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Snitko v. United States

Is raising a right generally at trial enough to preserve more specific arguments for appeal?

Tim Kowal     January 24, 2024

The FBI, growing frustrated in an investigation into a company that furnishes private lockboxes, got a warrant to search entire “nests” of lockboxes. Including lockboxes held by perfectly law-abiding plaintiffs, which are the subject of Snitko v. United States, No. 22-56050 (9th Cir. Jan. 23, 2024). When the FBI got the warrant, they told the magistrate the promised to give the stuff back. But when plaintiffs asked for their stuff back, the FBI decided to keep it.

(Well, no, not “keep” it. That word is too direct and precise. The word the law has come up with for state agents who take your stuff and decide to keep it is “forfeit.” They “inform[ed] Plaintiffs that [the FBI] sought to civilly forfeit their property.”)

What kind of stuff did the FBI try to keep, er, ‘forfeit’? Prof. Shaun Martin helpfully catalogs the innocent victims’ stuff:

  • Paul and Jennifer Snitko, who used their USPV box to store legal documents, watches with sentimental value, hard-drive backups, coins, and gold jewelry. They used USPV “because [their] bank had a waiting list for a safe deposit box, [they] live in a wildfire prone area . . . and [they] require a place to store [their] wedding bands when engaging in sports activities . . . .”
  • Tyler Gothier, who stored “silver and other personal property” in his box and used USPV due to its convenient location.
  • Joseph Ruiz, who stored $57,000 in cash in his box and used USPV because he was concerned that “the COVID pandemic would make it impossible for [him] to withdraw [his] funds from a bank account.”
  • Michael Storc and Jeni-Verdon Pearsons, who stored “approximately $2,000 in cash, as well as approximately $20,000 worth of silver,” along with “personal documents” in their box. They used USPV because they needed a safe place to keep the silver.
  • Travis May, who stored $63,000 in cash, $100,000 in gold, and various documents in sealed envelopes in his box, and used USPV as an “alternative location to access valuables in case of emergencies.”

Eventually, the FBI gave the stuff back. But they refused to destroy the records, so plaintiffs sued. The district court denied relief, ruling that the FBI followed “standardized” inventory protocol. But the 9th Circuit reversed, noting that the fact that the FBI promised to follow “supplemental instructions”—including to notify the plaintiffs and give their stuff back—meant that the “standardized” inventory protocols did not apply.

Concurring, Judge M. Smith noted that the inventory exception to the Fourth Amendment warrant requirement was meant for cars and incarcerated individuals and where the inventory was done for purposes of, well, inventory—not for purposes of an active, deliberate investigation, as was done here.

Plaintiffs’ challenge to the inventory-search doctrine was not raised specifically at trial, but Judge Smith concludes that raising a Fourth Amendment violation generally was enough.

Although Judge Smith’s criticism of the innovations to the inventory-search doctrine was not adopted by the panel, he explained that it was properly before the court. True, plaintiffs did not raise that challenge specifically. But there is “no bright line rule . . . to determine whether a matter has been properly raised below.” Yamada v. Nobel Biocare Holding AG, 825 F.3d 536, 543 (9th Cir. 2016).

And besides, plaintiffs did raise a violation of Fourth Amendment rights. And when they did, they argued that the government contravened “the purposes traditionally associated with an inventory,” citing the leading case on the inventory search doctrine, South Dakota v. Opperman, 428 U.S. 364, 369 (1976). “[H]aving advanced its [impermissible search] theory before the district court,” Plaintiffs are “able to make a more precise argument on appeal as to why” the inventory search doctrine should not be extended here. United States v. Williams, 846 F.3d 303, 312 (9th Cir. 2016).

That, Judge Smith, meant that the argument was properly before the court.

(And Judge Bumatay also recently drew the distinction in Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)that waiver applies to claims, not arguments. “‘As the Supreme Court has made clear, it is claims that are deemed waived or forfeited, not arguments.’ United States v. Pallares-Galan359 F.3d 1088, 1095 (9th Cir. 2004) (citing Yee v. City of Escondido503 U.S. 519, 534 (1992)). San Francisco can make any argument in support of its claims on appeal-it is ‘not limited to the precise arguments [it] made below.’ Allen v. Santa Clara Cnty. Corr. Peace Officers Ass'n38 F.4th 68, 71 (9th Cir. 2022) (simplified).””)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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