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38.1.1.3
(08-11-2004)
Search Warrant Procedures
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The Fourth Amendment provides 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
Fourth Amendment 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. Further, the Fourth Amendment provides
that all warrants shall be based upon probable cause and supported by oath or affirmation.
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Rule 41 of the Federal Rules of Criminal Procedure contains the procedures for obtaining a warrant. Briefly, Rule 41 provides
for the issuance of a warrant by a federal magistrate or a judge of a state court of record within the district where the
property or person sought is located, upon request by a federal law enforcement officer or an attorney for the Government.
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The warrant may be issued to seize:
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Property that constitutes evidence of the commission of a crime
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Contraband, the fruits of a crime, or things otherwise criminally possessed
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Property designed or intended to be used as an instrumentality of a crime
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People, when there is probable cause for their arrest
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The warrant should be based upon a sworn affidavit that establishes the grounds for issuance. If the magistrate (federal officer)
is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist and approves
the warrant, then the officer has ten days to execute the warrant. The search should be performed during the daytime (between
6:00 a.m. and 10:00 p.m.) unless the issuing authority has authorized execution at other times. The officer taking the property
is required to provide a copy of the warrant and a receipt for the property taken. The return to the magistrate shall be made
promptly and accompanied by a written inventory of the property taken.
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Congress has empowered special agents to seek and to execute search warrants in their investigation of their statutes of jurisdiction.
A search warrant is often indispensable in investigating criminal conduct related to violations of the tax code. As a general
principle, special agents are guided in their use of search warrants by Criminal Investigation policies and procedures. Special
agents are constrained by the requirements of the IRM regarding the tactical choice to use a search warrant, which requires
them "to execute their law enforcement responsibilities by continually assessing… the probable impact of their enforcement
activities on the image of the Service."
This directive is interpreted by both the Service and Criminal Investigation management as requiring Criminal Investigation
to employ the least intrusive means needed in their investigations. Both Service and Department of Justice (DOJ) policy allow
for the use of search warrants in tax and tax-related investigations "with restraint and only in significant tax cases."
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Criminal Investigation’s policy on search warrants is:
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Prior to the approval of a search warrant enforcement action, Counsel will review all search warrants where a special agent
is the affiant for the warrant.
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This review will be conducted for warrants in both tax and money laundering investigations (including those investigated under
the OCDETF program). Counsel’s review is required for search warrants obtained in both administrative and grand jury investigations.
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Counsel will review the affidavit for the search warrant and the Enforcement Action Review Form. Subsequent to their review,
the Criminal Tax attorney will provide written advice to the Special Agent in Charge (SAC) for the SAC’s consideration in
the search warrant approval process.
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Whenever the subject of a search warrant concerns an individual or entity within the purview of TEGE, Criminal Tax attorneys
are encouraged to contact Criminal Tax Division Counsel for coordination with the Division Counsel/Associate Chief Counsel
(TEGE).
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Counsel will also conduct a post search warrant inventory review for all warrants obtained in tax and tax-related investigations.
They will not conduct an inventory review for warrants obtained in pure money laundering investigations.
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A search warrant authorizes a limited intrusion into an area protected by the Fourth Amendment. A neutral and detached magistrate
(judicial officer) may, upon a finding of probable cause, issue a search warrant. The search warrant must specify with particularity
the area/premises to be searched and the persons or things to be seized. This requirement of particularity prevents a general,
exploratory rummaging in a person’s belongings. The premises to be searched must be sufficiently described to enable the executing
officers to ascertain and to identify it with reasonable certainty. Also, the persons or things to be seized must be specifically
described, leaving nothing to the discretion of the executing officers.
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The use of a search warrant by special agents may be authorized in criminal tax investigations and any other criminal investigation
within the law enforcement jurisdiction of the Service. Criminal Investigation is required, however, to recognize that use
of a search warrant in criminal investigations requires an evaluation of whether less intrusive means are reasonably available
to acquire the evidence sought due to the invasive nature of the search warrant. Criminal Investigation has established a
policy in accordance with the recommendations of the Webster Commission requiring special agents to analyze whether less intrusive
means are reasonably available to acquire evidence sought in a proposed search warrant in all tax and tax-related investigations.
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As set forth in the procedures below, Counsel formally reviews all CI search warrant applications in administrative and grand jury investigations where a special agent is the affiant. In providing
advice on these matters, Counsel should always advise Criminal Investigation whether there is sufficient probable cause to
support the warrant, and, if not, what information is needed to establish probable cause for the warrant. Counsel must also
advise Criminal Investigation whether less intrusive investigative methods are reasonably available to acquire the evidence
sought, but this determination is only required in tax and tax-related investigations.
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Time is of the essence in all search warrant matters; therefore, Counsel should complete its review and advice as expeditiously
as possible. Specific time requirements for completion, review, and rendering of advice should be determined on a case-by-case
basis. In the event written advice cannot be provided within the time frame required, Criminal Tax attorneys may orally communicate
advice to the SAC with the approval of the Area Counsel. All such advice must be memorialized in a memorandum to the SAC as
soon as possible. A detailed explanation of the exigencies warranting the rendition of oral advice in the case must be set
forth in the memorandum.
