28 Judicial Administration 2 2006-07-01 2006-07-01 false GUIDELINES ON METHODS OF OBTAINING DOCUMENTARY MATERIALS HELD BY THIRD PARTIES 59 PART 59 Judicial Administration DEPARTMENT OF JUSTICE (CONTINUED) Pt. 59 PART 59—GUIDELINES ON METHODS OF OBTAININGDOCUMENTARY MATERIALS HELD BY THIRD PARTIES Sec. 59.1 Introduction. 59.2 Definitions. 59.3 Applicability. 59.4 Procedures. 59.5 Functions and authorities of the Deputy Assistant AttorneysGeneral. 59.6 Sanctions. Authority:

Sec. 201, Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C.2000aa-11).

 Source:

Order No. 942-81, 46 FR 22364, Apr. 17, 1981,unless otherwise noted.

§ 59.1 Introduction.

(a) A search for documentary materials necessarily involves intrusions intopersonal privacy. First, the privacy of a person's home or office may bebreached. Second, the execution of such a search may require examination ofprivate papers within the scope of the search warrant, but not themselvessubject to seizure. In addition, where such a search involves intrusions intoprofessional, confidential relationships, the privacy interests of other personsare also implicated.

(b) It is the responsibility of federal officers and employees to recognizethe importance of these personal privacy interests, and to protect againstunnecessary intrusions. Generally, when documentary materials are held by adisinterested third party, a subpoena, administrative summons, or governmentalrequest will be an effective alternative to the use of a search warrant and willbe considerably less intrusive. The purpose of the guidelines set forth in thispart is to assure that federal officers and employees do not use search andseizure to obtain documentary materials in the possession of disinterested thirdparties unless reliance on alternative means would substantially jeopardizetheir availability (e.g., by creating a risk of destruction, etc.)or usefulness (e.g., by detrimentally delaying the investigation,destroying a chain of custody, etc.). Therefore, the guidelines in this partestablish certain criteria and procedural requirements which must be met beforea search warrant may be used to obtain documentary materials held bydisinterested third parties. The guidelines in this part are not intended toinhibit the use of less intrusive means of obtaining documentary materials suchas the use of a subpoena, summons, or formal or informal request.

§ 59.2 Definitions.

As used in this part—

(a) The term attorney for the government shall have the samemeaning as is given that term in Rule 54(c) of the Federal Rules of CriminalProcedure;

(b) The term disinterested third party means a person ororganization not reasonably believed to be—

(1) A suspect in the criminal offense to which the materials sought underthese guidelines relate; or

(2) Related by blood or marriage to such a suspect;

(c) The term documentary materials means any materials uponwhich information is recorded, and includes, but is not limited to, written orprinted materials, photographs, films or negatives, audio or video tapes, ormaterials upon which information is electronically or magnetically recorded, but does not include materials which constitute contraband, thefruits or instrumentalities of a crime, or things otherwise criminallypossessed;

(d) The term law enforcement officer shall have the samemeaning as the term “federal law enforcement officer” as defined inRule 41(h) of the Federal Rules of Criminal Procedure; and

(e) The term supervisory official of the Department of Justicemeans the supervising attorney for the section, office, or branch within theDepartment of Justice which is responsible for the investigation or prosecutionof the offense at issue, or any of his superiors.

§ 59.3 Applicability.

(a) The guidelines set forth in this part apply, pursuant to section 201 ofthe Privacy Protection Act of 1980 (Sec. 201, Pub. L. 96-440, 94 Stat.1879, (42 U.S.C. 2000aa-11)), to the procedures used by any federalofficer or employee, in connection with the investigation or prosecution of acriminal offense, to obtain documentary materials in the private possession of adisinterested third party.

(b) The guidelines set forth in this part do not apply to:

(1) Audits, examinations, or regulatory, compliance, or administrativeinspections or searches pursuant to federal statute or the terms of a federalcontract;

(2) The conduct of foreign intelligence or counterintelligence activities bya government authority pursuant to otherwise applicable law;

(3) The conduct, pursuant to otherwise applicable law, of searches andseizures at the borders of, or at international points of entry into, the UnitedStates in order to enforce the customs laws of the United States;

(4) Governmental access to documentary materials for which valid consent hasbeen obtained; or

(5) Methods of obtaining documentary materials whose location is known butwhich have been abandoned or which cannot be obtained through subpoena orrequest because they are in the possession of a person whose identity is unknownand cannot with reasonable effort be ascertained.

