Search Warrants: Precaution, Particularity & Probable Cause
As articulated governance for more than two decades of criminal tax law rules from the Department of Justice, no tax-‐related search warrants can issue unless “the subject or target of a criminal investigation” owns, controls or exercises dominion over the offices, structures or premises sought to be searched. (United States Department of Justice Directive No. 52; Attachment of August 7, 1984). Even then, this “limited” delegation of authority was only conferred upon the United States Attorney, the First Assistant United States Attorney, and the Chief of the Criminal Division. See United States Department of Justice Directive No. 52; Attachment of August 7, 1984. As this constrained and cabined delegation makes clear, “this delegation of authority is expressly restricted to these, and no other, individuals.” (United States Department of Justice Directive No. 52). Equally important, any investigation into “exempt organizations” is a “sensitive investigation” requiring specialized approvals and processing. See Internal Revenue Manual 9.4.1.6.3 (03-‐30-‐2012). The Director of Field Operations must personally approve any seizure investigative activity of any sensitive organizations. . See Internal Revenue Manual 9.4.1.6.3 (03-‐30-‐2012). Finally, the United States Attorney “shall notify the Tax Division within ten working days, in writing, of the results of each executed search warrant and shall transmit to the Tax Division copies of the search warrant and attachments and exhibits, inventory and any other relevant papers.” (United States Department of Justice Directive No. 52). None of this occurred here.
Search Warrants: A Last Resort, Not a First Tool
As the Service recognizes, the Manual establishes “agency policy and procedural requirements for use of search warrants by Criminal Investigation special agents.” See Internal Revenue Manual 9.4.9.1 (1) (10-‐05-‐2007). Notably, “search warrants for and tax-‐related offenses will be utilized with restraint and only in significant tax investigations.
All other investigative tools should be considered before deciding that a search warrant is the least intrusive means to acquire the evidence.” See Internal Revenue Manual 9.4.9.2 (06-‐19-‐2008). The latter deserves repetition: “all other investigative tools should be considered before deciding that a search warrant is the least intrusive means to acquire evidence.” See id. It is only when evidence is both “crucial” and “cannot be obtained by any other means” that a search warrant “can be an effective investigative tool.” See Internal Revenue Manual 9.4.9.3 (02-‐09-‐2005). The law does not authorize the government to seize items that do not have evidentiary value, and generally agents cannot take things from a search site when their non-‐evidentiary nature is apparent at the time of the search. See Federal Guidelines for Searching and Seizing Computers at page 103 (1994).
Critically, warrants require a full vetting throughout the supervisory chain, requiring “all requests for tax and tax-‐related search warrants” must and “will require a written evaluation by Criminal Tax Counsel of the intrusiveness issue.” See Internal Revenue Manual 9.4.9.2 (4) (06-‐19-‐2008). Throughout, the special agent must explain “why other investigative methods cannot produce the evidence being sought” and “why the search warrant represents the best and least intrusive method to secure the evidence” documenting ‘facts that establish that other attempts to acquire the records were ineffective” and “facts that indicate that other methods of acquiring the records may compromise the investigation.” See Internal Revenue Manual 9.4.9.2 (5) (06-‐19-‐2008).
Before any search warrant can be requested from a court or executed, the search warrant request must be reviewed and approved by the Supervisory Special Agent, Criminal Tax Counsel, the Special Agent in Charge, and as required, the Tax Division of the Department of Justice in Washington D.C., by the Assistant Attorney General for Tax or her chosen delegated official. See Internal Revenue Manual 9.4.9.3.3 (10-‐05-‐2007). As this investigation fit the description of a sensitive investigation, the search warrant required the approval of the Director of Field Operations. See Internal Revenue Manual 9.4.9.3.3.2 (10-‐05-‐ 2007). At all times, the Tax Division of the Department of Justice “retains exclusive authority” over search warrants whenever directed at any offices of a lawyer, physician, accountant. See Internal Revenue Manual 9.4.9.3.3.3 (03-‐17-‐2011). When those records are knowingly stored at another location, the same precepts and specialized approvals apply.
To recap, a special agent must have exhausted other effective less intrusive means of gathering evidence, conclude a warrant for a search is the least intrusive means to gather such evidence, demonstrate the case is a “significant” case, and obtain the appropriate approvals and authorization of supervisory personnel, including legal counsel knowledgeable in the area.
