MO: State investigative subpoena for bank and insurance records didn’t violate Fourth Amendment or statute

Defendant was convicted of murdering her husband. The state collected bank and insurance records by investigative subpoena, and her Fourth Amendment rights were not violated by lack of notice to her, seizure of the records, or failure to have an examination under oath when the records were produced. State v. Plunkett, 2015 Mo. App. LEXIS 827 (August 18, 2015):

“Records of a depositor’s account maintained by a bank are business records of the bank, not of the bank depositor. The depositor [thus] has no claim to the records based on ownership or possession and he therefore has no expectation of privacy associated with the records which is protected under the Fourth Amendment.” State v. Brown, 689 S.W.2d 63, 67 (Mo. App. W.D. 1985) (citing United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)). Because the Supreme Court has held that a bank depositor has no expectation of privacy with respect to records maintained by the bank, Wife’s Fourth Amendment rights were not implicated by the subpoenas seeking Husband and Wife’s joint bank records.

We reach the same conclusion with respect to the insurance policy records obtained by subpoena. The insurance policy records–Husband’s request for insurance and checks submitted to pay policy premiums–were business records owned and maintained by United Healthcare. Wife had no legitimate expectation of privacy in the insurance records, a conclusion that is only enhanced by the fact that the insurance policy in question was owned solely by Husband. Even though Wife claimed to have written checks to pay the premiums for the policy, “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). Wife’s Fourth Amendment rights were not implicated by the subpoenas seeking the insurance policy proceeds.

There is an even more fundamental problem with Wife’s claim that her Fourth Amendment rights were violated. Wife bases that claim on the State’s purported failure to comply with section 56.085. Section 56.085 authorizes a prosecuting attorney in the course of a criminal investigation to request the issuance of an investigative subpoena “to any witness who may have information for the purpose of oral examination under oath to require the production of books, papers, records, or other material of any evidentiary nature at the office of the prosecuting or circuit attorney requesting the subpoena.” Wife argues that because the State did not require the subpoenaed businesses to produce records on oral examination under oath, the State violated section 56.085, and thus violated her Fourth Amendment rights.

Wife’s argument is unavailing. Wife does not explain how the State’s failure to insist that subpoenaed documents be delivered on oral examination under oath, even if a “violation” of section 56.085, serves to create the legitimate expectation of privacy in the subpoenaed documents essential to her Fourth Amendment claim. The violation of a rule or statute involving criminal discovery or investigative tactics does not per se implicate a constitutional violation. See, e.g., United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (overruled on other grounds, as stated in Kowalczyk v. United States, 936 F.Supp. 1127, 1145-46 (E.D.N.Y. 1996) (holding that a discovery violation, without more, does not violate the Due Process clause “unless the [prosecutor’s] omission deprived the defendant of a fair trial”); State v. Ghan, 721 S.W.2d 128, 132 n.5 (Mo. App. W.D. 1986) (addressing the distinction, and potential overlap between, violation of a criminal discovery rule supporting sanctions, and a Brady violation implicating due process concerns).