Ever since Warden v. Hayden, 378 U.S. 294 (1967), established
that the Government could seize ''mere evidence'' pursuant to a search warrant,
the use of search warrants for items, such as personal papers and business
records, became a viable legal possibility. In Warden v. Hayden, although
the items of clothing seized were evidentiary, their seizure did not violate the
Fifth Amendment privilege, since the items were not "'testimonial' or
'communicative' in nature, and their introduction therefore did not compel
respondent to become a witness against himself ..." supra, 302-303. Rule 41(b)
of the Federal Rules of Criminal Procedure echoes this holding and provides that:
"A warrant may be issued ... to search for and seize any ... property that
constitutes evidence of the commission of a criminal offense ...".
In 1976, the possibility that a search and seizure of business records
might violate the Fifth Amendment privilege against self-incrimination was
foreclosed in Andresen v. Maryland, 427 U.S. 463 (1976). The Supreme
Court upheld the search of the defendant's law office and of the office of the
real estate firm which he also controlled, although incriminating business
records were found at both locations. The Court based its opinion on the finding
that the individual against whom the search was directed was not required to aid
in the discovery, production, or authentication of incriminating evidence; thus,
the seizure of the business records was not a violation of the Fifth Amendment.
Cf.United States v. Doe, 52 U.S.L.W. 4296 (Feb. 28, 1984).
The Supreme Court's approval of a law office search in Andresen lends
some support to similar searches in the future. However, the issue of
attorney/client privilege or work-product doctrine was not specifically addressed
in Andresen and is, therefore, still a matter of controversy and sensitivity.
In , the search's legality may depend on whether the status in the investigation
of the individual whose property is searched is that of a disinterested third
party or whether he is believed to have engaged in criminal conduct. SeeZurcher v. Stanford Daily, 436 U.S. 547 (1978); United States v.
Bithoney, 631 F. 2d l (1st Cir. 1980), cert. denied, 449 U.S. 1083
(1981).
Because the questions of privilege and status in the investigation
remain sensitive legal issues, the Tax Division has decided to delegate the
authority to approve search warrants in tax cases only in those limited instances
where the search warrant is directed at offices, structures, or premises owned,
controlled, or under the dominion of the subject or target of a criminal
investigation. The subject, or target, moreover, must not fall into the exempted
categories listed in the delegation order, which categories we deem to be of such
a sensitive nature, from the perspective of tax law enforcement, that prior
approval of the Tax Division is still required before a search warrant is
obtained.
Aside from questions of strict legality, search warrants in tax
investigations involve potential problems and issues intrinsic to tax cases. The
concept of seizing personal or business books and records as the evidence or
instrumentality of a crime is not as direct or simple a problem as is the seizure
of a contraband. These documents usually contain much personal and confidential
information and these very same documents, which, by their own nature, are not
unusual, illegal or dangerous, will be the evidence of or the instrumentality of
the crime to be charged. In addition to the controversial nature of such a
seizure of documents, the requirement that the items to be seized must be named
with specificity is more difficult to meet. In tax cases, the warrant must be
specific, not only regarding the items to be seized and the place searched, but
a specific time frame must also be stated.