Search Warrants: Least Intrusive Means for Particular Evidence
As the law enforcement officers recognized, and this Circuit’s law governs: the Fourth Amendment requires specific descriptions of the places, people, and things to be searched as well as the items to be seized. Specificity has two aspects-‐-‐particularity and over-‐breadth. "Particularity" is about detail: the warrant must clearly describe what it seeks. "Breadth" is about scope: the warrant cannot include items for which there is no probable cause. Together, the particularly and breadth limitations prevent general searches of a person's properly. Thus, generic classifications in a warrant are acceptable only when a more precise description is not possible.” Federal Guidelines for Searching and Seizing Computers at 53 (1994); see also In Re Grand Jury Subpoenas, 926 F.2d 847, 856-‐7 (9th Cir. 1991).
Consequently, the Constitutional requirement of particularity and the Congressional concern for privacy, compel law enforcement officers “must take care” and “must continue to protect” both “unrelated” and “confidential information” from disclosure “as much as possible” with aid of segregation procedures for any electronic database search or seizure. See Federal Guidelines for Searching and Seizing Computers at 43 (1994).
An agent cannot use “any and all records” descriptors in a search warrant as such requests will be “overly broad” and the “courts consistently hold that the items to be seized must have a nexus to the underlying criminal offense” and “must be specific as to the nature, type and time frame of items.” See Internal Revenue Manual 9.4.9.3.1.3 (10-‐ 05-‐2007). Throughout, the requests sought, and the relief provided, compels strict specificity in both the search and the seizure.
Search Warrants:
Established Process Protects Electronic Data From improper Search, Requiring Strict Segregation & Specificity in the Search
If a special agent intends to seize any computer records, he must follow specialized protocols and information protections. See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007).
First, a special agent must first consult a Computer Investigation Specialist. See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). Second, a special agent must develop, document and attest under oath the “specific information” regarding the “subject’s use of the computer and the role of the computer in the offense.” See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). Third, the “special agent and Computer Investigation Specialist will develop probable cause for evidence contained in computers and each component of the computer.” See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). Fourth, the special agent must include, under attestation of penalty of perjury, a “positive statement in the search warrant that no work product material exists in the computer.” See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). If the agent cannot so attest or affirm, and if any “protected material exists on the computer’ then “state how the material is going to remain protected” under oath and attestation under penalty of perjury and criminal prosecution of the agent. See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). This includes “addressing the possibility of email on the computer; indicate the email status in the search warrant affidavit and the search warrant itself; identify in the search warrant whose email is going to be read; and determine whether such email is subject to search.” See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). Federal law codifies the restrictions on email searches. See 18 United States Code 2703. The appropriate procedure to enforce this is for the agent to request and the magistrate to authorize “a segregation plan.” See Internal Revenue Manual 9.4.9.3.1.2 (3) (10-‐05-‐2007). Throughout, the Computer Investigation Specialist retains complete control over the process, retaining “primary decision making authority and overall responsibility for all computer search and seizure issues.” See Internal Revenue Manual 9.4.9.3.2.4.2 (10-‐05-‐2007).
The long-‐followed Federal Guidelines for Searching and Seizing Computers governs the appropriate approach to any search and seizure of electronically stored data. As the guidelines un-‐controversially declare, “it is important to remember throughout the process that as dazzling and confounding as these new-‐age searches and seizures may be, they are in many essential ways just like all other searches. The cause must be just as probable; the description of items just as particular.” Federal Guidelines for Searching and Seizing Computers at 3 (1994).
As the Guidelines stipulate, drafted and crafted by law enforcement agents and their law enforcement counsel, ”warrants to search computers which contain privileged information must meet the same requirements as warrants to search for and seize paper documents under criminal conditions; that is, the warrant should be narrowly drawn to include only the data pertinent to the investigation.” Such information “is important to instruct an assisting forensic computer experts” in protecting files from being searched or disclosed. Federal Guidelines for Searching and Seizing Computers at 40 (1994).
Congress expressed “a special concern for privacy interests in cases in which a search or seizure for documents” that could “intrude upon a known confidential relationship such as that which may exist between clergyman and parishioner; lawyer and client; or doctor and patient.” See 42 U.S.C. 2000aa-‐11(1)(3). Consequently, the Constitutional requirement of particularity and the Congressional concern for privacy, compel law enforcement officers “must take care” and “must continue to protect” both “unrelated” and “confidential information” from disclosure “as much as possible” with aid of forensic analysts in any electronic database search or seizure. See Federal Guidelines for Searching and Seizing Computers at 43 (1994).