(c) The use of search and seizure to obtain documentary materials which arebelieved to be possessed for the purpose of disseminating to the public a book,newspaper, broadcast, or other form of public communication is subject to titleI of the Privacy Protection Act of 1980 (Sec. 101, et seq., Pub.L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa, et seq.)), whichstrictly prohibits the use of search and seizure to obtain such materials exceptunder specified circumstances.

(d) These guidelines are not intended to supersede any other statutory,regulatory, or policy limitations on access to, or the use or disclosure ofparticular types of documentary materials, including, but not limited to, theprovisions of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401, et seq.), the Drug Abuse Office and Treatment Act of 1972, as amended(21 U.S.C. 1101, et seq.), and the Comprehensive Alcohol Abuse andAlcoholism Prevention, Treatment, and Rehabilitation Act of 1970, as amended (42U.S.C. 4541, et seq.).

§ 59.4 Procedures. 1

1 Notwithstanding the provisions of this section, anyapplication for a warrant to search for evidence of a criminal tax offense underthe jurisdiction of the Tax Division must be specifically approved in advance bythe Tax Division pursuant to section 6-2.330 of the U.S. Attorneys'Manual.

(a) Provisions governing the use of search warrants generally.(1) A search warrant should not be used to obtain documentary materials believedto be in the private possession of a disinterested third party unless it appearsthat the use of a subpoena, summons, request, or other less intrusivealternative means of obtaining the materials would substantially jeopardize theavailability or usefulness of the materials sought, and the application for thewarrant has been authorized as provided in paragraph (a)(2) of this section.

(2) No federal officer or employee shall apply for a warrant to search forand seize documentary materials believed to be in the private possession of adisinterested third party unless the application for the warrant has beenauthorized by an attorney for the government. Provided, however, that in anemergency situation in which the immediacy of the need to seize the materialsdoes not permit an opportunity to secure the authorization of an attorney forthe government, the application may be authorized by a supervisory lawenforcement officer in the applicant's department or agency, if the appropriateU.S. Attorney (or where the case is not being handled by a U.S. Attorney'sOffice, the appropriate supervisory official of the Department of Justice) isnotified of the authorization and the basis for justifying such authorizationunder this part within 24 hours of the authorization.

(b) Provisions governing the use of search warrants which mayintrude upon professional, confidential relationships. (1) A search warrantshould not be used to obtain documentary materials believed to be in the privatepossession of a disinterested third party physician, 2 lawyer, or clergyman, under circumstances in which the materials sought, orother materials likely to be reviewed during the execution of the warrant,contain confidential information on patients, clients, or parishioners which wasfurnished or developed for the purposes of professional counseling or treatment,unless—

2 Documentary materials created or compiled by aphysician, but retained by the physician as a matter of practice at a hospitalor clinic shall be deemed to be in the private possession of the physician,unless the clinic or hospital is a suspect in the offense.

(i) It appears that the use of a subpoena, summons, request or other lessintrusive alternative means of obtaining the materials would substantiallyjeopardize the availability or usefulness of the materials sought;

(ii) Access to the documentary materials appears to be of substantialimportance to the investigation or prosecution for which they are sought; and

(iii) The application for the warrant has been approved as provided inparagraph (b)(2) of this section.

(2) No federal officer or employee shall apply for a warrant to search forand seize documentary materials believed to be in the private possession of adisinterested third party physician, lawyer, or clergyman under thecircumstances described in paragraph (b)(1) of this section, unless, upon therecommendation of the U.S. Attorney (or where a case is not being handled by aU.S. Attorney's Office, upon the recommendation of the appropriate supervisoryofficial of the Department of Justice), an appropriate Deputy Assistant AttorneyGeneral has authorized the application for the warrant. Provided, however, thatin an emergency situation in which the immediacy of the need to seize thematerials does not permit an opportunity to secure the authorization of a DeputyAssistant Attorney General, the application may be authorized by the U.S.Attorney (or where the case is not being handled by a U.S. Attorney's Office, bythe appropriate supervisory official of the Department of Justice) if anappropriate Deputy Assistant Attorney General is notified of the authorizationand the basis for justifying such authorization under this part within 72 hoursof the authorization.

