Crime & Federalism

Yesterday the White Collar Crime Prof Blog gave a valuable (but free!) practice tip (but not legal advice, as no blog ever gives legal advice).  Namely, what should a businessperson do when police officers execute a warrant at his or her business?  Answer: "Many defense lawyers advise their business clients to send all non-essential employees home and to notify counsel, who will be the only person to speak with the agents conducting the search."  Although the tip might seem obvious to most defense lawyers, it's brilliance might not readily be apparent.

Usually government agents will interview employees while conducting a search of a business.  When the defense moves to suppress the statements, the government will argue that the person being interviewed was not in custody.  Thus, the agent was not required to read the employee his Miranda rights before interviewing him.  The government almost always wins these motions, since the Court refuses to recognize that, other than, say, Steven Yagman, most people never feel free to say no to a police officer.  According to the Court, you and I always feel free to leave, even when the officer steps in front of the person and says, "Maybe you should stick around to answer some questions before you get into real trouble."  Again, no custody means no Miranda.

Anyhow, let's say that defense lawyer says to business owner, "Send your employees home."  Businessperson tells employess, "Go home."  Government agent says, "They can't leave."  Well, now we have established custody.  Thus, the government agents may not ask anyone questions without Mirandizing them.  After all, if the person being interviewed is literally not free to leave (since, after all, he tried to leave but was told to stay), then there won't be future litigation over the malleable issue of "custody."  Granted, most people waive their Miranda rights, but at least the person being interrogated might recognize that the dicussion with law enforcement is not a fireside chat.  And maybe he'll keep his mouth shut before talking to a lawyer.

Go here to see why BALCO Labs should have promptly called a white collar criminal attorney.