Tuesday, December 28, 2010

How the Ever-Expanding Privacy Clause of the Illinois Constitution Can Help Defendants

The language in state constitutions usually track, often verbatim, the language of the Federal Constitution. Cf. Ill. Const. 1970, art. I, §2 (“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws”); U.S. Const. amend. XIV, §2 (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"). State Constitutions cannot remove rights or privileges granted by the Federal Constitution, but, as is illustrated in People v. Nesbitt, No. 2-09-0976, slip op. (Ill. App. 2d. November 8, 2010), States can grant additional rights and privileges not contained in the Federal Constitution.

In Nesbitt, defendant was charged with theft of property valued at over $10,000, with the State alleging that she stole $40,200 from the bank at which she worked. Nesbitt, No. 2-09-0976, slip op. at 2. During its in investigation, the police department obtained 250 pages of bank records from the bank by merely requesting them from the bank. Id. The defendant filed a motion to suppress the bank records, arguing that "the State violated her right to privacy under article I, section 6, of the Illinois Constitution when it procured bank records pertaining to her and her husband...without first obtaining a subpoena," which the court granted. Id. at 1 (citations omitted). The State appealed. Id.

Article 1, Section 6, of the Illinois Constitution says, in pertinent part, that "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." Ill. Const. 1970, art. I, §6. On appeal the State argued, inter alia, that the defendant did not have a right to privacy in its bank records under this Illinois constitutional provision. Nesbitt, No. 2-09-0976, slip op. at 1. The State cited People v. Caballes, 221 Ill.2d 282 (2006), for the proposition that Illinois courts use a "lockstep" approach when interpreting the search and seizure provision of Article 1, Section 6. Id. at 4. The lock step approach requires Illinois courts to interpret state constitutional provisions in "lockstep" with the way in which the Supreme Court has construed similar provisions, as long as the Supreme Court has so construed such provisions. Id. at 4-5. In U.S. v. Miller, 425 U.S. 435, 442-43 (1976), the U.S. Supreme Court held that one does not have an expectation of privacy in one's bank records, and that one therefore has no Fourth Amendment rights against searching or seizing the records. The State in Nesbitt therefore argued that because the U.S. Supreme Court has held that bank records fall outside of the protection of the Fourth Amendment, the Illinois Supreme Court, which uses the lockstep approach, should hold that the defendant's constitutional right to privacy was not violated by the State when they obtained her bank records without a warrant. Id. at 5.

The Appellate Court, however, was unpersuaded by this argument. Id. In Miller, the Court held that the bank records were not protected by the "search and seizure" provision of the Fourth Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated") See Miller, 425 U.S. 435, 442-43 (1976); U.S. Const. amend. IV. If the Nesbitt court were to apply the Miller holding to the search and seizure provision of Article 1, Section 6, as Caballes did, the court would have likely held that there was no constitutional violation. However, the Nesbitt court noted that the Miller holding only applied to the search and seizure language, and not the "invasion of privacy" language, of Article 1, Section 6, and that, therefore, defendant still had a constitutional expectation of privacy in her bank records that was violated by the police. Nesbitt, No. 2-09-0976, slip op. at 5.

At first blush, this seems to be a case that could be easily decided by Miller. However, Miller does not apply because it did not contemplate an "invasion of privacy" provision in the Federal Constitution, which does not exist. Nor does the Federal Constitution protect against "interceptions of communications by eavesdropping devices or other means." Therefore, it would behoove defendants to invoke Illinois Constitutional provisions like the "invasions of privacy" provision to argue that certain areas of privacy are still protected by state law, even when they are not protected by federal constitutional law. The privacy clause of the Illinois Constitution, after all, is "broadly written, with no definition limiting the types of privacy intended to be protected." Id. at 6 (citing Caballes, 221 Ill.2d at 317). Because the privacy clause was inserted in the 1970 Illinois Constitution "for the purpose of creating an additional right applicable to situations not covered by the search and seizure provision [of same]," id. (citing Caballes, 221 Ill.2d at 318-19), Illinois courts, through this provision, could create areas of privacy that previously were unrecognized by federal constitutional law.

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