340 P.3d 753
Or. Ct. App.2014Background
- An investigator subpoenaed bank records from two banks under ORS 192.596 while investigating alleged thefts by defendant and his wife arising from investor complaints.
- The original subpoenas lacked required personal notice; the state later reissued subpoenas to cure that defect and the records were admitted at trial.
- Bank records admitted included account statements, signature cards, checks, and correspondence for accounts tied to defendant, his wife, and his mother’s trust (on which defendant was a trustee).
- At a bench trial, investors testified they had paid defendants for purported real estate investments that were not returned; defendants were convicted of first-degree and aggravated first-degree theft.
- Defendant moved to suppress the bank records under Article I, section 9 of the Oregon Constitution, arguing a protected privacy interest that required a warrant-equivalent review; the trial court denied the motion.
- On appeal, defendant argued bank records are protected under Article I, section 9; the state argued (1) the records were third‑party business records (no privacy interest) and (2) some records belonged solely to codefendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant has a protected privacy interest under Or. Const. art. I, § 9 in bank records held by banks | State: No protected privacy interest in third‑party business records; subpoena under ORS 192.596 suffices | Defendant: Bank records are private under social/legal norms and statutes and thus protected by Article I, § 9; subpoena insufficient | Held: No protected privacy interest in bank records held/maintained by banks; subpoena lawful basis for access |
| Whether defendant lacked standing because records belonged to codefendant | State (on appeal): Some records belonged to codefendant, so defendant cannot assert privacy rights | Defendant: Had interests (co‑owner/trustee/marital property) in some accounts, so could assert rights | Held: Court declined to affirm on that ground because record might have developed differently and defendant may have had an interest in some accounts |
Key Cases Cited
- State v. Johnson, 340 Or. 319 (2006) (no Article I, § 9 privacy interest in records generated and maintained by a third‑party phone provider)
- State v. Gonzalez, 120 Or. App. 249 (1993) (no protected privacy interest in hospital records created and maintained by the hospital)
- State v. Delp, 218 Or. App. 17 (2008) (no Article I, § 9 privacy interest in ISP subscriber and billing records)
- State v. Sparks, 267 Or. App. 181 (2014) (no protected privacy interest in electric utility account records)
- United States v. Miller, 425 U.S. 435 (1976) (Fourth Amendment rule that bank records held by third parties are not protected by a reasonable expectation of privacy)