State v. Reeder , 184 Wash. 2d 805 ( 2015 )

Gordon McCloud, J.

¶62 (dissenting) — Petitioner Michael Reeder argues that the State may not search an individual’s personal banking records without probable cause. In support of this argument, he relies primarily on this court’s decision in State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010), which held that probable cause must support a court order to submit to a DNA (deoxyribonucleic acid) cheek swab. The majority rejects this argument in an analysis predicated on two erroneous conclusions: first, that the Fourth Amendment to the United States Constitution does not limit federal grand jury subpoenas, and second, that article I, section 7 of the Washington State Constitution affords greater privacy protections for DNA than for financial records. The first conclusion conflicts with United States Supreme Court precedent; the second conflicts with this court’s precedent.

¶63 Perhaps because it proceeds from these flawed premises, the majority opinion results in a holding that is both sweeping and confusing: personal banking records are “private affairs” protected by article I, section 7,¹⁵ but the State may search them pursuant to a special inquiry judge (SIJ) subpoena based only on “ ‘reason to suspect crime or corruption,’ ”¹⁶ provided that the subject of the search has not yet been charged with any crime,¹⁷ because the Fourth Amendment does not protect personal banking records.¹⁸

¶64 Because SIJ subpoenas function similarly to federal grand jury subpoenas, and because this case presents a question of first impression in Washington,¹⁹ I agree that we should look to Fourth Amendment case law to inform our analysis.²⁰ But we may do so only to the extent that federal precedent is consistent with the limits of Washington’s more protective article I, section 7. We may not rely on federal precedent to conclude that article I, section 7 does not protect a privacy interest in one’s personal banking records. Nor may we rely, as the majority does, on federal precedent addressing grand jury subpoenas in circumstances fundamentally different from those present in this case (i.e., United States v. R. Enterprises, Inc., 498 U.S. 292, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991), discussed infra).

¶65 Instead, we should rely on federal case law addressing circumstances analogous to those presented here: subpoenas for electronic communications and other digital data, issued to third party service providers. When I consult those cases, I conclude that an SIJ subpoena is insufficient “authority of law” under article I, section 7 of Washington’s constitution to support the search of an individual’s personal banking records. I therefore respectfully dissent.

I. The Majority’s Analysis Conflicts with Federal Precedent Holding That the Fourth Amendment Limits Grand Jury Subpoenas and State Precedent Holding That Personal Banking Records Are Fully Protected Private Affairs

¶66 As noted above, the majority’s analysis proceeds from two erroneous conclusions. First, the majority concludes that federal grand jury subpoenas may issue on less than probable cause “because the Supreme Court has noted that a subpoena issued by a federal grand jury intrudes less on one’s privacy rights than a search or seizure and, as such, does not receive the same Fourth Amendment protections.” Majority at 820 (citing United States v. Dionisio, 410 U.S. 1, 10, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973)). Second, the majority concludes that the privacy interest at stake in this case—the privacy interest in one’s personal banking records—is “different” from (i.e., lesser than) the privacy interest in one’s DNA sample (addressed in Garcia-Salgado, 170 Wn.2d at 184). Majority at 824.

¶67 Contrary to the majority’s first conclusion, Dionisio does not hold that grand jury subpoenas are “[do] not receive the same Fourth Amendment protections.” Majority at 820. Instead, that case holds only that subpoenas to appear before a grand jury are not “seizures” for purposes of Fourth Amendment protections. Dionisio, 410 U.S. at 9. While the Dionisio Court upheld a grand jury’s authority to subpoena a voice exemplar, it did not do so because grand jury subpoenas are free from Fourth Amendment constraints. It did so because the voice (unlike private records) is “constantly exposed to the public” and thus triggers no reasonable expectation of privacy. Id. at 14. In reaching that conclusion, the Dionisio Court expressly noted that “a grand jury subpoena is [not] some talisman that dissolves all constitutional protections.” Id. at 11 (emphasis added). And it explained that grand jury subpoena powers are limited at least by the First, Fourth, and Fifth Amendments to the federal constitution. Id. at 11-12; see also United States v. Miller, 425 U.S. 435, 444, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (subpoena for bank records does not violate rights of the investigation target “[s]ince no Fourth Amendment interests of the [target] are implicated” (emphasis added)).

