United States v. Miller – Oral Argument – January 12, 1976

Media for United States v. Miller

Audio Transcription for Opinion Announcement – April 21, 1976 in United States v. Miller

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Warren E. Burger:

We will hear arguments first this morning in United States against Miller, 74-1179.

Mr. Wallace you may proceed whenever you are ready.

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

This case involves Fourth Amendment claims, concerning two grand jury subpoenas of the bank records.

In January 1973, while fighting a fire at a warehouse in Kathleen, Georgia which was rented to the respondent, local law enforcement officials discovered a distillery, a quantity of non-tax-paid whiskey and related paraphernalia.

Several weeks earlier a van-type truck occupied by two of respondents, later alleged co-conspirators was stopped on the basis of information from an informant and found to contain distillery apparatus.

As a result of these two incidents, two grand jury subpoenas were issued from the United States Attorney’s Office to banks in nearby communities in which the respondent had bank accounts.

This was in the conduct of the investigation being conducted by the United States Attorney’s Office and Treasury Department Agents on behalf of the grand jury..

The obvious purpose of the subpoenas was to determine whether the records of the respondent’s account would reflect transactions that would connect him with the maintenance or operation of the distillery discovered during the fire with its proceeds and that would connect that operation with the van that had been stopped a few weeks earlier.

And I would to interject at the outset that this is a normal method of investigating an incident of this kind and we believe an entirely proper line of investigation, if anything, and major thrust of this Court’s criminal procedure decisions in the past forty years has been to encourage law enforcement officials to seek objective, reliable, documentary, real evidence of the sort from third parties rather than focus the investigation entirely on trying to illicit incriminating statements from the suspects themselves.

Potter Stewart:

These subpoenas were issued at the behest of the agents of the Treasury Department, was it?

Lawrence G. Wallace:

They were issued, yes.

They were cooperating with the United States Attorney in the conduct of the investigation, Mr. Justice.

Potter Stewart:

This was —

Lawrence G. Wallace:

Because this was non-tax-paid whiskey that had been discovered.

Potter Stewart:

And is it the area of the Government that this was a criminal investigation or an income tax investigation?

Lawrence G. Wallace:

It was an investigation — what they issued were subpoenas on behalf of the grand jury, a criminal investigation, a grand jury investigation and the subpoenas were issued out of the United States Attorney’s office.

No inquiry was made at the hearing and in the absence of evidence to the contrary presumably, the subpoenas were issued in compliance with Rule 17 of the Federal Rules of Criminal Procedure which provides for their issuance in blank by the clerk of the court to parties to proceedings.

This has been applied to grand jury.

Potter Stewart:

They were (Voice Overlap) agents though, Treasury Department Agents?

Lawrence G. Wallace:

Who were — yes, they were assisting, as FBI agents often assist the US attorney in the conduct of investigation on preparatory to grand jury proceedings.

This case was a federal offense that the Treasury Department is concerned within its investigations.

The banks —

Warren E. Burger:

Is there anything in the rule, Mr. Wallace that requires a member of the bar to request the subpoena, that is to physically receive it from the clerk or a member of the bar send a messenger for a grand jury subpoena?

Lawrence G. Wallace:

The rule does not specify, Mr. Chief Justice.

Warren E. Burger:

But it does authorize the issuance?

Lawrence G. Wallace:

Of the subpoenas to —

Warren E. Burger:

To lawyers?

Lawrence G. Wallace:

To attorneys.

The rule was really drafted for trial subpoenas and has been applied by analogy to grand jury subpoenas, but the drafting does not fit the grand jury situation precisely.

Lawrence G. Wallace:

In any event, it is the normal practice to have the subpoenas in the United States Attorney’s Office for issuance on behalf of the grand jury.

Thurgood Marshall:

Mr. Wallace, (Inaudible)

Lawrence G. Wallace:

To issue a trial subpoena, yes.

But —

Thurgood Marshall:

In the investigation, yes. (Inaudible)

Lawrence G. Wallace:

That is the normal method used.

Thurgood Marshall:

(Inaudible)

Lawrence G. Wallace:

The case may not go to the grand jury, but the idea is seeking information that can be presented to the grand jury.

Sometimes the case proceeds by information rather than indictment.

Eventually, this one did go to the grand jury.

Thurgood Marshall:

(Inaudible) this man, in this case, his lawyers want to dispute about that.

He could not do it, could he?

Lawrence G. Wallace:

Not until proceedings have been brought.

Thurgood Marshall:

If he does not reply you can invoke a —

Lawrence G. Wallace:

It does, it does at — in its application to trial subpoenas, but not a —

Thurgood Marshall:

(Inaudible) proceed.

It only applies (inaudible)

Lawrence G. Wallace:

Well, it is the grand jury subpoena.

This is the way the grand jury subpoenas evidence so that they can function.

Thurgood Marshall:

(Inaudible)

Lawrence G. Wallace:

No, not anybody.

The subpoena is issued by the Clerk of the Court to the attorney for the grand jury who is the United States Attorney and it is issued in blank and then filled out as the United States Attorney, acting on behalf of the grand jury seeks evidence for presentation to the grand jury.

Thurgood Marshall:

It dose not go to the grand jury unless he decides to?

Lawrence G. Wallace:

Well, that is correct.

Although in this case, the evidence did go to the grand jury.

Often, there is voluminous evidence only some of which would be pertinent to the grand jury proceedings.

After it is screened —

William H. Rehnquist:

Did the grand jury itself direct or asked the U.S. Attorney to subpoena a particular witness that it wanted to hear?