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Criminal Tax attorneys do not attend or participate in the actual execution of the search, but they should be available by
phone to answer questions that may arise during the search.
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For all tax and tax-related search warrants, Criminal Tax attorneys must conduct a review of the seized property inventory
prepared by Criminal Investigation to ensure the items seized are within the scope of the warrant and to identify any inconsistencies
for Criminal Investigation.
38.1.1.3.1
(08-07-2008)
Search Warrant Authorization
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Authorization. All search warrants where a special agent is the affiant must be approved by the respective SAC prior to execution. The
SAC is required to obtain the advice and assistance of Counsel in the preparation and review of all search warrants prior
to referring them to the appropriate DOJ official for authorization.
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DOJ authorization. DOJ authorization is required prior to execution of a search warrant in a tax or tax-related investigation. Pursuant to
Tax Division Directive No. 52 (revised March 17, 2008), the Tax Division has delegated to US Attorneys the authority to approve
certain Title 26 or tax-related Title 18 search warrants directed at the offices, structures, premises, etc. owned, controlled,
or under the dominion of the subject or target of a criminal investigation. The Tax Division retains exclusive authority to approve search warrants directed at the offices, structures, or premises owned, controlled or under the dominion of a
subject or target of an investigation who is:
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An accountant
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A lawyer
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A physician
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A local, state, federal, or foreign public official or political candidate
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A member of the clergy
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A representative of the electronic or printed news media
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An official of a labor union
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An official of an organization deemed to be exempt under IRC § 501(c)(3)
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Investigations involving third parties. The Tax Division also retains exclusive authority to approve the use of search warrants in criminal investigations involving disinterested third parties, with the exception of:
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search warrants directed to providers of electronic communication services or remote computing services and relating to a
subject or target of a criminal investigation; and
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search warrants directed to disinterested third parties owning storage space businesses or similar businesses and relating
to a subject or target of a criminal investigation.
Note:
Such search warrants no longer require Tax Division approval, unless they relate to a person reasonably believed to be one
of the individuals listed in CCDM 38.1.1.3.1 (2). (See Tax Division Directive No. 52, revised March 17, 2008.)
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Significant case policy. It is the policy of the IRS and the DOJ that search warrants will be utilized with restraint and only in significant criminal
tax cases. The significance of a criminal tax case may be determined by a consideration of such factors as:
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Sensitive Targets. The SAC is required to obtain the concurrence of the respective Director of Field Operations (DFO) for the execution of
a search warrant directed at offices, structures or premises owned, controlled or under the dominion of a person defined below
as a sensitive target. Search warrants requiring DFO concurrence must also be forwarded to the Associate Chief Counsel (CT)
for review and advice.
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An accountant
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A lawyer
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A physician
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A local, state, federal, or foreign public official or political candidate
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A member of the clergy
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A representative of the electronic or printed news media
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An official of a labor union
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An official of an organization deemed to be exempt under IRC § 501(c) or (d)
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Disinterested third parties
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All other search warrants are reviewed by Criminal Tax attorneys in field offices and approved by their respective Area Counsel
or delegate.
38.1.1.3.2
(08-11-2004)
Counsel Review and Advice
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In view of the sensitivity of search warrants, and pursuant to Criminal Investigation policy, Counsel must make a complete
and detailed review of the warrant and supporting documentation for the SAC, evaluating investigative necessity, legal sufficiency,
and policy compliance. The Associate Chief Counsel (CT) and Headquarters attorneys are available for consultation with Criminal
Tax attorneys in field offices, if desired.
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In all cases, the Area Counsel (or delegate) should ensure the three-pronged probable cause test is met. The facts enumerated
in the affidavit should clearly establish there is probable cause to believe:
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A crime has been committed,
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The items sought may be seized by virtue of their connection with the crime, and
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The items sought are on the premises to be searched.
38.1.1.3.2.1
(08-11-2004)
Non-Sensitive Target Search Warrants
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The Criminal Tax attorney prepares a memorandum to the SAC discussing the merits of the warrant.
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The memorandum must address the need for the warrant, the legal sufficiency of the warrant and supporting affidavit, and any
policy concerns raised by the warrant. Question 5B on Criminal Investigation’s Enforcement Action Review Form calls for a
discussion concerning why other investigative methods cannot produce the evidence sought for tax and tax-related investigations.
The SAC is required to evaluate whether the warrant represents the "least intrusive means"
of acquiring the evidence. Counsel, consequently, must assist the SAC in making this determination. In doing so, Counsel
should address whether there are other means available to obtain the records, i.e., whether the taxpayer would provide the
records if asked to turn them over, whether a summons or subpoena could be used to get the records, and whether the records
could be obtained from a third party.
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A copy of the search warrant, exhibits, and memorandum is forwarded to the Area Counsel. The Area Counsel reviews, approves,
and signs the advisory memorandum. (Special Litigation Assistants, Senior Counsel, and attorneys who have been delegated signature
authority may sign the memorandum and then forward a copy of the search warrant, exhibits, and memorandum to the Area Counsel).
