Whose Paper Is It?

Thomas N. Kiehnhoff
tkiehnhoff@rmqlawfirm.com
Reaud, Morgan & Quinn
Beaumont, Texas

When a business of any size or complexity becomes the target of a criminal search warrant, the first attorneys on the scene typically represent the company and not its employees. Often, the broadly phrased "all records" warrant served by the search team is analyzed from the perspective of the business and the relaxed Fourth Amendment standards that apply to it. The primary focus of the company team may be on overseeing sampling, the collection of business documents subject to the attorney-client privilege and the like.

This analysis, while necessary and proper, may ignore another important threshold of protected interests at the business; namely, arguably private papers kept in the offices and work spaces of the employees at the business being searched and the very real Fourth and Fifth Amendment rights possessed by those employees with respect to those papers.

The Fourth Amendment to the United States Constitution guarantees that: "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 issue, 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 Court has held that the Fourth Amendment creates a personal right. Katz v. United States, 389 U.S. 347, 351 (1967) ("The Fourth Amendment protects people not places"). For that reason, the capacity to claim the protection guaranteed by the Fourth Amendment depends on whether the person claiming the right has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143 (1978). While the text of the Fourth Amendment specifically identifies a person's home as a place where the expectation is clearly present, the Court has expanded standing to assert the protections of the Amendment to other places, like commercial property. New York v. Burger, 482 U.S. 691, 699-700 (1987).

The expectation of privacy of an owner or operator of a business is "attenuated in commercial property employed in 'closely regulated' industries." Id. In fact, "[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an enterprise." Id. There is no similar case law attenuating the rights of their employees; at least with respect to their personal "papers" at the workplace.

While a reasonable expectation of privacy is the touchstone for identifying the zone of people and things protected by the Fourth Amendment, the warrant requirement of the amendment assures that the government cannot negate protected expectations of privacy by the simple expedient of announcing that it intends to search. When a warrant is required, it must be based on probable cause and describe both the place to be searched and the things to be seized with "particularity."

With respect to persons and their homes, the Fourth Amendment's requirement that warrant particularly describe the place to be searched and person or things to be seized "makes general searches impossible and prevents seizure of one thing under warrant describing another and nothing is left to discretion of officer executing warrant as to what is to be taken." Berger v. New York, 388 U.S. 41, 58 (1967). Again, the requirement of particularity and the prohibition against general searches have been relaxed in the case of so-called "all records" searches of businesses. United States v. Humphrey, 104 F.2d 65, 68-69 (5th Cir.), cert. denied, 520 U.S. 1235 (1997); United States v. Logan, 250 F.3d 350, 364-66 (6th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 216 (2001); United States v. Mathison, 157 F.3d 541, 549 (8th Cir 1998), cert. denied, 525 U.S. 1089 (1999); United States v. Vitek Supply Corp., 144 F.3d 476, 480-81 (7th Cir. 1998), cert. denied, 525 U.S. 1138 (1999).

The contrast between the differing rights and privileges of a business and its employees is better developed in the case law surrounding grand jury subpoenas. The explanation may be as simple as the fact that there is more time to think when a subpoena is served than during the pressure-cooker of a search warrant. When a grand jury subpoena for "all records" of a certain type is served on a business it is very common for the scope of the request to include information kept in employee e-mails, Palm Pilots, computer calendars, as well as traditional day planners and the like. Employees can and do use these handy storage bins for personal information. In some cases, businesses have a policy that both permits and controls such private use.

The protection against self-incrimination afforded to persons by the Fifth Amendment does not extend to most business entities. Bellis v. United States, 417 U.S. 85 (1974); Braswell v. United States, 487 U.S. 99, 100 (1988). The practical effect of this rule with respect to employees is that when an individual who would otherwise be protected by the privilege is a representative of a business and a grand jury subpoena is issued to the business, the "official records of the organization held by them in a representative rather than a personal capacity cannot be the subject of their personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally." Braswell, 487 U.S. 110-112; Bellis, 417 U.S. 88. The truly private papers of the employee would be protected by the privilege.

Identifying personal versus business records can be a matter of intense personal interest to an employee when a grand jury subpoena embraces a data source that contains both personal and business information. Unfortunately, the "balancing test" used to determine whether it is a personal (protected by the Fifth Amendment) or business (not protected) record is hard to use and even harder to employ as a planning tool. In re Grand Jury Proceedings, 55 F.3d 1012, 1014-15 (5th Cir. 1995).

An employee's interest in protecting personal papers is equally compelling when the agent for their capture is a search warrant rather than a grand jury subpoena. Go-Bart Importing, Co. v. United States, 282 U.S. 344, 356-57 (1930). (The Fourth Amendment also protects "papers and effects" which are subject to a reasonable expectation of privacy, even in a business setting.)

If an employee properly asserts his Fourth or Fifth Amendment rights and privileges, an in camera, post-search analysis of the documents seized under seal may establish that the "paper" was personal. A determination that the paper was not properly seized under the warrant or that it is inadmissible for Fifth Amendment reasons is critical to both the employee and the business. If the constitutional rights of the employees are overlooked during a search, both the employee and the company may be unhappy to discover that important rights were waived when they are named as defendants in an indictment.

There are many reasons in today's business environment for a company to take steps to protect the legitimate expectations of employees to privacy in the workplace. Any checklist for responding to a search warrant should include a consideration of these important issues.