State v. Thompson, 880181

• Decision Date: 21 March 1991
• Docket Number: No. 880181,880181
• Citation: 810 P.2d 415
• Parties: 1991-1 Trade Cases P 69,396 STATE of Utah, Plaintiff and Respondent, v. Michael C. THOMPSON and Bruce A. Conklin, Defendants and Petitioners.
• Court: Utah Supreme Court

Page 415

810 P.2d 415

1991-1 Trade Cases P 69,396

STATE of Utah, Plaintiff and Respondent, v. Michael C. THOMPSON and Bruce A. Conklin, Defendants and Petitioners.

No. 880181.

Supreme Court of Utah.

March 21, 1991.

David L. Wilkinson, Stanley H. Olsen, Salt Lake City, for State.

John F. Clark, John K. West, Roy B. Moore, Salt Lake City, for Michael C. Thompson.

Roy B. Moore, Salt Lake City, for Bruce A. Conklin.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Associate Chief Justice:

We granted certiorari to review the decision of the Utah Court of Appeals in State v. Thompson, 751 P.2d 805 (Utah Ct.App.1988), on the propriety of the admission of evidence against defendants which had been gathered pursuant to the Subpoena Powers Act.

Defendants Michael C. Thompson and Bruce A. Conklin were convicted after a jury trial of five counts of bribery in violation of Utah Code Ann. § 76-6-508(1)(b), one count of antitrust violation under Utah Code Ann. §§ 76-10-914 and 76-10-920 and one count of racketeering in violation of Utah Code Ann. § 76-10-1603. Their sentences were stayed pending appeal.

I. ARGUMENT

Defendants assail the trial court's denial of their motion to suppress all evidence gathered by the State under the Subpoena Powers Act, Utah Code Ann. §§ 77-22-1 through -3, contending that their right to be secure in their papers against unreasonable searches and seizures conferred by article I, section 14 of the Utah Constitution was violated. In 1983 and 1984, the attorney general issued subpoenas duces tecum under the Subpoena Powers Act to defendants' bankers, accountants, business associates, and several corporations. In a related case, ¹ Utah Power and Light Co. (UP & L) challenged the validity of the subpoenas served upon it. Judge Bunnell of the Seventh Judicial District Court quashed some subpoenas, and the attorney general withdrew others, upon a finding that the subpoenas were "too broad" or "exceeded the parameters of the good cause affidavit." We affirmed the dismissal of the UP & L investigation in In re Criminal Investigation, 754 P.2d 633 (Utah 1988).

This case differs from the UP & L case in that the subpoenaed persons (defendants' banks) have not challenged the validity of the subpoenas duces tecum. Defendants contend that they have standing to make such a challenge because their right to be free of unreasonable searches has been violated. The State argues that even if we assume the subpoenas were overbroad or failed to comply with the procedural safeguards imposed by In re Criminal Investigation, only the subpoenaed persons' rights have been violated. Defendants themselves were not subpoenaed and, as a general rule, do not have standing to assert the violation of fourth amendment rights belonging to a third party. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176, 187 (1968); Simmon v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247, 1256 (1968).

Defendants counter that under article I, section 14 of the Utah Constitution, they have an "expectation of privacy" ² in tax and bank records in the custody of accountants and banks. Our analysis is confined to bank records. The issue of tax records was not briefed with any specificity, nor were any authorities cited for defendants' tax record contention.

II. ANALYSIS

Article I, section 14 of the Utah Constitution provides in part: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated...."

We have recently pointed out:

Article I, section 14 of the Utah Constitution reads nearly verbatim with the fourth amendment, and thus this Court has never drawn any distinctions between the protections afforded by the respective constitutional provisions. Rather, the Court has always considered the protections afforded to be one and the same.

State v. Watts, 750 P.2d 1219, 1221 (Utah 1988); see State v. Lopes, 552 P.2d 120, 121 (Utah 1976); State v. Criscola, 21 Utah 2d 272, 274, 444 P.2d 517, 518-19 (1968). However, we recognized in State v. Watts that it might be appropriate in some future case to give article I, section 14 a different interpretation from that given to the fourth amendment.

