The Volokh Conspiracy

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District Court Rejects Claim That "FBI Misled Judge in Obtaining Warrant To Seize Hundreds of Safe Deposit Boxes"

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I posted Sunday about the post alleging that the FBI misled judge (and the L.A. Times story following up on that); just today, though, Judge Gary Klausner (C.D. Cal.) seems to have rejected that allegation, in Snitko v. U.S.:

Plaintiffs' other Fourth Amendment argument is that the Government misled Judge Kim in its warrant affidavit, thus breaching its duty of candor. Specifically, Plaintiffs note that the affidavit states only that the Government intended to inventory the box contents, while omitting the fact that investigators were making preparations to forfeit much of that property.

Naturally, law enforcement agents may not submit warrant affidavits that contain "material falsities or omissions." The test for determining whether a false statement or omission was material is whether an affidavit containing the omitted material would have provided a basis for a finding of probable cause." If probable cause would have remained even if the omitted facts were included in the affidavit, an omission is "immaterial." Further, an omission relating to "how the search would be conducted," rather than relating to "whether a warrant should issue" in the first place, is also immaterial.

Here, Plaintiffs do not argue that the purported omission—that the Government had made certain preparations to forfeit boxholder contents—had any effect on the existence of probable cause to search and seize USPV's property, including the nests of boxes. Rather, they base their argument on two Ninth Circuit cases that address alternative types of improper affidavit omissions.

In United States v. Comprehensive Drug Testing, Inc. (9th Cir. 2010), the Government sought a warrant to search the defendant's computers, which contained data on steroid tests conducted on professional baseball players. However, the Government only had probable cause to retrieve the electronic files of ten players. In its affidavit, the Government informed the magistrate that there was a significant risk the data it sought might be destroyed, which required a broad seizure of all data on CDT's servers, including that for which the Government had no probable cause. What the Government failed to tell the magistrate, however, was that CDT had "agreed to keep the data intact" for a certain amount of time, an omission that "created the false impression that, unless the data were seized at once, it would be lost." The Court found that this omission caused the magistrate to issue a warrant he may not otherwise have issued.

Here, by contrast, the omission of the Government's forfeiture preparations did not "create[] [a] false impression." The affidavit was rife with details of prior investigations into individual USPV boxholders that resulted in forfeiture, and it noted that the agents executing the warrant would inventory the contents of all individual boxes. Any reasonable magistrate would have inferred that the inventory could lead to the potential discovery of criminal proceeds in certain boxes, which would then lead to forfeiture. [For more on the other precedent, and other matters, see the opinion. -EV] …

In all, Plaintiffs have not demonstrated either that: (1) the omission of the Government's forfeiture plans from the affidavit was material to a finding of probable cause as to USPV; or (2) that the Government's conduct in this matter was equal to or greater than the violative conduct in CDT …. Thus, the Court finds that Plaintiffs' second Fourth Amendment argument fails.

Thom Mrozek, a spokesman for the U.S. Attorney's Office, characterized the matter thus:

The court's ruling expressly rejected every claim of improper conduct. In fact, prosecutors and agents acted professionally and ethically during the investigation. Contrary to the assertions made by the plaintiffs and adopted by some in the media, investigators were open and honest with the court that authorized the search and seizure warrants. This ruling demonstrates that the actions taken in relation to a business that catered to criminals were legally authorized, adhered to policy and were conducted in full compliance with the Constitution.

Congratulations to Andrew Brown, Maxwell K. Coll, and Victor A. Rodgers, Jr., who represented the government in this case.