Appeal from the Circuit Court of Cook County; the Hon. R.
Eugene Pincham, Judge, presiding.
JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The trial court granted a motion to suppress the defendant's bank records obtained through a grand jury subpoena served on her Illinois bank. The court held that the subpoena violated the defendant's constitutional right to privacy by an unreasonable seizure of her bank records. The State appeals this ruling.
On December 6, 1978, the defendant, Hazel Jackson, was fired from her job as a closing officer at Intercounty Title Company. On December 12, 1979, an employee of Intercounty phoned the State's Attorney's office of Cook County and related his suspicions that the defendant had been involved in an embezzlement scheme. On May 14, 1980, the State's Attorney's office approved the issuance of a grand jury subpoena duces tecum to the defendant's bank, the Central National. The subpoena directed the bank to turn over the defendant's records covering the period from August 1977 to October 26, 1979. Nine months later, on February 27, 1981, the Cook County grand jury returned an indictment against the defendant charging her with theft in that she was unlawfully receiving unemployment benefits while still employed.
On May 21, 1981, the defendant filed her motion to suppress the subpoena. The motion alleged that there had been an unreasonable seizure of her bank records under the Illinois Constitution; that the subpoena had not been properly authorized by the grand jury; that the subpoena was not served with notice to her as a bank customer pursuant to the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 148.1(d)(1)); and that the subpoena was unreasonably broad in scope.
During the hearing on the motion to suppress, it was stipulated that there was no evidence that the State's Attorney's office had appeared before the grand jury or before any judge to request the issuance of the subpoena; that the grand jury docket for the relevant dates contained no information regarding the issuance of this subpoena; that the assistant State's Attorney handling the investigation did not recollect appearing before the grand jury to obtain the subpoena; that the official shorthand reporter assigned to record the grand jury proceedings of May 14, 1980, had no record of any testimony being presented to that body regarding the issuance of a subpoena to Hazel Jackson's bank; and that the defendant had received no notification that a subpoena had been issued for her bank records.
• 1 Rights of privacy are protected against unreasonable searches and seizures under both the Federal and State constitutions. (Katz v. United States (1967), 389 U.S. 347, 350, 19 L.Ed.2d 576, 581, 88 S.Ct. 507, 510; Ill. Const. 1970, art. I, sec. 6.) The first question is whether there is a right of privacy in the bank records. If there is, she has standing to make the motion to suppress the evidence. The second question then becomes whether the seizure was reasonable or unreasonable under the Federal and State constitutions.
The defendant concedes that under United States v. Miller (1976), 425 U.S. 435, 48 L.Ed.2d 71, 96 S.Ct. 1619, the United States Supreme Court decided under circumstances substantially similar to those here that there is no privacy right in bank records and consequently the defendant there had no standing. Jackson contends that if Miller is applied the motion to suppress should be denied. However, she contends that the Illinois courts> may set a higher standard under the Illinois constitutional provisions against unreasonable search and seizure as other States have done.
In Miller, the defendant, like the defendant here, had been charged with various Federal offenses and had made a pretrial motion to suppress his bank records. He contended that his records had been illegally seized by subpoena duces tecum in violation of the fourth amendment. The court of appeals concluded that the subpoenaed documents fell within a constitutionally protected zone of privacy. The Supreme Court held that the defendant possessed no privacy interest in the bank records that could be vindicated by a challenge to the subpoena. The Supreme Court reasoned that the subpoenaed materials were business records of the bank, not the defendant's private papers; that there is no legitimate "expectation of privacy" in the contents of original checks and deposit slips because these are not confidential communications but negotiable instruments used in commercial transactions; that the fourth amendment does not prohibit the obtaining of information voluntarily conveyed to a third party which the third party then turns over to government authorities; and that the issuance of a subpoena to a third party does not violate a defendant's rights even if a criminal prosecution is contemplated at the time the subpoena is issued.
• 2 Jackson argues that she has a right of privacy in her bank records under article I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 6) and a right to privacy and notice under section 141.1(d)(1) of the Illinois Banking Act (Ill. Rev. Stat. 1979, ch. 16 1/2, par. 148.1(d)(1)). A State may of course set a higher standard of rights than the comparable United States constitutional right. (See Cooper v. California (1967), 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788.) Colorado, California and Pennsylvania rejected the rationale of Miller and held that there was a privacy right in bank records and consequently there was standing. Charnes v. Di Giacomo (1980), 200 Col. 94, 612 P.2d 1117; Commonwealth of Pennsylvania v. DeJohn (1979), 486 Pa. 32, 403 A.2d 1283; Burrows v. Superior Court (1974), 13 Cal.3d 238, 529 P.2d 590.
The facts in the three cases cited above closely parallel the facts in the instant cause. In each situation, the petitioner moved to suppress the production of his/her bank records which had been subpoenaed from the bank pursuant to a State investigation of his/her financial activities. The State supreme court, in each case, considered and rejected an application of Miller holding that their respective State constitutions recognized a reasonable expectation of privacy in bank records which could only be intruded upon by a valid subpoena.
These courts> rejected the rationale in Miller because it relies for its analysis of an expectation of privacy upon the ownership and possession of the records and not the reasonable expectations of the individual. The State courts> accepted the fourth amendment test set out in Katz v. United States (1967), 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, which provides protection for "people not places." (Cf. W. LaFave, Search & Seizure sec. 2.7, at 411 (1978); 14 San Diego L. Rev. 414 (1977); 83 Yale L.J. 1439 (1974).) Under Katz, the fourth amendment gives protection for an individual's reasonable expectation of privacy which is not bound by the location and present ownership of the records. Consequently, the right to privacy is not waived by placing these records in the hands of a bank. The individual can still legitimately expect that her financial records will not be subject to disclosure. See Burrows v. Superior Court (1974), 13 Cal.3d 238, 529 P.2d 590.
Unlike the State constitutions in California, Pennsylvania and Colorado, our Illinois constitution has a privacy provision which expressly grants our citizens protection from an unreasonable invasion of their privacy. Article I, section 6 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 6) is entitled "Searches, Seizures, Privacy and Interceptions" and provides:
"The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." (Emphasis added.)
The Constitutional Commentary on this provision explains, "Section 6 expands upon the individual rights which were contained in Section 6 of Article II of the 1870 Constitution and the guarantees of the Fourth and Fourteenth Amendments to the United States Constitution." (Ill. Ann. Stat., 1970 Const., art. I, sec. 6, Constitutional Commentary, at 317 (Smith-Hurd 1971).) The Commentary also states that "the protection against `invasion of privacy' is new and is stated broadly. No definition of ...