Writs of Assistance - is…

In the Courts, sometimes it seems lawyers are still fighting for the principles which drove the American Revolution almost 250 years ago. One of those principles was the unfettered ability of British officials to search the property and papers of colonists - the dreaded “Writs of Assistance.” The writs were essentially open-ended search warrants - to obtain and execute them, officials didn’t need any specific evidence the target of the writ had committed a wrongdoing, and it didn’t need to specify where or what could be searched. In addition, a writ didn’t expire, so the officials could return to search, again and again… until they found something. In one of the most famous trials in Boston over a writ, John Adams later proclaimed “[t]hen and there the child [of] Independence was born.”

Once the colonies were independent, most wrote into their respective constitutions that these types of writs were banned. The 4th Amendment of the US Constitution likewise banned them on the federal level, and later the 14th Amendment of the US Constitution banned them on the state levels as well. Since then, the standard has been a search warrant must contain probable cause that illegal materials will be found in a specific place and a specific time.

Sometimes though, federal officials still can’t help themselves. Sometimes, they still take the mindset you have nothing to worry about if you have nothing to hide. Thankfully, judges are there to quash these illegal searches.

A company called US Private Vaults operated a service providing to its customers safe deposit boxes which the company kept locked in its private vault, much like a bank does. The company came under the suspicion of the FBI and agents obtained and executed a search warrant for the company’s premises. In addition to seizing and searching the company’s property the FBI also seized and searched the safe deposit boxes. At the time the FBI knew the safe deposit boxes were property separate from the company.

After the searches the FBI initiated criminal charges and civil asset forfeiture proceedings against several of the owners of the safe deposit boxes. Several of the owners subject to civil forfeiture proceedings then sued. The issue is, was the search and seizure of the privately owned safe deposit boxes lawful?

The FBI contended the searches of the boxes were lawful because they were not the “subject” of the investigation, and they were required to conduct “inventory” searches as they took the boxes into custody as part of the search of the company’s property. An inventory search is an exception to the warrant requirement which grants law enforcement the ability to search something of which they have lawful control and custody. The purpose of this is to protect the owner’s property in the item being searched. For example, if the police tow your vehicle, they will conduct an inventory search to ensure when you pick up your vehicle later all of your personal property in the vehicle is returned to you. If you happen to have drugs in your car at the time of the search, the police can use the drugs against you in a criminal proceeding.

The United States Ninth Circuit Court of Appeals disagreed with the FBI that the searches were lawful. The trial revealed several issues: the FBI was targeting the boxes as part of its investigation; the Judge who approved the search warrant was not informed of this; the FBI disregarded its own polices in conducting the inventory searches; and, the searches themselves crossed over from an “inventory” search meant to protect the owner’s property into a criminal investigation of the box owner. One of the Circuit Court judges even opined that due to its nature, being a secured box, an inventory search was not necessary.

In the oral argument of the case the judges of the Ninth Circuit Court of Appeals explicitly compared this search to a Writ of Assistance. This is a reminder that in the law, “ancient” principles are still very much alive.

If you have questions about this article, contact Todd Knode (tknode@setlifflaw.com) at 804-377-1277 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.