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This seems very strange so maybe the article is leaving something out but if a warrant for X but not Y can still lead to confiscating Y, then what actually limi

This seems very strange so maybe the article is leaving something out but if a warrant for X but not Y can still lead to confiscating Y, then what actually limits the power of warrants? > In their warrant request, the FBI and U.S. attorney’s office asked U.S. Magistrate Judge Steve Kim for permission to seize the store’s racks of safe-deposit boxes for forfeiture, but “not their contents.” > The warrant request omitted a central part of the FBI’s plan: permanent confiscation of everything inside any box containing at least $5,000 in cash or goods, a senior FBI agent recently testified. Is the crucial detail that the cash/goods lack any protection under the law? If there was a written and notarized murder confession in a box would that be permissible in court? I thought anything taken/found outside the scope of the warrant would be impermissible. Is the cash now impermissible for prosecuting actual crimes? (i.e. FBI can just keep it and make the owner sue for its return).

notch656a 4y ago
It's been awhile since I read it. I was thinking the judge authorized the FBI to itemize the contents of the boxes "for their return" or something of the sort. No idea what happens if police legally obtain access to evidence of a crime as a byproduct of a warrant, although I imagine for a non-publicized case it would not be good for the defendent. [note: not a lawyer]
cperciva 4y ago
Never mind murder confessions -- what happens if there's legally privileged information in a safe deposit box? Seizing documents without providing any opportunity to litigate privilege is a legal Pandora's box.
- tptacek 4y ago
  This happens all the time in searches, and, unsurprisingly, there's a bunch of very well-defined processes in the DOJ for handling privileged information found in searches. You should follow Ken White's podcast and Twitter feed if this is an interesting topic for you.
  - cperciva 4y ago
    There's well defined procedures for searches which may run into privileged materials, yes. In the case of searching law offices, the first step is "don't do this if there's any way you can possibly avoid it". If a search is absolutely necessary, you either have documents reviewed by a "dirty team" who are walled off from the "clean team" who only see documents which are determined to be unprivileged... or you seal everything without looking at them until a judge hears applications to have documents returned. It sounds like in the case of seizing these safe deposit boxes, no such procedures were implemented.
    - tptacek 4y ago
      No, there are well-defined procedures for searches that turn out to uncover privileged materials, too. If you think about it, this issue must come up all the time, in all kinds of searches. A Google search will rapidly avail here, including DOJ's own handbook for how to handle this situation. It comes up a lot!
      - cperciva 4y ago
        The problem here is "turn out to". Documents in a safe deposit box might well be privileged but not in an obvious way because nobody expects their safe deposit boxes to be searched by the FBI. The FBI may have seized privileged documents without realizing it.
        tptacek 4y ago
        Yes. That situation you are describing happens all the time. The DOJ itself documents a whole variety of different ways in which it occurs.
Spivak 4y ago
> I thought anything taken/found outside the scope of the warrant would be impermissible. That isn't true in general, the supreme court has a test for whether things outside the warrant can be seized / not constitute an unconstitutional search. 1. Must be in plain sight. 2. Must be apparent that it was used in a crime. 3. Doesn't have to be accidentally or inadvertently found but if it's not the bar for it being a legal search is much higher. Since it's a safety deposit box 1 & 3 are pretty much already checked and I think falls down on 2. I can't possibly see how the existence of cash is apparent that it's used in a crime.
- jandrese 4y ago
  How is something locked in a safety deposit box "in plain sight?"
  - cperciva 4y ago
    It's in plain sight once there's a legal justification for opening the box.
    - pdonis 4y ago
      But whether or not there was legal justification for opening the boxes is precisely the point at issue in this case. So the "plain view" doctrine can't possibly be used as a justifying argument in this case.
- CogitoCogito 4y ago
  On the upside, maybe the next time cops go into the vault of a bank during a robbery, they can just take all the money they find and fund their pensions. Edit: I posted this as a (bad) joke, but then I see this sister comment on the article: https://news.ycombinator.com/item?id=33848245 https://news.ycombinator.com/item?id=33848245 I liked it better as a joke.
bewaretheirs 4y ago
There is a "plain view doctrine" which says that obvious contraband or evidence spotted during a legal search for something else can also be seized. https://en.wikipedia.org/wiki/Plain_view_doctrine https://en.wikipedia.org/wiki/Plain_view_doctrine
- jandrese 4y ago
  I don't think these safety deposit boxes were mugging passersby. Maybe you could make a case if there was a famously stolen artifact in them, but a wad of bills or an expensive watch are not necessarily criminal.
  - 0cf8612b2e1e 4y ago
    >… but a wad of bills or an expensive watch are not necessarily criminal. Storing these items seems like the primary use of a safety deposit box.
- pdonis 4y ago
  This doctrine can't possibly apply in this case, because something that is inside a locked safe deposit box can't possibly be in "plain view". Based on reading what appears to be the judge's actual opinion in the case (I've posted a link upthread), the excuse the FBI offered, and which the judge accepted, was that they had to open the boxes in order to "inventory the contents". But they also said they would only search the boxes to the extent required to identify their owners. From what I can gather, each box was contained in a "sleeve" which, in many cases, had a form in it, that could be read without opening the box, that identified the box's owner. Since each box was locked, the FBI could have simply made an inventory that, for each box, said "one safe deposit box, number #X, locked, contents unknown", with an additional note that either said "form found identifying box owner as A", or "no form found identifying box owner". In other words, the FBI relied on an inconsistency in the warrant: it said they did not have permission to seize the contents of the boxes, but it also said they could follow "standard inventory policy", which in turn contained provisions that could be interpreted inconsistently to both require an inventory of the contents and to only authorize a search to the extent needed to identify the owner, if possible. This certainly seems to me to violate the Fourth Amendment. In the case of boxes which were accompanied by a form identifying the owner, what obviously should have happened was that the FBI should have done nothing more with those boxes until the owner could be investigated to see if there was probable cause to think they had put evidence of a crime in the box. If there was, an additional warrant could be obtained to search that box. If not, the box could just be returned, unopened, to the owner. (In fact, the boxes of many plaintiffs were returned during the course of this lawsuit--but not unopened.) In the case of boxes which were not accompanied by a form identifying the owner, the question would be whether that in itself was probable cause to think the box might contain evidence of a crime. In any case, that would be a question to be properly addressed by applying for an additional warrant. So I think there were several rights violations here: first, the judge who approved the warrant should have spotted the inconsistency in what the FBI was asking for and resolved it; second, the FBI should have adopted an inventory policy that was consistent; and third, the judge in this ruling should not have let the FBI get away with what they actually did.
smaryjerry 4y ago
Seems like the FBI is trying to confiscate the boxes themselves, and in the process of getting the boxes only, they happen to take out the contents. I could see that line of reasoning, effectively letting them search the boxes, but why keep all contents that weren’t suspected of a crime, and why not return contents once found not to be part of a crime?

