State v. Ghim, 360 Or. 425

Background

DCBS investigator Johnson, acting on a complaint from purchasers (the Von Renchlers), issued administrative subpoenas for defendant’s wife’s bank records while investigating possible sales of unregistered securities.
Johnson served the administrative subpoenas by certified mail rather than personal service required by ORS 192.596(2); the prosecutor later cured service by issuing personally served court subpoenas (ORS 136.583/136.565).
The bank records identified other alleged investors and transactions; those witnesses testified at trial and the records were admitted.
Defendant moved in limine (treated as a suppression motion) to exclude the bank records and any evidence derived from them, arguing Article I, §9 of the Oregon Constitution required a warrant or magistrate review.
Trial court denied suppression (finding subpoenas relevant, statutorily authorized, and that the prosecutor could cure service error); defendant was convicted on two counts. Court of Appeals upheld; Supreme Court affirmed on different grounds.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant has a protected privacy interest in bank records held by the bank	State: Context and history show no constitutionally protected privacy interest here	Ghim: Customers can have a protected privacy interest in third‑party records depending on information, disclosure context, and how state accessed it	Court assumed, for decision purposes, that Ghim had a protected privacy interest but did not decide the general rule
Whether DCBS’s administrative subpoenas (and subsequent court subpoenas) violated Article I, §9	State: Subpoenas were issued under a valid statutory administrative scheme (ORS 59.315, ORS 192.596), relevant and no broader than needed	Ghim: Only a warrant or magistrate‑reviewed process (or probable cause standard) can justify compelled production of bank records; subpoenas here were unreasonable and procedurally defective	Court: Administrative subpoenas issued under a properly authorized statutory scheme can satisfy Article I, §9; DCBS subpoenas here were within statutory authority and did not violate §9
Whether failure to personally serve the first administrative subpoenas required suppression or rendered later subpoenas tainted fruit	State: Prosecutor could cure service defect by issuing court subpoenas; witnesses and records would have been discovered independently	Ghim: First subpoenas were improperly served; second subpoenas were fruit of the poisonous tree	Court: Ghim did not preserve or press these particular statutory/service objections on appeal; factual record supported that the second subpoenas would have been issued independently, so the Court did not reach or adopt a suppression remedy on that basis
Whether evidence derived from the administrative investigation may be used in criminal prosecution	State: Statutorily authorized administrative investigation can uncover evidence usable in criminal cases	Ghim: Evidence obtained in civil administrative process should be limited or excluded absent warrant/magistrate protections	Court: Prior Oregon precedent permits statutorily limited administrative subpoenas to be reasonable under Article I, §9; such evidence may be used when subpoenas comply with authorized scheme

Key Cases Cited

Pope & Talbot, Inc. v. State Tax Com., 216 Or. 605 (administrative subpoena relevant to lawful inquiry and not broader than investigatory needs upholds constitutionality)
State v. Weist, 302 Or. 370 (Article I, §9 protects against unchecked executive searches; legislative limits can authorize investigative subpoenas)
United States v. Morton Salt Co., 338 U.S. 632 (limits on subpoena breadth and relevancy inform protections against unreasonable demands)
Zurcher v. Stanford Daily, 436 U.S. 547 (Fourth Amendment does not prefer subpoenas to warrants; subpoenas are sufficient state action to implicate search concerns)
State v. Johnson, 340 Or. 319 (context for third‑party records and Article I, §9 considerations)