Civil asset forfeiture is already pretty bad and unconstitutional. Unsurprisingly, the FBI is trying to take it to the next level.
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Tomorrow, I'm flying to Los Angeles for oral argument in what may be the most important Fourth Amendment case pending in the United States today. The basic facts: The FBI broke open and searched hundreds of safe deposit boxes without any reason to think the boxholders did anything wrong.
U.S. Private Vaults, a business in Beverly Hills, offered a private and secure place where people could store their most valued, sensitive possessions. In March 2021, the FBI raided USPV, broke open every single box in the vault, and looked through all the contents. The FBI ran all cash in the vault by drug dogs, opened envelopes and photographed the contents, and ultimately sent everything worth over $5,000 to asset forfeiture---initiating proceedings to keep that property forever.
The FBI did all that pursuant to a warrant, but, critically, the warrant specifically said that it did not "authorize a criminal search or seizure of the safety deposit boxes." That was an important limitation: The FBI had reason to think that USPV, the business, had violated the law, but the FBI had no basis for any individualized probable cause as to any of the boxholders.
The FBI, though, had what must have seemed like an evil genius plan. The warrant allowed the FBI to seize the "nest" of safe deposit boxes -- the metal shell in which all the boxes were housed -- and then, having seized the nest, the FBI decided that it would have to "inventory" all the contents.
The inventory doctrine is a Fourth Amendment doctrine that allows for routine administrative searches of arrestees or impounded automobiles. It has never, in the history of the country, been applied to a sweeping search of hundreds of safe deposit boxes. But, no doubt, the FBI figured there's a first time for everything.
The only problem is the search the FBI conducted was not an "inventory." An inventory is supposed to safeguard property against claims of theft and loss, but here the FBI was already planning to keep everything in the boxes---using civil forfeiture. The FBI concocted its forfeiture plans months before the seizure, but it did not mention them anywhere in the warrant affidavit.
The search also included features that had nothing to do with generating an inventory. The FBI ran all cash over $5,000 by drug dogs ($5,000 because the FBI decided anything below that amount was not worth their time trying to forfeit). The FBI opened envelopes and photographed sensitive personal documents found inside. The FBI directed all the agents during the search to make "observations" designed to link property to drug trafficking. None of that had anything to do with preparing an inventory.
All in all, the FBI sought to forfeit over a hundred million in cash seized from the vault, plus untold millions more in gold, silver, and other valuable property.
The Institute For Justice sued and largely thwarted the FBI's forfeiture plans. Millions of dollars in property was ultimately returned. But now the FBI retains thousands of pages of records documenting the contents of the boxes -- including legal documents, personal notes, financial records, and health records. All of that is held in the SENTINEL database, a database that (in the FBI's words) "can be used to identify connections between cases and patterns of activity" and "may reveal previously unknown relationships among individuals and groups under investigation."
So why is the case so important? The fundamental principle at stake is that if the government wants to search and seize your property, it has to have some reason to think you did something wrong. The FBI came up with a blatant scheme to circumvent that fundamental principle, and, so far, no court has held them to account.
And if the FBI can get away with this here, it's a green light for the government to try the same ruse again throughout the country. And it's not just safe deposit boxes. The government could pull the same trick with storage lockers, hotels, even apartment buildings.
But even more fundamentally than that, the basic question here is whether there is going to be any consequence for an obvious attempt by a federal agency to circumvent the Fourth Amendment. Are there consequences for this kind of blatant disregard for constitutional rights? And if not, what kind of society do we live in?
Tom |