(3) Whenever possible, a request for authorization by an appropriate DeputyAssistant Attorney General of a search warrant application pursuant to paragraph(b)(2) of this section shall be made in writing and shall include:

(i) The application for the warrant; and

(ii) A brief description of the facts and circumstances advanced as the basisfor recommending authorization of the application under this part.

If a request for authorization of the application is made orally or if, inan emergency situation, the application is authorized by the U.S. Attorney or asupervisory official of the Department of Justice as provided in paragraph(b)(2) of this section, a written record of the request including the materialsspecified in paragraphs (b)(3) (i) and (ii) of this section shall be transmittedto an appropriate Deputy Assistant Attorney General within 7 days. The DeputyAssistant Attorneys General shall keep a record of the disposition of allrequests for authorizations of search warrant applications made under paragraph(b) of this section.

(4) A search warrant authorized under paragraph (b)(2) of this section shallbe executed in such a manner as to minimize, to the greatest extent practicable,scrutiny of confidential materials.

(5) Although it is impossible to define the full range of additional doctor-like therapeutic relationships which involve the furnishing or development ofprivate information, the U.S. Attorney (or where a case is not being handled bya U.S. Attorney's Office, the appropriate supervisory official of the Departmentof Justice) should determine whether a search for documentary materials held byother disinterested third party professionals involved in such relationships (e.g. psychologists or psychiatric social workers or nurses) wouldimplicate the special privacy concerns which are addressed in paragraph (b) ofthis section. If the U.S. Attorney (or other supervisory official of theDepartment of Justice) determines that such a search would require review ofextremely confidential information furnished or developed for the purposes ofprofessional counseling or treatment, the provisions of this subsection shouldbe applied. Otherwise, at a minimum, the requirements of paragraph (a) of thissection must be met.

(c) Considerations bearing on choice of methods. In determiningwhether, as an alternative to the use of a search warrant, the use of a subpoenaor other less intrusive means of obtaining documentary materials wouldsubstantially jeopardize the availability or usefulness of the materials sought,the following factors, among others, should be considered:

(1) Whether it appears that the use of a subpoena or other alternative whichgives advance notice of the government's interest in obtaining the materialswould be likely to result in the destruction, alteration, concealment, ortransfer of the materials sought; considerations, among others, bearing on thisissue may include:

(i) Whether a suspect has access to the materials sought;

(ii) Whether there is a close relationship of friendship, loyalty, orsympathy between the possessor of the materials and a suspect;

(iii) Whether the possessor of the materials is under the domination orcontrol of a suspect;

(iv) Whether the possessor of the materials has an interest in preventing thedisclosure of the materials to the government;

(v) Whether the possessor's willingness to comply with a subpoena or requestby the government would be likely to subject him to intimidation or threats ofreprisal;

(vi) Whether the possessor of the materials has previously acted to obstructa criminal investigation or judicial proceeding or refused to comply with oracted in defiance of court orders; or

(vii) Whether the possessor has expressed an intent to destroy, conceal,alter, or transfer the materials;

(2) The immediacy of the government's need to obtain the materials;considerations, among others, bearing on this issue may include:

(i) Whether the immediate seizure of the materials is necessary to preventinjury to persons or property;

(ii) Whether the prompt seizure of the materials is necessary to preservetheir evidentiary value;

(iii) Whether delay in obtaining the materials would significantly jeopardizean ongoing investigation or prosecution; or

(iv) Whether a legally enforceable form of process, other than a searchwarrant, is reasonably available as a means of obtaining the materials.

The fact that the disinterested third party possessing the materials mayhave grounds to challenge a subpoena or other legal process is not in itself alegitimate basis for the use of a search warrant.
§ 59.5 Functions and authorities of the Deputy Assistant Attorneys General.

The functions and authorities of the Deputy Assistant Attorneys General setout in this part may at any time be exercised by an Assistant Attorney General,the Associate Attorney General, the Deputy Attorney General, or the AttorneyGeneral.

§ 59.6 Sanctions.

(a) Any federal officer or employee violating the guidelines set forth inthis part shall be subject to appropriate disciplinary action by the agency ordepartment by which he is employed.

(b) Pursuant to section 202 of the Privacy Protection Act of 1980 (sec. 202,Pub. L. 96-440, 94 Stat. 1879 (42 U.S.C. 2000aa-12)), an issuerelating to the compliance, or the failure to comply, with the guidelines setforth in this part may not be litigated, and a court may not entertain such anissue as the basis for the suppression or exclusion of evidence.