Lawrence G. Wallace:

It certainly could or it could issue a subpoena on its own, but in a situation like this one in particular where the grand jury is not in continuous session, in fact, it is infrequently, and this is a non-urban area and the grand jury sessions are infrequent and of short duration.

The common thing is for the United States Attorney to act on its behalf, gather the evidence for presentation to the grand jury, otherwise service on the grand jury which often entails long distances of driving for people in a rural district of this kind would become a very burdensome thing.

Lawrence G. Wallace:

Well, in this case the banks complied with the subpoena without actually attending a grand jury session by handing the information over to the agents working with the United States Attorney, so that it could be then presented by them to grand jury later on.

And the grand jury did indict the respondent and four others on five counts of violations related to the operation of the distillery.

A pretrial motion to suppress evidence secured by the subpoenas was denied by the Trial Court and at the trial, some evidence procured by these subpoenas was introduced and the subpoenas also gave the investigators some leads that may have led to other evidence introduced at the trial and the respondent was convicted on all five counts, so that he was charged and given concurrent sentences of three years imprisonment.

On appeal, the Court of Appeals in effect held that his pretrial motion to suppress should have been granted on the three grounds asserted in that motion and the Government’s petition for rehearing en banc was denied by an eight to seven of vote of the Court of Appeals.

In our view, the basic error at the Court of Appeals, the panel’s opinion and decision in this case is in its holding that the alleged defects in the subpoena violated as that Court put the respondents right to privacy in the bank’s records of his account.

It seems to us this holding departs from this Court’s admonition in Katz against the United States that the Fourth Amendment cannot be translated into a general constitutional right to privacy.

Pertinent language of the Fourth Amendment that we are concerned with in this case, appears on page 2 of our brief.

The right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizure shall not be violated.

Now, Katz held that that right to be securing one’s person, includes security from unreasonable intrusions by the uninvited ear of the Government as well as other protections, but neither Katz nor any other case of this Court has ever held that these protections apply to anything other than the claimant’s own person, houses, papers, or effects.

In fact, the rule has been precisely the contrary that the Fourth Amendment does not protect what is often referred to as just tertiary interests.

That it is only the person whose own person, papers, house or effects are the subject of the search and has standing to complain of non-compliance with the Fourth Amendment, not someone against whom that evidence may later be used.

This has been reiterated time and again.

The modern cases that spell it out start with Goldstein against the United States and go on through Jones, Wong Sun and Alderman, all of which are quite specific on this point and the Court has also applied this doctrine with specific reference to the papers of third parties that concern transactions between those third parties and the person seeking to complain of the intrusion into those papers.

It was done in both Donaldson against the United States, involving a former employer’s records, concerning Donaldson and then later in California Bankers against Shultz, where the Court pointed out that as long ago as 1925, it had decided that an internal revenue summons directed to a third party bank was not a violation of the Fourth Amendment rights of either the bank or the person under investigation by the taxing authorities and then quoted with approval, Mr. Justice Douglas’ statement concurring in Donaldson that it is difficult to see how the summoning of a third party and the records of a third party can violate the rights of the tax payer, even if a criminal prosecution is contemplated or in progress, which seems to us to be directly on point here.

As the Court also pointed out in Couch against the United States, the landmark precedent concerning the Fourth Amendment protection of private papers, Boyd against the United States did not contemplate, the Court said in Couch, the divergence of ownership and possession of the papers and a fortiori it did not contemplate the complete lack of possession or ownership of the papers by the person making the complaint which is the situation here.

These records are owned and maintained by the banks.

They are the banks records —

Thurgood Marshall:

(Inaudible)

Lawrence G. Wallace:

There was also a Fourth Amendment claim in Couch which the Court rejected and discussed.

It is true that this case is only a Fourth Amendment case, but I do not think that makes Couch less precedent for that it rejected claims under both amendments, Mr. Justice.

So, the papers themselves belong to the bank, their papers which the bank had consent to a search of without any right of the petitioner to prevent the bank from voluntarily turning them over to the Government under this Court’s consent search cases.

And, this leaves only the question whether because the information was secured from the petitioner’s checks and in the course of transactions between the petitioner and the bank whether that information is somehow protected or whether the petitioner has standing to claim that the information cannot be disclosed by the bank to the Government.

This is in our view not really a Fourth Amendment claim, but because the Fourth Amendment does not protect against the disclosure of the information itself that was pointed out in United States against White, that the person with whom — had the conversation in Katz could later testify about it, so long as it was a non-privilege conversation and not a confidential communication with a privileged relationship.

The protection of the information itself is really the providence of the law of testimony or privileges for confidential communications.

And here, there is no such privilege recognized between a bank and a bank customer anymore than there is between an individual and his accountant or others with whom he conducts business transactions.

William H. Rehnquist:

But what if the state law recognized such a privilege, would that have to be conclusive as to the disposition of a federal question such as this?

Lawrence G. Wallace:

I do not believe so Mr. Justice because whether such a privilege would be honored in the Federal Courts or with bar of the testimony of bank officials as to their transactions with an individual would be a question of Federal Law and the Federal Rules of evidence will of course bear on it.

But no state to my knowledge recognizes such a testimony or privilege.

There maybe rights, there maybe some rights of confidentiality in one’s bank records as against disclosure to third persons, but that does not mean that there is a testimonial privilege to refuse in response to proper legal process to testify about, after all these are the banks own transactions, and they have been common source of evidence in both State and Federal criminal prosecutions for many, many years as the Court recognized in California Bankers.

Harry A. Blackmun:

Mr. Wallace, would you make the same answer if there were a contract between the bank and the customer that the bank would detest at the most?

