Bank Records Case Analysis

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The decision is a good candidate for review in the Wisconsin Supreme Court, for at least two reasons.

First, it raises the question whether Art. I, sec. 11, of the Wisconsin Constitution is still coextensive with the Fourth Amendment.

The last time the court of appeals considered sec. 968.135, in State v. Swift, 173 Wis.2d 870, 496 N.W.2d 713, 718 (Ct.App.1993), the court noted that the Wisconsin Supreme Court had just recently reaffirmed its commitment to interpret Art. I, sec. 11, in that way.

In contrast, the Wisconsin Supreme Court has recently called into question whether it will continue to do so, in cases involving other constitutional provisions.

The second reason the case is a strong candidate for review is that the issues raised are not limited to sec. 968.135, but concern the applicability of the exclusionary rule to other privacy statutes, as well.

For instance, the Wisconsin Electronic Surveillance Control Law, sec. 968.31, does not explicitly provide for suppression as a remedy for violation, just like sec. 968.135. However, the Wisconsin Supreme Court has implicitly assumed that suppression of illegally obtained evidence would be required. State v. Waste Mgmt., Inc., 81 Wis.2d 555, 261 N.W.2d 147, 153 (1978).

The reasoning in the case at bar — that the Legislature’s failure to provide for suppression as a remedy means suppression is not required — conflicts with that assumption.

The same is true of the Electronic Communications Privacy Act (ECPA). In a recent case, the Wisconsin Supreme Court suggested that the exclusionary rule would apply to government violations of the Act, even though the statute does not include suppression of evidence as a remedy. In re: John Doe Proceeding, 272 Wis.2d 208, 680 N.W.2d 792 (2004).

	Related Article No privacy interest in bank records

Noting that the ECPA had been amended to include e-mail, the court wrote, “This is a strong expression of society’s expectation of privacy in electronic communications.” Id., 792 N.W.2d at 806.

This reasoning is in conflict with the reasoning of the court of appeals in the case at bar — that the passage of federal and state legislation protecting bank records does not create a legitimate expectation of privacy.

However, it should be noted that the weight of authority holds that, unlike unlawful wiretaps, violations of the ECPA do not trigger application of the exclusionary rule. U.S. v. Steiger, 318 F.3d 1039, 1051-52 (11th Cir. 2003).

So, even though resolution of the precise issue in this case may not seem of great import, given how rarely the issue arises, it presents important issues likely to reoccur with respect to electronic communications in particular, and privacy acts generally.

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David Ziemer can be reached by email.