7 August 2001

See contents of full IRS Handbook of Criminal Investigation: http://cryptome.org/irs-ci/irs-ci.htm

Handbook 9.4
Investigative Techniques


Chapter 9
SEARCH WARRANTS AND WARRANTLESS SEARCHES

Contents

[9.4] 9.1  (06-30-1998)
OVERVIEW

  1. This chapter covers the authority, the applications, issuance, execution, and return of search warrants and the techniques used in executing the search warrant. The chapter is divided into the following sections:
    • General Guidelines
    • Authority for Searches and Seizures with Warrants
    • Probable Cause and Preparation of a Search Warrant
    • Affidavit for Search Warrant
    • Approval for Search Warrant
    • Application for Search Warrant
    • Execution of a Warrant
    • Seizures Under Warrant
    • Return On Warrant, With Inventory
    • Participation in Searches Conducted by Other Agencies
    • Reasonable Expectation of Privacy
    • Unreasonable Searches
    • Searches Without Warrants
    • Admissibility of Evidence
    • Rights of Citizens

[9.4] 9.2  (06-30-1998)
GENERAL GUIDELINES

  1. A numbered subject investigation is required when Criminal Investigation is the affiant for a search warrant.
  2. Agents can assist other agencies in the execution of a search warrant, including interviewing subject and related individuals during the execution of the warrant. However, CI cannot interview third party and/or subjects after the execution of other agencies' warrants without a numbered subject investigation.

[9.4] 9.3  (06-30-1998)
AUTHORITY FOR SEARCHES AND SEIZURES WITH WARRANTS

  1. This section covers the constitutional and statutory authority for searches and seizures with warrants.

[9.4] 9.3.1  (06-30-1998)
Constitutional Authority

  1. The Fourth Amendment to the Constitution of the United States states: 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 be issued, 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. The Fourth Amendment specifies that searches should be conducted pursuant to search warrants. Specifically, the Fourth Amendment:
    1. Protects individuals against unreasonable searches and seizures by the government. The scope of this protection extends to any area in which an individual has a reasonable expectation of privacy.
    2. Provides that all warrants shall be based upon probable cause and supported by oath or affirmation.

[9.4] 9.3.2  (06-30-1998)
Statutory Authority

  1. 18 USC 3105 and 3109, Rule 41 of the Federal Rules of Criminal Procedure, and 26 USC 7302, 7321, and 7608 contain the statutory authority pertinent to searches and seizures by special agents. Pertinent provisions of the Federal Rules of Criminal Procedure (Rule 41) are summarized below.

[9.4] 9.3.3  (06-30-1998)
Authority to Issue Warrant

  1. Upon the request of a federal law enforcement officer or an attorney for the government, a search warrant may be issued by:
    1. A federal magistrate or judge of a state court of record within the district where the property or person to be searched is located.
    2. A federal magistrate for a search of property or person, where the property or person is outside the district, if the property or person is within the district when the warrant is sought but might move outside the district before the warrant is executed.

[9.4] 9.3.4  (06-30-1998)
Property or Persons Which May Be Searched or Seized With a Warrant

  1. A warrant may be issued under this rule to search for and seize any:
    1. Property that constitutes evidence of the commission of a criminal offense.
    2. Contraband, the fruits of crime, or things otherwise criminally
      possessed.
    3. Property designed or intended for use or which is or has been used as the means of committing a criminal offense.
    4. People when there is probable cause for their arrest, or who is lawfully restrained.

[9.4] 9.3.5  (06-30-1998)
Issuance and Content

  1. A search warrant may be issued upon sworn testimony given by either an affidavit or oral testimony.

[9.4] 9.3.5.1  (06-30-1998)
Warrant Upon Affidavit

  1. A search warrant may be issued based on an affidavit or affidavits sworn to the federal magistrate or state judge establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, they shall issue a warrant identifying the property sought and naming or describing the person or place to be searched. The special agent has ten (10) days to execute the warrant. The search warrant should be executed between the hours of 6:00 a.m. and 10:00 p.m., or the special agent should be able to show cause why this cannot be done.
  2. Before ruling on a request for a warrant, the federal magistrate or state judge may require:
    1. the affiant to appear personally; and
    2. may examine under oath the affiant and any witnesses the affiant may produce.
  3. The above proceeding as described in (2) shall be taken down by a court reporter or recorder equipment and made part of the affidavit.

[9.4] 9.3.5.2  (06-30-1998)
Warrant Upon Oral Testimony

  1. If the circumstances make it reasonable to dispense with a written affidavit, a federal magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.

[9.4] 9.3.5.2.1  (06-30-1998)
Application

  1. To request a warrant based upon oral testimony, prepare a document which will be known as a duplicate original warrant, and read the warrant verbatim to the federal magistrate. The contents of this warrant will be the same as the contents of a warrant upon affidavit. The federal magistrate shall enter, verbatim, what is read on the duplicate original warrant. The federal magistrate may direct that the warrant be modified.

[9.4] 9.3.5.2.2  (06-30-1998)
Issuance

  1. The federal magistrate may order the issuance of a warrant based upon oral testimony, if satisfied:
    1. that the circumstances make it reasonable to dispense with a written affidavit; and
    2. that grounds for the application exist; or
    3. that there is probable cause to believe that they exist.
  2. If the above conditions are met, the federal magistrate will:
    1. Direct the person requesting the warrant to sign the federal magistrate's name on the duplicate original warrant.
    2. Immediately sign and enter on the face of the original warrant the exact time when the warrant was ordered to be issued.
  3. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as sufficient for a warrant upon affidavit.