Lawrence G. Wallace:

The answer would be the same.

There might be some contractual right there, some basis for a suit for breach of contract, but a contract cannot amend the legal process that is provided for by Congress and by the Federal Rules of Criminal Procedure for securing evidence and —

Lewis F. Powell, Jr.:

Mr. Wallace, was the customer of the bank notified in this case of the issuance of the subpoena?

Lawrence G. Wallace:

He was not notified by either the United States Attorney or by the bank or by either bank?

Lewis F. Powell, Jr.:

I suppose a bank could have got the policy of notifying customers whenever a customer’s record is subpoenaed and that I take it your position would be that the customer would have no standing to go into court at that point and attempt to enjoin the implementation of the subpoena and say on the ground that it was a fishing expedition or otherwise invalid?

Lawrence G. Wallace:

No standing under the Fourth Amendment, Mr. Justice.

We do not address the possibility of standing under the First Amendment if the allegation which is not made here is that this is an improper inquiry into his associational activity or that sort of thing.

John Paul Stevens:

Suppose the bank exposed the depositor (Inaudible)

Lawrence G. Wallace:

It was not required to do so.

It could have com —

John Paul Stevens:

(Inaudible)

Lawrence G. Wallace:

Whether that kind of a contractual remedy would be a proper way of interfering with the execution of federal process is something that does not have to be reached in this case and I do not —

Byron R. White:

At least the depositor would have standing to do so, to raise the issue (Voice Overlap)

Lawrence G. Wallace:

He would have standing to bring such a suit, but he may not have a cause of action there.

But here, there was no problem of that sort and indeed what the District Court said was that the bank had really voluntarily handed the records over after receiving the subpoena.

Now, there is some discussion in the Court of Appeals’ opinion of the Bank Secrecy Act which in our view does not change the situation.

We are not involved here with the reporting requirements of that Act which were the subject of the concerns expressed in the concurring opinion in California Bankers of Mr. Justice Powell joined by Mr. Justice Blackmun.

We are concerned here only with the record keeping requirements and those requirements do not change the fact that the records belong to the bank and are records of its own financial transactions.

I do not see any basis on which those record keeping requirements would lead to a difference in the result on this issue.

Now, our basic position, therefore, is that that should have been the end of the matter in the Court of Appeals, that the complaint by the respondent about alleged defects in the subpoena should not have been entertained.

We do not urge, however, that that should be the end of the matter in this Court, if the Court agrees with us because the Court of Appeals went on to hold that the subpoenas were defective in three respects and we would urge the Court to consider the course of action here that it adopted in Donaldson where after holding that Mr. Donaldson did not have a right to intervene, to contest the validity of the Internal Revenue summons and nonetheless because of the importance of the issue to the administration of Justice and the fact that it had been presented to the Court went on to decide that the summons was being used to for a proper purpose in any event which was the issue that Mr. Donaldson had sought to raise through his attempted intervention.

Here, there is even more reason to go on and comment about these alleged defects in the subpoena because unlike the situation in Donaldson, there is a holding by the Court of Appeals on this subject which technically would be vacated, still a holding that would be troublesome in the administration of criminal Justice in the Fifth Circuit of the Court of Appeals.

Warren E. Burger:

What case was it Mr. Wallace if you remember, within the last year or eighteen months in which Senate Committee in conducting an inquiry had subpoenaed bank records of an organization which it was investigating, that is they were investigating the organization and the sources of its —

Lawrence G. Wallace:

United Servicemen’s Fund against Eastland.

Warren E. Burger:

Yes, I believe (Voice Overlap) you have not cited that, have you?

I could not find it in your — well —

Lawrence G. Wallace:

Well, I do not recall whether we did have —

Warren E. Burger:

Well, do you think it has any bearing here?

Lawrence G. Wallace:

It is not one of the cases most closely on point because it —

Warren E. Burger:

Was there a standing issue of the organization, of the depositor there?

Lawrence G. Wallace:

Yes, Mr. Chief Justice, but the case was primarily about the scope of the debate clause and it was a case which raised First Amendment claims rather than Fourth Amendment claims so it seemed to us not as —

Warren E. Burger:

Privacy issue would be common to both, would it not?

Was not that the claim of the United Servicemen’s Organization that this was a violation of their right of privacy and that it would open to public (Voice Overlap).

Lawrence G. Wallace:

Well, that would put in the context, that was their claim, but in the context of the First Amendment claim and here we are dealing with the Fourth Amendment claim which as I said earlier we do not equate with the claim of a right to privacy.

It is a claim about improper intrusion into the person’s papers, effects which are not the respondents and it seems to us to be an end of the matter with respect to a standing to raise that kind of claim.

John Paul Stevens:

Mr. Wallace, can we go back to your standing argument for a minute.

Does it really make any difference whose papers they were as long they are in the custody of the bank?

You seem to stress the fact that they are the bank’s papers, but I am not sure that is relevant?

Lawrence G. Wallace:

Well, under Couch even if they were the respondent’s papers, if he had relinquished possession of them to the bank —

John Paul Stevens:

What I am — would your argument be — your standing argument be precisely the same regardless of who owned the papers?

Lawrence G. Wallace:

Well, it just adds to the fact that there is no — it is a sort of an a fortiori argument since the papers are not in the respondent’s possession, in actual or constructive, there is no basis for asserting a possessory interest and Couch disposes of this claim on that ground alone, but we never took the position in Couch that Mrs. Couch could not be heard to assert the claim that she still had constructive possession over her records.

So, that there is more of a basis for standing to complain.

