holding that a bank customer has no “legitimate 27 7 Defendants argue the Protective Order in place in this action, (Doc. 36), sufficiently obviates AmSurg’s confidentiality concerns. Protective Order or not, the Court will not 28 require production of irrelevant confidential records relating to a nonparty. See Erhard v. Bofl Holding, Inc., 2019 WL 5994417 , at *7 (S.D. Cal. Nov. 15, 2018). 1 expectation of privacy” in the contents of checks, deposit slips, and other banking 2 documents
How later courts described this case
- holding that a bank customer has no “legitimate 27 7 Defendants argue the Protective Order in place in this action, (Doc. 36), sufficiently obviates AmSurg’s confidentiality concerns. Protective Order or not, the Court will not 28 require production of irrelevant confidential records relating to a nonparty. See Erhard v. Bofl Holding, Inc., 2019 WL 5994417 , at *7 (S.D. Cal. Nov. 15, 2018). 1 expectation of privacy” in the contents of checks, deposit slips, and other banking 2 documents
- holding government-compelled disclosure of “a depositor’s private [bank] records” was not a Fourth Amendment search because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed”
- holding that a Fourth Amendment search does not occur when the Government obtains from banks records including checks, deposit slips, and other information conveyed by bank customers to their banks because this information is “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business”
- explaining that the Fourth Amendment allows prosecutors to use “information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Commonwealth v. DeJohn, 486 Pa. 32 (1979)
As we believe that Miller establishes a dangerous precedent, with great potential for abuse, we decline to follow that case when construing the state constitutional protection against unreasonable searches and seizures.
Distinguished
Distinguished by State v. Leonard, 923 N.W.2d 52 (2019)
Appellant resists this conclusion, arguing first that Miller is inapposite because it involved a different type of information subject to search (bank records) and a different process by which police obtained access (subpoena).
Distinguished by In re Telephone Information Needed for a Criminal Investigation, 119 F. Supp. 3d 1011 (2015)
Importantly, the Court is not holding that Miller and Smith áre no longer good law.
Distinguished by In re United States, 830 F. Supp. 2d 114 (2011)
Petitioners respond that Smith and Miller are distinguishable because Petitioners did not voluntarily turn over their IP addressing information to Twitter.
Distinguished by United States v. Warshak, 631 F.3d 266 (2010)
But Miller is distinguishable.
The opinion
Mr. Justice Marshall,
dissenting.
In California Bankers Assn. v. Shultz, 416 U. S. 21 (1974), the Court upheld the constitutionality of the recordkeeping requirements of the Bank Secrecy Act. 12 U. S. C. § 1829b (d). I dissented, finding the required maintenance of bank customers’ records to be a seizure within the meaning of the Fourth Amendment and unlawful in the absence of a warrant and probable cause. While the Court in California Bankers Assn. did not then purport to decide whether a customer could later challenge the bank’s delivery of his records to the Government pursuant to subpoena, I warned:
“[I]t is ironic that although the majority deems the bank customers’ Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer’s checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. ... By accepting the Government’s bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late.” 416 U. S., at 97 .
Today, not surprisingly, the Court finds respondent’s claims to be made too late. Since the Court in Califor *456 nia Bankers Assn. held that a bank, in complying with the requirement that it keep copies of the checks written by its customers, “neither searches nor seizes records in which the depositor has a Fourth Amendment right/' id., at 54 , there is nothing new in today’s holding that respondent has no protected Fourth Amendment interest in such records. A fortiori, he does not have standing to contest the Government’s subpoena to the bank. Alderman v. United States, 394 U. S. 165 (1969).
I wash my hands of today’s extended redundancy by the Court. Because the recordkeeping requirements of the Act order the seizure of customers’ bank records without a warrant and probable cause, I believe the Act is unconstitutional and that respondent has standing to raise that claim. Since the Act is unconstitutional, the Government cannot rely on records kept pursuant to it in prosecuting bank customers. The Government relied on such records in this case and, because of that, I would affirm the Court of Appeals’ reversal of respondent's conviction. I respectfully dissent.