State v. Adame
| Decision Date | 18 June 2020 |
| Docket Number | NO. S-1-SC-36839,S-1-SC-36839 |
| Citation | 476 P.3d 872 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ismael ADAME and Angela Adame, Defendants-Appellants. |
| Court | New Mexico Supreme Court |
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
{1} In this opinion we address whether, pursuant to Article II, Section 10 of the New Mexico Constitution, defendants Ismael and Angela Adame (the Adames) had a reasonable expectation of privacy in personal financial records maintained by their banks. We hold that Article II, Section 10 does not recognize a reasonable expectation of privacy in the Adames’ banking records, which consist of five years of financial information voluntarily shared with their banks. Accordingly, we affirm the district court, which declined to suppress the bank records of the Adames on the basis of the New Mexico Constitution.
{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 account records, savings account records, loan records, safe deposit box records, certificates of deposit, money market certificates, United States treasury notes, United States treasury bills, credit card records, purchases of bank checks, certified check records, letters of credit, and wire transfer records, among other financial records.
{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 Fourth Amendment to the United States Constitution, Article II, Section 10 of the New Mexico Constitution provides for a reasonable expectation of privacy in a person's financial records possessed by the person's bank, and, further, a warrant supported by probable cause is required to obtain and then admit such records at trial.
{5} The district court declined to conclude that the New Mexico Constitution provides greater protection than the Fourth Amendment for financial records maintained by banks in the absence of "clear authority from a higher court[.]" Specifically, the district court concluded that "the financial records obtained under proper [f]ederal process can be used ... to find probable cause for a search warrant," and, because they were obtained legally, the records can be used at trial. Similarly, it concluded that "the financial records obtained by a New Mexico grand jury subpoena ... can be used ... as evidence at a trial[.]"
{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 accepted: "(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 Article II, Section 10 ; and (2) whether the State's use of federal and state grand jury subpoenas duces tecum in a state criminal proceeding is an unreasonable intrusion on that interest."2
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 Article II, Section 10 of the New Mexico Constitution extend to the Adames’ bank records, which consist of five years of financial information voluntarily shared with their banks, and include checking account records, savings account records, loan records, safe deposit box records, certificates of deposit, money market certificates, United States treasury notes, United States treasury bills, credit card records, purchases of bank checks, certified check records, letters of credit, and wire transfer records, among other financial records.
{9} Article II, Section 10 guarantees that "[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures."
This protection from governmental intrusion is conferred only when a person has a reasonable expectation of privacy in that which is searched or seized. Cf. State v. Yazzie , 2019-NMSC-008, ¶ 17, 437 P.3d 182 . A person has such an expectation of privacy when, by his or her conduct, a person has exhibited an actual (subjective) expectation of privacy that society is prepared to recognize as reasonable. State v. Crane , 2014-NMSC-026, ¶ 18, 329 P.3d 689 (citing Katz , 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring)); see also Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
{10} The Adames contend that Article II, Section 10 provides greater privacy protection for their bank records than the Fourth Amendment. We analyze whether the New Mexico Constitution provides greater protection than an analogous provision of the federal constitution by applying the interstitial approach. Morris v. Brandenburg , 2016-NMSC-027, ¶ 19, 376 P.3d 836 ; see also State v. Neal , 2007-NMSC-043, ¶ 16, 142 N.M. 176, 164 P.3d 57 (). Under the interstitial approach we address three questions: "(1) whether the right asserted by efendant is protected by the Fourth Amendment to the United States Constitution; (2) whether efendant preserved the state constitutional claim in the lower court; and (3) whether one of three established reasons exists to justify diverging from federal precedent." Crane , 2014-NMSC-026, ¶ 12, 329 P.3d 689.
{11} The United States Supreme Court recognizes a distinction under the Fourth Amendment between information "a person keeps to himself and what he shares with others." Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 2216, 201 L.Ed.2d 507 (2018). Under what has come to be known as the third-party doctrine, when a person voluntarily shares information with a third party, a person generally has no legitimate expectation of privacy in that information. See id. (). "As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections." Id.
{12} The United States Supreme Court has held that a person has no legitimate expectation of privacy under the Fourth Amendment in bank records which consist of information voluntarily shared with third parties. Id. In United States v. Miller , the Government acquired several months of Miller's checks, deposit slips, and monthly statements from Miller's banks. 425 U.S. 435, 438, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). The United States Supreme Court held that Miller had no protected Fourth Amendment interest in those records. Id. at 444, 96 S.Ct. 1619. First, the Miller Court reasoned that Miller could not assert "ownership" or "possession" of the documents, which were "business records of the banks." Id. at 440, 96 S.Ct. 1619. Second, the "nature of those records confirmed Miller's limited expectation of privacy[.]" Carpenter , 138 S. Ct. at 2216. The checks were "not confidential communications but negotiable instruments to be used in commercial transactions," and the statements and deposit slips contained information "exposed to [bank] employees in the ordinary course of business." Miller , 425 U.S. at 442, 96 S.Ct. 1619. The Supreme Court concluded that Miller had "take[n] the risk, in revealing his affairs to another, that the information [would] be conveyed by that person to the Government," id. at 443, 96 S.Ct. 1619, and held that "there was no intrusion into any area in which [Miller] had a protected Fourth Amendment interest," id. at 440, 96 S.Ct. 1619. After recent examination by the United States Supreme Court, the application of Miller remains undisturbed, see Carpenter , 138 S. Ct. at 2220, and the Adames do not contend that Fourth Amendment protections apply to their records.
{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...
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