[9.4] 9.3.5.2.3  (06-30-1998)
Recording and Certification of Testimony

  1. When an oral request for a warrant is made to the federal magistrate, the federal magistrate will take the following steps:
    1. Place the person or persons whose testimony forms a basis for the application of the warrant under oath.
    2. Record, if recording device is available, the oral request for issuance of warrant.
    3. Record the oral request by stenographic or longhand record.
  2. The federal magistrate will have the record transcribed and certify the accuracy of the transcription. A copy of the original record and the transcription will be filed with the court. If a longhand verbatim record is made, the federal magistrate will file a signed copy with the court.

[9.4] 9.3.5.2.4  (06-30-1998)
Additional Rule for Execution

  1. The exact time of execution has to be entered on the face of the duplicate original warrant by the person executing the warrant.

[9.4] 9.3.5.2.5  (06-30-1998)
Bad Faith Standard for Suppression

  1. Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this paragraph is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with a written affidavit.

[9.4] 9.4  (06-30-1998)
PROBABLE CAUSE AND PREPARATION
OF A SEARCH WARRANT

  1. The Fourth Amendment protects an individual's reasonable expectation of privacy by requiring a finding of probable cause for the issuance of a valid search warrant.
  2. Probable cause may be based upon hearsay evidence in whole or in part. Probable cause consists of:
    1. facts and circumstances sufficient to lead a cautious and prudent person to believe that a crime has been or is being committed; and
    2. the property subject to seizure is on the premises to be searched.
  3. In determining what is probable cause:
    1. It is not necessary to determine whether the offense charged has in fact been committed.
    2. Concern lies only with the question of whether the affiant had reasonable grounds at the time of his or her affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched.
    3. If the apparent facts set out in the affidavit are such that a reasonably discreet and prudent law enforcement officer would be justified in concluding that the items sought are connected with criminal activity and that they will be found in the area to be searched, there is probable cause justifying the issuance of the warrant.
  4. While proof beyond a reasonable doubt is not required, some factual showing is required and mere conclusions and supposition by themselves are not enough. The following have been found to be insufficient in establishing probable cause when consideration includes no other indications:
    1. Mere conclusions of a statement or an officer's notification of the bare conclusions of another.
    2. An officer's suspicion of criminal activity.
    3. Association with known or suspected criminals.
    4. An individual's presence at a given location.

[9.4] 9.4.1  (06-30-1998)
Hearsay

  1. The affidavit may be based on hearsay so long as it gives a reason for crediting the source of the information. Prior to 1983, the courts generally followed the two-pronged test enunciated in Aquilar v. Texas and Spinelli v. U.S. in order to determine whether an informant's tip established probable cause for issuance of a warrant. This two-pronged test required the affidavit to set forth the underlying facts from which the informant concluded criminal activity was taking place (basis of knowledge), and the veracity of the informant.
  2. In 1983, in Illinois v. Gates, the Supreme Court reconsidered the strict two-pronged approach and reaffirmed a totality of the circumstance test for making probable cause determinations. The new standard of probable cause enunciated in Gates is that there must be a sufficient, factual basis for the issuing magistrate to make a practical common sense decision on whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found on the premises to be searched. An informant's basis of knowledge, credibility, and reliability continue to be factors considered by a magistrate in making this determination.
  3. Corroboration of an informant's tip is of significant value. On appeal, a magistrate's decision is to be given great deference and will stand so long as there is a substantial basis for the probable cause determination. The basis of knowledge and veracity requirements of Aquilar and Spinelli were not abandoned but were described as relevant considerations in the totality of circumstance analysis, and a deficiency in one may be compensated for by a strong showing of the other, or by some other indication of reliability.

[9.4] 9.5  (06-30-1998)
AFFIDAVIT FOR SEARCH WARRANT

  1. Affidavits submitted by special agents to establish grounds for the issuance of a search warrant in an investigation should be in the suggested format and include, but not be limited to, the following items:
    1. Exact description and location of premises to be searched.
    2. Name of owner or person occupying the premises.
    3. Description of property being used to violate the tax laws.
    4. Exhibits, diagrams, photographs, or other documents that bear on probable cause.
    5. Internal Revenue Code sections being violated and applicable periods or years.
    6. Affiant's experience, e.g. grade, years with CI, and any expertise obtained as a result of similar case related experience. In this narrative, include the affiant's probable cause to believe certain crimes have occurred and that certain specified evidence of those crimes is on the premises.
    7. Credibility and reliability of any informants.
    8. If affidavits are based on undercover contacts, include information relative to those activities.
    9. Identification of targets necessary to properly explain the illegal scheme or activity.
    10. Description of the unlawful activities in a factual manner; not in a conclusory fashion. This should be followed by a factual discussion of the location of the evidence and its relationship to the crime.
    11. Corroboration of information in warrant to include records, tax returns, and other documents, as appropriate.
    12. Divide the affidavit logically and number paragraphs consecutively.
    13. When affidavits for search warrants consist of more than one page, each should be consecutively numbered to show that it is one of a number of pages in a multi-page affidavit; i.e.: 1 of 2, 2 of 2. Each page should bear the signature of the affiant and the date. The magistrate's signature block should appear on the last page of the affidavit.
  2. All requests for search warrants must establish current probable cause to believe a crime has been or is being committed and that evidence or instrumentalities of the crime are located on the premises to be searched. District Counsel can provide guidance as to the information required to establish probable cause.