¶68 Contrary to the majority’s second conclusion, article I, section 7 is equally protective of an individual’s privacy interest in personal banking records and his or her privacy interest in DNA. The majority relies solely on federal Fourth Amendment precedent to conclude otherwise,²¹ but that precedent conflicts with our case law applying article I, section 7. In Miller, the case on which the majority relies, the United States Supreme Court held that individuals retain no privacy interest whatsoever in their banking records since those records are held by a third party. 425 U.S. at 443 (“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person' to the Government.” (citing United States v. White, 401 U.S. 745, 751-52, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971))). But Miller applied a Fourth Amendment doctrine—according to which “the Fourth Amendment does not prohibit the [government from] obtaining . . . information revealed to a third party”²²—that this court has repeatedly rejected under article I, section 7.²³ We have consistently held that this third party search exception violates article I, section 7 protections because under our state constitution, individuals do not relinquish their privacy rights just by relying on common third party entities to store information or facilitate communication. State v. Hinton, 179 Wn.2d 862, 874, 319 P.3d 9 (2014) (“This court has consistently declined to require individuals to veil their affairs in secrecy and avoid sharing information in ways that have become an ordinary part of life.”). Indeed, we have even rejected the third party search exception as applied to curbside garbage. State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) (“It would be improper to require that in order to maintain a reasonable expectation of privacy in one’s trash . . . the owner must forgo use of ordinary methods of trash collection.”). And in State v. Miles, we squarely rejected the exception as applied to bank records. 160 Wn.2d 236, 247-48, 156 P.3d 864 (2007). Of particular relevance here, our reasoning in Miles explains that banking records generally contain a significant amount of “sensitive personal information”:

Private bank records may disclose what the citizen buys, how often, and from whom. They can disclose what political, recreational, and religious groups a citizen supports. They potentially disclose where the citizen travels, their affiliations, reading materials, television viewing habits, financial condition, and more. Little doubt exists that banking records, because of the type of information contained, are within a person’s private affairs.

Id. at 246-47. Nothing in this analysis suggests that article I, section 7 protects personal banking records to a lesser extent than it protects DNA or garbage—indeed, it suggests that our state constitution affords the highest level of protection for personal banking records.

II. The Majority Relies on Inapposite Federal Precedent To Conclude That the SIJ Subpoena at Issue in This Case Was Valid Without Probable Cause

¶69 The majority relies on one United States Supreme Court decision—R. Enterprises, 498 U.S. 292—to conclude that “ ‘the Government cannot be required to justify the issuance of a grand jury subpoena by . . . establish [ing] probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists.' ” Majority at 820 (quoting R. Enters., 498 U.S. at 297). But two factors make R. Enterprises entirely inapposite here.

¶70 First, R. Enterprises did not address privacy interests like those at issue in this case—indeed, it did not really address privacy interests at all. The corporate defendants in R. Enterprises—all under investigation for allegedly transporting obscene materials across state lines—challenged a grand jury subpoena for corporate records and sexually explicit videotapes. In re Grand Jury 87-3 Subpoena Duces Tecum, 884 F.2d 772 (4th Cir. 1989), rev’d in part by R. Enters., 498 U.S. at 297. With respect to the corporate records, the Fourth Circuit Court of Appeals held that the subpoena was “ ‘unreasonable and oppressive' " in violation of Federal Rule of Criminal Procedure 17(c) because the government had not met the “relevancy, admissibility, and specificity" requirements established for trial subpoenas in United States v. Nixon, 418 U.S. 683, 699-700, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974).R. Enters., 498 U.S. at 296-97. With respect to the videotapes, the circuit court rejected the defendants" hybrid First Amendment/Fourth Amendment²⁴ argument, Grand Jury 87-3, 884 F.2d at 778, but only after noting (in an earlier ruling) that “Corporations do not have the equivalent privacy rights of individuals,” In re Grand Jury Subpoena: Subpoena Duces Tecum, 829 F.2d 1291, 1299 n.11 (4th Cir. 1987) (emphasis added). The United States Supreme Court ultimately granted cer-tiorari only as to the corporate records and held that the Nixon criteria do not apply to grand jury subpoenas. R. Enters., 498 U.S. at 296-97. In reaching that conclusion, the Court discussed grand jury subpoenas generally and stated that they do not require a showing of probable cause. Id. at 297. But the purpose of this discussion was to highlight the difference, from the government’s perspective, between subpoenas issued before and after the decision to charge. See id. at 300 (“[o]ne simply cannot know in advance whether information sought during an investigation will be relevant and admissible in, a [subsequent] prosecution”). R. Enterprises contains absolutely no discussion whatsoever of any privacy interests held by the subject of a grand jury investigation. (In fact, the Court remanded on what it called “the First Amendment issue.” Id. at 303 (“We express no view on this issue and leave it to be resolved by the Court of Appeals.”).)

