*1 MILLER UNITED STATES April 21, Argued January 12, 1976 Decided No. 74-1179. *2 Powell, Court, Burger, J., opinion delivered of which Stevens, White, J., Stewart, Blackmun, Rehnquist, and C. joined. Brennan, J., post, post, p. JJ., p. 447, Marshall, J., 455, dissenting opinions. filed
Deputy argued General for Solicitor Wallace the cause the United With him on the brief were Solicitor States. Bork, Attorney Thornburgh, General Assistant General Sidney Glazer, M. and Ivan Michael Schaeffer. Jr., by
D. L. 422 Bampey, appointment Court, argued U. S. filed brief for 1054, cause and respondent. opinion
Mr. Justice Powell delivered Court.
Respondent possessing unregis- convicted an tered on the of a carrying business distiller without still, giving bond and with intent to defraud the Government whiskey possessing whiskey upon gallons 175 tax, no which taxes had been paid, and to defraud conspiring thе United of tax States revenues. U. 5179, §§ S. C. seq.; et 371. § S. C. Prior to trial respondent suppress moved to copies checks and other bank records obtained of allegedly means defective tecum duces two served banks at which he had accounts. The records had been maintained compliance the banks in requirements Secrecy Bank Act of 1970, 84 Stat. C. § 1829b (d). respondent’s motion to overruled District Court The Court of evidence was admitted. and the
suppress, Fifth reversed on the ground for Circuit Appeals are violated rights depositor’s that a pursuant to the Bank when bank records maintained Secrecy means of a defective sub- Act are obtained be so obtained must poena. It held that evidence pro- we find that had suppressed. Since subpoenaed tectable Fourth Amendment we reverse the decision below. documents,
I response On in to an informant’s December 18, 1972, deputy stopped a sheriff from Houston Ga., tip, County, van-type occupied by respondent’s alleged truck two of distillery co-conspirators. appa- The truck contained January 9, 1973, ratus and raw On a fire broke material. respondent. out in a Ga., warehouse rented Kathleen, and officials During department the blaze firemen sheriff 7,500-gallon-eapacity distillery, gallons discovered non-tax-paid paraphernalia. and related whiskey, Treasury agents Depart- Two wеeks later from the presented Tobacco and Firearms Bureau Alcohol, ment’s jury of the subpoenas issued blank clerk grand completed by District United and States Court, & Attorney’s presidents to the the Citizens office, National Bank of Warner Robins and Southern the Bank respondent where maintained accounts. The Byron, subpoenas required presidents to appear the two on January 24, 1973, produce and e., i.
“all records savings, checking, accounts, loan or the name of Mitch Miller otherwise, Mr. [respondent], Street, Macon, 3859 Mathis Ga. Mitch Miller Associates, Executive and/or October 1972, from Robins, 1, Warner Terrace, Ga., in the [January 22, 1973, present date through January 1973, and Bank of Byron, 23, сase Bank & National of the Citizens Southern in the case of Warner Robins] that the not advise banks did
The to make the employees their but ordered had been served .of documents copies provide available and to agent Bank of an Byron, At the agents desired. pro- and microfilm records of relevant account shown one two checks. deposit slip or copies vided one Bank microfilm rec- At the Citizens & Southern National copies- he agent, given ords also were shown and was respondent's during appli- the records of account slips, period. checks, deposit These all two cable included monthly financial three statements. The statements, and presidents bank were then told that it would not be necessary to appear person grand jury. before grand February days
The jury met on subpoenas. after the return date on Respondent others alleged four were indicted. overt acts conspiracy have been committed in furtherance of the *4 by included three financial transactions —the rental re- spondent by respond- the van-type truck, purchase the ent of by respondent radio and the equipment, purchase of quantity a sheet and pipe. metal metal The record not does indicate whether of the bank records were to presented grand jury. They in fact the were used in and investigation provided the “оne or investiga- two" tory Copies leads. the checks also were introduced at trial to establish the overt acts described above.
