When State Subpoenas Evade Search Warrant Requirements
by: Rjohnson • March 6, 2011 • no comments
I've seen a handful of cases where the state obtained important information about my client by subpoenaing it from third parties. Banks and hospitals will hand over documents in a subpoena that they would not give to a member of the public or even in response to a request by a police officer; in other words, they can be used to invade privacy.
Subpoenas are about evidence. See State v. Cartwright, 336 Or 408, 85 P3d 305 (2004) (discussing subpoenas and discovery.) By contrast, searches and warrants are related to privacy. See e.g., State v. Howard/Dawson, 342 Or 635, 640, 157 P3d 1189 (2007) (Article I, section 9, protects individuals' privacy interests, and when government conduct invades those privacy interests, a search has occurred for purposes of the state constitution.). Determining what privacy is protected is messy, and cases on that topic tend to sound conclusory without providing a concrete test. See State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988) ("the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right.") But it seems obvious that you have a privacy interest in at least some records held by some third parties, such as medical or bank records.
There are a few recent cases relating to privacy interests in information held by third parties. State v. Johnson, 340 Or 319, 131 P3d 173 (2006), without much analysis, says that cell phone records are not private. Howard has a thorough analysis of why garbage is not private. Howard holds, not unreasonably, that your privacy interest in your garbage depends on your relationship with the garbage-hauling company; whether you have a reasonable expectation from them that your garbage will be kept private. Howard does not consider whether there is any state action from semi-public or monopolistic utilities, it does not consider the typical contract of adhesion (or no written or discussion of the issue), it does not consider the effect of changing social norms on privacy interests, and it did not, apparently, require the state to put on evidence about the privacy interests at issue. If I had this issue, I'd consider making those arguments, or putting on evidence, but I wouldn't be very optimistic in light of Howard, at least in the case of actual garbage, or even cell phone records.
But, even assuming you will lose the garbage search issue, what about more private records, such as medical records or financial records? Records maintained by employers? Whether you have a privacy interest in those is complex, and there is a substantial constellation of laws, regulations, and practices relating to different types of records. ORS 192.565 purports to permit the state to subpoena financial records from a bank, but, as noted above, subpoenas do not address privacy concerns at all, and that doesn't affect medical records. Suppose you were to call the hospital and ask for medical records relating to a random citizen, such as the prosecutor. Would they hand them over? If they did, would the prosecutor have some legal recourse against the hospital, or against you?
I think that means that your client has a right to privacy in the medical records, and, if the state subpoenas them, you should move to suppress. There's a search under cases like Howard and Campbell, and no warrant, and so it's the state's burden to justify the use of the evidence. That conclusion seems obvious to me, (invasion of privacy, no warrant, so it's the state's problem, right?) but the court in Johnson was dismissive of the argument in that case. And whether there was an invasion of privacy, i.e., whether there is a search, is the state's burden. State v. Knox, 160 Or App 668 984 P2d 294 (1999). Knox notwithstanding, it might take a good clear record from the defense to get anywhere on this issue. Your investigator can try to get the records and then testify that the bank or whatever refused to hand them over; that tends to prove that the records are private.
With increased DUII enforcement, ID theft, and evidence residing on computers, this issue is likely to come up more often over time. With the right case, and more importantly the right judge, maybe the state needs to produce evidence about the defendant's contract with the power company and their policy relating to customer records.