[9.4] 9.6  (06-30-1998)
APPROVAL FOR SEARCH WARRANT

  1. Prepare search warrants carefully and submit for the appropriate approval.

[9.4] 9.6.1  (06-30-1998)
Title 26 Investigations and Tax-related Title 18 Investigations

  1. Search warrants are recognized as viable investigative tools in potential criminal tax cases. Search warrants may be authorized in income tax, multiple refund and return preparer cases. However, it is the policy of the Internal Revenue Service and the Department of Justice that search warrants will be utilized with restraint and only in significant tax cases. The significance of a tax case may be determined by a consideration of such factors as:
    1. the amount of taxes due;
    2. the nature of the fraud;
    3. the need for evidence to be seized; and
    4. the impact of the potential criminal tax case on voluntary compliance with the revenue laws.
  2. Requests for search warrants in Title 26 investigations and tax-related Title 18 investigations must be in writing and cleared through District Counsel and then approved by the appropriate Department of Justice official.
  3. Absent extraordinary circumstances, the search warrant request will not be approved based on an oral presentation of the facts that establish probable cause.
  4. Tax Division Directive No. 52 (Jan. 2, 1986), which superseded Tax Division Directive No. 49 (Oct. 1, 1984), providing for the authority of the Assistant Attorney General, Tax Division, generally to approve search warrants in Title 26 and Title 18 tax investigations, was delegated to U.S. Attorneys and other specified officials in the U.S. Attorneys' offices where the warrant is directed at offices, structures, premises, etc., of targets or subjects of the investigation, unless the target or subject falls into one of the following categories.
  5. To prevent any doubt regarding the origin(s) of information available for civil use, applications for search warrants will not be initiated in administrative cases when a request for a grand jury investigation is in process or it is anticipated that one will be in process during the time the warrant would be executed.

[9.4] 9.6.2  (06-30-1998)
Search of Attorney Premises

  1. In all cases involving requests to search the premises of any attorney who is engaged in the practice of law on behalf of clients, additional steps must be taken to comply with the Department of Justice Policy on Searching Premises of Attorneys Who Are Subjects of Investigations, which can be found at Section 9-2.161(b) of the United States Attorney's Manual. To comply with the policy, the following steps should be taken:
    1. Consideration should be given to whether the information sought can be obtained from other sources or through a subpoena. If other avenues are available, a search warrant is not appropriate.
    2. The search warrant should be drawn as specifically as possible to reduce the need to search and review privileged material to which no exception applies.
    3. A privilege team, consisting of agents not involved in the underlying investigation, should be designated for the search. The purpose of the privilege team is to prevent exposing investigating agents and prosecuting attorneys to privileged material not covered by an exception.
    4. Prior to any material being seen by the investigation team, the privilege team will view all attorney material that in any manner may be privileged. The privilege team, which will be advised by at least one Counsel attorney, will determine what material is to be viewed by the agents involved in the underlying investigation.
    5. Written instructions should be prepared for distribution to the privilege team. The instructions should set forth procedures designed to reduce the intrusion into privileged material. The instructions should further ensure that the privilege team does not reveal any information to the investigation team unless instructed by the Counsel attorney advising the privilege team.
    6. The affidavit in support of the warrant should attach the privilege team instructions or, at a minimum, should generally state the government's intention to employ procedures designed to ensure that the search does not violate attorney-client privilege.

[9.4] 9.6.3  (06-30-1998)
Warrants Directed at Special Group of Individuals

  1. Chief Counsel and the Department of Justice, Tax Division, must approve the following search warrants if it involves warrants that are directed at the offices, structures, or premises owned, controlled, or under the dominion of a subject or target of an investigation who is:
    1. an accountant;
    2. a lawyer;
    3. a physician;
    4. a public official or political candidate;
    5. a member of the clergy;
    6. a news media representative;
    7. a labor union official;
    8. an official of an organization deemed to be exempt under Section 501(c)(3) of the Internal Revenue Code.
  2. In instances where Tax Division authority is not delegated, specific prior written approval of the Tax Division must be obtained. The delegated official has discretion to seek Tax Division advice or approval in all instances. Within ten (10) working days of the execution of the warrant, the U.S. Attorney shall notify the Tax Division, in writing, of results of the search and transmit copies of the warrant (and attachments and exhibits), inventory, and any other relevant papers.

[9.4] 9.6.4  (06-30-1998)
Wagering Investigations

  1. Request for search warrants in wagering tax cases are not subject to the procedures outlined in 9.5.1 and 9.5.2, since wagering cases are under the jurisdiction of the Department of Justice (DOJ), Criminal Division, rather than the tax division. Process all requests for search warrants in wagering tax cases as follows:
    1. The Chief, CI, may authorize special agents to apply for search warrants in the enforcement of the wagering tax laws.
    2. The Chief, CI, will, upon approval of District Director, obtain the approval of District Counsel on the legal sufficiency and form of affidavits for warrants prior to contacting the United States Attorney and the federal magistrate to obtain a search warrant.

[9.4] 9.6.5  (06-30-1998)
All Other Investigations

  1. Search warrant requests for all other investigations may be approved by:
    1. Any United States Attorney; or
    2. A permanently appointed representative within the United States Attorney's office assigned as chief of criminal functions.