In his by motion the suppress, denied District Court, respondent contended that bank documents were il- legally It urged seized. was that the subpoenas were they defective because were the United issued States Attorney rather than a no return was made to a court, subpoenas and the court, were returnable on a date when grand jury not in Appeals was session. The Court of (1974). Citing reversed. 500 prohibition F. 2d 751 States, in Boyd v. United 622 (1886), S. 616, against “compulsory production papers private a man’s to establish a criminal held charge against the court him,” that cirсumvented improperly Government had Boyd’s protections of respondent’s Amendment Fourth right against and “unreasonable searches seizures” requiring “first party copy third bank to all of its de- positors’ in- personal checks then, improper with an vocation of legal calling upon the bank to allow process, inspection 2d, F. reproduction copies.” of those The recordkeeping 757. court acknowledged that the requirements held to Secrecy Act had been Bank be constitutional on Bankers Assn. their face in California Shultz, access but noted that (1974), the records by “existing legal proc- was to be controlled id., here were ess.” See at 52. subpoenas The issued рrocess.” found adequate “legal not constitute voluntarily was fact that the bank cooperated officers threat- rights found be for “he whose irrelevant, de- improper ened here was a bank disclosure 758. positor, 2d, bank official.” 500 not F. Appeals Court of
The Government contends that had finding in three respects: erred (i) to entitle necessary Fourth duces validity subpoenas challenge him to holding through suppress; (ii) his motion to tecum in deter- (iii) defective; and were obtained of the evidence mining suppression violation did appropriate remedy if a constitutional *5 place. take into area in no intrusion that there was
We find Fourth Amendment protected had a respondent which correctly the District Court therefore interest and suppress. we motion to Because respondent’s denied Appeals on that of the Court decision reverse the latter do not reach the Government’s we ground alone, two contentions.
II States, United 301-302 Hoffa pro- legitimately Court said that “no interest (1966), the implicated gov- tected Fourth Amendment” an in- investigative ernmental activities unless there is security trusion into a zone of into a man privacy, “the places property relies when he or his within himself constitutionally protected Ap- area.” The Court peals, above, noted had the respondent as assumed necessary pointing interest, States, language Boyd in v. United at which supra, “com- protectiоn against describes that Amendment’s pulsory production private papers.”1 a man’s We Appeals finding think Court of erred subpoenaed fall zone protected documents to within a privacy.
On face, subpoenaed their the documents here are not respondent’s papers.” “private Unlike claimant Boyd, can ownership pos- assert neither nor session. Instead, these are the business records of the Shultz, banks. we As said Bankers Assn. v. supra, at are . . not . 48-49, . . . neutrals in “[blanks involving transactions negotiable instruments, parties but instruments with a substantial stake in their con- availability acceptance.” tinued re- implications Boyd 1 The Fourth Amendment as applies it duces tecum have beеn undercut more recent cases. States, ante, infra, Fisher v. United 407-409. See 445-446. *6 accounts, like of the records spondent’s “all [which Secrecy required kept pursuant to be to the Bank Act,] pertain to to which the was transactions bank itself party.” Id., at 52.
Respondent Secrecy the Bank argues, however, that Act introduces in subpoena a factor that makes the this equivalent case the functional of a search and seizure depositor’s “private in Cali papers.” held, haveWe Shultz, Bankers supra, Assn. v. fornia mere of records pursuant require maintenance to the right ments of the Act no Fourth “invade Amendment [s] depositor.” respondent But contends that combination of the recordkeeping requirements Act subpoena2 and the those issuance of a to obtain permits re the Government to circumvent quirements of the it to by allowing depositor’s obtain a private complying records without legal requirements had applicable that would be it proceeded directly.3 must against him we Therefore, question in compulsion address the embodied whether Secrecy the Bank Act as exercised this case creates a Fourth in the where depositor none question existed before. This re- expressly
2Respondent appears depositor’s contend that a Fourth play Amendment interest comes into sub when a defective poena kеpt pursuant is used to obtain records to the Act. seeWe why no reason the existence of a Fourth Amendment interest turns subpoena Therefore, on whether is defective. do not limit we our alleged consideration to the situation which there is an defect subpoena in the served on the bank. not attempts It is clear whether refers obtain through directly private subpoena documents issued to the de question positor through a pursuant or search a warrant. The may personal pursuant whether business records be seized to a 74-1646, valid before this in No. Andresen v. Court warrant Maryland, granted, 423 cert. U. S. 822. Assn., supra, Bankers 53-54, served 24. n. *7 a Fourth Amendment
