CA8: Any state privacy interest in subpoenaed power records not sufficient to create a reasonable expectation of privacy under Fourth Amendment

Police investigating a missing persons case went to defendant’s house and walked up to the garage where they could smell raw marijuana. They retreated and obtained the electrical usage records with a county attorney subpoena. Then they got a thermal imaging warrant. Defendant’s claim of a state privacy interest in the power usage records was rejected under the Fourth Amendment. United States v. McIntyre, 646 F.3d 1107 (8th Cir. 2011) (aff’g United States v. McIntyre, 683 F. Supp. 2d 1020 (D. Neb. 2010)):

As the district court explained, McIntyre’s “argument that § 70-101 provides an expectation of privacy by restricting the dissemination to the county attorney of utility subscriber information is deficient because that statute relates only to identifying information and not to usage records.” United States v. McIntyre, 683 F. Supp. 2d 1020, 1026 (D. Neb. 2010) (emphasis added). Therefore, we conclude that McIntyre’s Fourth Amendment rights were not violated by law enforcement’s use of the subpoena, and a search warrant was unnecessary to obtain the usage records.

We also reject McIntyre’s argument that the subpoena was deficient because it was not served in compliance with § 25-1273 or Nebraska Rule of Civil Discovery 34A. As the district court explained, “[regardless of these issues, the county attorney has subpoena power, under the circumstances present here, pursuant to Neb. Rev. Stat. § 86-2,112.” Id. at 1033. Section 86-2,112 states that “any county attorney may … require the production of records … which constitute or contain evidence relevant or material to the investigation or enforcement of the laws of this state when it reasonably appears that such action is necessary and proper.”

And, even if state law was violated, “state law violations do not necessarily offend the Federal Constitution.” United States v. Burtton, 599 F.3d 823, 828 (8th Cir. 2010) (quotation and citation omitted). “Thus, when a federal court must decide whether to exclude evidence obtained through an arrest, search, or seizure by state officers, the appropriate inquiry is whether the arrest, search, or seizure violated the Federal Constitution, not whether the arrest, search, or seizure violated state law.” Id. (quotation and citation omitted). For the reasons set forth supra in Part A.1, we hold that no Fourth Amendment violation occurred.