CA3: Bank records still have no REP under Carpenter

Defendant’s bank records were subject to the third-party doctrine which was not changed by Carpenter. United States v. Hall, 2022 U.S. App. LEXIS 6425 (3d Cir. Mar. 14, 2022):

Hall’s Fourth Amendment suppression argument is squarely foreclosed by Miller and the third-party doctrine, which provide that there is no Fourth Amendment-protected privacy interest in bank records voluntarily conveyed to the banks. 425 U.S. at 442. The Supreme Court reaffirmed Miller as good law in Carpenter. 138 S. Ct. at 2216 (“the third-party doctrine applies to … bank records”); id. at 2220 (“We do not disturb the application of … Miller”).

In the wake of Carpenter, some courts have expressed doubt that the third-party doctrine extends to certain information collected by modern technologies. E.g., United States v. Moalin, 973 F.3d 977, 989-93 (9th Cir. 2020) (doubting, but not reaching, whether warrantless telephony metadata collection comported with the Fourth Amendment, as suppression was not warranted on the facts). But of course, Hall is not seeking to suppress personal information collected by technologies unanticipated by Miller. He simply challenges the warrantless seizure of bank records that do not substantively differ in character from the bank records considered by the Miller Court. Even if Hall were correct that modern realities cast doubt on the continued persuasiveness of Miller’s reasoning, we would still be bound to follow it. Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (“the Court of Appeals should follow the case which directly controls”). After all, “only the Supreme Court may reverse its prior precedent,” and Carpenter expressly declined to overrule Miller. United States v. Moore-Bush, 963 F.3d 29, 31 (1st Cir. 2020) (discussing Carpenter’s reach), withdrawn on other grounds, 982 F.3d 50 (1st Cir. Dec. 9, 2020).

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