by Walter D. James III
A search warrant issued for an environmental criminal investigation is just like a search warrant issued in every other criminal case; except it is different. Law enforcement is authorized to conduct a search only if there is a warrant or if there is consent.
In federal matters, the Federal Rules of Criminal Procedure, Rule 41 (and of course case law), provides the starting point for search and seizure. A search warrant is issued usually based upon a written affidavit setting forth the probable cause that a crime has been committed and that evidence of the crime will be found within the premises to be searched (the search warrant may also be issued on oral testimony under Rule 41(c)(2)). If by affidavit, the affidavit is almost always sealed by the court when the search warrant is issued and will rarely be unsealed (until and unless a criminal prosecution actually takes place or case is declined). All that means is that your client may never know the “probable cause” for the search and may only know it at a much later date.
Rule 41 allows the search and seizure of property, contraband and persons. The agent must present proper identification and keep the identification in plain view at all times. Most importantly, the search must be conducted in strict accordance with the search warrant. Rule 41 also provides the basis for a later challenge to the search warrant. For instance: “The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.” Fed. R. Crim. P. 41(f)(1)(c).
So how is your client to know that the search was done in strict accordance to the search warrant? The first thing you should do is help your client to prepare well before a search warrant is ever issued. For clients regulated by the United States Environmental Protection Agency, they should:
- Know and understand the agency’s enforcement priorities, including policies and procedures.
- Identify and designate appropriate company officials to deal with search warrants.
- Prepare a detailed plan on what to do, how to do it and how to follow-up.
- When the search warrant is presented, Get a Copy of It!
- Read the Search Warrant.
- Identify the precise areas/premises to be searched – it must be specified in the search warrant.
- Accompany the agent at all times as best able, Without Obstructing the Search.
- Take notes.
- Get a complete detailed inventory for everything taken under the search warrant.
You should also advise your client Not to Destroy documents or advise employees to destroy documents.
A search warrant executed by the USEPA Criminal Investigation Division may authorize the taking of samples. When this occurs, your client should always ask for split samples. Agents may or may not be willing to provide split samples and you should advise your client that the current practice of the USEPA CID is to not provide split samples, even when asked. Furthermore, the USEPA CID agents will not be the ones taking the samples, but will instead usually leave the sampling to a trained technician.
Your client should watch what the agents and the technicians do, take careful notes about the sample location and how the sample was collected by either the agent or the technician, the type of testing that will be conducted (i.e. what USEPA method of analysis) and then attempt to replicate the samples. Your client should also consider videotaping and/or photographing the sample site and the sampling event.
Even if your client has someone on staff that has been trained to take samples, it is a better practice to retain an outside consultant for your client (to maintain privileges) to take similar samples from the same locations and have the same analysis run on the samples.
Walter D James III is the founder and managing partner of James PLLC. He can reached at firstname.lastname@example.org.