In the owner of the records, if there is a proprietary interest, I think there is some implication in Donaldson also, that that can be a basis for a standing to complain which may well be rejected on the merits as it was in both of those cases.

Potter Stewart:

As was my Brother White pointed out earlier, Couch was a Fifth Amendment case, at least it was both a Fourth Amendment and a Fifth Amendment case?

Lawrence G. Wallace:

That is correct, Mr. Justice.

Potter Stewart:

And it might be resolved differently under the Fifth Amendment from (Voice Overlap)

Lawrence G. Wallace:

They might well.

Warren E. Burger:

Since we rejected the Couch, the Fifth Amendment case, claim —

Lawrence G. Wallace:

As well the Fourth Amendment claim, that was also rejected in Couch.

Byron R. White:

But the Fourth Amendment claim in Couch considered the nature of the records, the deal not just ownership or possession and indicated that these papers were not private papers anyway?

Lawrence G. Wallace:

That is correct.

Byron R. White:

Even if you owned them?

Lawrence G. Wallace:

That is correct.

And the —

Byron R. White:

And that is somewhat a different approach, some rigid rule about not having possession or ownership?

Lawrence G. Wallace:

Well, because in that case they were the complainant’s records, there was ownership and we have in our brief analogized to those considerations in Couch by pointing out that the checks here are cast upon a sea of commerce over which the respondent has no control.

I do think it will have to and he has no control over the endorsements, who will see the information etcetera.

Harry A. Blackmun:

Mr. Wallace, when you say that, that does not apply to deposits or —

Lawrence G. Wallace:

No.

It applies only to the checks.

Lawrence G. Wallace:

It does not apply to the deposit slips, but even where privilege has been recognized for confidential communications that has been held not to apply to transactions, but only to confidential communications, transactions between the attorney and client, the amount of the fee, the identity of the client are held not to be privileged under the attorney-client privilege for example.

I will have to leave to our brief the discussion of the alleged defects in the subpoena.

I will reserve the balance of my time.

D. L. Rampey, Jr.:

Thank you sir.

Mr. —

Warren E. Burger:

Mr. Rampey.

D. L. Rampey, Jr.:

Mr. Chief Justice and may it please the Court.

My name is Lee Rampey.

I represent the respondent in this case ever since this whole case started.

Let me very quickly make a factual condensation, if I can, of this case in regards to these subpoenas.

I think the appendix that the Court has before it is within about 60 pages in length and it will show that the subpoenas were apparently completed and as the Government concedes issued in the United States Attorney’s office, two Alcohol, Tobacco and Firearm agents came and picked up the subpoenas.

One issued to C&S Bank of Warner Robins, Georgia.

One to the Bank of Byron, two small state type banks, obviously federally regulated and subject to the Bank Secrecy Act.

They went there.

They served the subpoenas at the C&S Bank of Warner Robins.

The agent secured all of the information he has for over a four month period.

Copies of the checks, financial statements, deposit slips, everything he requested in regards to Miller’s financial transactions at the C&S Bank of Warner Robins.

Those —

Warren E. Burger:

Is it your point that it makes some difference whether the United States Attorney did it personally or it was an FBI Agent or a United States Marshal or one of his secretaries?

D. L. Rampey, Jr.:

Your Honor, I think Rule 17 is cast in terms of a party requesting a subpoena in blank and it being used in that matter.

The reason I am going over this point is to show that really as a practical matter the only people that knew what was going on as to these documents, the use of these subpoenas was the ATF Agents and to some unknown extent, the United States Attorney’s office because here, the ATF Agent retain the documents that he secured from the two banks in his possession from the time that he received them until the time of the hearing.

In the appendix at page 41 and 42, the agent is sitting right there on the stand in April, three months after he had secured the documents from the bank, he is sitting there and he has all the papers and that these documents and exhibits right out of the banks are lodged with the Clerk of this Court for your inspection.

Warren E. Burger:

Is this agent, a part of the United States Government?

D. L. Rampey, Jr.:

Yes sir, he is an Alcohol, Tobacco and Firearms Agent and a —

Warren E. Burger:

So is the United States Attorney an agent of the United States Government, is it not?

D. L. Rampey, Jr.:

Yes sir, but I do not think the agent is necessarily.

The United States Attorney has at my request subpoenas in behalf of the party I — he — the United States of America, but my point is that there was no return of these subpoenas to the Court where they were purported to be issued from.

The agent says, well, I have filled in the information and I still have the original subpoenas.

There was no notice to the defender, no return to the Court.

John Paul Stevens:

Mr. Rampey, would you say your client’s Fourth Amendment rights were violated if the Government lawyer had written a letter to the bank and said, please turn over the following documents and if you do not turn them over voluntarily, we will get a grand jury subpoena and the bank had responded to the letter by doing just what it did here?

D. L. Rampey, Jr.:

I think they still would have been, yes sir, I do because I do not think a depositor, I think that a depositor has even under this Court’s rulings and more recently the Supreme Court of California has ruled under their Constitutional Provisions that a bank depositor has a reasonable expectation of privacy under their equivalent of the Fourth Amendment to the sanctity of those documents.

Thurgood Marshall:

(Inaudible) the action against the Government or the bank?

D. L. Rampey, Jr.:

There are some cases cited in my brief Mr. Justice, where a right of action and contract is available.

I think though that here, the depositor does have a constitutionally protected right of privacy under the Fourth Amendment.

Thurgood Marshall:

Well, is it the right time to move along voluntarily?

Well, suppose the bank on its own says I think that so and so is a violator of the law and I got some records and I will give them to the U.S. Attorney and hands them to him, is that a violation of the Fourth Amendment?

