Dealing With Self-Storage Search Warrants and Subpoenas: What to Know Before Opening the Tenant File or Unit to Others

If you operate a self-storage facility long enough, you’ll eventually find yourself on the receiving end of a subpoena, search warrant, demand for documents or request for property inspection. It usually comes with very official-looking paperwork that say things like “Failure to respond may result in contempt,” “This is a court order and there are consequences for failure to respond” or “You better do what we ask or all kinds of fire and brimstone will be rained down upon you.” At least, that’s how it can feel when reading them.

When a request of this nature arrives, there are things you should do right away and those you can do to make the process easier. Most important, just because “someone” is asking for information doesn’t always mean you must comply. If you receive documents, whether from an attorney, process server or law-enforcement officer, there are practical steps you should immediately take to protect your self-storage operation and its customers.

Law-Enforcement Subpoena

Recently, one of my self-storage clients received a grand-jury subpoena from the U.S. District Court for the Eastern District of New York seeking copies of everything in their possession related to several units rented by a certain individual. The operator, who’s in a small Texas town, was worried because they believed they’d have to travel to New York and present these documents in person. I told them to pack their bags! (No, I didn’t.)

Most, if not all, grand-jury subpoenas from district or U.S. attorney’s offices state that you have a certain date on which to produce documents in person at the courthouse. However, 99% percent of these don’t truly require that. So, what do you do?

First, call your outside counsel. I don’t mean your insurance company but your independent attorney. Send them a copy of the document. Simultaneously, let everyone in your self-storage operation know that they need to take steps to preserve any documents, written or electronic, that are responsive to the request. You don’t want anything to be destroyed or deleted.

Your attorney should immediately call the party that filed the subpoena (the district attorney or U.S. attorney) and work out a schedule for electronic delivery of the documents. This communication is key to ensuring you don’t have to physically appear at the courthouse or in the state that originated the summons.

Whatever you do, do not ignore the subpoena! If you do, or the documents “disappear,” the court can issue orders of contempt, which can include fines and even jail time. This is a problem that won’t go away!

Also, do not contact the affected self-storage tenant about the situation until you’ve consulted with an attorney. Most grand-jury subpoenas specifically state that you may not contact the subject of the document without violating the law. If it’s an order for an ongoing criminal case vs. an investigation, it may not have such a requirement. In any case, double check with your counsel.

Civil-Document Subpoena

It’s also common for a self-storage operator to receive a request for documents in a civil matter, often a family-law case. These come from process servers or private document-retrieval companies seeking files related to a dispute between other parties. These need to be dealt with similarly to a subpoena. The difference here is there’s a duty to protect your tenant’s information, and it’s easier in this situation.

Once again, call your attorney and take all the steps necessary to preserve documents. Check to see if you have a duty to inform the tenant. It’s likely that you’ll be able to let them know, and they may want an opportunity to fight the request before you comply. Your attorney may also choose to challenge the subpoena on a number of grounds, for example, to safeguard sensitive customer information such as driver’s license or Social Security numbers.

Where these become tricky is in family-law matters such as a divorce or child-custody case. Years ago, I handled one in which an ex-wife emptied her ex-husband’s house while he was out of town and put everything into four self-storage units. She then purposely quit paying rent so everything would go to auction. The ex-husband found out and was able to stop the sale by paying the rent but then wanted access to the spaces and the tenant information. The self-storage operator correctly refused to give it.

In response, the ex-husband filed suit against his former spouse and subpoenaed the records. To be super-tricky, he sent the subpoena before he served her with the lawsuit so that she wouldn’t know about it.

There can be many reasons why someone wants information from a self-storage operator. Often, they’re honorable, but there’s no way for you to know the difference. What is undeniable is that if a court orders you to produce information, you’re well-protected. Your counsel can guide you on these scenarios. Did I mention that you should contact your attorney? Is there an echo in here?

Search Warrants

We all want to assist law enforcement in catching bad guys when we can. But what is your responsibility to your self-storage tenant who may be accused of a crime and the police want your assistance in helping their investigation? This can be muddy.

Imagine a scenario in which an ex-boyfriend is vengeful toward a former girlfriend. He knows she has a storage unit in which she keeps her deceased father’s baseball-card collection (which shouldn’t be in a storage unit, but that’s another article). He gets this really awesome idea to report “his” baseball-card collection to the police as stolen and tells them he has reason to believe his former girlfriend is hiding it in her self-storage unit. The investigators believe him because he’s really convincing. So, they show up at your facility demanding access to the space. What do you do?

This isn’t an emergency situation requiring you to provide immediate access. Further, you have no idea that this is all a big lie. When one of my clients was confronted with this exact scenario, they called me and put me on the phone with the police officer who was at the facility. I explained that we have a duty to our tenants and we’re not allowed to provide anyone information about a unit or access without written authority from them, an order from a court or a search warrant. I requested that the officer and tenant meet at the unit the next day so they could exchange the warrant. It was during that event that everything was cleared up.

But what if what the police believed that what was in the unit was a dangerous, toxic substance or illegal drugs? If you have law enforcement provide you with a search warrant rather than simply opening the unit for them, you are protected.

Remember, search warrants aren’t difficult to obtain. Police must swear under oath that they have reason to believe there’s a legal basis for searching the premises. The request must be in furtherance of an ongoing criminal investigation for which the search will be helpful. If they really believe there’s justification, they should simply have a judge bless it with a warrant. Otherwise, you may be opening the door to liability as well as the self-storage unit.

Another good idea with search warrants is to be present when they’re executed and record it on video. Then place that recording in the tenant’s electronic file. It’ll show that you weren’t the one rifling through the self-storage unit looking for those baseball cards.

The lesson here is that just because you get a written or verbal request to open your self-storage tenant’s information or unit to a third party, even the police, there could be an enormous number of circumstances at play of which you are ignorant. Contact your legal counsel, have them review the subpoena or whatever form the request is in, and get some advice before you unwittingly throw yourself into other people’s drama. You never want to be a part of it if you can avoid it.

Murphy Klasing is a partner with Weycer, Kaplan, Pulaski & Zuber P.C. He has a wide range of appellate, arbitration and trial experience, successfully handling numerous litigation matters. With more than a decade of experience in the self-storage industry, he serves as counsel for Public Storage Inc. in Oklahoma and Texas, and has defended matters involving allegations of breach of contract, code violations, employment issues, fraud, negligence, personal injury, premises liability and theft. To reach him, call 713.961.9045; email [email protected].