notch656a 4y ago

It's been awhile since I read it. I was thinking the judge authorized the FBI to itemize the contents of the boxes "for their return" or something of the sort. No idea what happens if police legally obtain access to evidence of a crime as a byproduct of a warrant, although I imagine for a non-publicized case it would not be good for the defendent. [note: not a lawyer]

cperciva 4y ago

Never mind murder confessions -- what happens if there's legally privileged information in a safe deposit box? Seizing documents without providing any opportunity to litigate privilege is a legal Pandora's box.

tptacek 4y ago
This happens all the time in searches, and, unsurprisingly, there's a bunch of very well-defined processes in the DOJ for handling privileged information found in searches. You should follow Ken White's podcast and Twitter feed if this is an interesting topic for you.
- cperciva 4y ago
  There's well defined procedures for searches which may run into privileged materials, yes. In the case of searching law offices, the first step is "don't do this if there's any way you can possibly avoid it". If a search is absolutely necessary, you either have documents reviewed by a "dirty team" who are walled off from the "clean team" who only see documents which are determined to be unprivileged... or you seal everything without looking at them until a judge hears applications to have documents returned. It sounds like in the case of seizing these safe deposit boxes, no such procedures were implemented.
  - tptacek 4y ago
    No, there are well-defined procedures for searches that turn out to uncover privileged materials, too. If you think about it, this issue must come up all the time, in all kinds of searches. A Google search will rapidly avail here, including DOJ's own handbook for how to handle this situation. It comes up a lot!
    - cperciva 4y ago
      The problem here is "turn out to". Documents in a safe deposit box might well be privileged but not in an obvious way because nobody expects their safe deposit boxes to be searched by the FBI. The FBI may have seized privileged documents without realizing it.
      - tptacek 4y ago
        Yes. That situation you are describing happens all the time. The DOJ itself documents a whole variety of different ways in which it occurs.