[9.4] 9.7  (06-30-1998)
APPLICATION FOR A SEARCH WARRANT

  1. After preparation of the affidavit, the special agent's next step is to make application for a search warrant before one of the issuing authorities. Ordinarily, this person will be a United States magistrate who will, after review of the affidavit, place the special agent under oath and sign the warrant. (If necessary the special agent should tactfully insist that they be sworn.) The magistrate will then prepare a search warrant based upon information and probable cause contained in the affidavit. Each special agent who submits an affidavit should appear in person before the issuing authority and execute the affidavit. The warrant must state the names of persons whose affidavits support it. A warrant is invalid if the affidavit is made by a person in a false name.
  2. The search warrant should be directed to a special agent or any other authorized officer of the United States commissioned to enforce or assist in enforcing the law.

[9.4] 9.8  (06-30-1998)
EXECUTION OF A WARRANT

  1. The execution of a search warrant is directed to an authorized officer of the United States who is commissioned to enforce or assist in enforcing any law or to a person authorized by the President, commanding them forthwith to search the person or place for the property described in the warrant and to bring it before the judge or magistrate.
  2. Service of the warrant must be effected in the daytime unless the judge or magistrate has inserted in the warrant a direction that it may be served at any time in the day or night. The Federal Rules of Criminal Procedure (Rule 41(h)) states that: The term daytime is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m. according to local time.
  3. The warrant must be executed and a return made to the judge or magistrate within 10 days from the date of the warrant.

[9.4] 9.8.1  (06-30-1998)
Preparation for the Search

  1. The special agent in charge of the investigation will brief his or her Group Manager, Branch Chief or Chief, as deemed necessary by district management policy; or sensitivity of the investigation and raid situation on all appropriate aspects of the search warrant activity, e.g., preparation; degree of risk; sensitivity of the raid activity; potential for news media attention per the risk assessment guidelines, Exhibit 9.3.6-2.
  2. A special agent should be designated as a raid leader. The raid leader should address the following:
    1. Determine the number of agents and equipment needed for the warrant.
    2. Prepare a map and diagram of the location and the premises to be searched.
    3. Make specific assignments for each agent.
    4. Brief the search warrant team on the duties of each agent, acquaint them with the map and diagram, describe the individuals and paraphernalia expected to be in the premises.
    5. Discuss protective measures for personal safety of agents and alleged violators.
    6. Arrange for the necessary equipment to conduct the search.
    7. Discuss methods of communication between members of the team.
    8. Decide the time to start the search.
  3. The raid leader is responsible for reviewing the Search Warrant Checklist (Exhibit 9-1) when planning this enforcement activity.

[9.4] 9.8.2  (06-30-1998)
The Approach and Search

  1. Conduct all search warrants on the assumption that the individuals sought are on the alert and possess the same type of weapons as the search warrant party and under pressure of the search may attempt to use them. Conspicuously display badges on your person to identify yourself as law enforcement when entering the premises. This will provide identification as to law enforcement activity and will aid in avoiding confusion on the part of the occupants of the premises.

[9.4] 9.8.2.1  (06-30-1998)
Approach

  1. The exact approach utilized by the search warrant team depends upon many factors. The most desirable situation is to approach the place to be searched from many different directions and cover each exit. If the location of the place to be searched is isolated and driving directly to the location could possibly warn the occupants to enable them to escape, to destroy evidence, or to arm themselves, then consider leaving the automobiles and approaching by foot. Each agent should proceed to his or her respective post. Gain entrance swiftly to avoid giving the occupants time to destroy the records, documents, or paraphernalia to be seized.

[9.4] 9.8.2.2  (06-30-1998)
Gaining Entrance and Serving Search Warrant

  1. Use the utmost of professionalism when serving and executing a search warrant. Always keep the safety of the agents paramount.
  2. Each location to be searched is different, and therefore, should be approached in a fashion which will address the uniqueness of the location. Generally, the special agent charged with the responsibility of serving the search warrant and at least one other agent should go to the door of the premises, knock, identify themselves, state purpose for being there, and ask for admittance. Once admitted, read the search warrant to the person in control of the premises and serve them with a copy of the warrant. If the occupants are attempting to destroy evidence or paraphernalia when the agents gain entrance, take immediate steps to prevent this even if it occurs before the search warrant is read. Immediately secure the location keeping in mind the safety of the agents and the prevention of the destruction of evidence.

[9.4] 9.8.2.3  (06-30-1998)
Forcible Entrance

  1. Sometimes it is necessary to force entrance if the occupants refuse to answer or open the door. An officer is allowed to break open any door or window of a house to execute a search warrant if, after notice of the agent's authority and purpose, they are refused admittance, or when necessary, to liberate the agent or anyone helping him or her execute the warrant. 18 USC 3109. It may also be advisable to use subterfuge to gain entrance if it is suspected or known that the premises are protected (e.g. by steel doors or bars) and that such protection would delay the agent to such an extent that the evidence could be destroyed. Although a special agent has authority to use either force or subterfuge, care should be taken not to give the suspect a basis for claiming an unreasonable search.

[9.4] 9.8.2.4  (06-30-1998)
Securing the Premises

  1. After gaining entrance and serving the search warrant, assemble all occupants of the premises in one room and place them under control of at least two agents. Ask if there are any weapons located anywhere on the premises or persons. Do a visual and physical search of the immediate premises and all persons before leaving them in the control of the two agents. At this time, questioning of suspects, if practicable, should be started by agents assigned to this duty.

