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There is No Reasonable Expectation of Privacy in One’s Bank Records

We have written at length about various search and seizure issues including whether the police need a search warrant to conduct certain searches. As many people know, the Fourth Amendment protects people from unreasonable searches and seizures conducted by the government. However, in order to be afforded such protection, a defendant in a criminal case must establish that he/she had a reasonable expectation of privacy in whatever was searched. For instance, a person clearly has a reasonable expectation of privacy in his/her home so the police cannot just come in to search it without consent or a search warrant in most cases. As for a vehicle, a person normally has a reasonable expectation of privacy in his/her vehicle, however if he/she leaves what is clearly identified as marijuana on the seat where a police officer walking by can see it through the window, that might be a different story.

We recently discussed how a recent United States Supreme Court ruling requires the police to get a search warrant before searching a person’s cell phone or similar mobile device. However, people may not know that the Court does not believe a person has a similar reasonable expectation of privacy in his/her bank records. A person who deposits money into a bank and uses a bank credit card does not have a reasonable expectation of privacy in those bank records. This allows the government to obtain those bank records with only a subpoena (a document the government signs without a judge’s approval and without the suspect knowing about it) sent to the bank rather than a search warrant that requires probable cause and a judge’s approval.

Bank records are critical in a lot of criminal cases brought by the government. They can establish that a suspect deposited money in amounts and at times consistent with theft or fraud allegations. They can show wire transfers among co-conspirators. They can show credit card or withdrawal transactions that can put a person at a given location at a certain time. Bank records can establish a lot of critical points the government needs to make in order to prove a criminal case. Based on the current state of the law, the government can obtain those records without a search warrant in many cases.