The 4th Amendment and Bankruptcy

Can a bankruptcy trustee search my house?  I don’t get that question every day, but it comes up.  The answer is yes, but it almost never happens.  The follow-up question, “do they need a search warrant?”  The answer is usually no.  Most people assume that you have to have a search warrant to search someone’s home.  However, the Fourth Amendment warrant requirement is much less stringent than most people assume.
The Fourth Amendment only applies to government actions.  A private citizen is not required to get a search warrant.  However, if a private citizen randomly searches your home that is a trespass, but more on that later.  A private citizen is only required to get a search warrant, if the government knew of and acquiesced to the search and was the search for a private purpose or a governmental purpose.
A chapter 7 trustee is a private party charged with overseeing the bankruptcy estate.  The chapter 7 trustee is not an employee of the government; and therefore, is not a government agent.  The fact that the chapter 7 trustee works closely with the government – the US Trustee’s Office – does not change this fact.  Additionally, and this where trespass comes into play, the chapter 7 trustee is the legal owner of the bankruptcy estate.  That means that the chapter 7 trustee can arguably enter a debtor’s residence to look for property of the estate without committing trespass, because the trustee is actually asserting their legally recognized ownership interest.
Another important angle is that bankruptcy is voluntary.  A debtor voluntarily submits themselves to the bankruptcy process for the purpose of obtaining a discharge of their debts.  This means that courts are more likely to find implied consent for a search.  Does this mean that a bankruptcy trustee can just walk into your house unannounced?  No.  However, it does mean that the chapter 7 trustee can require you to give them access to your property, they can bring a sheriff on civil standby, and if you refuse entry they can deny your discharge or get a court order allowing them to enter your property.
The last question is whether it is likely that the trustee is going to search your house.  The answer is that it is extremely unlikely.  The chapter 7 trustee have very little interest in the contents of your house, unless there is a good reason to believe that you 1) hid property from the trustee, or 2) that the property is significantly more valuable than you disclosed on the petition.
My advice is not to worry about the trustee searching your house.  All you need to do is make sure that your bankruptcy schedules are complete and accurate to the best of your knowledge, remember that you cannot leave property off of your schedules for any reason, and you will be fine.
The post The 4th Amendment and Bankruptcy appeared first on Bankruptcy Attorney Seattle and Kent.