IL: State constitution recognizes privacy in bank records

Illinois holds that there is a state constitutional right of privacy in bank records, deciding that the state constitution is not interpreted in lockstep with the Fourth Amendment, and Miller would not be followed. People v. Nesbitt, 405 Ill. App. 3d 823, 938 N.E.2d 600, 345 Ill. Dec. 161 (2010):

Further, as the privacy clause of our state constitution expands upon the protections offered by the federal constitution, it also expands upon the rights guaranteed by our own search and seizure provision. The court in Caballes
noted that our constitution’s privacy clause provides protection in addition to its search and seizure clause and that it is broadly written, with no definition limiting the types of privacy intended to be protected. Caballes, 221 Ill. 2d at 317. Moreover, the court noted that, when the 1970 constitution was adopted, the privacy clause was added for the purpose of creating an additional right applicable to situations not covered by the search and seizure provision. Caballes, 221 Ill. 2d at 318-19. Therefore, while the two may overlap, whether a search or seizure violates the privacy clause of article I, section 6, is an inquiry separate and apart from whether it violates that article’s search and seizure clause.

Having clarified the distinction between our constitution’s privacy and search and seizure provisions, it is clear that the privacy clause of the Illinois Constitution protects an individual’s bank records. We disagree with the State that the privacy clause protects electronic and data entry records but not “traditional” records. Preliminarily, we note that, in today’s society, banking records and electronic records are not mutually exclusive. Moreover, the court in Caballes, in interpreting the privacy clause and considering the scope of its protection, drew no distinction between the various forms that private records may take, recognizing instead that “[t]he privacy clause is also implicated if, in the course of a criminal investigation, the state seeks access to medical or financial records that are within the scope of the protections of article I, section 6.” (Emphasis added.) Caballes, 221 Ill. 2d at 330. The court further noted its prior decision in In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929, 178 Ill. Dec. 406 (1992), where it recognized protection for individual privacy rights in “books and records” and where it held that it is reasonable for an individual to expect that his or her “private records” will not be exposed to public view or that his or her personal characteristics will not be scrutinized absent a valid reason. Caballes, 221 Ill. 2d at 320-21, 330, citing Will County Grand Jury, 152 Ill. 2d at 391-92, 396.

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The State urges us to decide differently, noting that our supreme court has not explicitly weighed in on Miller’s applicability to our state constitution’s privacy provision. However, as previously mentioned, our supreme court has cited Jackson with approval. In addition, this court, in People v. DeLaire, 240 Ill. App. 3d 1012, 610 N.E.2d 1277, 183 Ill. Dec. 33 (1993), cited Will County Grand Jury, 152 Ill. 2d at 390, for the proposition that the Illinois Constitution exceeds the federal constitution’s privacy guarantees. DeLaire, 240 Ill. App. 3d at 1019. Further, we cited with approval Jackson’s conclusions that the Illinois Constitution’s privacy clause extends protection to bank records and that, because our state constitution provides greater protection for bank records than does the federal constitution, Miller does not control. DeLaire, 240 Ill. App. 3d at 1020. We see no compelling reason to depart from this line of reasoning. Accordingly, we reject the State’s argument that there is no right to privacy in bank records under article I, section 6, of the Illinois Constitution.