D. L. Rampey, Jr.:

Not if he does it on his own without any Governmental —

Thurgood Marshall:

That is what I said?

D. L. Rampey, Jr.:

Yes sir, that is true.

Thurgood Marshall:

It is not about the Fourth Amendment?

D. L. Rampey, Jr.:

That is true, but there is no Governmental —

Thurgood Marshall:

Well, now, what he did not dream (Inaudible) does not pursuant to subpoena?

D. L. Rampey, Jr.:

Our point is that these subpoenas number one were invalid as a process of a grand —

Thurgood Marshall:

(Voice Overlap) standing now, not by the validity, not by the standing?

D. L. Rampey, Jr.:

Because if the Government intervenes to some extent in the procurement of these records and documents in which we content the depositor has a reasonable expectation of privacy that is justifiable, then this gives — this is the same situation as where, for example a Secret Service Agent asked an airline employee to search a piece of baggage and he does so, I think this Court has ruled —

Thurgood Marshall:

As long as the alcohol, tax and beverage, whatever that guy is, goes to the man’s auditor and says I want to see this man’s records, would that be valid reason for —

D. L. Rampey, Jr.:

His accountant?

Thurgood Marshall:

Yes.

D. L. Rampey, Jr.:

But that is not —

Thurgood Marshall:

You have a little trouble there, have you not?

D. L. Rampey, Jr.:

Yes, I do your Honor, but that is not the case here.

Number one —

Thurgood Marshall:

You think an accountant is less obliged to protect the secrecy than the bank?

D. L. Rampey, Jr.:

I think banks are more obliged to protect the secrecy in this instance because number one, the records are compelled to be kept by banks under the Bank Secrecy Act and number two, there is a reasonable expectation of privacy as to these records and documents.

The banks really do not necessarily have to have all of these copies of the checks and documents.

Thurgood Marshall:

Well, suppose it gives the Agent the exact check and not a copy?

D. L. Rampey, Jr.:

The bank would have no right to do that.

Thurgood Marshall:

Suppose they did, what would you do about it?

D. L. Rampey, Jr.:

The bank should be sued because they have no right to the check in the first place.

Thurgood Marshall:

Could U.S. Attorney’s Office use it?

D. L. Rampey, Jr.:

They could if it were voluntarily handed over.

Thurgood Marshall:

And you do not think this was voluntary?

The record — the bank’s keeper gave this, the man came he said, look, I got a subpoena, give these stuff you guys had hid this, as opposed to voluntary?

D. L. Rampey, Jr.:

But this Court has also held that, for example a landlord cannot go in on his own and allow the law enforcement officers to go in and search a house where a distillery is located.

Thurgood Marshall:

Is that the first day of the bank (Inaudible)

D. L. Rampey, Jr.:

But we are contending that —

(Inaudible)

D. L. Rampey, Jr.:

— as a matter of pure property law, that is correct but we are contending that there is a reasonable expectation of privacy as to these microfilmed records that are kept under the Bank Secrecy Act that these are not, otherwise even prior to the Act, not normally kept by the banks.

In fact, one of the two banks should never keep it.

Thurgood Marshall:

Is it not true that once you put something into the computer it is everybody’s knowledge?

D. L. Rampey, Jr.:

No, Your Honor, I certainly hope that is not the case.

Lewis F. Powell, Jr.:

Mr. Ramsey.

D. L. Rampey, Jr.:

Yes sir.

Lewis F. Powell, Jr.:

Let us assume for the moment that the records involved in this case had been those of a department store that had extended credit to your client, would you have a different case?

D. L. Rampey, Jr.:

To records of a department store?

Lewis F. Powell, Jr.:

Yes.

Your client had been extended credit by a department store.

It obviously had records of the account with your client.

Let us assume that the U.S. Attorney had issued a subpoena to obtain those records?

D. L. Rampey, Jr.:

Mr. Justice, I think that would be a different case.

Lewis F. Powell, Jr.:

Why?

D. L. Rampey, Jr.:

Because number one that would expose only his transactions with that department store.

The records that we are talking about today are records that even as conceded in the California Bankers Association case are records that really tell more about the individual.

They ought to be protected.

In our arguments they ought to be protected.

They show a person’s lifestyle, his thoughts, what he does with his money, what his politics might be, what his problems are, almost anything you can find out about a person, you can find out from his financial records.

And I think even Donaldson, we contend that Donaldson is distinguishable in this particular instance.

Number one, Donaldson was not a constitutional case in the sense of this case.

It was a question of whether not the taxpayer had a right to intervene and we would argue that the language in Donaldson is basically from Rule 24 (a) (2) of the Federal Rules of Civil Procedure, whether or not he had right to intervene to protect an interest relating to property.

Warren E. Burger:

Let me change and give you another variation of these hypothetical cases that had been put to you.

Warren E. Burger:

As you know, some people who receive checks, particularly businesses make a microfilm of every check they receive and suppose somewhere along the line, one of the holders in due course of this man’s checks had made microfilms.

Now he is not a banker, he is simply a person who received that check in due course and while he had it of course he had a property right in it, you would agree I am sure.

Now, could a subpoena reach that check in the hands of that former holder in due course of the check?

D. L. Rampey, Jr.:

If he still retained the original, yes sir I think so, but —

Warren E. Burger:

Well, the original goes back to the issuer, does not it?

D. L. Rampey, Jr.:

Oh, the microfilm?

Yes.

Warren E. Burger:

No.

The microfilm copy of that check is in the hands of one of the holders in due course and they may have been, it might have three or you might have 30 conceivably.