¶71 Second, the analysis in R. Enterprises is premised on a fact not present here: the issuance of the subpoena directly to the subject of the investigation. The R. Enterprises Court held that a person seeking to avoid compliance with a grand jury subpoena bears the burden of showing that compliance would be unreasonable. Id. at 301. In reaching that conclusion, the Court acknowledged that “reasonableness” limits on grand jury subpoenas are meaningless if the target of an investigation does not know the general subject matter of the grand jury’s investigation. Id. at 301-02 (“[a]fter all, a subpoena recipient ‘cannot put his whole life before the court in order to show that there is no crime to be investigated’ ” (quoting Marston’s, Inc. v. Strand, 114 Ariz. 260, 270, 560 P.2d 778 (1977) (Gordon, J., specially concurring in part and dissenting in part))). The Court went so far as to suggest that “the Government [might be required] to reveal the general subject of the grand jury’s investigation before requiring the challenging party to carry its burden of persuasion.” Id. at 302. In this case, Reeder did not know that any SIJ subpoena had issued at all until 13 different financial institutions had already furnished the State with his personal records. Majority at 811 & n.2.

¶72 In short, the facts in R. Enterprises differ so extremely from those present here that that case is simply not helpful to our analysis. (To the extent that its discussion of reasonableness limits is relevant at all, it supports Reeder’s position.)

III. The Most Relevant Federal Precedent Suggests That the SIJ Subpoena in This Case Was the Equivalent of a Full Search and, as Such, Could Not Issue Absent a Showing of Probable Cause

¶73 Federal precedent distinguishing grand jury subpoenas from search warrants—and permitting the former to issue on less than probable cause—is predicated in part on the assumption that the subject of an investigation will have the opportunity to contest the validity of a subpoena:

Subpoenas are not search warrants. They involve different levels of intrusion on a person’s privacy. A search warrant allows the officer to enter the person’s premises, and to examine for himself the person’s belongings. The officer, pursuant to the warrant, determines what is seized. Moreover, if evidence or contraband of any sort is in plain sight, the officer may seize it, even if it is not listed in the warrant. The person to be searched has no lawful way to prevent execution of the warrant.

In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991) (citation omitted) (citing Arizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)). In other words, grand jury subpoenas may issue on less than probable cause only because they do not entail the kind of immediate, unavoidable, and relatively open-ended intrusion into an individual’s zone of privacy that a search warrant authorizes.²⁵

¶74 For this reason, “[s]ervice of a forthwith subpoena [cannot] authorize an entry into a private residence.” Id. The State acknowledged as much at oral argument in this case,²⁶ but it insisted that article I, section 7 permits subpoenas for personal banking records because the Fourth Amendment does not recognize any privacy interest in documents held by a third party.²⁷ In other words, the State argued that this court should import into its case law on investigative subpoenas the very same third party search exception (discussed supra Part I) that we have consistently rejected in our cases addressing other exceptions to the warrant requirement. See Hinton, 179 Wn.2d at 874; Miles, 160 Wn.2d at 245-46 (citing State v. Gunwall, 106 Wn.2d 54, 67, 720 P.2d 808 (1986)).

