Wisconsin Court of Appeals holds no privacy interest in bank records.

Byline: David Ziemer

Suppression of evidence is not the remedy for a violation of sec. 968.135, which requires probable cause for issuance of a subpoena for a suspect's bank records, the Wisconsin Court of Appeals held on Dec. 12. Michelle R. Popenhagen worked for Save More Foods, when Save More's owner contacted the Minocqua Police Department, and told police that Popenhagen was stealing money when she deposited funds into the ATM, and was cashing checks for herself and her mother that had been returned due to a closed account or insufficient funds. Minocqua police officers then requested and obtained subpoenas for Popenhagen's bank records through the Oneida County District Attorney's office. However, no determination of probable cause was made, as required by the statute. The subpoenas were served, and the banks provided the requested records. Confronted with the records, Popenhagen made incriminating statements, and was charged with theft. Popenhagen moved to suppress the bank records, and her statements. Oneida County Circuit Court Judge Mark Mangerson granted the motion, holding that Popenhagen had a privacy interest in the records, and the searches violated her state and federal constitutional rights and sec. 968.135. The State appealed, and a divided court of appeals reversed, in a decision written by Judge Gregory A. Peterson, and joined by Judge Michael W. Hoover. Judge Thomas Cane dissented.

Fourth Amendment The court first held that the searches did not violate the Fourth Amendment. In United States v. Miller, 425 U.S. 435 (1976), the U.S. Supreme Court held that there was no legitimate expectation of privacy in bank records. The court acknowledged that, in response to Miller, Congress passed the 1978 Right to Financial Privacy Act (RFPA), which provides civil remedies against the government and banks for disclosures of a bank customer's financial information without consent, or a valid warrant or subpoena. However, because the RFPA provided exclusively civil remedies, the court concluded that the exclusionary rule is not an appropriate remedy for violation. The court reasoned, "While the RFPA shows some congressional concern with bank customers' privacy, Congress specifically did not recognize a privacy interest that rose to the level of the Fourth Amendment. If it had, it could easily have crafted a remedy on par with remedies available for Fourth Amendment violations. The fact that Congress chose not to shows it believed bank...