STATE OF NEW MEXICO, Plаintiff-Appellee, v. ISMAEL ADAME and ANGELA ADAME, Defendants-Appellants.
No. S-1-SC-36839
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
June 18, 2020
2020-NMSC-015
VIGIL, Justice.
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS, Jeff F. McElroy, District Judge. Released for Publication December 15, 2020.
Coberly & Martinez, LLLP
Todd A. Coberly
Santa Fe, NM
for Appellants
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellees
Angelica Hall
Albuquerque, NM
for Amicus Curiae New Mexico Criminal Defense Lawyers Association
VIGIL, Justice.
{1} In this opinion we address whether, pursuant to
I. BACKGROUND
{2} The Adames are a married couple and business owners in Taos, New Mexico. Federal and state law enforcement suspected that the Adames were involved in drug trafficking. As part of the investigation into the Adames, a federal grand jury issued subpoenas for, and obtained, the Adames’ personal banking records. A state grand jury later issued two subpoenas duces tecum for the Adames’ records at two banks. These state subpoenas required that the banks produce for a five-year period the Adames’ checking
{3} Using the Adames’ financial records, multiple-count indictments were issued against the Adames, whose cases were joined. Of the 106 charges filed against them, all but two were financial in nature.
{4} The Adames filed a motion to suppress the financial records obtained from their banks by federal subpoena.1 The Adames argued that, unlike the
{5} The district court declined to conclude that the
{6} The Adames moved the district court for an order allowing interlocutory appeal, which was granted. The Court of Appeals accepted the interlocutory appeal. The Court of Appeals then certified two questions to this Court, both of which we acceрted: “(1) whether a person has a constitutional privacy interest in his or her financial records maintained by his or her financial institution under the New Mexico Constitution pursuant to
II. DISCUSSION
A. Standard of Review
{7} This case presents a question of constitutional interpretation, which this Court reviews de novo. State v. Ordunez, 2012-NMSC-024, ¶ 6, 283 P.3d 282.
B. Article II, Section 10 Does Not Provide Greater Protection of Privacy Than the Fourth Amendment for the Adames’ Bank Records, Which Consist of Five Years of Financial Information That Was Voluntarily Shared With Their Banks
{8} The question before this Court is whether the protections of
{9}
{10} The Adames contend that
1. The Fourth Amendment does not protect the Adames’ personal bank records
{11} The United States Supreme Court recognizes a distinction under the
{12} The United States Supreme Court has held that a person has no legitimate expectation of privacy under the
{13} For a claim to be preserved, “it must appear that a ruling or decision by the trial court was fairly invoked.” Rule 12-321(A) NMRA. This in turn requires “[a]ssertion of the legal principle and development of the facts.” State v. Gomez, 1997-NMSC-006, ¶ 22, 122 N.M. 777, 932 P.2d 1. The Adames’ motion to suppress the banking records in the district court was based solely on the argument that our state constitution protects an expectation of privacy in personal banking records. The district court based its denial of the claim on a considered determination that it could not find such protection in the New Mexico Constitution absent direction from New Mexico‘s appellate courts. No party contests the preservation of the state constitutional claim here, and we agree that the Adames’
3. The reasons to depart from federal precedent are inadequate
{14} Pursuant to our interstitial approach, we recognize three reasons to depart from established federal precedent: “(1) the federal аnalysis is flawed or undeveloped; (2) structural differences exist between federal and state government; or (3) distinctive state characteristics exist that would support the departure.” Crane, 2014-NMSC-026, ¶ 15. Defendants argue both that the federal analysis is flawed and also that there are distinctive state characteristics that justify a departure from federal precedent.
a. The federal analysis is not flawed
{15} The Adames argue that the
{16} As the Adames point out, both the result in Miller and the third-party doctrine that animates it have been repeatedly questioned or criticized by scholars, some state courts, and by Justices on the United States Supreme Court. For example, Professor LaFave squarely criticizes Miller in his
{17} Several state courts have departed from Miller, sometimes reaching a different result and sometimes criticizing the third-party principle itself. Pennsylvania, for example, recognizes a reasonable expectation of privacy in bank records under its constitution. Commonwealth v. DeJohn, 403 A.2d 1283, 1291 (Pa. 1979) (“[U]nder . . . the Pennsylvania Constitution bank customers have a legitimate expectation of privacy in records pertaining to their affairs kept at the bank.“); see also, e.g., State v. Thompson, 810 P.2d 415, 418 (Utah 1991) (recognizing a right to privacy in bank records under the Utah Constitution); but see, е.g., State v. Schultz, 850 P.2d 818, 834-35 (Kan. 1993) (declining to recognize a reasonable expectation of privacy in bank records under the Kansas Constitution). The Hawaii Supreme Court directly criticized the foundational reasoning of the third-party doctrine, in a case unrelated to banking records. State v. Walton, 324 P.3d 876, 906 (Haw. 2014)
{18} Justice Sotomayor directly questioned the continued viability of the third-party doctrine as a categorical rule in a 2012 concurrеnce. She wrote that the approach of the third-party doctrine is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” United States v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor, J., concurring). Accordingly, she concluded that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Id. Justice Sotomayor‘s analysis built on previous disapproval of the third-party doctrine as a rule by Justice Thurgood Marshall. Id. at 418 (citing Justice Marshall‘s dissent in Smith, 442 U.S. at 749); see also Smith, 442 U.S. at 748-49 (Marshall, J., dissenting) (“I remain convinced that constitutional protections are not abrogated whenever a person apprises another of facts valuable in criminal investigations[.] . . . Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not аssume that this information will be released to other persons for other purposes.” (emphasis added)). In fact, deep concerns about the third-party doctrine extend all the way back to one of the roots of the doctrine, Miller, which states:
[T]he totality of bank records provides a virtual current biography. While we are concerned in the present case only with bank statements, the logical extension of the contention that the bank‘s ownership of records permits free access to them by any police officer extends far beyond such statements to checks, savings, bonds, loan applications, loan guarantees, and all papers which the customer has supplied to the bank[.] . . . Development of photocopying machines, electronic computers and other
sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitivе minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.
