May An Officer Ask a Business to Execute a Search Warrant on Itself?

Once upon a time, search warrants were simple. An officer would obtain a warrant to search a suspect’s home or some other physical location connected to a crime. The officer would go to the location, announce his or her presence, and conduct the search. But these days, officers frequently want to obtain records and other evidence from businesses not suspected of any wrongdoing. For example, they want bank records that can be used to trace the suspect’s ill-gotten gains. They want cell site location information that can be used to tie the suspect to the crime scene. And they want email records that show communication between the suspect and his or her coconspirators. Officers do not typically kick down these businesses’ doors and start rummaging around, partly because that would be needlessly disruptive and partly because officers might have a hard time locating evidence stored in the cloud or on a server located who-knows-where. Instead, officers obtain a search warrant, then send a copy of the warrant to the company in question and ask the company to search its own records and provide responsive materials. Is that OK?

Generally, officers must execute search warrants. That is so both under the Fourth Amendment and under state statutory law. See G.S. 15A-247 (“A search warrant may be executed by any law-enforcement officer acting within his territorial jurisdiction, whose investigative authority encompasses the crime or crimes involved.”).

Officers may enlist assistance from private individuals. “At least when such a person can be of assistance to the executing officers in determining the location or identity of the items to be seized, it is not objectionable that the officers entitled to execute the warrant . . . are accompanied during execution by a private person, such as a victim whose stolen property is being sought.” Wayne R. LaFave et al., Search and Seizure § 4.10(d). However, such individuals normally must be supervised by law enforcement officers and must be present for a reason pertinent to the execution of the warrant. See Wilson v. Layne, 526 U.S. 603 (1999) (stating that “[w]here the police enter a home under the authority of a warrant to search for stolen property, the presence of third parties for the purpose of identifying the stolen property has long been approved by this Court and our common-law tradition,” but holding that the presence of media members was a Fourth Amendment violation as they had no role to play in effectively completing the search).

But what about outsourcing the search entirely to private individuals? When officers seek information from banks, cell phone companies, internet service providers, and the like, the officers normally do not meaningfully supervise the employees who carry out the searches. Indeed, the officers usually are not even physically present during the search. This is a step beyond the situations described in the previous paragraph, where private individuals were present alongside officers executing warrants.

There is surprisingly little authority on the propriety of executing search warrants in this way. However, what seem to be the two leading cases both conclude that it is permissible.

In State v. Kern, 914 P.2d 114 (Wash. Ct. App. 1996), the court considered the propriety of having bank employees search the bank’s records pursuant to a search warrant. The court determined that this was not an improper delegation of an officer’s duty to execute the warrant. It stated that “[a] police officer will not ordinarily perform a search of a bank’s records, indeed may not be qualified to do so, and police presence is not necessary for the search to go forward.” It was enough that, in that case, the officer “appeared at the bank, spoke with bank personnel, and required them to provide him with the records specified in the search warrant.” Cf. Sampson v. Blue Cross Blue Shield of Michigan, 2015 WL 348620 (E.D. Mich. Jan. 26, 2015) (unpublished) (“Because the search warrant at issue called for the seizure of bank accounts, the two officers who executed it . . . played a fundamentally different role than officers who execute a search warrant at a home, office, or other kind of business. When executing a search warrant at a home or typical office, the officers actually enter that physical space themselves and search for items that the warrant authorizes them to seize [whereas] . . . the two officers who executed the search warrant at the bank simply presented the search warrant to bank officers and then the bank officers determined which funds would be seized and turned over to the officers. In other words, the bank’s own personnel, rather than the officers, played the key role in determining the funds that were authorized to be seized.”).