Now, is that the right of privacy is the same, is it not, in this case in my hypothetical?

D. L. Rampey, Jr.:

I would argue not.

No sir, I would argue not for the reason that as I again indicated, that exposes only one single transaction.

This case right here is a graphic example of a way you can get four months of a man’s total financial life unfolded before you with what we contend are illegal grand jury subpoenas.

Warren E. Burger:

Well, frequently the Government does that when they are making a tax fraud case, do they not, a net worth case?

D. L. Rampey, Jr.:

They do.

Warren E. Burger:

Any problem about getting that kind of subpoena?

D. L. Rampey, Jr.:

Well, our contention is to the subpoenas itself are that the subpoenas were improperly used.

Warren E. Burger:

Well, that is a defensive point.

D. L. Rampey, Jr.:

Yes sir.

Warren E. Burger:

That is not the privacy point.

If you distinguish this to pickup the net worth tax case, how distinguish the right of privacy here from right of privacy that is involved when the Government is making a net worth tax fraud case using bank records and great many other types of records, accountant’s records?

D. L. Rampey, Jr.:

Our point is, that the grand jury subpoena is used in this matter to acquire these voluminous records from banks, invades the depositors reasonable expectation of privacy that is protected under the Fourth Amendment of the United States of America and we rely on Katz, the language in Katz, and also as to the proprietary interest in the documents themselves, we also cite (Inaudible)which is a case where the man did not have any proprietary interest in the union documents that were secured in his shared office space.

And in this particular instance we have a compulsory record keeping of everyone’s financial documents and papers by all the banks in the nation.

We have a situation graphically demonstrated here where grand jury subpoenas can be utilized by Alcohol, Tobacco and Firearms Agents and ostensibly under the supervision of the United States Attorney’s office in the absence of a grand jury and in the absence of a return made to the Court until the question is made.

William H. Rehnquist:

Mr. Rampey, are you saying in response to the Chief Justice’s question that assuming the subpoena had been proper and a proper return had been made that these bank records are simply immune from any sort of discovery?

D. L. Rampey, Jr.:

No sir, I am not saying that.

William H. Rehnquist:

Okay, then what showing does the Government have to make in order to discover it?

D. L. Rampey, Jr.:

Well, the Government cannot, in this instance, as the Government concedes they were looking for possible transactions relating to a distillery.

William H. Rehnquist:

Okay, what is your answer to my question?

What showing does the Government have to make if they are not absolutely immune?

D. L. Rampey, Jr.:

I think at this stage, they should have to make a probable cause showing just to get these files.

William H. Rehnquist:

Well, how does Government develop probable cause except running down leads such as this?

D. L. Rampey, Jr.:

They can develop — if they cannot develop probable cause they should not intrude into a constitutionally protected area.

William H. Rehnquist:

Well, this would just wipe out any successful prosecution of white collar crime, with your suggestion?

D. L. Rampey, Jr.:

Well, I think your Honor, Mr. Justice that by the same token, approving what the Government has done in this case will allow them in an unsupervised manner to go and look at anyone’s in these banks at anytime.

William H. Rehnquist:

But the Government had been doing that for years with subpoenas.

So they were — it is you that is asking for the change, not the Government?

D. L. Rampey, Jr.:

But, the essential difference also is that we are contending today that these records should be allowed the same dignity as the original records that were at home, at the home of the defendant.

They could not have secured those records by a subpoena.

They would have to secured a search warrant for mere evidence of crime.

Warren E. Burger:

What if they were in the hands of his accountant?

D. L. Rampey, Jr.:

Well, I realize the Court’s rulings in that regard.

He has voluntarily turned him over to a third party.

Of course we would argue here that this is — actually using a bank is a necessity of human life.

You have to use it.

The case, the California Supreme Court case concedes that.

I realize this is a state ruling, but I cite it for persuasive authority that you have to have that and cases cited in my brief indicate that depositors themselves have a right of privacy and contract and in tort that they can enforce in this regard.

Byron R. White:

What if the grand jury was investigating the bank, not your clients, but investigating the bank and they served the same subpoena and the bank had objected it on Fourth Amendment grounds.

You will have little trouble there when you under Walling, Oklahoma, or is it not in the —

D. L. Rampey, Jr.:

To some extent, but —

Byron R. White:

Well, Walling said that the Fourth Amendment is not inapplicable, but the reasonable of equivalent of a probable cause is the need of the grand jury or the Government to investigate violations of the law?

D. L. Rampey, Jr.:

That is another point too.

That is really not the need of the grand jury.

I think — well it is need of the United —

Byron R. White:

Well, it is (voice overlaps) you would say that such traditional function of the grand jury?

D. L. Rampey, Jr.:

Well, it is and I think even the Department of Justice in a statement to the House Judiciary Committee on December 5, 1974, has indicated that the traditional functions of independence of grand juries is really a myth.

This is a letter at the Congressional Record House, page 11355 and 356 written by Assistant Attorney General Greg Straw and in response to pending legislation regarding, eliminating grand juries, he refers to the independence of the grand juries as really non existent anymore as a practical matter.

They work under the auspices of the United States Attorney’s offices.

Byron R. White:

That is a hardly responsive to my purpose in Walling, is it, how would you respond to it, how would the bank respond to the subpoena for its own records?

D. L. Rampey, Jr.:

In behalf of the depositors?

Byron R. White:

No, in behalf of the bank?

Warren E. Burger:

Perhaps the bank examiners?

D. L. Rampey, Jr.:

Yes sir.

Well, but that would be an investigation relating to the bank, but not the depositors.