¶75 That result, which the majority adopts, is illogical. Not only does it conflict with our precedent rejecting the relaxation of privacy protections in the third party search context and affirming the significant privacy interests that attach to personal banking records under article I, section 7, it also inverts the logic of cases upholding federal grand jury subpoenas. Those cases say that subpoenas are less intrusive than search warrants in part because the subpoena recipient can object and obtain judicial review. In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000); Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 854. But that protection evaporates when the subpoena issues secretly to a third party. See In re Grand Jury Subpoena Served upon Niren, 784 F.2d 939, 941 (9th Cir. 1986) (noting that third party subpoena recipient “cannot be expected to risk a contempt citation in order to protect the interests of a powerless [investigation target]”). It makes no sense to rely on the presence of a disinterested third party intermediary to uphold the subpoena in this case.

¶76 Indeed, federal case law addressing subpoenas for digital communications held by third parties reaches the opposite conclusion. In United States v. Warshak, the Sixth Circuit held that provisions in the Stored Communications Act, 18 U.S.C. §§ 2701-2711, authorizing government agents to obtain e-mail communications from a third party through an administrative or grand jury subpoena, violate Fourth Amendment protections. 631 F.3d 266, 285-88 (6th Cir. 2010). The court reasoned that “a subscriber enjoys a reasonable expectation of privacy in the contents of e[-] mails” stored with a commercial Internet service provider and that the government may not, therefore; use a subpoena to circumvent the Fourth Amendment’s probable cause requirement. Id. at 288. In other words, the court held that when the government seeks to obtain e-mail from á third party service provider, it undertakes a full search, which it may accomplish only by means of a warrant supported by probable cause. Id.; see also In re Application for Tel. Info. Needed for Criminal Investigation, 119 F. Supp. 3d 1011 (N.D. Cal. 2015) (holding that government must obtain a warrant to access historical cell site location information), appeal filed, No. 15-16760 (9th Cir. Sept. 3, 2015); Orín S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1220 n.80 (2004) (noting that “the constitutionality of [the Stored Communications Act’s subpoena provisions] is unclear”). (I note that law enforcement in Washington also routinely obtains warrants for digital data stored with Internet service providers. E.g., State v. Budd, 186 Wn. App. 184, 189, 347 P.3d 49 (describing detective serving search warrant on Yahoo! and Google in order to obtain suspect’s Internet protocol address), review granted, 183 Wn.2d 1014, 353 P.3d 641 (2015). There is nothing inherently onerous about this procedure.)

¶77 Unquestionably, the State’s conduct at issue in this case also constitutes a full search. Under article I, section 7, personal banking records are entitled to no less protection than e-mails or text messages (or garbage, for that matter). Like e-mail and text messages, those records can reveal a person’s habits, associations, religious beliefs, political views, travel history and plans, and financial condition, among other things. Miles, 160 Wn.2d at 246-47. Because bank records contain such sensitive information, this court has held that they trigger a reasonable expectation of privacy, notwithstanding their retention by third party institutions. Id. at 244-45. When.the State obtained Reeder’s personal banking records—affording him no notice whatsoever—it violated this expectation. It therefore conducted a full search of his private affairs.

CONCLUSION

¶78 Consistent with our case law rejecting the third party search doctrine and federal case law distinguishing (highly intrusive) search warrants from (less intrusive) subpoenas, I would hold that the SIJ subpoena in this case violated article I, section 7 protections. I would hold that issuance of a subpoena to a third party to obtain the records of the target of an investigation violates article I, section 7 protections where, as here, the article I, section 7 interest at stake is in personal, private bank records. Under controlling Washington precedent, such personal, private records are entitled to the full measure of privacy that we accord to garbage and infrared emissions.²⁸ I therefore respectfully dissent.

Stephens, J., concurs with Gordon McCloud, J.

15 Majority at 815.

16 Id. at 819 (quoting ROW 10.27.170).

17 Id. at 824.

18 Id.

19 The majority cites three cases for the principle that “the authority of law to collect private records encompasses more than a warrant based on probable cause.” Id. at 817 (quoting State v. Gunwall, 106 Wn.2d 54, 68-69, 720 P.2d 808 (1986); In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 342, 945 P.2d 196 (1997); and citing State v. Miles, 160 Wn.2d 236, 247, 156 P.3d 864 (2007)). But the only one of these cases that actually addresses a subpoena—Miles—held that the subpoena was not valid “authority of law” under article I, section 7.160 Wn.2d at 240, 247-48 (striking down statute that authorized state Securities Division to issue “administrative subpoenafs]”). Thus, this court has approved judicial subpoenas, like the one at issue in this case, only in dicta. There is no precedent from this court defining the permissible scope of such subpoenas.