Respondent urges that has he they because kept by in the reсords the banks merely copies personal of records that were made and in purpose available to the banks for a limited expectation privacy. which he He has reasonable States, on relies this Court’s statement in Katz v. United Hayden, 389 353 (1967), quoting U. S. Warden v. 347, departed that “we have . (1967), . . “ from the narrow view” 'property that interests control ” right the Government seize,’ search and and that a “search and seizure” become when unreasonable the Government’s privacy upon activities violate “the person] which justifiably inBut Katz the [a reliefs].” Court also person stressed that knowingly ex- “[w]hat poses public to the subject is not a of Fourth Amend- ... protection.” ment 389 U. at 351. S., We must examine particular nature of the sought pro- documents to be tected in order to determine legitimate whether there is a “expectation privacy” concerning their contents. Cf. Couch v. United States, S. 322,
Even if we direct our attention to original checks deposit and rather than to slips, the microfilm copies actually viewed and obtained means of the subpoena, perceive we no legitimate “expectation privacy” their contents. The checks are not confidential com- munications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements deposit and contain slips, only informаtion voluntarily conveyed to the banks and exposed to their employees in ordinary course of business. The lack of any legitimate expectation privacy concerning the information kept in bank records assumed Congress in enacting the Bank Secrecy Act, expressed purpose of which is to require records they degree be maintained because “have a high usefulness and regulatory investigations tax, criminal, 12 U. proceedings.” (a) (1). § S. C. 1829b Cf. supra, Couch v. United States, at 335. depositor takes the his revealing affairs risk, another, conveyed by the information will be White, person to Government. United States v.
401 U. 751-752 (1971). S. This Court has held repeatedly that the Fourth Amendment does pro- not hibit оf information obtaining revealed to a third party conveyed by him to Government authorities, even if the information is revealed on the assumption it will be used purpose for a limited and the *8 placed confidence party the third will betrayed. not be Id., 752; at a v. States, United 385 302; U. at S., Hoff Lopez States, v. United 373 427 (1963).4 analysis
This is not changed the mandate the Secrecy Bank Act depositors' that records of transactions be maintained banks. Bankers Assn. California Shultz, S., 416 U. at 52-53, we rejected the contention banks, when keeping records of their depositors' pursuant transactions to the Act, solely are acting as agents of the Government. But, even if the banks could solely be acting said to have beеn as agents Government transcribing necessary complying information and protest5 without with the requirements of subpoenas, there would be no depositors' intrusion Fourth rights. See Osborn v. States, United 385 U. S. 323 Lewis v. United (1966); 385 S. 206 States, U.
4 question doWe not address here the evidentiary privileges, protecting as such communications attorney between an States, Fisher ante, v. United his client. Cf. at 403-405. 5 notify Nor did banks neglect respondent, legal without consequences here, may however unattractive it be. 444
Ill
depositor
Amendment interests
Fourth
Since
general
governed
this
is
implicated
case
here,
party
to a third
subpoena
of a
rule that
issuance
does not violate
party
to obtain the records
prosеcution
even if a criminal
defendant,
of a
rights
subpoena
time the
is
contemplated
at
issued.
Shultz,
Don
53;
supra,
Assn. v.
Bankers
California
States,
(1971)
United
S.
aldson v.
it
Under
these
concurring).
(Douglas, J.,
principles,
passage
the Bank
firmly
was
before
settled,
summons
Secrecy Act, that an Internal Revenue Service
does not
third-party
directed to
bank
violate
rights
depositor
investiga
of a
under
Mobile
tion. See First National Bank
v. United
States,
aff’g
267 U.
(1925),
S.
F.
Ala.
(SD
1924).
Shultz,
Bankers
See also
Assn. v.
States,
supra,
supra,
53; Donaldson v. United
at 522.
traditionally
permanent
records of
kept
banks
Many
their depositors’
although not all banks did so
accounts,
By
practice
years.
and the
in recent
re
declining
quiring
kept by
that such records
all
Bank
be
banks,
Secrecy Act is not a
designed
novel means
circum
*9
vent
merely
established Fourth Amendment
It is
rights.
attempt
an
to facilitate the use
a proper
long
standing law enforcement
technique by insuring that
they
records are available when
are needed.6
6Respondent
subpoenas infringed upon
does not contend that the
his
rights.
First
There
reporting
Amendment
was no blanket
re
Buckley
quirement
Valeo,
of the sort we addressed in
424
v.
