Article by Scott I. Zucker, Esq.
Self Storage Legal Network
Law enforcement commonly describes certain red flags for self storage operators that might suggest criminal activity occurring at their facility. As it relates to drugs, operators are told to inspect their dumpsters for signs of used needles, discolored soda bottles, remnants of chemicals as well as any other materials that might suggest drug manufacturing or use inside of rented units. Additionally, operators are warned to observe certain behaviors such as off-hour access, rent payments in cash, and unusual use or traffic in or near the rented units. But what is a self storage operator supposed to do when they observe such behavior or find tangible evidence indicating potential criminal activity? Basically the adage of "see something, say something" applies to self storage as it does to other businesses. An operator who believes that criminal activity is occurring at its facility does not assume any liability by contacting local law enforcement to request their assistance in investigating the suspicious activity. The fear and hesitation of getting involved and "pointing the finger" at a particular tenant must be outweighed by the greater risk that, without any intervention, the tenant's actions may ultimately result in harm to others and, possibly, damage to the facility itself.
Operators are counseled to notify police to investigate when they have observed consistent suspicious activity (more than one incident or general curiosity). As part of that investigation, the operator may be asked to provide the name and unit number of the particular tenant. The operator is permitted to provide that information since the "rent roll", which contains that information, is the property of the operator and can be shared with others. However, a request to review the tenant's file, which contains personal information regarding the tenant (address, phone number, social security number, credit card information) should only be turned over to law enforcement in response to a written subpoena for the information.
Additionally, when asked to "open the unit", the operator must explain to law enforcement that, as long as the rent is current, the rented unit is not under the "care, custody or control" of the facility and the police would need to obtain a search warrant to enter the space (unless the police identify sufficient exigent or emergency circumstances which may permit their entry into the space without such a warrant). However, if a unit is in default and the operator has begun processing their lien over the stored property (including having cut the lock for their inspection), the facility now has a statutory right to enter the unit and may permit law enforcement to view the unit as well, since the tenant's right of privacy was waived once they allowed their unit to go into lien.
Operators will often ask, "Can I notify the tenant that the police are investigating their unit or have inspected their unit?" The answer will depend on the instructions from law enforcement. If the police are involved in a larger surveillance of the facility and the unit in the hopes of capturing the tenant when they arrive or to verify the suspected criminal activity, then the police might ask the operator not to notify the tenant. But other times, especially if the investigation does not result in a prosecution, the police may permit the operator to contact the tenant regarding the investigation.
At the end of the day, it is recommended that self storage operators put forth the effort to introduce themselves to their local law enforcement and seek to create an open line of communication regarding the activities at their facility. That way, if there is suspicious activity, they can reach out to a friendly contact to seek support and protection. Such a relationship is extremely important, including circumstances where the facility may suffer a break-in and needs a police report or where a disgruntled tenant makes physical threats against the operator. In those situations it's always nice to have a number to call for help.
Scott Zucker is a partner in the law firm of Weissmann Zucker Euster Morochnik & Garber P.C. in Atlanta, Georgia. Scott specializes in business litigation with an emphasis on real estate, landlord-tenant and construction law. Scott is a frequent lecturer at national conventions and is the author of Legal Topics in Self Storage: A Sourcebook for Owners and Managers. He is also a partner in the Self Storage Legal Network, a subscription-based legal service for self storage owners and managers. Scott can be reached at 404-364-4626 or at email@example.com.