A Delicate Balancing Act: Satisfying the Fourth Amendment While Protecting the Bankruptcy System from Debtor Fraud

Abstract

Since the Middle Ages, bankruptcy laws have been concerned with preventing and deterring fraudulent debtors, most notably debtors who willfully fail to fully disclose all of their assets to their creditors. This concern was no less prevalent during the passage of the first Bankruptcy Act in the United States in 1800, which established bankruptcy fraud as a criminal offense. No doubt, the evolution of modern American bankruptcy law has moved toward a more liberal treatment of debtors. Significantly, so long as debtors conform to certain behavioral norms prescribed in the Bankruptcy Code, honest, but unfortunate debtors can expect to receive a discharge of their pre-petition indebtedness. Notwithstanding the existing civil and criminal remedies for committing bankruptcy fraud through a failure to disclose assets, it is suspected that many individuals who file for bankruptcy protection attempt to improperly shield assets from their creditors' reach. Consequently, this Article proposes a normative framework under which a bankruptcy trustee can conduct a warrantless search of an individual debtor's residence upon suspicion that a debtor is attempting to commit fraud by failing to disclose assets. More specifically, this Article argues that a bankruptcy trustee, though bound by the Fourth Amendment, can conduct a warrantless search of a debtor's home based upon one of three distinct theories: (1) the bankruptcy process can be considered a "special needs" administrative search exception to the Fourth Amendment warrant requirement; (2) the bankruptcy law system can be equated to a "closely regulated industry" under Fourth Amendment jurisprudence; and (3) debtors implicitly consent to have their homes searched by a bankruptcy trustee as a consequence of submitting themselves to the intrusive nature of the bankruptcy process.