Fourth Amendment Applies to Bankruptcy Trustee, but Searches May Be Reasonable
by: Craig Kavanagh
St. John's University School of Law; Jamaica, N.Y.
Section 704(a) of the Bankruptcy Code enumerates the essential duties of a bankruptcy trustee in a chapter 7 case, requiring that the trustee “collect and reduce to money the property of the estate for which such trustee serves.” The courts have occasionally been asked to interpret whether this provision gives a governmental dimension to the functions of the trustee, and as a result, whether constitutional restrictions apply to the trustee. In conflicting opinions, courts have answered in the affirmative and negative. In In re Bursztyn, 366 B.R. 353 (Bankr. D. N.J. 2007) the U.S. District Court for the District of New Jersey recently held that for the purposes of searching the debtor’s property, a trustee was an agent of the government, but that the search and seizure of the debtor’s property was not unreasonable under the Fourth Amendment of the U.S. Constitution. 366 B.R. 353 (Bankr. D. N.J. 2007). Although the court acknowledged a substantial number of cases where it was held that a trustee was not an agent of the government, the court enforced an exception to such a rule in situations where the trustee was acting to maximize asset availability to creditors. Id. at 368. The court considered the trustee’s actions under the “reasonableness” standard of the Fourth Amendment and found that the search and seizure by the trustee was appropriate. Id. at 373.