1,
(1976),
allegation
improper inquiry
pro
60-84
nor
of an
into
presented
tected associational
of the sort
in
activities
Eastland v.
Fund,
United States Servicemen’s
445 re- denied correctly We hold the District Court that possessed he spondent’s motion to since suppress, by could vindicated that be subpoenas. to challenge IV subpoenas Respondent only that contends not his infringed duces the banks tecum against directed subpoena Fourth but that a issued rights, pursuant to bank to records maintained obtain Act subject stringent more Fourth Amendment re- In quirements ordinary subpoena. making than is the this assertion he on statement in relies our California Assn., Bankers to the that access supra, 52, maintained the Act is to be banks under controlled 7 by "existing legal process.” Walling, Press v. Oklahoma Co. 327 U. S. Pub. “the (1946), the Court said that Fourth if for [Amendment], applicable subpoenas pro- [to duction of business records and papers], at most guards against only way abuse of too much indefinite- or 'particularly ness breadth in the things required to be described,’ if also the is one the inquiry demanding inquiry unnecessarily that intimate areas of an "touch[es] Shultz, personal individual’s Bankers Assn. v. affairs.” (Powell, S., J., 416 U. at 78-79 concurring). Here Government powers narrowly has duces through subpoenas exercised its directed tecum subject legal process. restraints attendant to such IV, See Part infra. Superior Court, This case differs from Burrows 3d Cal. (1974), P. 2d relied on Mr. Justice Brennan dissent, respondent’s the bank fur records of accounts were response by legal nished to “compulsion process” in the form of duces tecum. The court in Burrows found it “signifi cant . . . case) provided the bank statements [in police *10 response request to an informal oral for information.” Id., 243, 2d, P. 529 at 593. the materials by law to make is authorized
agency United States v. also relevant.” See specified citing Respondent, 11-12 Dionisio, 1, (1973). 410 U. S. District S. States 407 U. Court, v. United United States application discussed the in which we (1972), to of the Fourth requirements the warrant eaves- through electronic security surveillance domestic equiv- suggests greater judicial scrutiny, that dropping, neces- warrant, is required alent that for a search to obtain bank sary subpoena when is to be used a But depositor’s account. Assn., only S., emphasized Bankers we access to the records was to be in accordance “exist- ing process.” a new legal There was indication that was to be or distinction rule traditional devised, subpoena a search warrant would not be between recognized.8 for the reasons stated hold we above, event, lacks requisite Fourth Amendment subpoenas.9 challenge validity of the
V judgment The is Appeals Court reversed. court deferred decision on whether the trial court had improperly respondent’s overruled suppress motion to
8 subpoena A subject duces tecum issued to obtain records stringent nó requirements more is the than ordinary subpoena. warrant, contrast, A search is issuable pursuant judiciаl prior approval and authorizes offi Government cers to seize requiring evidence without through enforcement Dionisio, courts. See United States (1973). v. 410 U. 9-10 S. 9There is no occasion for us to address whether the complied requirements with the outlined in Oklahoma Press Pub. Co. Walling, they The banks which were served did validity. not contest their
447 distillery apparatus and material seized from raw a rented truck. disposition We remand for of that issue.
