Burrows v. Superior Court

• Citation: 13 Cal.3d 238,529 P.2d 590,118 Cal.Rptr. 166
• Court: United States State Supreme Court (California)
• Decision Date: 27 December 1974
• Parties: , 529 P.2d 590 Wesley S. BURROWS, Petitioner, v. SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30308.

Page 166

118 Cal.Rptr. 166

13 Cal.3d 238, 529 P.2d 590

Wesley S. BURROWS, Petitioner, v. SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30308.

Supreme Court of California, In Bank.

Dec. 27, 1974.

As Modified on Denial of Rehearing March 12, 1975.

John R. Sheehan, Burbank, for petitioner.

Charles C. Marson, Joseph Remcho, Peter E. Sheehan, Deborah Hinkel, Toby Sherwood, San Francisco, Dennis K. Metzler, John R. Deacon, Robert W. Eisefelder, Los Angeles, Laurie S. Harris, Gail M. Title, Beverly Hills, and Norman L. Wilky, Jr., Los Angeles, as amici curiae on behalf of petitioner.

Lowell E. Lathrop, Dist. Atty., Joseph A. Burns and Carl E. Davis, Deputy Dist. Attys., for respondent and for real party in interest.

MOSK, Justice.

Petitioner is an attorney suspected of having misappropriated the funds of a client. Respondent court issued a warrant authorizing the seach of his office; pursuant thereto, the police conducted a search of his office files as well as his automobile, and seized a large number of documents. Thereafter a detective contacted several banks in which petitioner maintained accounts, and without a warrant or any court process obtained from at least one bank photostatic copies of petitioner's financial statements. Ultimately petitioner was charged with grand theft. He moved to suppress the evidence obtained from his office, automobile and the bank. (Pen.Code, § 1538.5.) The motion was denied, and in this proceeding he seeks a statutory writ of mandate to annul the court's order and to compel it to grant the motion.

Harold Davis, a deputy district attorney of San Bernardino County, appeared before a magistrate on December 29, 1971, and testified as follows: Petitioner represented Harold D. Miller in connection with an action against Miller for child support. Miller was ordered by the court to make payments of $50 a month to his former wife, Mrs. June Trower. According to Miller, petitioner requested that these payments be sent to him, promising that he would transmit them to the court trustee, who would in turn forward them to Mrs. Trower. Miller stated that he had made payments to petitioner from June through December 1971, but Mrs. Trower claimed that she had not received any of these payments, nor had the court trustee. Petitioner's legal secretary was told by his bookkeeper that the checks received from Miller were placed in petitioner's trust account at the Bank of America in Victorville, and that the funds were not paid out of that account to Mrs. Trower. Some of Davis' testimony was supported by documentary evidence.

Based upon this information, the judge issued a warrant authorizing the search of petitioner's office for 'all books, records, accounts and bank statements and cancelled checks of the receipt and disbursement of money and any file or documents referring to Harold D. Miller, June Trower, June Miller or Stacy Miller.'

On December 29, Davis and another deputy district attorney, accompanied by two deputy sheriffs, entered petitioner's office, and over his objection, commenced an exhaustive search of his files, desks and closets. The search, which took two or three hours, was not limited to documents relating to the persons specified in the warrant. Rather, the officers, under Davis' direction, examined all of petitioner's financial records from 1969 onward, and they removed hundreds of individual items such as account books, bank statements, and cancelled checks, only a few of which related to the named individuals.

During the course of the search, some check stubs were found, but the checks to which they related could not be located. One of the officers asked petitioner's permission to search his automobile, which was parked outside the office. The evidence is conflicting as to whether petitioner consented to the search of the car. The officer testified that petitioner gave him permission to examine the contents of the car, while petitioner denied having done so. Although numerous papers in the car were examined, only one checkbook was ultimately taken from the car.

