State v. Reeder
| Decision Date | 17 December 2015 |
| Docket Number | No. 90577–1.,90577–1. |
| Citation | 184 Wash.2d 805,365 P.3d 1243 |
| Parties | STATE of Washington, Respondent, v. Michael J. REEDER, Petitioner. |
| Court | Washington Supreme Court |
David L. Donnan, Washington Appellate Project, Seattle, WA, for Petitioner.
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Scott Allen Peterson, King County Prosecuting Attorney, Seattle, WA, for Respondent.
Peter B. Gonick, Washington Attorney General's Office, Solicitor General Division Attorney General, Attorney at Law, Olympia, WA, amicus counsel for State of Washington.
Suzanne Lee Elliott, Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.
¶ 1 Michael J. Reeder appeals a published Court of Appeals decision affirming his conviction on 14 counts of securities fraud and 14 counts of theft in the first degree. We granted review of two issues.
¶ 2 First, Reeder claims that subpoenas duces tecum issued by a special inquiry judge (SIJ)1 to financial institutions for Reeder's private bank records violated his constitutional rights under article I, section 7 of the Washington Constitution. Suspecting Reeder of securities fraud and theft, the prosecuting attorney sought a subpoena from an SIJ to obtain Reeder's private bank records. Reeder moved to suppress the evidence of his bank records, claiming they were obtained in violation of his constitutional rights. The trial court denied the motion, and the Court of Appeals affirmed, finding that the subpoena issued by an SIJ was valid authority of law under article I, section 7 of the Washington Constitution to obtain Reeder's bank records from the financial institutions. We affirm.
¶ 3 Second, Reeder asserts that his sentence violates principles of double jeopardy because the trial court imposed multiple punishments for the same offense. The Court of Appeals affirmed the trial court's sentence, finding that the State acted within its discretion to charge Reeder with separate counts for each fraudulent transaction. We affirm the trial court's sentence because the State presented evidence supporting 14 separate transactions that were punishable under the securities fraud and theft in the first degree statutes.
¶ 4 Reeder met William McAllister through a company that provided nonbank real estate financing, Private Mortgage Investors Inc. Between March 2006 and June 2007, McAllister made a series of payments to Reeder for two real estate investments. During this time, McAllister paid Reeder approximately $1.7 million through several different checks or transactions.
¶ 5 The first real estate transaction began when Reeder told McAllister that he had an opportunity to purchase two parcels of land in Snohomish County. In June 2006, Reeder and McAllister formed a limited liability company and opened a bank account to purchase the two properties. As down payments for the two properties, McAllister loaned Reeder $200,000 and $150,000 in two separate transactions. Both McAllister and Reeder signed an agreement documenting McAllister's loans. According to the agreement, Reeder had already signed the purchase and sale agreements for the two properties. However, the properties were not purchased or developed, and Reeder never returned McAllister's money.
¶ 6 The second real estate transaction took place when Reeder told McAllister that there was an opportunity to purchase property in Bellevue. Reeder knew at the time he made this representation that the owners of the Bellevue property did not intend to sell the property. Reeder showed McAllister a property appraisal that valued the property at $2 million. McAllister relied on Reeder's representations and made a series of payments totaling $1.4 million. Reeder did not use any of the funds to buy the property and did not return McAllister's money.
¶ 7 The State obtained Reeder's bank records under RCW 10.27.170 using subpoenas issued by an SIJ.2 The bank records revealed that Reeder withdrew McAllister's money and that he used the funds in casinos and for personal expenses. On April 8, 2011, Reeder was charged with 14 counts of securities fraud and 14 counts of theft in the first degree.3 The different counts were based on the separate payments that McAllister made to Reeder.
¶ 8 In June 2011, Reeder moved to suppress his private bank records, arguing that they were obtained in violation of his constitutional rights because he believed the State did not have a valid warrant or judicially issued subpoena as required by State v. Miles, 160 Wash.2d 236, 249, 156 P.3d 864 (2007). In November 2011, the State, by letter, informed Reeder that his bank records were obtained through an SIJ proceeding subpoena and were available for his inspection.