[9.4] 9.8.2.5  (06-30-1998)
The Search

  1. The following are actions the special agent may want to consider while executing a search:
    1. Prior to the commencement of the search, photograph or videotape each room to be searched.
    2. Make a thorough search of the premises to find and seize all articles of evidential value.
    3. At least two agents should be present at all times while a search is conducted.
    4. Mark all articles which may be of evidential value for identification. These markings should be of such a character as to not injure the evidence itself, yet not be subject to obliteration. The identification should contain information as to the agent or agents who found the item, date, time, and exact spot where it was located. The identification of documents and chain of custody are discussed in The Investigative Process Hand Book.
    5. At the conclusion of the search, photograph or videotape each room and the property seized, while it is still at the place where it was discovered. Photographs made during this time are very effective to refresh the agent's memory as well as documenting the condition of the place searched.
  2. After proper identification of each item, the best method of maintaining the chain of custody is to appoint one special agent to have continuous control of all evidence until he produces it at the trial of the case.

[9.4] 9.9  (06-30-1998)
SEIZURES UNDER WARRANT

  1. Evidence, paraphernalia, and property used or intended to be used in violation of internal revenue laws and other related offenses can be seized by special agents. See the Asset Forfeiture Handbook for information regarding Title 18 and Title 31 seizures and forfeitures. When a valid search is made pursuant to a warrant, property related to another crime may be legally seized.

[9.4] 9.9.1  (06-30-1998)
Inventory of Seized Property Under Warrant

  1. After proper identification, inventory all property seized. The following conduct applies:
    1. Prepare the inventory list in the presence of the applicant for the warrant and the person in control of the property, if they are present. If the person in control is not present, then the presence of at least one credible witness, besides the applicant for the warrant, is acceptable.
    2. The items named in the search warrant and seized must be listed on the back of the warrant.
    3. List the items seized but not named in the warrant on a separate inventory.
    4. Receipt for inventory is signed by the applicant and given with a copy of the warrant to the person in control of the property. If no one is present, leave a copy of the receipt and warrant in the place where the property was seized.
    5. Notify the appropriate enforcement agency when contraband articles are seized. Examples of this are illegal firearms, narcotics, and counterfeiting equipment.

[9.4] 9.10  (06-30-1998)
RETURN ON WARRANT, WITH INVENTORY

  1. The return on the warrant must be made to the judge promptly, together with a written inventory of any property taken.
  2. The inventory must be verified (affirmed under oath) by the officer who executed the warrant. Only the property named in the warrant may be seized under the authority granted by the warrant.

[9.4] 9.10.1  (06-30-1998)
Seizure of Prohibited or Contraband Articles

  1. Prohibited or contraband articles which possession of are a crime, which were discovered incident to the search but which were not named in the warrant, may be seized. Do not include these articles in the inventory made to the judge or magistrate. List them in a separate inventory, issue a receipt for the items and notify the appropriate enforcement agency of the seizure of the articles.

[9.4] 9.10.2  (06-30-1998)
Motion for Return of Property

  1. In instances of an unlawful search and seizure, or deprivation of property, a formal request for return of property may be made to the district court in the district in which the property was seized on the ground that the person is entitled to lawful possession of the property. Present evidence to the court on any issue of fact necessary to make a decision.
  2. If the motion is granted, the property will be returned, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.
  3. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.

[9.4] 9.10.3  (06-30-1998)
Motion to Suppress

  1. A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12.

[9.4] 9.10.4  (06-30-1998)
Return of Papers to the Clerk

  1. The federal magistrate before whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other papers in connection and shall file them with the clerk of the district court for the district in which the property was seized.

[9.4] 9.11  (06-30-1998)
PARTICIPATION IN SEARCHES CONDUCTED BY OTHER AGENCIES

  1. Special Agents can assist other agencies in the execution of a search warrant, including interviewing subject and related individuals during the execution of the warrant. However, CI cannot interview third party and/or subjects after the execution of other agencies' warrants without a numbered subject investigation.
  2. Because of the possibility of legal actions involving special agents for alleged crimes and torts committed by other participants in the search over whom IRS has no control, and the risk that data obtained by the IRS as a result of the search could be suppressed if the search is deemed to be illegal, the following guidelines apply

[9.4] 9.11.1  (06-30-1998)
Approval

  1. Prior approval of the District Director or designee not below a Chief, CI, is required when service personnel participate in the execution of a federal, state or local non-IRS search or arrest warrant related to the IRS mission (e.g., in joint investigations where a Title 26 or an IRS Title 31 investigation is not involved in the particular search or arrest).

[9.4] 9.11.2  (06-30-1998)
Evidence Accepted as a Result of Non-IRS Search

  1. Prior to expending manpower investigating a tax case arising from the evidence seized as a result of a executed non-IRS search, consult with District Counsel as to the legality of the warrant, the methods used in the search, the objects seized during the search, and any other legal problem that may arise if the evidence were to be subsequently used in a criminal or civil tax case.

[9.4] 9.12  (06-30-1998)
REASONABLE EXPECTATION OF PRIVACY

  1. The supreme court has adopted a two-pronged test to determine whether the Fourth Amendment protects an asserted privacy interest.
    1. First, the individual must exhibit a subjective expectation of privacy.
    2. Second, the expectation of privacy must be one that society is prepared to recognize as reasonable.
  2. The courts have found a reasonable expectation of privacy to exist:
    1. in a person's home;
    2. one's person against the surgical intrusion to remove a bullet fired by a victim;
    3. a person's luggage;
    4. a public employee's desk or file cabinets in his office.
  3. The courts have found no reasonable expectation of privacy:
    1. in a warrantless installation of a pen register on a telephone;
    2. publicly displayed wares in a bookstore;
    3. searches and seizures of trash or other abandoned property.

