Many targets of government investigations are unaware of their basic rights when dealing with government agents. As a consequence, individuals and businesses often fail to recognize that they are in an adversarial situation with the government, and unknowingly take steps which worsen, rather than improve, their situations.
There are a some general principles that everyone should know when dealing with law enforcement personnel. First: no one is legally required to answer questions or agree to be interviewed by law enforcement officers. Second: without a search warrant or other court order, law enforcement officers are not empowered to enter or search a private residence or business without the consent of someone with the authority to consent to the search. It is always best for a target-or a potential target-of a government investigation to consult with an experienced attorney before consenting to a search by, or giving an interview to, the government.
Do police have the right to enter or search a private residence or business?
Absent the possession of a search warrant or other court order police generally are not authorized to enter or search a private residence or business. Because of this fact, police will often request permission from the occupant or some authorized person to enter or search a residence, business, or other private location. Citizens have the absolute right to refuse to give consent for a requested search. It generally is not in the citizen's best interest to consent to a search. Rather, it is crucial that when officers ask for consent to search, the owner or occupant consult with counsel as soon as possible.
If a search warrant is executed at my residence or place of business how should I respond?
Under no circumstance should individuals attempt to interfere with a search. The police have the right to detain any person on the premises while the search is being conducted. Owners or occupants are entitled, however, to observe the search as it takes place. Before they leave, the police should give the owner or occupant a copy of the search warrant and a receipt for any items they seized during the search. As soon as possible during or after the search, the owner or occupant should consult an attorney.
Am I obligated to speak law enforcement agents if they come to my home or business?
Under the Fifth Amendment to the Constitution, citizens have an absolute right not to consent to an interview with government agents. It is a common investigative technique for law enforcement agents to attempt to surprise unrepresented individuals by making an unannounced appearance at their residence or place of business for the purpose of obtaining a statement. It is almost always in one's best interest to decline to be interviewed and to consult with counsel immediately. If an individual decides to speak with law enforcement agents, that individual can place such conditions on the interview as he or she deems prudent; the individual may decide the length of the interview, the location for the interview, the subject matter he or she is willing to discuss, and other factors. Individuals can also have other people present during the interview.
When deciding whether or not to talk to government agents, however, individuals should be aware that government agents do not have the authority to make binding promises. Statements such as, "I will make the prosecutor aware of your cooperation," guarantee nothing beyond those words. In order to be binding and to afford real protection to the person being interviewed, agreements with the government must be in writing and signed off by a government official empowered to make the promises contained in the agreement. It is never advisable to attempt to negotiate such an agreement without the advice of an experienced attorney.
What should I do if I receive a grand jury subpoena?
Again, the first step should be to consult with an attorney. Subpoenas are court orders, and as a general rule, the recipient must comply with the subpoena's demand for testimony or the production of documents. There may be situations, however, where a lawyer could
- challenge the legality of the subpoena;
- advise the recipient to assert his or her Fifth Amendment protection against self-incrimination; or
- conduct negotiations with the government about how to comply with the subpoena.
It takes an experienced attorney to recognize such situations and take the appropriate action.