Reeder also received copies of the SIJ subpoenas.4 REEDER REQUESTED Release of the documents justifying the sij subpoenas. The State responded that SIJ proceedings are secret under RCW 10.27.090(3) and that the secrecy and confidentiality of the proceedings are critical to achieving the purpose of an SIJ proceeding. However, the State recognized that "due process may require disclosure of facts contained within the information sheets that provide the legal basis for obtaining the evidence." Clerk's Papers at 476.
¶ 9 The trial court denied Reeder's motion to suppress the records obtained by the SIJ subpoena. The jury found Reeder guilty of 14 counts of securities fraud and 14 counts of first degree theft and entered special verdicts finding that each offense was a major economic or serious offense. The court imposed an exceptional sentence. Reeder appealed the trial court's decision and sentence.
¶ 10 Reeder raised four issues on appeal. State v. Reeder, 181 Wash.App. 897, 907, 330 P.3d 786 (2014). The Court of Appeals affirmed on all four issues, holding that (1) Reeder failed to allege facts showing that his trial attorney had a conflict of interest that deprived him of effective assistance of counsel, (2) the State did not violate Reeder's right to privacy by obtaining his bank records through the SIJ proceeding because it obtained the records pursuant to a valid, judicially reviewed subpoena, (3) the statute of limitations period did not bar some or all of the State's charges against Reeder, and (4) the State acted within its discretion when it charged Reeder with separate counts for each transaction and his multiple punishments did not violate double jeopardy. Id. at 931, 330 P.3d 786.
¶ 11 Reeder petitioned this court for review of three issues. We granted review of two issues: (1) whether the State violated Reeder's right to privacy by obtaining his bank records through the SIJ proceeding and (2) whether Reeder's sentence violated the prohibition against double jeopardy.5 State v. Reeder, 181 Wash.2d 1014, 337 P.3d 325 (2014). We affirm the Court of Appeals on both issues.
¶ 12 A. Did the subpoena issued by the SIJ to financial institutions provide sufficient authority of law under article I, section 7 to obtain Reeder's bank records?
¶ 13 B. Did the trial court's sentence violate the constitutional prohibition against double jeopardy when it sentenced Reeder to several counts of the same crime?
¶ 14 Reeder asserts that the subpoena issued by the SIJ did not provide the authority of law that is required by article I, section 7 because it was not justified by probable cause.6
¶ 15 Article I, section 7 states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Though similar, the protections afforded by this provision are broader than and qualitatively different from those protections afforded in the Fourth Amendment to the United States Constitution. State v. Gunwall, 106 Wash.2d 54, 65, 720 P.2d 808 (1986) ; City of Seattle v. McCready, 123 Wash.2d 260, 267, 868 P.2d 134 (1994) ; State v. Eisfeldt, 163 Wash.2d 628, 634, 185 P.3d 580 (2008). Article I, section 7 necessarily includes those legitimate expectations of privacy protected by the Fourth Amendment. State v. Garcia–Salgado, 170 Wash.2d 176, 183, 240 P.3d 153 (2010).
¶ 16 The analysis of article I, section 7 breaks down into two parts—" ‘private affairs' " and " ‘authority of law.’ " In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 339, 945 P.2d 196 (1997). If a private affair is not disturbed, then there is no violation of article I, section 7. Miles, 160 Wash.2d at 244, 156 P.3d 864. If a valid privacy interest has been disturbed, then we must determine whether the disturbance was justified by authority of law. Id.
¶ 17 Article I, section 7 protects " ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.’ " Maxfield, 133 Wash.2d at 339, 945 P.2d 196 (quoting State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984) ). To determine whether a privacy interest exits under article I, section 7, we must examine whether a particular expectation of privacy is one that a citizen of this state should be entitled to hold. McCready, 123 Wash.2d at 270, 868 P.2d 134. Part of this inquiry focuses on what kind of protection has been historically afforded to the interest asserted, and part of it focuses on the nature and extent of the information that may be obtained as a result of government conduct. Miles, 160 Wash.2d at 244, 156 P.3d 864.
¶ 18 In Miles, the court found that private bank records held by a third party could potentially reveal sensitive personal information. Id. at 246, 156 P.3d 864. Bank records can reveal where the person has traveled, the person's reading habits, and the person's financial condition. Id. at 246–47, 156 P.3d 864. After noting that bank records were historically protected, the court held that bank records are considered private affairs protected by the constitution. Id. at 247, ...
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