Often, the first time a person becomes aware that he or she is the target of a white collar criminal investigation is with the execution of a search warrant on his or her business and residence, where, pursuant to the search warrant, a law enforcement agency seizes a large portion or, sometimes, all of a company’s corporate, business, and financial records. This can be a stressful time, and the government’s over-seizure of your company’s records can complicate things both legally and, as a practical matter, for you if you seek to continue to run your business.
Fortunately, as explained below, the Fourth Amendment of the United States Constitution provides you and your company protection from government overreach and particularly, over-seizure. Also, in the right case, an attorney can file a motion asking the seizing agency to return the seized records, and the Court may potentially order the records returned, even before any criminal charges are filed.
Specifically, both the Fourth Amendment and Section 13 of Article I of the California Constitution require a warrant to particularly describe the place to be search, and the persons or things to be seized. The Fourth Amendment states that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Additionally, the California Penal Code demands reasonable particularity, (Pen. Code, §§ 1525, 1529), and in Burrows v. Superior Court (1974) 13 Cal.3d 238 (Burrows), the California Supreme Court laid down the appropriate test for California courts to follow:
The requirement of particularity is designed to prevent general exploratory searches which unreasonably interfere with a person’s right to privacy. (Marron v. United States (1927) 275 U.S. 192, 196.) The Penal Code demands reasonable particularity (Pen. Code, § 1529), and this requirement is held to be satisfied if the warrant imposes a meaningful restriction upon the objects to be seized. (People v. Tenney (1972) 25 Cal.App.3d 16, 22; People v. Alvarado (1967) 255 Cal.App.2d 285, 291; People v. Barthel (1965) 231 Cal.App.2d 827, 832.)
As confirmed in one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken, (see W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) [Ph. D. Dissertation at Claremont Graduate School]), what the Framers of the Fourth Amendment most strongly opposed were general searches; that is, the feared searches by general warrant, by writ of assistance, by broad statute, or by any other similar authority. (See id., at pp. 1402, 1499, 1555; see also Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures (1994) 25 Mem.St.U.L.Rev. 483, 528; Maclin, When the Cure for the Fourth Amendment Is Worse Than the Disease (1994) 68 S.Cal.L.Rev. 1, 9-12; L. Levy, Original Intent and the Framers’ Constitution (1998) 221-246.)
Thus, the U.S. Supreme Court has made clear that nothing in the warrant should be left to the discretion of the officer, (Marron v. United States, supra, 275 U.S. at p. 196), as the vice of a general warrant is that it permits “a general, exploratory rummaging in a person’s belongings.” (Andresen v. Maryland (1976) 427 U.S. 463, 480, citation omitted.) In this regard, the search warrant must describe items with sufficient particularity to prevent “a general, exploratory rummaging in a person’s belongings,” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 467 (1971), citations omitted), meaning the warrant “must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized.” (United States v. Spilotro (9th Cir. 1986) 800 F.2d 959, 963 (Spilotro), citations omitted; see also, United States v. McGrew (9th Cir. 1997) 122 F.3d 847, 849 [“[t]he particularity requirement safeguards the right to be free from unbounded, general searches”].)
Notably, concerning search warrants for business records, courts have held the following descriptions insufficiently particular:
(1) “all books, records, accounts and bank statements and cancelled checks of the receipt and disbursement of money and any file or documents referring to Harold D. Miller, June Trower, June Miller or Stacy Miller,” (Burrows, supra, 13 Cal.3d at pp. 240, 249);
(2) “any and all other records and paraphernalia” connected with the business being searched, (Aday v. Superior Court (1961) 55 Cal.2d 789, 795-796, disapproved on other grounds in Hicks v. Miranda (1975) 422 U.S. 332, 346);
(3) “[e]vidences of indebtedness … including but not limited to such items as bills, contracts, checkstubs, checks, bankbooks,” (Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 692, 694);
(4) “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas,” (Stanford v. Texas (1965) 379 U.S. 476, 477-78);
(5) “notebooks, notes, documents, address books, and other records; safe deposit box keys, cash, and other assets; photographs, equipment including electronic scanning devices, and other items and paraphernalia, which are evidence of violations of 18 U.S.C. [§§] 1084, 1952, 892–894, 371, 1503, 1511, 2314, 2315, 1962–1963,” (Spilotro, supra, 800 F.2d, at pp. 961-65); and
(6) “corporate books and records, including but not limited to cancelled and duplicate checks, check stubs, journals, ledgers, weekly summaries, driver trip envelopes, and daily schedules, of [certain named corporations], which are the fruits and instrumentalities, of violations of 26 U.S.C. § 7201.” (United States v. Cardwell (9th Cir. 1982) 680 F.2d 75, 76 (Cardwell).)
Burrows, supra, 13 Cal.3d 238 is an instructive case. There, the defendant was an attorney suspected of having misappropriated his client’s funds. (13 Cal.3d at p. 240.) Appearing before a magistrate, the deputy district attorney testified that the attorney-defendant had represented Harold Miller in connection with an action brought by his former wife, June Trower, against Miller for child support. (Id.) The court had ordered Miller to make payments to Trower, and, according to Miller, the attorney-defendant requested Miller to send the payments to the attorney-defendant, promising that he would send them to the court trustee, who would forward them to Trower. (Id.) Miller stated he had made payments to the attorney-defendant, but Trower claimed she had not received them, nor had the court trustee. (Id.) Based upon this information, the judge issued a warrant authorizing the search of the attorney-defendant’s office for “all books, records, accounts and bank statements and cancelled checks of the receipt and disbursement of money and any file or documents referring to Harold D. Miller, June Trower, June Miller or Stacy Miller.” (Id.) The attorney-defendant moved to suppress the seized evidence as being the product of an insufficiently particular warrant, and the Supreme Court held that the trial court erred in refusing to grant the attorney-defendant’s motion to suppress the seized evidence in the search of his office, reasoning:
It is manifest that the warrant in the present case does not meet constitutional standards of specificity; it permitted the seizure of all of [the attorney-defendant’s] financial records without regard to the persons with whom the transactions had occurred or the date of transactions.
(Burrows, supra, 13 Cal.3d at pp. 250-51.)
The Burrows court also noted that “[a]n equally important reason for holding the search of [the attorney-defendant’s] office illegal is that the affidavit in support of the warrant was insufficient to justify a search of any of [the attorney-defendant’s] records except those relating to the persons named in the affidavit,” as “[i]t is axiomatic that a warrant may not authorize a search broader than the facts supporting its issuance.” (Burrows, supra, 13 Cal.3d at p. 251.) The Burrows court further stressed that “[a]ssuming arguendo that the warrant” was limited to just the Millers, “the direction to seize ‘any file or documents’ relating to the Millers is too broad to comport with constitutional requirements.” (Id.)
Cardwell, supra, 680 F.2d 75 is also instructive. There, the government’s investigation centered upon specific business records, enabling it to refine the scope of the warrant by reference to particular criminal episodes, time periods, and subject matter. Because the government knew “exactly what it needed and wanted,” the Ninth Circuit held there was no need for so broad a warrant. (Cardwell, supra, 680 F.2d at p. 78.)
At Kashfian & Kashfian, LLP, we have experience filing motions for return of property in white collar criminal cases, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.
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