The Washington Supreme Court on Thursday upheld a little-known state law that allows investigators to get a suspect’s bank and other records without a search warrant — a ruling two dissenters said would give people’s curbside trash greater privacy protection than their crucial financial information.
Under the law adopted in 1971, police and prosecutors have been able to get the records without showing probable cause that a crime had been committed — the standard that applies to search warrants. Instead, they can get the information with a subpoena issued under a lesser standard in a secret hearing called a “special inquiry judge” proceeding.
In the 7-2 ruling, the high court said those secret hearings provide adequate authority for police to obtain the records, even though people have a constitutionally protected privacy interest in them.
“We have recognized that a judicially issued subpoena can be sufficient authority of law to invade a citizen’s private affairs,” Justice Mary Fairhurst wrote for the majority.
The Legislature created the special inquiry proceedings following a wide-ranging public corruption investigation in Seattle. Modeled on similar procedures in Michigan and Connecticut — though Michigan’s law does require probable cause and Connecticut’s has since been repealed — the Washington proceedings were designed to be a more efficient alternative to the state grand jury system, which prosecutors found to be expensive and cumbersome.
The procedure, which some prosecutors say is a seldom-used but important investigative tool, allows a judge to issue subpoenas for evidence, such as bank or phone records, at the request of a prosecutor who has “reason to suspect” crime. The person whose records are obtained is not necessarily ever informed of it, even if they wind up later being charged with a crime, nor do they have an opportunity to challenge the subpoenas.
Under federal law, people generally do not have privacy interests in information they turn over to third parties, such as banks. But Washington’s Constitution is considered more protective of people’s privacy. The state Supreme Court had never before ruled on whether the lesser reasonable-suspicion standard was good enough when it came to law enforcement obtaining someone’s bank, email or other records.
The court’s decision upheld the conviction of Michael Reeder, who authorities said swindled an octogenarian out of $1.7 million in a scam real-estate deal. Before bringing charges, a King County deputy prosecutor went to a special inquiry judge and obtained 20 subpoenas for Reeder’s bank records. A financial analyst for the state spent 600 hours poring through the material looking for evidence of the crime.
Reeder’s attorney, David Donnan, told the justices during oral arguments that such a vast intrusion into someone’s private affairs must require a more stringent showing by prosecutors than that required under the special-inquiry law.
But the majority disagreed. They equated the secret proceedings under state law to federal grand juries, which issue subpoenas for bank records all the time, and suggested that people have less expectation of privacy in information held by third parties.
The dissenting justices, Sheryl Gordon McCloud and Debra Stephens, called the majority’s rationale sweeping, confusing and illogical. Washington’s Supreme Court has repeatedly rejected the notion that under state law people have less expectation of privacy in records turned over to third parties, they said, and unlike federal rulings, Washington precedent even bars police from searching through curbside garbage without a warrant.
Nothing in Washington’s case law suggests that banking records are less protected than curbside trash, McCloud wrote: “Indeed, it suggests that our state constitution affords the highest level of protection for personal banking records.”
An Associated Press story in 2012 detailed how prosecutors had used special inquiry judge subpoenas as substitutes for warrants in a wide range of cases, especially in Benton County, where Seattle attorney Lenell Nussbaum and Pasco lawyer Robert Thompson questioned the practice.
Following the AP’s story, the Washington Association of Prosecuting Attorneys acknowledged the special inquiries had been overused and adopted model rules for them. The guidelines say prosecutors should use the inquiries only when traditional investigative techniques won’t work, including “when investigators lack the probable cause necessary to obtain a warrant.”
Tom McBride, who heads the prosecutors group, praised the ruling.
“When we moved away from grand juries in the state of Washington, one of the things we lost was the investigative powers of the grand jury,” he said. “That’s what the special inquiries were created for.”