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The Area Counsel or the Special Litigation Assistants, Senior Counsel, and attorneys who have been delegated signature authority,
shall forward a copy of all signed search warrant memoranda in both administrative and grand jury investigations to Headquarters
for post review.
38.1.1.3.2.2
(08-11-2004)
Sensitive Target Search Warrants
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The Criminal Tax attorney prepares a transmittal memorandum to the Associate Chief Counsel (CT) discussing the merits of the
warrant and transmits the memorandum and search warrant package to the Area Counsel (or to the Associate Chief Counsel (CT)
if signature authority is delegated). The memorandum must address the need for the warrant, the legal sufficiency of the warrant
and supporting affidavit, and any policy concerns raised by the warrant. Area Counsel reviews, approves, and signs the transmittal
memorandum and transmits the memorandum and complete search warrant package to Headquarters. (Special Litigation Assistants,
Senior Counsel, and the attorney delegated signature authority may sign the memorandum.) If the complete search warrant package
is not forwarded, review by the Associate Chief Counsel (CT) will be delayed pending receipt of the additional information.
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The search warrant package consists of:
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A draft search warrant and supporting affidavit,
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A copy of an Enforcement Action Review form, and
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A copy of the corresponding risk assessment for each specific location to be searched.
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Once received in Headquarters, the transmittal memorandum and search warrant package are reviewed, and an advisory memorandum
to the appropriate DFO is prepared. The memorandum must address the need for the warrant, the legal sufficiency of the warrant
and supporting affidavit, and any policy concerns raised by the warrant. The advisory memorandum is forwarded to the Associate
Chief Counsel (CT) for final review and approval.
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The Associate Chief Counsel (CT) reviews, approves and signs the advisory memorandum and transmits the memorandum and search
warrant package to the appropriate DFO through the Area Counsel.
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The review at both the Associate Chief Counsel (CT) and the Tax Division will be a de novo review of the warrant for legal
sufficiency and policy implications.
38.1.1.3.3
(08-11-2004)
Search Warrant Inventory Review for Tax and Tax-Related Search Warrants
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After the execution of a tax or tax-related search warrant in which a special agent is the affiant, the Criminal Tax attorney,
Senior Counsel, or SLA who reviewed the warrant package shall review the inventory prepared by Criminal Investigation to determine
whether the items seized were within the scope of the warrant.
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In the event that the Criminal Tax attorney identifies any issue with respect to the inventory or the scope of the seizure,
he/she should consult with Criminal Investigation and the DOJ prosecutor involved in the investigation to discuss and to resolve
those issues. The Criminal Tax attorney should attempt to resolve any such issues regarding the inventory prior to drafting
an inventory review memorandum to the SAC. In no event should the Criminal Tax attorney draft a memorandum critical of the
scope of the seizure without raising that issue first with the case agent and the supervising prosecutor, and then, if it
cannot be resolved, with the SAC and CT Area Counsel. If the issues cannot be resolved by speaking with the case agent and
the supervising prosecutor, the Criminal Tax attorney should consult with his/her Area Counsel prior to drafting the inventory
review memorandum.
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Area Counsel shall review, approve, and sign the memorandum. If signature authority has been delegated to the attorney, Senior
Counsel or SLA who reviewed the warrant, Area Counsel should be provided a copy of the memorandum for post review.
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A copy of all inventory review memoranda should be forwarded to the Associate Chief Counsel (CT) for post review.
38.1.1.3.4
(08-11-2004)
General Legal Guidance and Issues
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The following is a suggested format for drafting or reviewing affidavits and warrants:
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The premises to be searched should be described with specificity.
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The property to be seized should be described as specifically as possible, and the relationship of any items described to
the alleged violations should be explained in the affidavit.
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The affidavit should be logically divided with paragraphs consecutively numbered.
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The affidavit should incorporate by reference any diagrams, photographs or other exhibits that bear on probable cause.
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The affidavit should set forth the affiant’s experience and summarize the illegality and the sources of information and should
state the affiant has probable cause to believe certain crimes have occurred and certain specified evidence of those crimes
is on the premises.
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Affidavits should address the credibility and reliability of any informants.
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If affidavits are based on undercover contacts, information relative to these activities should be made available for review.
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The affidavit should identify all targets.
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The affidavit should set forth a description of the unlawful activities in a factual (not conclusory) manner followed by a
factual discussion of location of the evidence and its relationship to the crime. Permissible inferences supported by the
recited facts and circumstances may be included in this discussion.
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Information in the warrant should be corroborated with records, tax returns, and other documents to the extent appropriate.
Note:
See Exhibit 38.3.1-1, Search Warrant Check Sheet, at http://publish.no.irs.gov/getpdf.cgi?catnum=39139.
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In some instances, evidence may be presented to the IRS by other federal agencies, or by state or local authorities that obtained
the evidence through a search or arrest warrant, pen register, or wiretap. Counsel attorneys should evaluate the admissibility
of such evidence before Criminal Investigation relies upon and utilizes the evidence in its search warrant affidavits.
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Search warrants advancing a permeated-with-fraud theory should set forth a detailed discussion of the information supporting
this theory.
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