The conduct of the feds in shutting down a private vault, a business that provided safe deposit boxes to individuals, was one thing. What they subsequently did with the boxes, and the contents, is quite another.

But the business also had legit customers with legit boxes containing legit private property with no connection to any offense. And the court issuing the warrant properly limited the authority to search and seize only to those boxes for which probable cause existed. What the court neglected to do was accommodate the legit boxes protection and privacy from the only entity with the capacity to violate their owners’ rights, the government.

With the business out of business, what were the agents to do? They couldn’t just walk away and leave the legit boxes unsecured. Of course, they could have secured the boxes, the premises, or at worst taken the unopened boxes and warehoused them in safekeeping, using the records of the business to ascertain the owners of the boxes and notify them to come retrieve their personal property for which the government had no cause to search and a duty to protect. They didn’t do that.

The handling of the private contents of boxes was a travesty, an outrageous violation of the rights of the owners of the contents for whom there was no evidence of any wrongdoing. Worse yet, the failure to take care in the handling of the contents was unfathomably incompetent, even for the government. There was no shortage of things to criticize and attack about the government’s handling of this sordid affair.

But lying to the mag was not one of them.

The FBI told a federal magistrate judge that it intended to open hundreds of safe deposit boxes seized during a March 2021 raid in order to inventory the items inside—but new evidence shows that federal agents were plotting all along to use the operation as an opportunity to forfeit cash and other valuables.

It was posited first by Eric Boehm at Reason, which was neither unusual nor particularly significant until a month later, when it got picked up by the LA Times. It wasn’t that the FBI told the judge something false, so much as the FBI failed to tell the court the “whole truth.”

Federal agents failed to disclose those plans to the federal magistrate judge who issued the warrant for the high-profile raid of U.S. Private Vaults, a private business in Beverly Hills, California, that had been the subject of an FBI investigation since at least 2019. …

Those details regarding the planning and execution of the FBI’s raid of U.S. Private Vaults are now out in the open after a different federal judge ruled this week that the government could not keep those details out of the public record.

The “details” are, indeed, as ugly as it gets as far as nefarious and underhanded government scheming to steal the property of people for whom there was no hint of wrongdoing. The efforts to conceal the government intent to steal from the public are not merely fair game for disclosure, but exactly what needs to be aired. This is what our government did, and we should know it.

But that still doesn’t bear upon the question of whether the FBI lied in obtaining the warrant, and  Judge Gary Klausner was correct in rejecting the claim.

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.

When proffering an affidavit in support of a warrant, the government invariably includes a paragraph to the effect that they have provided as much information as necessary to show probable cause for issuance, but not all information in the government’s possession. This generally pertains to the underlying facts, however, and not to what the government plans to do with the seized property afterward.

Indeed, the warrant requests the authority to seize and provides probable cause to believe that a crime has been committed and that the seized property is evidence of the crime. Nothing more. It doesn’t discuss who will be arrested or whether they will get nolle’d or executed. It doesn’t discuss whether the property seized will be returned, forfeited or destroyed. That’s not what a warrant is about or what would normally appear in a warrant.

Interestingly, there was a similar (note, similar and same are different words) issue raised when warrants for computers issue, as they may have probable cause to search for kiddie porn, for example, but in the course of the search, may stumble upon tons of other unrelated tidbits about somebody’s life, including people other than the primary owner or user of the computer.

Fair game? Plain view? Or just the nature of computers and a good reason for the mag to require the government to address this problem, known in advance, rather than wait for the unconstitutional conduct to occur, the damage to happen, and then try to undo the obvious.

In the case of Schrödinger’s Safe Deposit Box, it might well have been useful for the mag to have given some harder thought to what was being approved and how inventorying the contents of boxes of people who were swept into the mix but accused of no wrong would be impacted. But did this bear upon probable cause? That’s all the warrant is for, and the failure to include motives beyond the scope of the warrant wasn’t a lie because it wasn’t material to the only question at hand.

On the other hand, the FBI’s flagrantly exceeding the scope of the warrant and outrageous attempt to steal the contents from law-abiding owners was reprehensible enough.