Federal Judge Says FBI Misled Magistrate When Seeking Safe Deposit Warrants, OKs Searches Anyway

from the probable-cause-means-pretty-much-fine dept

Last March, the FBI raided a storefront safety deposit box service owned by US Private Vaults. US Private Vaults is all about privacy. It offers customers something akin to end-to-end encryption for their physical goods. Very little customer information is retained and only customers have access to their possessions. The company does not carry a master key.

This apparently led the FBI to believe the vault service was being used to store proceeds of criminal activity. It obtained a search warrant and yanked out the entire contents of the company’s Los Angeles storefront. Then it searched the contents of the boxes it had taken for evidence of criminal activity.

That would normally be fine, considering the FBI is in the busting criminals business. But it pointedly told the judge who approved the warrant that it wouldn’t do the very thing it began doing as soon as the boxes were in its possession. This is from the FBI’s warrant affidavit:

This warrant does not authorize a criminal search or seizure of the safety deposit boxes. In seizing the nests of safety deposit boxes, agents shall follow their written inventory policies to protect their agencies and the contents of the boxes. Also in accordance with their written policies, agents shall inspect the contents of the boxes in an effort to identify their owners in order to notify them so that they can claim their property.

The FBI did actually notify some owners, but only via forfeiture proceedings under the theory the property was illegally obtained. It was a major haul for the agency — nearly $86 million in cash alone — and all from a single raid.

Some box owners sued in an attempt to block the FBI from seizing their property. Some of this litigation was successful. Most of the seizures, however, went unchallenged. The Institute for Justice stepped in to challenge seizures, pointing out the FBI’s seemingly deliberate lie about its plans for the boxes it had seized.

Unfortunately, the federal court handling this case doesn’t think the FBI’s lie matters, at least not in terms of determining probable cause. The court apparently agrees the magistrate was misled by the warrant affidavit which swore the FBI would not search the boxes to further its criminal investigation. But misleading another court is fine with this court, since the FBI probably would have just come up with another satisfactory excuse for its pretextual searches.

Here’s what little the court [PDF] has to say about the FBI’s true motives — the ones it concealed from the magistrate judge:

Given this evidence, there can be no question that the Government expected, or even hoped, to find criminal evidence during its inventory [of the seized boxes].

But that apparently doesn’t matter. A pretext still works if there’s a legitimate excuse for continuing to rummage through the boxes even after finding identifying info that would allow the FBI to notify the property’s owners. The FBI was also performing an inventory of box contents, and that’s all the pretext the government needed to turn an innocuous search for people’s info into a search for criminal evidence.

An impermissible investigatory motive must be the only reason the agents conducted the inventory.

[…]

Once the nests were seized, the warrant authorized the agents to inventory their contents, an inventory which was intended to “protect the FBI, [] to get an accounting of what’s actually there, [] to protect us against an accusation of theft or loss, [] to protect us against hazardous material, and … to get a full, you know, accounting of what’s there when we return it.”

[…]

It beggars belief that agents would have worked in this manner solely to invent a pretext for a criminal search of the box contents.

Yeah, well, I don’t think that really beggars belief. It sounds like the sort of thing law enforcement officers do all the time — work backwards to probable cause from mere pretexts, occasionally dressing things up with plausible deniability and/or parallel construction. Certainly none of this was presented to the judge when the warrant was sought. In fact, the opposite was asserted: the government would not be looking for criminal evidence, something it immediately began doing under the pretense it wanted to protect itself against accusations of wrongdoing.

As for the probable cause, the court says it still exists even if the government’s misleading statements about only caring about identifying box owners were excised.

The affidavit was rife with details of prior investigations into individual USPV boxholders that resulted in forfeiture, and it noted that the agents would have inferred that the inventory could lead to the potential discovery of criminal proceeds in certain boxes, which would then lead to forfeiture.

Probable cause to seize was probable cause to search, even if the FBI misled a judge and ignored its own policies. That’s the final call. This ruling does nothing for those challenging the searches. All it really does is refine the blueprint the government uses to bypass Fourth Amendment protections.

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Companies: us private vaults

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Comments on “Federal Judge Says FBI Misled Magistrate When Seeking Safe Deposit Warrants, OKs Searches Anyway”

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12 Comments
David says:

It beggars belief...

It beggars belief just what will “beggar belief” with different people.

I get cognitive dissonance when reading something like

It beggars belief that agents would have worked in this manner /solely/ to invent a pretext for a criminal search of the box contents.

and yet I am not sure that the judge actually intended to be sarcastic here. He is living in a world where FBI agents do not fabricate excuses.