So ordered. Mr. Justice Brennan, dissenting. pertinent
The phrasing of the Fourth Amendment— right “The of the people to be secure in their persons, houses, and papers, effects, against searches unreasonable and shall not be in seizures, virtually violated” —is haec verba as Art. I, § Constitution— 19, California right “The of the рeople be in their persons, secure houses, papers, against and effects, unreasonable seizures searches, shall not be The violated.” California Su- preme Court 19, has reached a Art. I, § conclusion under in contrary same factual to that reached situation, today the Court under I the Fourth Amendment.1 dis- my sent because in view the Supreme California Court correctly interpreted the language. relevant constitutional Superior
In Burrows v. 3d Court, Cal. P. 2d 590 (1974), .question whether bank state- copies or relating ments thereof to an accused’s bank ac- counts obtained prosecutor sheriff and without privacy expectation upon by The support relied rejectеd his Fourth Amendment claim is similar to that as to States, similar documents Couch v. United 409 U. S. taxpayer
But in Couch the had delivered documents to her preparation for accountant “knowing income tax .returns mandatory required disclosure of much of the information is therein Id., 335; id., in an income tax return.” see J., at 337 (Brennan, concurring). contrast, obliged the instant case the banks were respond process, to lawful Assn. Shultz, Bankers (1974), 416 U. S. obligation 52-54 had no to disclose the voluntarily. expectation privacy information asserted ante, States, p. 391, Fisher distinguishable v. United on similar grounds. bank, consent of the legal but with the process,2
benefit of seizure. search and illegal a result of an acquired were as *12 the had Cоurt held that accused Supreme The California in his expectation privacy of bank state- reasonable a voluntary relinquishment records, that the ments and of the sheriff by request such the at the records bank consent the prosecutor did not constitute a valid by the the acquisition officers of and that accused, illegal the result of an search records therefore was conclusion, my In the same for and seizure. view com- Supreme Court, is stated reasons phras- practically case identical pelled this under ing Addressing Amendment. the threshold of the Fourth in- right privacy question whether the accused's the Court relying part on decision of vaded, and Mosk stated in his in this Mr. Justice Appеals case, court: opinion for unanimous excellent of a bank gainsaid “It be that the customer cannot checks, such as which expects documents, that of his the bank in course business he transmits to such an private, will remain and that operations, con- prosecution reasonable. expectation although expecta- it asserts that this much, cedes as distinguishes Burrows on the ground that it involved The Court legal process in the legal process, while the instant case involves Ante, at 445 subpoenas duces tecum. n. 7. But the Court form of the Fourth issue does not turn on also states Ante, subpoenas were defective. at 441 2. whether the n. any event, present purposes acсept I In for would the Court of Appeals’ in this conclusion case were defective. upon by Moreover, although Appeals, not Court of neither relied the bank nor the Government notified disclosure my view, his the Government. the absence of such notice records ante, 5; just “unattractive," is not a fatal constitutional n. process provision inheres in defect that omits for notice to the protected of his bank customer of an invasion interest.
tion. is not constitutionally cognizable. Representa- tives of several banks testified at the suppression hearing information in possession their regard- ing a customer’s account is deemed them be confidential.
“In present case, although the record estab- that copies petitioner’s lishes bank statements rather than of his provided checks were officer, to the the distinction is not significant with relation to petitioner’s expectation privacy. That the bank alters the form in which it information it by transmitted to the depositor to receipt show the *13 of money and disbursement on a bank statement does not diminish the depositor’s anticipation of the privacy in matters which he the confides to bank. A bank customer’s expectation that, reasonable is compulsion by legal absent the he process, matters reveals to the bank will be utilized the bank for banking internal purposes. pe- hold Thus, we titiоner had a expectation reasonable the bank would maintain the confidentiality papers of those originated which with him in check form and of the bank statements into which a record of those same checks had been pursuant transformed to internal practice. bank People
“The illegal assert that no search and sei- zure occurred here the voluntarily pro- because bank vided the statements to the the police, and bank police rather than the conducted the search of its papers relating petitioner’s records for accounts. If, petitioner as we conclude above, has a reasonable expectation privacy of statements, bank voluntary relinquishment of such records bank at the request police does not constitute not It is petitioner. consent this valid ... petitioner the bank but of the right privacy untenable to
which and thus it would be issue, is at bank, entity a neutral conclude that may validly con- significant matter, rights. How- depositors’ sent an invasion of its example if for neutral, the bank is not as where ever, suspected it is itself a victim of the defendant’s wrongdoing, depositor’s right privacy will not prevail.
