Oregon Supreme Ct - Oct 13, 2016
by: Sara Werboff • October 14, 2016 • no comments
Administrative Subpoena for Bank Records Did Not Violate Article I, section 9
The court concludes that the state properly obtained defendant's wife's bank records pursuant to an administrative subpoena and the trial court therefore did not err in admitting those records in defendant's criminal trial. Defendant and his wife were charged with several counts of aggravated theft, first-degree theft, and first-degree criminal mistreatment and defendant was convicted of two of those counts. In response to a call from two people who had invested money with defendant and his wife, a Department of Consumer and Business Services (DCBS) investigator subpoenaed defendant's wife's bank records. The investigator mailed copies of the subpoenas to defendant's wife. After reviewing the bank records, the investigator saw suspicious behavior but did not alert law enforcement. Instead, the investors alerted law enforcement, who then contacted the DCBS investigator. At trial, defendant brought a motion in limine to exclude the bank records, which the trial court treated as a motion to suppress. In the course of litigating that motion, the parties discovered that the original DCBS subpoena, which was mailed, was required to be personally served. In light of the mistake, the state issued a new set of subpoenas for the same materials. The trial court denied the motion.
On review, defendant argued that he had a constitutionally protected privacy interest in the bank records, and that the administrative subpoenas were an unreasonable search under Article I, section 9. First, because of the paucity of the record on the nature of the bank's record keeping and relationship with customers, for the purposes of the case the court assumes without deciding that defendant had a privacy interest in the banking records. Second, the court explains that a search warrant was not required because under Article I, section 9, a subpoena is reasonable if it is issued under a properly authorized administrative scheme. Here, the administrative subpoena fell within DCBS's statutory authority and therefore issued pursuant to a properly authorized statutory scheme.
Defendant then argues that the subpoena failed to comply with the service requirements and that the state's new subpoenas were tainted by the original invalid subpoenas. The court rejects those arguments because they were not raised below and defendant failed to preserve them for review.
State v. Ghim, 360 Or 425 (2016) (Kistler, J.)
