Targeted in Real Estate Fraud Investigation: How to Protect Yourself

The years following the Troubled Asset Relief Program have seen a backlash against the banking and real estate industries. Investigations into allegedly fraudulent practices on the part of mortgage brokers and lenders are common. Many hard working professionals can be swept up into an investigation for anything from clerical errors to outright fraud. It is important that any persons of interest in an investigation to any real estate fraud are familiar with their rights.

Constitutional Rights

Investigations into white-collar crimes such as fraudulent real estate transactions will usually involve government regulators demanding extensive documentation from the party being investigated. Authorities will also demand access to the workspace and attempt to interview any persons of interest. While government agents can request whatever they want, the US Constitution prohibits them from compelling parties to perform certain actions.

The Bill of Rights contains two constitutional amendments relevant to such an investigation. The Fourth Amendment to the United States Constitution protects citizens against "unreasonable searches and seizures." The Fifth Amendment prohibits the government from compiling a person to be a witness against himself or herself.

Fourth Amendment Protection

The Fourth Amendment requires a warrant to be issued based upon probable cause prior to any search of any "persons, houses, papers, and effects." If you ask a criminal defense attorney, warrant-less searches are presumptively unreasonable. There are a number of exceptions to the warrant requirement, but none of them apply in the context of an investigation into possible white-collar criminal acts. The warrant itself must state with particularity the things to be designated and places to be searched. A weak warrant is suspect to attack in court either because the warrant was overly broad or it was not supported on probable cause.

Consent is the easiest method that an officer can use to bypass the warrant requirement. Any concerns or persons of interest relating to any investigation should never consent to an entry by law enforcement into a dwelling or office space. Investigators will often contact persons of interest in the hopes of gaining consent to look at any files available. If the suspect consents, there will be no warrant to attack. If the investigators threaten to get a warrant, make them do so.

There is a caveat to the warrant requirement. Contrary to popular belief, law enforcement agents who serve a warrant are not required to furnish a copy of the warrant to someone at that location immediately upon serving the warrant. A warrant is a court order and it can be obtained over the phone. As long as a valid warrant exists at the time of the search, officers may execute it. Never consent to a search; If law enforcement officers have a warrant, they will search anyway.

Fifth Amendment Protection

The Fifth Amendment protects citizens from being assembled to incriminate themselves. The defendant is never required to divulge any information that may incriminate himself or herself. This is a right enshrined in the Bill of Rights and supersedes any state or federal laws to the contrary. The government also may not compel testimony regarding an act that was legal but may be used to convict the defensive of something else. Whenever possible, remain silent! Persons of interest may always assert their Fifth Amendment rights relating incriminating or potentially incriminating matters subject to certain limitations.

However, testimony or document production may be subpoenaed if the information would not incriminate the person being compelled. A subpoena duces tecum is a court order to appear and provide certain documentation while a subpoena ad testificatum is a court order to appear and provide testimony. If the information is not incriminating, a person may be subpoenaed during an investigation. That person must comply with the court order.

Investigations into real estate fraud and other white-collar crimes can involve numerous persons and various legal entities. Ordinarily innocent people may violate various paperwork or record-keeping requirements on a daily basis. If approached by government agents or regulators requesting information or an "interview," say nothing, consent to nothing, and contact an attorney immediately. Competent representation can help ensure that the person of interest does not voluntarily hand the prosecution amunition for use against him or her.

Source by BJ Jeffries