By Grosso, Andrew
The FBI Law Enforcement Bulletin , Vol. 63, No. 12
Not all search warrants are equal. Using a warrant to locate and seize a single piece of evidence, such as a firearm or crack cocaine, may be a fairly simple matter. Using a warrant to obtain the business records of a corporation or an executive suspected of fraud is quite another.
Although the same body of law applies in both instances, the techniques used to draft the applications for these warrants and to carry out the searches differ significantly. This article addresses some of these differences and suggests ways investigators can accelerate the process of obtaining search warrants infraud cases, while minimizing the possibility that errors will be found by a court after the search has been completed.
Search warrants are very powerful investigatory tools, as well as very restricted ones. They permit agents of the government to invade a person's home, personal papers, and privacy, in order to search for and remove particular items of evidence. In short, warrants are intrusive, and for this reason, they must be specific. In this regard, a search warrant differs from a subpoena duces tecum,(1) which permits subjects to conduct their own searches for requested items while permitting the government to embark on a fairly wide-ranging and speculative inquiry for possible evidence.
By contrast, in order to obtain a search warrant, investigators must demonstrate two things. First, they need to show probable cause that a specific crime was committed. Second, they must demonstrate probable cause that some type of physical evidence currently can be found in a particular place. Both of these requirements have their own nuances when applied in the context of fraud, as opposed to reactive crimes.
Identifying the Crime
Fraud is a crime of deception. Someone attempts, whether successfully or not, to deceive another party, usually for the purpose of obtaining money or something else of value. Obtaining the item of value is not the crime. Likewise, in a case where someone trades a worthless item for cash, the exchange is not the crime. In both scenarios, the act of deception, the "telling of the lie," is the crime.
An example may clarify this basic, but important, point.(2) The U.S. Air Force contracts "Aerospace, Inc.," to supply parts for military aircraft. Unknown to the Air Force, the company intentionally uses substandard metals in the manufacture of these parts. Investigators wish to obtain a search warrant to seize company plant documents that they believe will prove that Aerospace, Inc., is using sub-standard materials.
Because a search warrant will be issued only if probable cause exists that a crime has been committed, the investigators should first ask themselves, "What is the crime?" The answer may come as a bit of a surprise, for the crime is not the use of substandard metals, nor is it the fact that the suspected firm supplied parts made with the sub-standard metals to the Air Force. While both of these actions are clearly "unethical," simply acting in an unethical manner is not a crime. Investigators must search the criminal law in order to find a specific statute violation.
In fact, several Federal statutes may be available. All of them, however, have one thing in common. They are all fraud statutes. That is, they all require the company to have lied for the purpose of deceiving the Government into paying for, and accepting delivery of, substandard parts. This brings investigators to the first rule for drafting white-collar crime search warrants: They must identify "the lie."
More accurately, they must identify a lie. Typically, several may be available from which to choose. Although lies may be verbal in nature, in white-collar crime cases, they usually can be found in the documents used in the transaction. In this example, Aerospace, Inc., would have supplied some type of certification to the Air Force stating, directly or indirectly, that the parts had been manufactured with the correct materials. …