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

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.