Can Law Enforcement Get Copies of Bank Records Without My Consent?

Full Question:

Can a law officer obtain your bank statements without your consent if they are investigating you?
05/10/2011   |   Category: Criminal ยป Search and S...   |   State: California   |   #24804

Answer:

Usually, based upon his his affadavit of probable cause, the prosecutor's office will issue a subpoena. A search warrant for bank statements, or any other financial records for that matter, is subject to additional requirements because bank and financial records are protected by federal law. The Right to Financial Privacy Act of 1978 (12 USC 3401 et seq.) provides privacy protection for bank and financial records.

Under this law, federal prosecutors must notify the person affected by the search warrant that their records were obtained. The US government must mail a notice to the customer within 90 days of execution of the search warrant indicating that the records were obtained, and also provide a copy of the search warrant. See 12 USC 3406. The notice is only required to be mailed to the customer’s last known address, so the government is not required to locate a current address. The US Attorney may seek a delay for notice beyond 90 days by petitioning the court under 12 USC 3409.
There is no requirement of notice to the customer if a search warrant is used to obtain evidence from a safe deposit box. The law protecting financial privacy applies to accounts, and a safe deposit box is not considered an account.

On October 26, 2001, the President signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) of 2001, Public Law No.107-56. Congress mandated anti-money laundering compliance programs for all financial institutions as defined in the BSA. SAR requirements were enhanced. All nonfinancial trades and businesses were required to report receipt of coins or currency greater than $10,000 under BSA as well as under IRC 6050I. This dual Form 8300 filing requirement effectively released Form 8300 information, except for Clerk of Court reports, from the disclosure protections of the IRC. Civil and criminal penalties for money laundering were increased. The Secretary of the Treasury received expanded powers respecting geographical targeting orders. FinCEN was elevated to Bureau status within Treasury. Information sharing by financial institutions was encouraged with respect to Federal law enforcement agencies and voluntary information sharing among financial institutions was encouraged and protected.

If it is a state case, in some states, a court will find a right of privacy in bank records. Please see:

http://www.romingerlegal.com/new_jersey/supreme/a-87-03.opn.html

In California, no officer or employee of a state or local governmental agency may request the financial records of a customer in connection with a civil or criminal investigation, unless the financial records are described with particularity and are consistent with the scope and requirements of the investigation. Such disclosure must be authorized by the customer. Disclosure must be made pursuant to an administrative subpoena or summons; search warrant; or judicial subpoena. Notice not required if judge determines that law or state regulation has been or is about to be violated. Financial institutions shall maintain the financial records of all examinations or disclosures for a period of five years. Cal. Civil Code 7460, California Right to Financial Privacy Act.