[9.4] 9.13  (06-30-1998)
UNREASONABLE SEARCHES

  1. The reasonableness of searches and seizures is determined in each case based upon the facts and circumstances of the particular case. Generally, a search and seizure made without a warrant is considered unreasonable unless:
    1. It is made incident to an arrest and is limited to the area within the arrestee's immediate control, i.e., the area from within which he might gain possession of a weapon or destructible evidence.
    2. The occupant of the premises who has authority understandingly consents.
  2. Unreasonable search and seizure cases usually result from a lack of understanding of the law and the failure to state in sufficient detail the actual known or available facts, either in applications for warrants or while testifying to the facts. Another cause of illegal searches has been over zealousness on the part of the officers. As a general rule, special agents will find it necessary to secure search warrants in tax cases, since very seldom will a crime be committed in their presence which would give them sufficient probable cause to arrest and then make a search incident to the arrest.

[9.4] 9.13.1  (06-30-1998)
Determination of the Reasonableness and the Legality of a Search

  1. An unreasonable search and seizure, in the sense of the Fourth Amendment, does not necessarily involve the employment of force or coercion, but may be committed when a representative of any branch or sub-division of the government, by stealth, through social acquaintance, or in the guise of a business call, gains entrance to the house or office of a person suspected of a crime, whether in the presence or absence of the owner, and searches for abstracts papers without consent.
  2. In Will P. Clay v. U.S., special agents conducted a 2 months surveillance which indicated that Clay was operating a lottery business involving a pattern requiring him to be at certain places at certain times during the day. He used various automobiles during the period of surveillance and was observed passing and receiving articles common to a lottery business. Based upon this surveillance, Clay was stopped on a highway by special agents and his automobile searched. Clay was arrested after a special agent observed a lottery booklet on his person. The court held that it was an unreasonable search and seizure without the proper search warrant. The mere act of a known gambler driving an automobile on a public highway will not justify an officer forcing him to stop to be searched or arrested for a suspected violation. Further, nothing discernible to the senses reasonably indicated that a crime was then being done until the agent saw, and demanded, the lottery booklet. But this was too late, for the strong arm of the law had peremptorily stopped this traveler and placed him under evident immediate command of government officers. The court pointed out there was insufficient evidence indicating affirmative acts for the agents to reasonably believe that a felony had been committed. Therefore, it was essential that the agents discern some evidence by their senses to infer a belief in them that a misdemeanor was being committed in their presence.
  3. In determining the question of reasonableness, the best rule of procedure is to operate as far away from the dividing line as the available facts of the case will permit and always on the legal side thereof. In addition to learning as much of the law as possible and how to relate the facts in all of their details, the special agent should constantly ask the question, Are my actions reasonable in the eyes of the courts?

[9.4] 9.13.1.1  (06-30-1998)
Who May Challenge or Consent a Search

  1. Anyone legitimately on the premises where a search occurs may challenge its legality. It is not necessary for them to show ownership, right to possession, or dominion over the premises. Entering a house with permission of the occupant's landlord, or a hotel room with consent of the management or a desk clerk, is insufficient, and a search and seizure resulting from such entry is illegal. However, a landlord may consent to a search of the areas of common usage, such as hallways and common dining areas; and after a hotel guest has checked out permanently, a hotel employee may consent to a search for items left behind.
  2. The Supreme Court has refused to rule specifically on whether a wife may, in her husband's absence, waive his constitutional rights by consenting to a search of their home. However, where one spouse consents to search of the property of the other, the search has almost always been upheld with two exceptions:
    1. If one spouse permits the search of the other's personal effects stored in a separate drawer, the third-party consent may be invalid.
    2. If one spouse notifies the police of evidence incriminating the other out of anger at the latter, some courts have held the consent to seizure of the evidence not binding.
  3. A search has been deemed reasonable where a partner, or office manager, consented to it, but not where the consent was that of a handyman in a defendant's store.

[9.4] 9.13.2  (06-30-1998)
Plain View Doctrine

  1. The plain view doctrine provides that a law enforcement officer may seize evidence, even though it may not be related to the alleged crime justifying the search when the law enforcement officer:
    1. Is lawfully on the premises by virtue of searches pursuant to warrants issued for other purposes, searches pursuant to exceptions to the warrant requirement, or the performance of general police duties; and
    2. Inadvertently comes upon immediately apparent incriminating evidence.
  2. The plain view doctrine does not allow the seizure of material when the incriminating or evidential character of the material becomes known only after close inspection. Nor does it allow law enforcement officer examination of items to expand from observation into a general exploratory search. As the Supreme Court states in Texas v. Brown, the plain view doctrine may be better understood not as an exception to the warrant requirement, but rather as an extension of the officer's justification for being present when the sighting is made. There must be probable cause to believe that the items seized under the plain view doctrine are evidence of a crime.

[9.4] 9.13.3  (06-30-1998)
Exclusionary Rule Suppressing Evidence

  1. The exclusionary rule suppressing evidence seized in violation of the Fourth Amendment applies to state, as well as federal, officers in any criminal case. Where the state and federal officers have an understanding that the latter may prosecute in federal courts offenses which the former discover in the course of their operations, and where the federal officers adopt a prosecution originated by state officers as a result of a search made by them, the same rule as to admissibility of evidence obtained in the course of the search should be applied as if it were made by the federal officers themselves or under their direction. These decisions and others in the same vein are of particular importance since CI, in some instances, may adopt tax-related cases from state officers.