A computer is conceptually indistinct from a filing cabinet; the right to seize financial records from the filing cabinet does not give the right to seize personal, privileged and confidential non-‐financial records from the filing cabinet. Even law enforcement officials recognize this in their own publications on the subject. See Federal Guidelines for Searching and Seizing Computers at page 97 (1994).
Search Warrants: Strict Limits on Searches of Privileged Records
Searches of attorney records require specialized concerns, including use of a privilege team and particularized approvals from delineated individuals. See Internal Revenue Manual 9.4.9.3.1.2.4.1 (3) (02-‐09-‐2005). This compels establishing the use of a “privilege team” of agents and attorneys “not directly involved in the underlying investigation” in order “to prevent exposing the investigating special agents and prosecuting attorneys for the government to privileged material.” See Internal Revenue Manual 9.4.9.3.1.2.4.1 (3) (02-‐09-‐2005). Wherefore, the warrant must provide a “predetermined set of instructions” and provide only for the privilege team to conduct the search and review any records seized from the search governing attorney material. See Internal Revenue Manual 9.4.9.3.1.2.4.1 (3) (02-‐ 09-‐2005).
Both the IRM and the Department of Justice impose strict limits on executing searches of an attorney. See Internal Revenue Manual 9.4.9.3.2.4.1 (2005). This requires a strict privilege team approach, reflecting courts' ongoing concerns with the Department of Justice's prior failures to properly secure and protect privileged material. See In re Grand Jury Subpoenas, 454 F.3d 511, 517 (6th Cir. 2006) (condemning history of leaks from such searches to involved personnel in the investigation despite so-‐called “taint team” procedures being promised). “An independent judiciary and a sacrosanct confidential relationship between lawyer and client are the bastions of an ordered liberty.” Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 2 (3rd ed. 1997).
Critically the search process must involve "special agents and attorneys who are not directly involved in the underlying investigation." Internal Revenue Manual 9.4.9.3.2.4.1 (2005).
Thus, a search warrant for privileged records requires supervisory approval from the official with the delegated authority, an official trained in recognition of the sensitive legal and reputational issues impacted in such searches and seizures, as well as the protection of certain relationships valued by the law and the public alike, the impairment of which is not the investigative role of the Service. As repeated throughout, an agent who seizes information or documentation not described with particularity in the warrant itself is “not entitled to qualified immunity from liability,” as the IRS itself concedes. See Internal Revenue Manual 9.4.9.3 (Note) (02-‐09-‐2005); see also United States v. Bridges, 344 F.2d 1010 (9th Cir. 2003).
Searches & Seizures: Strict Compliance With the Warrant
The execution of the search warrant requires a process, strict compliance with which is necessary to afford the protections the law compels. First, the search warrant must be “read to whoever is in control of the premises.” See Internal Revenue Manual 9.4.9.3.5 (10-‐05-‐2007). Secondly, the agents must “photograph” each site location and sketch each room for identification. See Internal Revenue Manual 9.4.9.3.5 (10-‐05-‐2007). Third, the agents must follow the segregation plan that should be present to protect privileged information. See Internal Revenue Manual 9.4.9.3.5 (10-‐05-‐2007). Fourth, the agents must obtain a new warrant to remove a computer from the site. See Internal Revenue Manual 9.4.9.3.5 (10-‐05-‐ 2007). Fifth, the agents must consult with attorneys to protect any Privacy Protection Act material. See Internal Revenue Manual 9.4.9.3.5 (10-‐05-‐2007).
At all times, “special agents must use the least intrusive means possible to obtain evidence.” See Internal Revenue Manual 9.4.9.6.1 (10-‐ 05-‐2007).
As repeated throughout, an agent who seizes information or documentation not described with particularity in the warrant itself is “not entitled to qualified immunity from liability” as the IRS itself concedes. See Internal Revenue Manual 9.4.9.3 (Note) (02-‐09-‐2005); see also Groh v. Ramirez, 124 S.Ct. 1284 (2004); United States v. Bridges, 344 F.2d 1010 (9th Cir. 2003). Searching or seizing unauthorized items makes such agents fully liable.
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