Byron R. White:

What if the records here were in possession of the taxpayer himself?

What if they subpoenaed his own records?

D. L. Rampey, Jr.:

He could invoke his Fifth Amendment rights.

Byron R. White:

No, I am not talking about that.

I am talking about his Fourth Amendment rights, a subpoena to your client for his own records investigating his taxes?

D. L. Rampey, Jr.:

He could rely — he could start by relying on the Boyd case that held that the Fourth and the Fifth Amendment comes together.

Byron R. White:

Well, do you think Walling and cases like that continued that approach insofar as the subpoena in the Fourth Amendment are concerned?

D. L. Rampey, Jr.:

Mr. Justice, I have to admit I am not too familiar with the Walling case so I do not think I could really respond to that, I am sorry.

Byron R. White:

Well, that is it — you are asking here to apply the Fourth Amendment to the subpoena situation, not to invasions of some other protected areas?

D. L. Rampey, Jr.:

Well, I am really asking so far the Fourth Amendment to individual depositor’s rights in that of which —

Byron R. White:

(Voice Overlap) respect to the subpoena of what — of certain documents in which you say they have some privacy interest.

Now, surely you would not think that Fourth Amendment would protect these documents in the hands of the bank if they would not protect them in the hands of the depositor?

D. L. Rampey, Jr.:

Well, as I indicate, I do not know that I can respond because I am not familiar with the Walling case, I am sorry.

Thurgood Marshall:

(Inaudible) against the fact that the banks do microfilm to checks?

D. L. Rampey, Jr.:

Mr. Justice, our complaint is two-fold.

One, as a composure microfilming, working in conjunction with grand jury subpoena process, if this Honorable Court will recognize a right of a constitutional Fourth Amendment right in these records then we contend that grand jury subpoenas and grand jury process does nothing, but give —

Thurgood Marshall:

Do you want us to say that while we can compel, while the Congress can compel them to microfilm, nobody can use them?

D. L. Rampey, Jr.:

No sir.

Thurgood Marshall:

What good is the microfilm if they cannot use it?

D. L. Rampey, Jr.:

Well, it may be perfectly alright, if these records are indeed not protected under the Fourth Amendment, but our contention is that if they are protected under Fourth Amendment Grand Jury procedures just simply do not afford any protection to the individual depositor.

It leaves in the hands of the agents and the United States Attorney’s office as a practical matter, the securing of these records ostensibly for the grand jury proceedings which even in this record does not show whether not these materials leave and handed over to the grand jury.

John Paul Stevens:

Mr. Rampey, do you disagree with the Government’s statement that these records were the property of the bank rather than the property of your client?

D. L. Rampey, Jr.:

I think, Mr. Justice, that from a pure title standpoint, the bank owns the microfilm, but as a practical matter really, they are not looking for tangible evidence.

They are looking for information on the microfilm.

We are seeking to protect the information on the microfilm and the point here —

John Paul Stevens:

You object to the search as well as the seizure in effect?

D. L. Rampey, Jr.:

Sir?

John Paul Stevens:

You object to the search as well as the taking possession of the records?

D. L. Rampey, Jr.:

Yes sir.

John Paul Stevens:

So you would object even if an agent had gone in and voluntarily requested to see them without any process at all, you would make precisely the same argument?

D. L. Rampey, Jr.:

Yes sir.

John Paul Stevens:

That is the same argument on the letter, the example I gave you?

D. L. Rampey, Jr.:

Yes, and in fact the California —

John Paul Stevens:

Would your argument not be the same even if he asked for just one check instead for four months of records?

D. L. Rampey, Jr.:

Yes sir.

John Paul Stevens:

So the scope of the subpoena really has nothing to do with your Fourth Amendment contention?

D. L. Rampey, Jr.:

Well, but in this particular case, we contend that the scope was too broad because as a practical matter they did not.

The Government argues there may be independent sources for their inquiry.

I do not think the record demonstrates any independent knowledge or request for a particular check.

In fact, in both instances, in one instance they microfilm everything and put it in a bag, and in the other instance they sit down at the machine with the young lady and look at everything and not only just this dependent, they look at everyone else.

perhaps look at everyone else on the whole microfilm.

But as to the independent source, argument by the Government we contend is not even is not even demonstrated by the record in this case.

It is graphically demonstrated that the agents did not know anything about any particular transactions.

Lewis F. Powell, Jr.:

Mr. Lee Rampey.

D. L. Rampey, Jr.:

Yes sir.

Lewis F. Powell, Jr.:

It is not entirely clear to me the extent to which you rely on the Bank Records Act.

Would you be here today if that Act were not on the books?

D. L. Rampey, Jr.:

I do not believe we would Mr. Justice because C&S Bank of Warner Robins used limited microfilming procedures for example and in that particular instance, there would have been no records.

Lewis F. Powell, Jr.:

But banks traditionally have had ledger accounts just like reflecting the accounts of their customers, obviously they have to maintain records?

D. L. Rampey, Jr.:

Yes sir.

They have to maintain some records that they feel is necessary for their operation.

Lewis F. Powell, Jr.:

But if this case had risen before the Bank Records Act, do you think the subpoena would have been alright for such records that may then have existed?

D. L. Rampey, Jr.:

I certainly do not want to concede that the subpoena in the matter in which it was handled a would have been alright.

Lewis F. Powell, Jr.:

Apart from that, assuming you had a valid subpoena, as you view it, such records as a bank then had, could have been subpoenaed without violation of the Fourth Amendment?