425 U.S. at 451-53 (Brennan, J., dissenting) (internal quotation marks and citation omitted). As demonstrated, the criticisms of Miller and the third-party doctrine are enduring.
{19} Despite the enduring and sometimes prescient criticisms, the principles animating the third-party doctrine remain viable. Only recently, in 2018, the United States Supreme Court re-examined the third-party doctrine in a groundbreaking
{20} But although the Carpenter Court narrowed the third-pаrty doctrine in light of “new concerns wrought by digital technology,” id. at 2222, it reiterated that the
{21} We agree with the United States Supreme Court that there is a constitutionally relevant difference between what is kept to oneself and what one chooses to share with
others. Id. at 2216. Conventional bank records consisting of information shared with, and obtained from, third parties do not raise any “new concerns wrought by digital technology.” Id. at 2222. Such records are usually the business records of banks thаt are not owned or possessed by the suspect, are exposed in the ordinary course of business, and are not confidential communications but instead instruments or documents used in transactions. See id. at 2216. In sum, we conclude that the federal analysis articulated decades ago in Miller and recently narrowed in Carpenter is not flawed. Accordingly, we decline to depart from federal precedent on this basis. See Gomez, 1997-NMSC-006, ¶ 20 (stating that broader protection can be provided under the New Mexico Constitution where the federal analysis is unpersuasive because it is flawed).
b. Distinctive state characteristics do not support departure from federal jurisprudence
{22} The Adames argue that we should depart from the result in Miller with regard to their records “because of New Mexico‘s established tradition of providing strong privacy protection to its citizens under
{23} In addition to New Mexico‘s consistently strong preference for warrants, Gomez, 1997-NMSC-006, ¶ 36, our courts have recognized a number of specific circumstances that justify a departure from the
also, e.g., State v. Cordova, 1989-NMSC-083, ¶¶ 1, 13, 17, 109 N.M. 211, 784 P.2d 30 (departing under
{24} But none of those cases is much akin to this case—which involves the government‘s acquisition of a suspect‘s financial records from a third party—and accordingly do not control the result here. Perhaps in recognition of this, the Adames analogize most extensively to two New Mexico cases that recognized a reasonable right to privacy under
{25} Both Crane and Granville emphasized that “when one seals garbage in an opaque container, one exhibits a reasonable expectation that the contents of the sealed, opaque container will remain privatе.” Crane, 2014-NMSC-026, ¶ 22; see also Granville, 2006-NMCA-098, ¶ 27 (“There is a presumption that an expectation of privacy is reasonable when garbage is in a container that conceals the contents from plain view.“). Among the fundamental reasons supporting the conclusion that an expectation of privacy in garbage is reasonable under
{26} But unlike the trash in Crane and Granville, the information in bank records is visible to others, and known to be so; such information has been shared, not concealed. Checks, deposits, wire transfers, account statements, and the like are not “confidential communications” but, instead, “information exposed to bank employees in the ordinary course of business.” Carpenter, 138 S. Ct. at 2216 (alteration, internal quotation marks, and citation omitted). In this important respect, bank records are different than trash placed out of view in opaque containers that are sealed or closed. In our view, individuals do nоt in general exhibit an actual (subjective) expectation of privacy in the financial information they expose to banking institutions and their employees. See id. at 2216, 2219 (stating that there is a reduced expectation of privacy in information voluntarily shared with third parties pursuant to the third-party doctrine). Accordingly, we do not find sufficient support from our trash cases to justify a reasonable expectation of privacy under
interpreting analogous provisions in our own constitution, the burden is on the party seeking relief under the state constitution to provide reasons for interpreting the state provisions differently from the federal provisions when there is no established precedent.” (аlteration, emphasis, internal quotation marks, and citations omitted)).
{27} Even as we uphold the principle that there is a constitutional distinction “between what a person keeps to himself and what he shares with others,” Carpenter, 138 S. Ct. at 2216, we recognize the limits of that principle. Shared information is not, of course, categorically unprotected under
III. CONCLUSION
{28} For the reasons stated, we hold that the Adames did not have a constitutionally protected interest pursuant to
{29} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice
WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice
PETRA JIMENEZ MAES, Justice, Retired
Sitting by designation
GARY L. CLINGMAN, Justice, Retired
Sitting by designation