A Non-Verbal Response from a Professional Politician

Legal Aspects
4.For the conversation between the company lawyers and the employees to remain privileged it must be kept confidential. The conversation between
the company lawyers and the employees should not be discussed with anyone else; including other employees of the corporation.
Some writers in this area have suggested that the warning should go even further advising the employee of the potential for self-incrimination. In the
public sector Miranda warnings are only required to be administered in situations where the subject is in law enforcement custody, is being interrogated
by a government agent or someone acting on the government’s behalf, and is being questioned. Adding Miranda type warnings to the Upjohn
warnings is not appropriate because the conversation is not done in the custody of law enforcement or even with their participation. One of the key
components requiring the Miranda warning is custody which is clearly not at issue in most internal investigations. Also the questioner in this type of
investigation is not a law enforcement officer nor is likely to be acting at the behest of one.
CFI insider note: It should be noted that these warnings are not applicable to internal investigators conducting inquiries outside the scope of the General
Counsel. Attorney-client privilege is not a simple process protecting documents and notes from discovery simply because an attorney is involved.
If there is a question about attorney-client privilege in an internal investigation, it should be directed to the corporation’s general counsel or outside
counsel for evaluation and ultimate direction.
It may also be appropriate if an investigator is interviewed in an internal investigation that he ask the organization to provide him with separate
counsel or retain one independently to advise him on the potential pitfalls of the investigation.
Search by Private Citizen
U. S. v. Emile, 2015 WL 394-0848 (11th Circuit 2015)
A United Parcel Service the store manager contacted his local police department about two packages that he considered suspicious. The two packages
allegedly containing stereo equipment had been dropped off at his facility for an overnight delivery to a California address. In his report to police he
related that the packages seemed heavily taped and had a chemical odor emanating from them. He also related that the sender had not wanted the
orders consolidated to save money.
Although the UPS manager was told that he was “not” to open the packages at the
behest of police he could do so if he felt they contained hazardous materials. The
store manager decided to open the two packages and found that they did not contain
stereo equipment, but rather cash totaling over $28,000. While the responding the
officer watched the packages being opened he did not participate in opening them or
physically searching the boxes. The officer believing that the cash may have been from
drug sales had a dog examine the cash. The drug dog alerted to the cash and the officer
seized the money as evidence.
Two days later, police visited the address to which the packages were to be delivered.
Bernal who answered the door stepped outside closing it behind him followed by a
strong odor of marijuana. He told the officer that he had shipped the two packages
containing stereo equipment. Bernal was then detained so a search warrant could be
obtained. Bernal’s brother also exited the apartment and was taken into custody. One
of the officers then made a protective sweep of the apartment and noted marijuana in
the apartment.
Investigators working in the
private sector should recognize
that if they are operating with
the police to further law
enforcement efforts the search
will likely be suppressed.
After the search warrant was obtained a search of the apartment revealed evidence of marijuana, guns packing materials, and UPS receipts. Attorneys
for the brothers attempted to suppress the evidence found during this search of their apartment. The court concluded that the opening of the two
packages by the store manager was a private search and was not a “joint venture” between the manager and the police.
The brothers appealed.
Decision: the lower court ruling was affirmed.
In the above case the brothers attempted to suppress the evidence discovered in the apartment as a result of the fruit of the poisonous tree. Their
argument was that the initial opening of the boxes done by the store manager was at the request of the police. In both the lower court and on appeal
the courts concluded that the store manager was acting as a private citizen and not in concert with the police. It was important that the officer told
the store manager he was not open the packages on behalf of the police, but he could do so if he felt that the contents might contain hazardous materials.
The officer took no part in opening or searching the two boxes. Once the contents of the boxes were discovered to be cash and not the stereo
components listed on the packing slip the officer made a logical conclusion that the cash might be the result of drug sales.
Investigators working in the private sector should recognize that if they are operating with the police to further law enforcement efforts the search
will likely be suppressed. However, if the company investigator or employee is acting independently the Fourth Amendment does not apply since the
search is not a government action.
CFInsider Q1 - 2016
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