[9.4] 9.14  (06-30-1998)
SEARCHES WITHOUT WARRANTS

  1. Searches without warrants are limited to the search of an arrestee in the course of an arrest for weapons and a search made with the consent of the occupant of the premises.

[9.4] 9.14.1  (06-30-1998)
Searches Incident to Arrest

  1. Special agents should not, in the course of an arrest, conduct a warrantless search of a premises for evidence. Limit the search to the person of the arrestee. There is no prohibition against warrantless searches for weapons, when necessary. For example, if during the execution of an arrest warrant, the subject moves towards a desk drawer, that drawer may be searched to determine if it contains a weapon. Move the subject to a place where he or she has no access to a weapon. 18 USC 2236
  2. If, when applying for an arrest warrant, there is probable cause for believing evidence of a crime can be found at a specific location, apply for a search warrant as well. If probable cause as to the presence of evidence on the premises is developed only after the execution of the arrest warrant, the arresting officer may go before a magistrate to secure a search warrant. Other members of the arresting party may remain on the premises in order to prevent destruction of evidence in the interim.

[9.4] 9.14.2  (06-30-1998)
Searches Made With Consent

  1. A special agent can make a search at the request or with the consent of the occupant of the premises. However, a search made with permission of the occupant's landlord, and without consent of the occupant, is illegal.
  2. The person who consents to the search must be the one who has such right or a person authorized to act for him/her. A spouse may not ordinarily waive the rights of the other spouse unless authorized by the other spouse to do so. An employee has no authority to waive the constitutional rights of an employer unless the employee is authorized to act as an agent for the employer.

[9.4] 9.14.2.1  (06-30-1998)
Warning Administered for Consent Search

  1. The following warning should be given when any person is requested to waive service of a search warrant and to voluntarily consent to a search of his or her person or premises: Before we search your premises (or person), it is my duty to advise you of your rights under the Fourth Amendment to the Constitution. You have the right to refuse to permit us to enter your premises (or search your person). If you voluntarily permit us to enter and search your premises (or to search your person), any incriminating evidence that we find may be used against you in court, or other proceedings. Prior to permitting us to search, you have the right to require us to secure a search warrant.
  2. Adults are not constitutionally entitled to any warnings prior to being asked to consent to a search. Special agents should, however, inform children of their right to refuse to consent to a search without a warrant. Case law has established that children, minorities and others who because of their relationship in the community would not be aware they would have the right to refuse, should be made aware of this right. Examples of this would be individuals lacking the command of the English language and those who would not realize they had the right to refuse the request of law enforcement.
  3. Giving the above warning in paragraph (1) does not eliminate the necessity for also giving the Miranda statement of rights outlined in Document 5661, when a person in custody is to be questioned on matters other then the request for consent to search. Exhibit 5-7 contains the statement of rights.

[9.4] 9.14.2.2  (06-30-1998)
Written Waiver of Rights

  1. Whenever practicable, a written waiver of the Fourth Amendment rights should be obtained from the person granting consent in order to help establish that consent was specific and clear and that the waiver was made voluntarily with knowledge and understanding of their constitutional rights.

[9.4] 9.14.2.3  (06-30-1998)
Searches in Which Consent is Not Required

  1. The guidelines contained in 9.13.2.1(1) and (2) are not applicable to situations in which consent to search or service of search warrants are not required under existing law, such as searches of persons lawfully arrested, lawful searches of vehicles or vessels, or frisking for weapons for an officer's protection if the officer has reason to believe that he or she is dealing with an armed and dangerous individual.

[9.4] 9.14.3  (06-30-1998)
Searches of Vehicles and Vessels

  1. The right to search vehicles or vessels without a search warrant arises from their mobile character. Special agents must be able to show probable cause and the impracticability of obtaining a search warrant to search vehicles or vessels without a warrant.
  2. The same rules and caution apply when conducting a search warrant of a vehicle or vessel as apply when conducting any other search.

[9.4] 9.14.4  (06-30-1998)
Searches and Seizures of Abandoned Property

  1. A warrantless search and seizure of abandoned property is generally valid unless it intrudes onto premises under the exclusive control of some person who does not consent to the search. This allows special agents to legally conduct a warrantless search and seizure of a taxpayer's trash when it is found in a common area for pick up by a trash collector or with the trash collector's consent, when it has already been picked up by the trash collector. To protect an individual's Fourth Amendment rights, trash sought to be searched/seized must be outside the curtilage of a home or premises.