At any rate, to be “pinky swear” proof, judges need to be much more rigid about throwing out “fruit from the poisoned tree”. You cannot reliably prove intent, so if rights are to be a thing, actions need to count at face value.

In particular if the progression to “accidental” discoveries is as direct and straightforward and with obvious illicit gains attached as here.

“But we are the good guys and indistinguishable from angels” is the straight and broad road to corruption.

Anonymous Coward says:

Based on this, I’m now pretty sure every FBI agent some combination of Paedophile, Drug Dealer, Thief, and Tax Evader.

When do we get to imprison the lot of them? Destroy their lives? Destroy their futures? Even if they aren’t criminals, who cares? Thats what criminals say after all. Why let them walk around even, they’ll probably just break the law anyway.

These people should be under a properly funded and properly managed microscope something that is under the purview of an independent organisation that they are mandated to follow. They have shown time and time again that they canny be trusted. Now is when society needs to roll them into reality, and any objection nust be clearly defined and provable. Everything else is just their nomenclature for “I broke the law, stop looking at me you criminal!!”

That One Guy (profile) says:

'It's less of a rule than an entirely optional guideline you see...'

I have to wonder whether it’s corruption or cowardice that causes so many judges to immediately lose their spines anytime someone with a badge enters the room.

‘Yes they did what they explicitly said they wouldn’t, engaging in a bullshit search to gather information that the company could have just given them in order to thoroughly search every box they could to find goodies, but so what, it’s not like the law requires warrants that themselves require specific details regarding ‘what’, ‘where’ and ‘why’ to engage in searches or anything.’

At this point judges like this might as well drop the farce and say the quiet part out loud: ‘The law doesn’t apply to law enforcement and they can violate it at their discretion with no penalties.’ Same result but it would at least be honest.

anon says:

Listen to Steve Lehto's take on the subject

He has some pointed comments about the FBI’s behavior.

Feds seize 1000 safe deposit boxes with one warrant:
https://www.youtube.com/watch?v=oy3623YRsMk

UPDATE: FBI Warrant DID NOT Cover Deposit Box CONTENTS!
https://www.youtube.com/watch?v=LjXTV5xmIMk

Feds Now Want to Keep Safe Deposit Box Contents
https://www.youtube.com/watch?v=O4OVzbg5CM0

Judge Shuts Down FBI on Safe Deposit Box Forfeiture
https://www.youtube.com/watch?v=vFh61CvhB80

“The FBI Lied” About Plans for Seized Safe Deposit Boxes
https://www.youtube.com/watch?v=vy5A8VIWmxg

FBI Used Misleading Affidavit to Seize Beverly Hills Boxes
https://www.youtube.com/watch?v=wJf7ZHaQLsc

Contact your congressmen and demand that the FBI obey the laws as they were written. I think they should all be charged with conspiracy.

ECA (profile) says:

Lets seeeee.

FBI agents raided a vault company, seizing more than $86 million in cash as well as jewelry and gold from 1,400 safe-deposit boxes

The vault company was shut down following the raid and pleaded guilty to conspiracy to launder drug money.

There is more.

None of the people who owned the boxes has been charged after almost five years of investigating; various agencies concluded “the problem was the business itself,” court documents said.

Regarding the unreturned items, Eimiller said that agents “outlined evidence of widespread criminal wrongdoing in court filings while establishing a simple procedure to return safeguarded contents to box holders who were not otherwise subject to asset forfeiture.”

Which could lead to Entrapment.

NOW if we are willing to do this with minor crime, Why arent we doing it to the Major corps? CANT FIND THE MONEY.

Anonymous Coward says:

Ok, so, about that probable cause:

The affidavit was rife with details of prior investigations into individual USPV boxholders that resulted in forfeiture,

Not convictions. Not even trials, or specific accusations. Just forfeitures. We already know how those work.

Shorter: We took people’s stuff before, therefore, we should be able to take people’s stuff en masse since it is conveniently located. What? File charges against anyone? Sounds like paperwork.

LostInLoDOS (profile) says:

Time for a jury

To do its job. Not the fake one the judge says, the real job… of justice.
A jury has the right to find or guilty or guilty by invalidating a low.
Despite bench commentary of “within” the law, I’d the law itself is unjust, or unconstitutional, the jury can nullify the law.

It takes a dedicated activist jury to do so as they will almost certainly face contempt charges, but it very much is within their ability.

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