A few days thereafter the material taken in the search was transmitted to Detective K. A. Kutch of the San Bernardino Sheriff's Department. Kitch contacted several banks in which petitioner maintained accounts and requested them to provide copies of petitioner's bank statements, as well as other material relating to petitioner's financial transactions. Although the record does not clearly establish the extent to which the banks complied with these requests, in at least one instance photocopies of petitioner's bank statements were provided to the officer.

The prosecution made photocopies of the material taken in the search of the office. Upon petitioner's motion the court ordered the return of the original records, but denied the motion to suppress the copies. It found that there was probable cause to issue the warrant, that the evidence seized was as descibed in the warrant, and that, although the search of petitioner's car was not authorized, petitioner had consented thereto. Moreover, the court found the search and seizure of the bank records to be reasonable. ¹

I

Initially, we discuss the most significant and novel issue in this case: whether the police violated petitioner's rights under the California Constitution, article I, section 13, ² in obtaining, without benefit of legal process, copies of statements from a bank in which he maintained an account. We have held, consonant with Katz v. United States (1967), 389 U.S. 347, 350--352, 88 S.Ct. 507, 19 L.Ed.2d 576, that, in determining whether an illegal search has occurred under the provisions of our Constitution, the appropriate test is whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable governmental intrusion. (People v. Krivda (1971) 5 Cal.3d 357, 364, 96 Cal.Rptr. 62, 486 P.2d 1262; 8 Cal.3d 623--624, 105 Cal.Rptr. 521, 504 P.2d 457.)

It cannot be gainsaid that the customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable. The prosecution concedes as much, although it asserts that this expectation is not constitutionally cognizable. Representatives of several banks testified at the suppression hearing that information in their possession regarding a customer's account is deemed by them to be confidential.

In the present case, although the record establishes that copies of petitioner's bank statements rather than of his checks were provided to the officer, the distinction is not significant with relation to petitioner's expectation of privacy. That the bank alters the form in which it records the information transmitted to it by the depositor to show the receipt and disbursement of money on a bank statement does not diminish the depositor's anticipation of privacy in the matters which he confides to the bank. A bank customer's reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes. Thus, we hold petitioner had a reasonable expectation that the bank would maintain the confidentiality of those papers which originated with him in check form and of the bank statements into which a record of those same checks had been transformed pursuant to internal bank practice.

We next determine whether the police unreasonably interfered with petitioner's expectation of privacy. It is significant in this connection with the bank provided the statements to the police in response to an informal oral request for information about all of petitioner's accounts. Thus, the character, scope, and relevancy of the material obtained were determined entirely by the exercise of the unbridled discretion of the police. If this search may be deemed reasonable, nothing could prevent any law enforcement officer from informally requesting and obtaining all of a person's or business entity's records which had been confided to a bank, though such records might have no relevance to a crime, if any, under investigation; and those records could be introduced into evidence in any subsequent criminal prosecution.

The People advance no governmental justification for such a sweeping exploratory invasion into an individual's privacy. Their primary assertion is not that it is essential to effective law enforcement to obtain bank records without judicial process, or even that the interests of a person in the confidentiality of his financial affairs is outweighed by the advantages to society in disclosure of the information. Instead, it is argued, banks have an independent interest in voluntarily cooperating with law enforcement officers because financial institutions desire to foster a favorable public image, and like any good citizen, to assist in the detection of crime. However laudable these motives may be, we are not here concerned with the conduct or reputation of banks, but with whether the police violated petitioner's rights by obtaining from banks, without legal process, documents in which petitioner had a reasonable expectation of privacy.

We are aware that numerous federal cases have held that a depositor has no proprietary interest in the records of his accounts which a bank maintains, and that he has no standing on Fourth Amendment grounds to resist a subpoena or summons directed to the banks ordering the production of such records. (See, e.g., United States v. Gross (8th Cir. 1969) 416 F.2d 1205, 1212--1213; Harris v. United States (9th Cir. 1969) 413 F.2d 316, 317--318; Galbraith v. United States (10th Cir. 1968) 387 F.2d 617, 618.) However, it is worthy of note that the foregoing and other federal cases involved more than an informal request for information; the material was...