[9.4] 9.15  (06-30-1998)
ADMISSIBILITY OF EVIDENCE

  1. The exclusionary rule prohibits introduction of evidence obtained by federal officers in violation of constitutional provisions, at any stage of an investigation or proceeding. The exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint.
  2. The good faith exception to the exclusionary rule provides that absent unusual circumstances, when law enforcement officers are found to have reasonably relied on a facially valid warrant, issued by a neutral and detached magistrate and said warrant is later found to be defective, then the exclusionary rule will not be applied to bar the use of the evidence obtained by the warrant, i.e., the evidence will not be suppressed. However, the Eleventh Circuit has held that a search warrant containing an erroneous description of the place to be searched and no other identifying information did not describe the place to be searched with sufficient particularity to be facially valid; and the good-faith exception did not validate the search where the procedures followed by the executing officers created the risk that the officers would undertake a general search of an entire neighborhood.
  3. The Supreme Court has established that the exclusionary rule does not apply to exclude unconstitutionally obtained evidence from a federal civil tax trial of the victim of the unconstitutional search or seizure, if the unconstitutional actions were only those of state officers, and the state officers had no responsibility or duty to, or agreement with, the federal government. The Supreme Court has not determined whether the exclusionary rule is to be applied in a civil proceeding where there is federal participation in, or involvement in, or encouragement of, the search or seizure.
  4. Evidence obtained by state officers under circumstances which would constitute unreasonable search and seizure under the Fourth Amendment if obtained by Federal officers is equally inadmissible in a Federal criminal trial. This repudiates the former so-called silver platter doctrine which had allowed Federal courts to admit evidence illegally obtained by state officers if there had been no collusion by Federal officials. The Federal court must decide for itself if there has been unreasonable search and seizure by state officers, even though the state court has already considered the question and irrespective of the state court's findings.
  5. The Supreme Court has held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of the home. See The Investigative Technique Handbook, 9.4.10.3 which provides a more detailed discussion on trash pick-up.
  6. The rule excluding evidence unlawfully taken does not apply where the unlawful taking was by private persons without participation or collusion of law enforcement officers.
  7. The Supreme Court has upheld the use of an informant or an undercover agent to obtain incriminating evidence against a defendant. The Constitution does not protect a wrongdoer's misplaced belief that a person to whom he or she voluntarily confides wrongdoing will not reveal it. However, once a suspect has been indicted and has counsel, it is a violation of his right to counsel for an undercover agent to deliberately obtain incriminating statements from him in the absence of counsel, and to pass these on to the prosecution.
  8. Illegal seizure of property does not mandate dismissal of a forfeiture action if the basis of forfeiture can be demonstrated by untainted evidence.

[9.4] 9.16  (06-30-1998)
RIGHTS OF CITIZENS

  1. It is extremely important for special agents when executing search warrants to protect the rights of all citizens and insure that successful prosecution will not be affected because of procedural errors.
Exhibit [9.4] 9-1  (06/30/98)
Search Warrant Checklist
>
(1) Pre-Operation Intelligence Gathering:
a. Obtain personal and criminal histories of subject and associates. Obtain photographs or composites.
b. Determine if there is other law enforcement interest in subject or associates which could affect the operation or provide intelligence.
c. Determine the subjects' and associates' mode of operation, habits, and general behavior to decide when the enforcement action should occur and what the individuals' likely response would be to the enforcement action.
(2) Site Survey:
a. If possible, photograph or diagram site from all angles. Note areas to approach and enter safely.
b. Look for obstacles that would complicate approach and entry (wall, fences, booby traps, alarms, dogs, etc.)
c. Determine if any special equipment is needed to gain entry, control occupants, secure evidence, etc.
d. Identify staging area.
e. Prepare maps of area and directional strip maps.
f. Identify nearest medical facility or available medical support.
g. Identify any fixed target parking problem and solution.
(3) Staffing:
a. Select trained and experienced agents. Consider those who have previously worked and practiced together (especially with respect to building entry and room clearing).
b. Consider assistance/support from local law enforcement or other federal law enforcement agencies.
c. Select command post personnel at base.
(4) Equipment:
a. Service weapon, ammunition, and handcuffs.
b. Special weapons and ammunition that may be needed to accomplish a specific task.
c. Body armor, raid jackets, or other required clothing. All 1811's participating in the execution of a search warrant should wear a ballistic vest. See Use of Ballistic Vests in Enforcement Operations, Chapter 3, located in the FISCAL AND PERSONNEL MATTERS HANDBOOK (9.11).
d. Flex cuffs.
e. First aid kit.
f. Flashlights, red lights, sirens, bullhorn, animal restraint gear, and specialty vehicles.
g. Entry tools and special access gear such as ladders, wire/bolt cutters, sledge hammers, rams, etc.
h. Raid kit for identification, documentation, and preservation of evidence.
(5) Communication:
a. Test radios for communication between teams and command posts. Note problems.
b. Establish operating channels and/or alternate agency frequencies.
c. Determine special communications equipment needs.
d. Determine radio dead spots.
e. List radio call signs and code names for subjects, sites, and personnel.
f. List telephone numbers for command posts, target sites, etc.
(6) Pre-Operational Briefing:
a. Prepare a written plan for distribution to personnel. Written plan will include description of actions to be taken, photographs, diagrams, maps, lists of personnel, and other pertinent information as available.
b. Conduct face-to-face meeting of all personnel who will be working at a site to discuss the written plan.
c. Discuss specific procedures for seizing, handling, and preserving evidence.
d. Discuss operational coordination (problems with multiple sites, other agencies, etc.)
e. Prepare a risk assessment.
f. Rehearse, if practical.
g. Distribute the final written search warrant plan and ensure alterations to the written plan are noted by each involved individual on the written plan. The written search warrant plan will contain a written description of each team member's actions, contingency plans, descriptions of sites and vehicles, times, call signs.
h. Each involved person should be able to cite portions of the written plan when describing his/her duties.
i. Discuss the need for code words for starting or aborting the operation.
(7) Post-Operational Review:
a. All personnel involved including management should discuss specifically who, what, where, when, and how as they relate to tactics, plans, and execution.
b. Identify problems with tactics, equipment, training, etc. Assure solutions are identified.

Internal Revenue Manual  

Hndbk. 9.4 Chap. 9 SEARCH WARRANTS AND WARRANTLESS SEARCHES

  (06-30-1998)


05/02/2001 14:28:57 EST