early and often during the search warrant execution, documenting all concerns in writing.

2. What is a Search Warrant?

A search warrant is a court order authorizing law enforcement to search a specific location and seize items connected to suspected criminal activity. It must be based on probable cause and issued by a neutral and detached magistrate.

3. Your Protections:

The Fourth Amendment to the U.S. Constitution protects individuals and businesses from unreasonable searches and seizures. While you cannot prevent the execution of a valid warrant, you can object to actions that exceed its scope.

4. Search Warrant vs. Inspection:

A search warrant is different from a routine FDA inspection. Inspections focus on general compliance, while search warrants target specific suspected criminal violations.

5. Warrant Requirements:

A valid search warrant must:

• Be filed in good faith by a law enforcement officer.

• Be issued by a neutral and detached magistrate.

• State the specific place to be searched and items to be seized.

6. Limitations on the Search:

• Scope: Investigators can only search the areas and seize the items specifically described in the warrant.

• Exceptions: Exceptions to these limitations include situations where officer safety is at risk, evidence may be destroyed, or items are in plain view.

7. Preparing for a Search Warrant:

• Designated Response Team: Identify a team, including legal counsel, to handle search warrant executions.

• Trained Personnel: Train employees on how to respond appropriately during a search.

• Communication Plan: Establish a plan to control information flow within the company.

8. Responding to a Search Warrant:

• Contact Your Response Team: Immediately notify your designated team and legal counsel.

• Control Information Flow: Designate a point person to interact with the agents.

• Review the Warrant: Carefully examine the warrant to understand its scope and limitations.

• Monitor the Search: Document the agents' actions, including who they are, where they go, and what they seize.

• Protect Privileged Documents: Identify and assert privilege over protected documents.

• Obtain an Inventory: Secure a detailed inventory of all seized items.

9. Managing Employees:

• Training: Train employees on their rights during a search warrant execution.

• Representation: Advise employees of their right to legal counsel during interviews.

• Truthfulness: Emphasize the importance of telling the truth if interviewed.

10. What NOT to Do:

• Obstruct the Search: Do not interfere with the agents' actions.

• Destroy Evidence: Do not tamper with any potential evidence.

• Consent Beyond the Warrant: Object to any actions that exceed the warrant's scope.

• Volunteer Information: Do not offer unsolicited information.

• Disclose Privileged Information: Protect privileged communications.

11. Follow-Up:

• Document Objections: Send a letter to the lead investigator and/or the judge outlining any objections to the search.

• Maintain Communication: Keep an open dialogue with the investigators.

• Consider Disclosing New Information: If you discover relevant information after the search, consult with counsel about whether to disclose it.

The Importance of Legal Counsel:

"Search warrant executions are high-pressure situations with potentially serious consequences," says David Graham. "Having experienced legal counsel by your side is essential for protecting your rights, navigating the legal complexities, and ensuring the best possible outcome for your company."

Want to learn more?

This article provides a condensed overview. To gain a comprehensive understanding of search warrants and how to respond effectively, watch the full webinar recording.

Contact Us

Search warrants are a critical aspect of government investigations. By understanding the process, preparing in advance, and seeking expert legal counsel, FDA-regulated companies can effectively respond to these situations and protect their interests. Contact Gardner Law to discuss your specific needs.