We did that very thing recently in State v. Larocco, 794 P.2d 460, 471 (Utah 1990), where a majority of this court held that the opening of a car door during a warrantless search for the vehicle identification number constituted an unreasonable search under article I, section 14 of the Utah Constitution. Defendants similarly seek a different interpretation under the state constitution than is given to bank records under the fourth amendment.

The United States Supreme Court has held that a depositor has no legitimate expectation of privacy in his bank records and has no standing under the fourth amendment to challenge their seizure. That Court dealt with the issue before us today as follows:

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy. He relies on this Court's statement in Katz v. United States, 389 U.S. 347, 353 [88 S.Ct. 507, 512, 19 L.Ed.2d 576] (1967), quoting Warden v. Hayden, 387 U.S. 294, 304 [87 S.Ct. 1642, 1648, 18 L.Ed.2d 782] (1967), that "we have ... departed from the narrow view" that " 'property interests control the right of the Government to search and seize,' " and that a "search and seizure" become[ ] unreasonable when the Government's activities violate "the privacy upon which [a person] justifiably relie[s]." But in Katz the Court also stressed that "[w]hat a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection." 389 U.S. at 351 [88 S.Ct. at 507, 19 L.Ed.2d at 576]. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate "expectation of privacy" concerning their contents. Cf. Couch v. United States, 409 U.S. 322, 335 [93 S.Ct. 611, 619, 34 L.Ed.2d 548] (1973).

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623-24, 48 L.Ed.2d 71, 78-79 (1976).

The result reached in Miller has been roundly criticized. See LaFave, 1 Search and Seizure § 2.7(c), at 511 (2d ed. 1987); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N.Ill.U.L.Rev. 1, 21-28 (1983); Guzik, The Assumption of Risk Doctrine: Erosion of Fourth Amendment Protection Through Fictitious Consent to Search and Seizure, 22 Santa Clara L.Rev. 1051, 1068-72 (1982); Comment, Reasonable Expectations of Privacy in Bank Records: A Reappraisal of United States v. Miller and Bank Depositor Privacy Rights, 72 J.Crim.L. & Crim. 243 (1981); see also Note, Government Access to Bank Records, 83 Yale L.J. 1439 (1974) (arguing for a privacy interest in bank records). As LaFave points out, the thrust of Miller

is that the bank customer has no expectation of privacy and thus no Fourth Amendment protection no matter how egregious the police conduct which results in government acquisition of the information in the bank records. Thus, in United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), where IRS agents arranged to have the bank records obtained by burglary, the Court without hesitation concluded that under Miller "a depositor has no expectation of privacy and thus no 'protectable Fourth Amendment interest' in copies of checks and deposit slips retained by his bank."

LaFave, 1 Search and Seizure at 511 n. 47.

Several state courts have rejected the rationale of Miller and have held that under their state constitutions, a bank customer has a privacy right in bank records and has standing to challenge an invalid subpoena. People v. Jackson, 116 Ill.App.3d 430, 72 Ill.Dec. 153, 452 N.E.2d 85 (1983); Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (noting that in certain cases the customer can lose his expectancy); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979); see also Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 529 P.2d 590, 118 Cal.Rptr. 166 (1974) (decided prior to Miller but rejecting the rationale used therein).

These courts have found the rationale in Katz v. United States, that "the Fourth Amendment protects people, not places," to be more persuasive than that of Miller. While the Katz court stated that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," it also noted that "what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." 389 U.S. at 351-52, 88 S.Ct. at 511, 19 L.Ed.2d at 582; State v. Harris, 671 P.2d 175, 177-78 (Utah 1983). The Miller court abandoned this rationale, relying instead "for its analysis of an expectation of privacy upon the ownership and possession of the records and not the reasonable expectations of the individual." People v. Jackson , 452 N.E.2d at 88; see also LaFave, 1 Search and Seizure § 2.7(c), at 511.

The state courts have thus found that under an expectation of privacy test,

it is reasonable for our citizens to expect that their bank records will be protected from disclosure because in the course of bank dealings, a...