“Our with the recent de- rationale consistent (5th 1974) cision of United States v. Miller Cir. F. In Miller, Attorney, 2d 751. the United States without the knowledge, defendant’s issued to two banks which the defendant maintained ac- counts, ordering produсtion 'all records of ac- counts’ in the name The banks defendant. voluntarily copies provided government with deposit defendant’s checks and these slip; items were introduced into evidence at the trial his which led to conviction. The circuit court re- versed the conviction. It held that the defendant’s rights under the Fourth Amendment were violated *14 by subpoena by the search because the was issued Attorney by United States rather than a court grand jury, or voluntary compliance and the bank's subpoena was irrelevant since it was the right depositor’s privacy which was threatened by the disclosure. any
“We hold that bank statements or copies thereof obtained the sheriff prosеcutor with- legal process out the benefit of acquired were as the illegal result of an (Cal. search and seizure Const., I, 13), § art. and that the trial court should have granted suppress the motion to such documents. underlying “The dilemma in this and related cases is bank, detached and entity, disinterested relinquished voluntarily. the records But cir- cumstance should not practical be crucial. For all purposes, disclosure or business individuals firms of their financial affairs a bank is not en- tirely volitional, since it is impossible participate in the economic contemporary society life of without maintaining a bank account. of such course depositor dealings, a many aspects reveаls of his personal affairs, habits opinions, and associations. totality Indeed, of bank provides records a vir- biography. tual current While are we concerned present case with bank statements, logical extension of the contention that the bank’s ownership of permits free them access to any police beyond officer extends far such statements to checks, savings, bonds, loan applications, loan guarantees, and all papers which the customer has supplied to the bank to facilitate the conduct his upon financial affairs assumption reasonable the information would remain To confidential. permit a police merely оfficer access to these records request, any judicial his without control as to relevancy other requirements or traditional legal process, and to allow evidence to be used in subsequent prosecution criminal against a defendant, opens very the door to a range vast and unlimited police power. real abuses of legion
“Cases are that condemn violent searches and invasions of an right individual’s privacy his dwelling. The imposition upon privacy, al- though perhaps may not so dramatic, be equally devastating when other methods employed. De- *15 velopment of photocopying machines, electronic computers other sophisticated and instruments have intrude into ability government the
accelerated to exclude normally chooses person which a areas minds. Conse- eyes inquisitive and prying from reach of interpretations judicial quently must privacy of individual protection constitutional de- by these new created perils with the keep pace 593- P. at 13 Cal. 3d, 243-248, 2d, vices.” omitted). (footnote ques- also addressed Supreme Court The California Assn. v. Bankers relevance tion of the California my for the rea- Shultz, view, 416 U. S. Burrows, of the Court the decision sons stated way in no inconsistent Appeals today, under review Supreme Court with California Bankers.3 said: decision, in a six-three held, Bankers]
“[California under the Fourth Amendment rights thаt the bank’s by the and that abridged regulation, were not depositor plaintiffs standing challenge lacked showing requirement because there was reporting they type of transaction engaged the regulation which referred. justices pro- of two concurring
“The views who majority necessary votes to create a vided of particular interest. Justice Powell’s opinion, joined by Justice Blackmun U. S., [416 78] clear that a extension of re- significant makes requirement pose porting would substantial consti- tutional concurrence with the questions, reporting 3 I continue to believe that recordkeeping requirements Secrecy Bank of the Act are Cali unconstitutional. Shultz, S., J., Bankers Assn. at 91 dis (Brennаn, fornia disagree senting). reasoning I But Court’s in this case constitutionality assuming Act, even and therefore it is unnecessary rely for me to on the infirmities inherent in the Act. *16 majority of act upon provisions was based the the as He 'In narrowed their regulations. wrote, full the reports apparently authorized reach, open-ended upon of the Act touch intimate language of personal areas an individual’s affairs. Financial transactions person’s can reveal much about a activi- At ties, gov- and beliefs. some associations, point, ernmental upon implicate intrusion these areas would legitimate expectations privacy. Moreover, potential for particularly abuse is acute as where, here, legislative permits scheme access this to information judicial proc- without invocation ess. In such instances, important responsibility for balancing societal and individual interests is left to unreviewed executive rather than discretion, United States scrutiny of magistrate. a neutral Court, United States District 316— U. S. 317.’ [416 S., 78-79.] Douglas
“Justices and Marshall dissented on the ground the act the Fourth violated Amend- ment. Justice Brennan also filed a stating dissent, recordkeeping reporting requirements of the act impermissibly constituted an grant broad power Secretary. Shultz .