The other landmark case in this area is United States v. Bach, 310 F.3d 1063 (8th Cir. 2002), which concerns the use of a search warrant to obtain records from an internet communication company. The case began when an officer “obtained a state search warrant to retrieve from Yahoo! e-mails between the defendant and possible victims of criminal sexual conduct, as well as the Internet Protocol addresses connected to his account.” The officer faxed the warrant to Yahoo!, which searched its servers and provided responsive information that helped to convict the defendant of child pornography offenses. The defendant argued that the warrant was not properly executed but the Eighth Circuit disagreed. It stated that the “Fourth Amendment does not explicitly require official presence during a warrant’s execution,” and that “[c]ivilian searches are sometimes more reasonable than searches by officers.” It concluded that the process used in the case was reasonable and therefore consistent with the Fourth Amendment given that “the actual physical presence of an officer would not have aided the search” and that “the technical expertise of Yahoo!’s technicians far outweighs that of the officers.”

As I read Kern and Bach and the peripheral cases in this area, courts are simply recognizing reality: it isn’t feasible for officers to execute certain kinds of search warrants themselves. Insisting that they do so would be a waste of law enforcement resources, would unduly interfere with the operations of private businesses, and would do nothing to protect the privacy of those suspected of wrongdoing or of innocent parties.

Is an officer required to allow a business to execute a search warrant on itself? I don’t think so. An officer may want to conduct a search of a business him- or herself, perhaps because the officer suspects that the business is complicit in the criminal activity or because the officer has had past experience with the business failing to conduct an adequate search of its own records. Such an approach would be authorized by tradition, by G.S. 15A-247, and by the language typically used in search warrants, which instructs the officer “to search the premises . . . described in the application for the property and person in question.” See AOC-CR-119. Of course, search warrants must be executed in a reasonable manner, and an officer should not execute a search warrant in a way that severely damages a business’s operations without a good reason for doing so. Further, with multi-state businesses and businesses that store data in the cloud, difficult questions may arise about an officer’s territorial jurisdiction to execute a search warrant personally. Those questions are beyond the scope of this post.

Is a private business required to execute a search warrant at an officer’s request? Most of the time, private businesses that receive search warrants seem to be willing to look for relevant and responsive materials. But I don’t believe that they must do that. They can’t obstruct the an officer’s search – an issue I wrote about in this prior post – but I’m not aware of any legal obligation to assist an officer in executing a search warrant. Instead, I think businesses make a practical calculation that it will be much less disruptive to their operations to conduct a search themselves than to have a bunch of officers and digital forensic analysts blundering around in their databases.

What about privileged or confidential records? This post focuses on run-of-the-mill business records. If an officer wants to obtain privileged or confidential records, or wants to search a sensitive location, additional considerations may be present. To provide a few examples, I wrote here about search warrants for lawyers’ offices. My colleagues John Rubin and Aimee Wall questioned in footnote 62 of this paper whether a search warrant is an appropriate mechanism for obtaining confidential medical records. And 42 C.F.R. 2.65 sets out a special process for obtaining certain records related to substance abuse treatment. Bank records have their own set of statutes in Chapter 53B of the General Statutes, but G.S. 53B-4(3) provides that a search warrant is a sufficient process for obtaining such records.

When a business searches itself, how should the return and inventory be handled? A search warrant must be executed within 48 hours. G.S. 15A-248. Once it is executed, the officer must prepare a “receipt itemizing the items taken,” which should be provided to the person from whom the items are seized. G.S. 15A-254. And “without unnecessary delay,” G.S. 15A-257, the officer must return the warrant and the inventory to the clerk of the issuing court. It isn’t totally clear how to comply with these requirements when an officer submits a search warrant to Facebook shortly after the warrant is issued but does not receive responsive files for several weeks.

I can imagine at least two approaches here. One would be to wait until Facebook sends the responsive information to make the return. At the point, the officer would make the return, indicating that the warrant was executed when it was submitted to Facebook (to demonstrate compliance with the 48-hour requirement), and submit an inventory at the same time. The other would be to go ahead and make the return once the warrant has been submitted to Facebook, either without an inventory or with an inventory that says something like “responsive files to be determined by Facebook,” and then perhaps to submit a revised inventory once Facebook actually sends the files.

I wrote about returns and inventories as they relate to forensic examinations of digital devices here. One of the important points from that prior post that is also pertinent here is that minor variations in practice around returns and inventories aren’t typically grounds for the suppression of evidence. So I think any good faith, reasonable effort to comply with the statutes is probably OK.