D.Colo.: Hearing ordered for participation of private parties in a search

Defendant gets a hearing on his claim that National Insurance Crime Bureau unlawfully participated in execution of a search warrant allegedly in violation of 18 U.S.C. § 3105. United States v. Griggs, 2009 U.S. Dist. LEXIS 47819 (D. Colo. May 22, 2009). § 3105 provides:

A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

The court held:

The motion alleges that the federal agents executing the warrant permitted individuals associated with the National Insurance Crime Bureau (“NICB”) — a private, insurance industry-created entity with no actual law enforcement powers — to assist in the execution of the warrant, to seize computers and other property belonging to DRI, and to conduct essentially custodial interviews of witnesses in the course of executing the warrant. The Defendants argue that 18 U.S.C. § 3105 provides that only designated law enforcement officers may execute a warrant, except where a law enforcement officer requests the aid of another to assist and only where the officer is “present and acting in its execution.” The Defendants contend that they and others at DRI were led to believe that the NICB representatives were, in fact, law enforcement officers and that the NICB representatives “prevented them from leaving the facility and threatened them when challenged about that proposition.”

The Government denies that the NICB representatives meaningfully participated in the execution of the warrant. According to the Government, the NICB representatives “did not search for or take custody of evidentiary items during the warrant’s execution,” they “did interview some of the people present on the premises while the warrant was being executed,” and that they “helped load previously seized items onto a truck at the conclusion of the search,” all of which was done at the request and with the consent of the law enforcement officials executing the warrant. With regard to the interviews, the Government contends that the taking of witness statements is not a component of executing a search warrant — an action intended to effect the seizure of property and persons — and thus, to the extent that permitting the NICB representatives to do so was improper, that impropriety does not affect the reasonableness of the search of DRI’s offices and the seizure of evidence. Moreover, the Government contends that to the effect the NICB interviews may have violated Fourth and Fifth Amendment rights of the individuals interviewed, the Defendants are not entitled to vicariously assert those rights on behalf of the interviewees.

It is apparent that there is a significant factual dispute between the parties as to the nature and extent of the NICB representatives’ involvement in the execution of the warrant. Presentation of evidence is necessary to determine the nature and extent of the representatives’ involvement.