“. federal case . decided after [T]he directly confronting depositor’s the issue of the entirely rights consistent with the views we have . Miller holds that Shultz forth may set above. . . interpreted not be 'proclaiming as on open season personal bank records’ or permitting as the govern- ment circumvent the Fourth first copy requiring depositors’ banks their checks and then calling inspection banks allow copies appropriate without process.” those legal 3d, Cal. 246-247, 2d, (footnote P. at 595-596 omitted). Court judgment
I therefore affirm the would *17 strikingly illustrates only I that Burrows Appeals. add relying courts among high state emerging trend liber- protections individual constitutional upon state counterpart provisions pervading protections ties4 — 4 Palmigiano, ante, 339, g., cases cited in Baxter See, v. e. Michigan Mosley, 423 dissenting); J., v. (Brennan, and n. 10 Wilkes, The (Brennan, dissenting). also 96, 120-121 (1975) See J., of the State Court Evasion Federalism in Criminal Procedure: New Ky. (1974); Wilkes, 421 More on the New Burger Court, 62 L. J. Ky. (1975); Falk, Procedure, Criminal 63 873 Federalism in L. J. “Adequate” Than Nonfederal Constitution: A More State (1973); Ground, Project Report: 61 273 Toward an Calif. L. Rev. Rights, Rights-Civ. Lib. for State Bills of 8 Activist Role Harv. Civ. (1973). past, might 271 have for counsel L. Rev. In the it been safe only courts, risks to raise federal issues in state but the constitutional questions increasingly substantial, raising of not as state-law Michigan Mosley, colloquy during argument v. revealed supra: “QUESTION: you contrary Why argue being can’t all of this as Michigan? of the to the law and the Constitution State provision I the same in the “MR. ZIEMBA: can because we have Michigan Constitution of 1963 as we have in the Fifth Amendment Constitution, certainly. of the Federal “QUESTION: you thing Well, argued the whole before. Appeals? ZIEMBA: In the Court of “MR.
“QUESTION: Yes. predicated my really ZIEMBA: I not touch did "MR. —I Constitution, argument entire on the Federal I must admit that. equivalent provision Michigan I Consti- did not mention may although this 1963, tution of I could have. And I assure Court I every future, opportunity in the shall. “[Laughter.]
“QUESTION: you hope you opportunity don’t have that But this case. (O. right.” Arg. Tr. 43-44 T.
“MR. ZIEMBA: That’s of Oral 74-653). No. rely It for counsel to on state courts to consider would be unwise sponte. Johnson, State sua questions But see v. J. state-law N. (1975). 2d 66 346 A. the United States but increasingly being Constitution, ignored by decisions of Court. this For the most recent examples in this privacy but in Court, Johnson, Fourth g., Kelley e. see, v. areas, ante, p. 238; Doe Atty., v. post, p. 901; Commonwealth’s Davis, Paul v. (1976); U. S. 693 United States v. Watson, 423 U. S.
Mr. Justice Marshall, dissenting. Shultz, Bankers 416 U. Assn. S. (1974), upheld constitutionality Court *18 recordkeeping requirements Secrecy of the Bank Act. U. S. C. I (d). finding required § 1829b the dissented, maintenance of bank be a seizure customers’ records to within meaning the of the Fourth Amendment un and lawful in the absence cause. probable warrant While Court the in not Bankers Assn. did then purport to decide could whether a customer later challenge the the delivery bank’s of his records to Gov pursuant ernment to I subpoena, warned: is although ironic that the deems the majority “[I]t bank prema- customers’ Fourth Amendment claims ture, it the also intimates that once bank has made coрies of checks, longer a customer’s the customer standing rights has invoke to his Fourth Amendment when a demand is on made the bank the Govern- ment By for records. Gov- accepting ... ernment’s approach recordkeeping bifurcated to the requirement and acquisition records, majority in Fourth engages whereby a hollow charade un- premature Amendment claims to be labeled they til such time as can be deemed too late.” at 97. S.,
Today, surprisingly, respondent’s not the Court finds to be made in for claims too Since Court late. Cali complying in bank, Bankers Assn. held that nia the checks written keep copies it requirement nor seizes records customers, its “neither searches right/' depоsitor which the has a Fourth id., today’s holding nothing there is new in respondent protected has no standing fortiori,
in such A he not have records. does Alder subpoena contest the bank. Government’s States, man v. United 394 U. S. redundancy by
I my today’s wash hands extended recordkeeping requirements Court. Because the records Act order the bank seizure of customers’ I Act probable without a warrant believe the cause, standing has unconstitutional and that unconstitutional, raise that claim. the Act is Since it rely kept pursuant Government cannot on records relied prosecuting bank The Government customers. on such I and, this because of would that, case affirm the con- Appeals’ respondent's Court of reversal I respectfully viction. dissent.