D. L. Rampey, Jr.:

Well, Mr. Justice, I would have probably rely it again on the California Courts rulings and not only in that case where that was an instance where the police officer requested just the statements, the man’s statements, they did not get any check and they held it under their Constitutional Provisions, he had a right to privacy that was protected.

And also they have held that the compulsory financial statements required of public officials violates an individual’s reasonable expectation of privacy as to his financial affairs.

D. L. Rampey, Jr.:

And I would note in closing that as we have indicated in brief there are state cases where the depositors have enforced their contractual and tort right to privacy as to the rights of depositors for unreasonable — disclosing these materials.

I would also cite a case that I do not have in brief.

It is a Third Circuit case Zimmermann v. Wilson, 81 F.2d 847 (3d Cir. 1936).

This case was somewhat modified at a later date, but if indeed there is a reasonable expectation of privacy as to these records on the part of bank depositors, I believe the language in this case where in fact, they note as even in the old case of Entick versus Carrington, that really is not the paper, it is the information on the paper that is sought to be protected.

And we contend here that the interaction, the compulsory recording of all these records by the banks under the Bank Secrecy Act with the interaction of these subpoenas does indeed invade an area where depositors reasonably and justifiably can and should be protected.

If one cannot keep his own financial affairs out of the scrutiny of the Government, except with some type of probable cause showing we would at least argue that it is certainly his right to privacy has been diminished in a great extent and even our constitution —

Thurgood Marshall:

Did your client knew about the Bank Secrecy Act?

Warren E. Burger:

Sir?

Thurgood Marshall:

Did your clients knew about the Act?

D. L. Rampey, Jr.:

No sir.

My client did not know about the Act itself.

Thurgood Marshall:

Well, is he being presumed to know?

D. L. Rampey, Jr.:

Well, he had never indicated any knowledge of the microfilm recording, Mr. Justice, until well after the fact.

We did not know about it until after it was —

Thurgood Marshall:

You knew about it?

D. L. Rampey, Jr.:

I knew about the Act, yes sir, but I did —

Thurgood Marshall:

(Inaudible)

D. L. Rampey, Jr.:

Because I did not represent him at the time of these subpoenas.

I did not represent him until March when he was –[Laughter]

Yes sir.

I thank you.

Warren E. Burger:

Do you have anything further Mr. Wallace?

Lawrence G. Wallace:

Just briefly Mr. Chief Justice.

The reasonable expectation of privacy involved under the Fourth Amendment is only an expectation of privacy in one’s own person, affects, papers etcetera.

If there is to be privacy protection afforded to third party records that is a matter for legislative consideration.

It is not a Fourth Amendment right.

We have pointed out on page 31 of our brief in footnote 21, bills that has been introduced in Congress on this subject and have also pointed out legislation that exists with respect to telephone company records and the records of credit reporting agencies where Congress has seen fit to provide some legislative protection.

Now here, there is no allegation of improper disclosure of any matters relating to the respondent’s personal affairs.

The only allegation is that these were exposed to the agents conducting a proper Government investigation.

And I do want to point out to the Court that one of the rules of criminal procedure not cited in the brief is Rule 6 (e) does contemplate that Government attorneys will seek grand jury evidence in the performance in the course of their duties.

John Paul Stevens:

(Voice Overlap) standing argument please.

Do you contend that this test of standing is the same when you are asking whether one can object to a subpoena as it is when one is asked to make an objection to the admissibility of evidence on the Fourth Amendment ground?

I am not wondering — I am wondering if you are not confusing two different kinds of standing questions in your brief.

Do you understand what I am asking?

Lawrence G. Wallace:

I think it would be different.

It is the person subpoenaed who has standing to object to the subpoena and since the person against —

John Paul Stevens:

And so when you are talking about standing attack a subpoena, the question of ownership would not be relevant or is it might be relevant when you are talking about standing to raise a Fourth Amendment objection?

Lawrence G. Wallace:

Well, I think anyone who is unduly burdened by the need to comply with the subpoena has standing to complain about the subpoena.

John Paul Stevens:

And no one else is your position?

Lawrence G. Wallace:

And no one else.

It is only the one who has to comply with it because the subpoena is very comparable to the letter that you are posing.

Hypothetically it is merely request to produce information and if the person subpoenaed wants to object to that that it is too burdensome for him to do so that it violates his Fourth Amendment rights or that their — that the subpoena is defective in some way, he may do so.

If he does not raise such an objection, it stand him out to voluntarily turning over the records in response to an oral or written request that is not labeled as subpoena.

Potter Stewart:

But even at the turn of the records, you might have quite a different question in the trial of a case when the motion is to exclude evidence?

Lawrence G. Wallace:

It is a different question.

It is a different question and (Voice Overlap)

Potter Stewart:

It is a different question (Voice Overlap) different standard?

Lawrence G. Wallace:

That is correct.

Byron R. White:

Your standing argument sounds like, when we are just saying this — what I really mean is there is no violation of the Fourth Amendment here with respect to the owner — with respect to the depositor?

Lawrence G. Wallace:

Well, it is a different question, but the answer to the question has been that the Fourth Amendment in the context of seeking to exclude evidence does not protect just tertiary interest.

It does not protect, some of them having evidence used against him which was taken in violation of someone else’s Fourth Amendment rights.

It just happens here there was no Fourth Amendment violation anyway, but the standing point is still in the case.

The answer is the answer given in Wong Sun when it was said that the evidence could be used against one of the defendants, although not against the other one whose premises were violated, whose rights and premises were violated.

That is the answer to it.

It is a standing issue.

It is obscured slightly in this case because it is in our view fairly obvious that there was no Fourth Amendment violation of anyone’s rights here.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.