Ever since Warden v. Hayden, 378 U.S. 294 (1967), established that the Government could seize ''mere evidence'' pursuant to a search warrant, the use of search warrants for items, such as personal papers and business records, became a viable legal possibility. In Warden v. Hayden, although the items of clothing seized were evidentiary, their seizure did not violate the Fifth Amendment privilege, since the items were not "'testimonial' or 'communicative' in nature, and their introduction therefore did not compel respondent to become a witness against himself ..." supra, 302-303. Rule 41(b) of the Federal Rules of Criminal Procedure echoes this holding and provides that: "A warrant may be issued ... to search for and seize any ... property that constitutes evidence of the commission of a criminal offense ...".
In 1976, the possibility that a search and seizure of business records might violate the Fifth Amendment privilege against self-incrimination was foreclosed in Andresen v. Maryland, 427 U.S. 463 (1976). The Supreme Court upheld the search of the defendant's law office and of the office of the real estate firm which he also controlled, although incriminating business records were found at both locations. The Court based its opinion on the finding that the individual against whom the search was directed was not required to aid in the discovery, production, or authentication of incriminating evidence; thus, the seizure of the business records was not a violation of the Fifth Amendment. Cf. United States v. Doe, 52 U.S.L.W. 4296 (Feb. 28, 1984).
The Supreme Court's approval of a law office search in Andresen lends some support to similar searches in the future. However, the issue of attorney/client privilege or work-product doctrine was not specifically addressed in Andresen and is, therefore, still a matter of controversy and sensitivity. In , the search's legality may depend on whether the status in the investigation of the individual whose property is searched is that of a disinterested third party or whether he is believed to have engaged in criminal conduct. See Zurcher v. Stanford Daily, 436 U.S. 547 (1978); United States v. Bithoney, 631 F. 2d l (1st Cir. 1980), cert. denied, 449 U.S. 1083 (1981).
Because the questions of privilege and status in the investigation remain sensitive legal issues, the Tax Division has decided to delegate the authority to approve search warrants in tax cases only in those limited instances where the search warrant is directed at offices, structures, or premises owned, controlled, or under the dominion of the subject or target of a criminal investigation. The subject, or target, moreover, must not fall into the exempted categories listed in the delegation order, which categories we deem to be of such a sensitive nature, from the perspective of tax law enforcement, that prior approval of the Tax Division is still required before a search warrant is obtained.
Aside from questions of strict legality, search warrants in tax investigations involve potential problems and issues intrinsic to tax cases. The concept of seizing personal or business books and records as the evidence or instrumentality of a crime is not as direct or simple a problem as is the seizure of a contraband. These documents usually contain much personal and confidential information and these very same documents, which, by their own nature, are not unusual, illegal or dangerous, will be the evidence of or the instrumentality of the crime to be charged. In addition to the controversial nature of such a seizure of documents, the requirement that the items to be seized must be named with specificity is more difficult to meet. In tax cases, the warrant must be specific, not only regarding the items to be seized and the place searched, but a specific time frame must also be stated.
[cited in USAM 6-4.130]