A New Mexico Supreme Court opinion last week made it official that grand juries in the state can subpoena a defendant’s bank records without a warrant.
The court ruled that a federal legal framework, known as the third-party doctrine, also applies on the state level. That means there is no expectation of privacy for financial information shared with a third party, in this case the bank itself.
The unanimous opinion came as a result of a still-pending criminal case against a couple in Taos, who are accused of money laundering. The couple took the issue to the court of appeals, which in turn, sent the case to the state’s high court.
The federal third-party doctrine says a search of records such as phone, internet and bank records without a warrant does not violate the U.S. Constitution because the records are shared with a third-party.
Anne Kelly, an appellate lawyer with the New Mexico Attorney General’s Office said the ruling is helpful for prosecutors in that there is no question that a grand jury can subpoena bank records without having to obtain a search warrant.
“That is, I think, a helpful clarification for everybody,” Kelly said.
Albuquerque attorney and former president of the New Mexico Criminal Defense Lawyers Association Peter Schoenburg said the court’s opinion provides clarification for New Mexico, but that the federal doctrine can be problematic.
“In many ways, the third-party doctrine is a fiction in this complicated age,” Schoenburg said. “Everyone has to rely on experts and repositories of information, like your internet provider, like the cloud, like your cell phone, just to conduct everyday business, and it doesn’t mean you expect the cops to be peering into your private stuff.”
He said this challenge of the third-party doctrine was “swinging for the fences” but also an “admirable effort to dismantle” it.
Two U.S. Supreme Court cases in the 1970s determined that records given to a third-party, like bank records, are open to searches by the government.
Schoenburg said given rapidly changing technology, he expects to see further challenges to the federal doctrine in the future.
“It’s just the opening battle in what I think will be a long war against the third-party doctrine and the idea that you give up your right to privacy by using an internet provider, or a digital cloud, or even a professional to prepare your financial matters,” Schoenburg said.