20 There are very few United States Supreme Court cases that directly address Fourth Amendment limits on federal grand jury subpoenas. The few cases that do directly address these limits hold that the Fourth Amendment prohibits any grand jury subpoena “too sweeping ... ‘to be regarded as reasonable.’ ” United States v. Dionisio, 410 U.S. 1, 11, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76, 26 S. Ct. 370, 50 L. Ed. 652 (1906), overruled in part on other grounds by Murphy v. "Waterfront Comm’n ofN.Y. Harbor, 378 U.S. 52,66-67, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964)); see also United States v. R. Enters., Inc., 498 U.S. 292, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991) (interpreting Federal Rule of Criminal Procedure 17(c), which provides that “fo]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive”). Reeder argues that this federal standard is inconsistent with article I, section 7 because “fu]nlike the Fourth Amendment, article I, § 7 protects citizens against all warrantless searches, regardless of whether they are reasonable.” Suppl. Br. of Pet’r at 12 (citing State v. Eisfeldt, 163 Wn.2d 628, 634-35,185 P.3d 580 (2008)). Thus, he implicitly argues that Washington’s constitution prohibits SIJ subpoenas in all circumstances.

Reeder is correct that this court has sometimes distinguished article I, section 7 protections on the basis that “fu]nlike in the Fourth Amendment, the word ‘reasonable’ does not appear in any form in the text of article I, section 7 of the Washington Constitution.” State v. Morse, 156 Wn.2d 1,9,123 P.3d 832 (2005), We have relied on this difference to reject two federal exceptions to the warrant requirement: (1) the “good faith” exception (where an officer mistakenly but “reasonably” believes no warrant is necessary), id. at 9-10; and (2) the “private search doctrine” (where an individual consents to a search by a “private actor” who later informs police about what the “search” revealed). Eisfeldt, 163 Wn.2d at 635-38. But that distinction is not relevant here. Our state constitution clearly authorizes grand juries. Wash. Const, art. I, § 26 (“No grand jury shall be drawn or summoned in any county, except the superior judge thereof shall so order.”). Thus, as a matter of textual logic, the “authority of law” contemplated in article I, section 7 must include grand jury and other analogous subpoena powers. Because I agree with the majority and the Court of Appeals in this case that SIJ subpoena powers under RCW 10.27.170 are basically analogous to a grand jury’s subpoena powers, I agree that federal precedent on the grand jury’s subpoena power can inform our analysis.

21 Majority at 824 (citing Miller, 425 U.S. at 443).

22 Miller, 425 U.S. at 443 (citing White, 401 U.S. at 752; Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963)).

23 E.g., State v. Hinton, 179 Wn.2d 862, 874, 319 P.3d 9 (2014).

24 U.S. Const, amends. I, IV.

25 In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) (“the immediacy and intrusiveness of a search and seizure conducted pursuant to a warrant demand the safeguard of demonstrating probable cause to a neutral judicial officer before the warrant issues, whereas the issuance of a subpoena initiates an adversary process that can command the production [by the owner] of documents and things only after judicial process is afforded”).

26 Wash. Supreme Court oral argument, State v. Reeder, No. 90577-1 (Feb. 24, 2015), at 15 min., 15 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org (conceding that the government may not search “your home, your car, your person, your body” absent probable cause). This appears to conflict with another theory that the State articulated in its briefing and the majority endorses in its analysis: that “the Fourth Amendment has [no] application in the grand jury context,” State’s Suppl. Br. at 5 (footnote omitted).

27 Wash. Supreme Court oral argument, supra, at 15 min., 15 sec., 20 min., 45 sec.

28 See State v. Young, 123 Wn.2d 173, 182-84, 867 P.2d 593 (1994) (use of infrared thermal detection device transformed public police surveillance into “search” requiring a warrant).