Spivak 4y ago

> I thought anything taken/found outside the scope of the warrant would be impermissible. That isn't true in general, the supreme court has a test for whether things outside the warrant can be seized / not constitute an unconstitutional search. 1. Must be in plain sight. 2. Must be apparent that it was used in a crime. 3. Doesn't have to be accidentally or inadvertently found but if it's not the bar for it being a legal search is much higher. Since it's a safety deposit box 1 & 3 are pretty much already checked and I think falls down on 2. I can't possibly see how the existence of cash is apparent that it's used in a crime.

jandrese 4y ago
How is something locked in a safety deposit box "in plain sight?"
- cperciva 4y ago
  It's in plain sight once there's a legal justification for opening the box.
  - pdonis 4y ago
    But whether or not there was legal justification for opening the boxes is precisely the point at issue in this case. So the "plain view" doctrine can't possibly be used as a justifying argument in this case.
CogitoCogito 4y ago
On the upside, maybe the next time cops go into the vault of a bank during a robbery, they can just take all the money they find and fund their pensions. Edit: I posted this as a (bad) joke, but then I see this sister comment on the article: https://news.ycombinator.com/item?id=33848245 https://news.ycombinator.com/item?id=33848245 I liked it better as a joke.

bewaretheirs 4y ago

There is a "plain view doctrine" which says that obvious contraband or evidence spotted during a legal search for something else can also be seized. https://en.wikipedia.org/wiki/Plain_view_doctrine https://en.wikipedia.org/wiki/Plain_view_doctrine

jandrese 4y ago
I don't think these safety deposit boxes were mugging passersby. Maybe you could make a case if there was a famously stolen artifact in them, but a wad of bills or an expensive watch are not necessarily criminal.
- 0cf8612b2e1e 4y ago
  >… but a wad of bills or an expensive watch are not necessarily criminal. Storing these items seems like the primary use of a safety deposit box.
pdonis 4y ago
This doctrine can't possibly apply in this case, because something that is inside a locked safe deposit box can't possibly be in "plain view". Based on reading what appears to be the judge's actual opinion in the case (I've posted a link upthread), the excuse the FBI offered, and which the judge accepted, was that they had to open the boxes in order to "inventory the contents". But they also said they would only search the boxes to the extent required to identify their owners. From what I can gather, each box was contained in a "sleeve" which, in many cases, had a form in it, that could be read without opening the box, that identified the box's owner. Since each box was locked, the FBI could have simply made an inventory that, for each box, said "one safe deposit box, number #X, locked, contents unknown", with an additional note that either said "form found identifying box owner as A", or "no form found identifying box owner". In other words, the FBI relied on an inconsistency in the warrant: it said they did not have permission to seize the contents of the boxes, but it also said they could follow "standard inventory policy", which in turn contained provisions that could be interpreted inconsistently to both require an inventory of the contents and to only authorize a search to the extent needed to identify the owner, if possible. This certainly seems to me to violate the Fourth Amendment. In the case of boxes which were accompanied by a form identifying the owner, what obviously should have happened was that the FBI should have done nothing more with those boxes until the owner could be investigated to see if there was probable cause to think they had put evidence of a crime in the box. If there was, an additional warrant could be obtained to search that box. If not, the box could just be returned, unopened, to the owner. (In fact, the boxes of many plaintiffs were returned during the course of this lawsuit--but not unopened.) In the case of boxes which were not accompanied by a form identifying the owner, the question would be whether that in itself was probable cause to think the box might contain evidence of a crime. In any case, that would be a question to be properly addressed by applying for an additional warrant. So I think there were several rights violations here: first, the judge who approved the warrant should have spotted the inconsistency in what the FBI was asking for and resolved it; second, the FBI should have adopted an inventory policy that was consistent; and third, the judge in this ruling should not have let the FBI get away with what they actually did.

smaryjerry 4y ago

Seems like the FBI is trying to confiscate the boxes themselves, and in the process of getting the boxes only, they happen to take out the contents. I could see that line of reasoning, effectively letting them search the boxes, but why keep all contents that weren’t suspected of a crime, and why not return contents once found not to be part of a crime?