Thursday, December 6, 2007

How Do You Lose a Search Warrant?

Compared to a grand jury subpoena, obtaining a search warrant involves quite a bit of hassle for the prosecutor.  While the subpoena is just mailed out, a warrant requires a detailed affidavit, preparation of the warrant that meets the Fourth Amendment specificity requirements for the place to be searched and items to be seized, and then approval by a "neutral and detached magistrate."  Warrants are still uncommon in white collar crime cases, and the decision to try to get one is usually of some significance in an investigation.  Once the warrant is issued, the next phase can be even more daunting, requiring the organization of the volume of records obtained by the agents.  It is not unknown for agents to cart away hundreds of boxes of documents from a search because the descriptions are usually so broad, such as "all documents related to the sale of X since 2003."  That's why an article in Corporate Counsel (available on Law.Com here) is so strange because it states that the prosecutors in a corporate investigation thought a search warrant had been executed but it does not appear that the search ever occurred.

The case involves the investigation of Chiquita for protection payments to a Columbian right-wing paramilitary group that was designated as a terrorist organization.  An earlier article in Corporate Counsel about the case (available on Law.Com here), which Chiquita settled, stated that a warrant was executed at the company's headquarters in 2004.  That statement was based on informationi provided by two prosecutors on the case, but counsel for the company denied that a search ever occurred.  No one can seem to locate the records related to the warrant, and the Department of Justice has refused to comment on the matter. 

What is so odd about this is that executing a warrant involves steps that create a paper trail.  Federal Rule of Criminal Procedure 41(f) requires that "[a]n officer present during the execution of the warrant must prepare and verify an inventory of any property seized," and then the "officer executing the warrant must promptly return it — together with a copy of the inventory — to the magistrate judge designated on the warrant."  Not to mention the documents that are seized in a search, which have to go somewhere.  How is it that the prosecutors could think a warrant was issued when it appears no search ever took place?  Did they ever ask to see the records seized, or to review the inventory to make sure the agents seized all the records covered by the warrant? 

It's a little hard to believe something like this could have fallen through the cracks, and the article notes that the mystery remains about what happened to the Chiquita warrant -- no one at the Justice Department is talking much about it.  Maybe this one joins the Loch Nest monster and the flying saucers over Roswell as another great mystery: the Case of the Disappearing Search Warrant. (ph)

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