Submitted May 27, 2014.
Washington County Circuit Court. C111491CR. Gayle Ann Nachtigal, Judge.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.
[267 Or.App. 437] SERCOMBE, P. J.
Defendant appeals his conviction for first-degree theft and aggravated first-degree theft, arguing that the trial court erred in denying his motion to suppress records obtained from the banks where he and his codefendant wife had accounts. In the trial court, defendant argued that he had a protected privacy interest in those bank records under Article I, section 9, of the Oregon Constitution and that, because the subpoena the state used to obtain those records was not the equivalent of a warrant issued by a neutral magistrate, the state violated his state constitutional rights. The trial court disagreed and admitted those records into evidence at trial. On review for errors of law, State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993), we affirm.
The pertinent facts are few and undisputed. An investigator from the Oregon Division of Finance and Corporate Securities began investigating defendant and codefendant after receiving a complaint from a man who had given the couple $16,000 for real estate investments, but did not receive a return on his investment as promised. The investigator subpoenaed bank records, under ORS 192.596, from two banks where defendant and codefendant had accounts. Through those records, the investigator was able to identify individuals who were possibly making investments with defendants. Ultimately, defendant and codefendant were charged with first-degree theft, aggravated first-degree theft, and other crimes. The individuals who had invested with defendants later testified at a bench trial, explaining that they had paid defendants several thousand dollars to be used for real estate investments, but defendants failed to return even the initial investments and later admitted that the deals were not legitimate.
During trial, codefendant filed a motion to suppress, arguing that the bank records should be suppressed [267 Or.App. 438] because the investigator's subpoenas did not comply with statutory requirements-- e.g., the investigator had not provided defendants with notice--and because the subpoenas amounted to search warrants without probable cause in violation of Article I, section 9. The state moved to strike the motion as untimely and argued that, in any event, it should be allowed to correct the defect in the subpoenas by again subpoenaing the records. The court set a new trial date to allow the state to resubpoena the records in accordance with the statutory requirements. The state did so and then filed a response to codefendant's motion to suppress, arguing that an individual generally has no constitutionally protected privacy interest in bank records.
Trial recommenced with a hearing on the motion to suppress. At that hearing, defendant joined in codefendant's motion to suppress. The trial court denied the motion, concluding that defendant and codefendant had no " constitutionally protected personal privacy interest" in the bank records. The
court cited decisions by the Oregon Supreme Court and this court holding that a defendant has no protected privacy interest in certain business records held by a third party, including phone records and medical records. In the trial court's view, the same was true for bank records, which are " maintained by the bank to regulate their business," required to be kept by banking laws, and used " to track the money that [the bank has] or the loans that [it has] and who's depositing what and where."  The trial court later admitted the bank records into evidence.
[267 Or.App. 439] On appeal, defendant again argues that, under Article I, section 9, " [a]n individual has a privacy interest in bank records notwithstanding the fact that the records are kept by a third party." To that, the state initially responds that defendant's position is foreclosed by " this court's and the Oregon Supreme Court's consistent view that a person does not have a protected privacy interest in records generated and maintained by a third party." The state further argues that, in any event, the records at issue were not defendant's--they belonged to ...