The Appellate Court of Illinois, Second District, recently issued an opinion in People v. Nesbitt, Case No. 08-CF-49, finding that the Illinois State Constitution provides a greater right to privacy in transactional records than the U.S. Constitution. This holding may have serious implications for law enforcement, as it apparently limits the ability of law enforcement to obtain transactional records even where permitted under Federal law. For example, the evidence gathering provisions of the Electronic Communications Privacy Act, which provide for voluntary disclosure to law enforcement by Internet Service Providers in certain circumstances, may now be found to run afoul of state constitutional law.
In the underlying case, the State charged Defendant, Carol A. Nesbitt, a bank employee and customer of the Savanna-Thomson State Bank, with stealing $40,200.00 from the bank. Prior to trial, the State disclosed and Nesbitt moved to suppress approximately 250 pages of her personal financial records that the State had obtained from the bank. Nesbitt argued that the State improperly obtained the records without the issuance of formal process or her consent, because the investigating officer had informally requested the records. The Trial Court suppressed the records finding that they were obtained in violation of Nesbitt’s constitutional right to privacy.
The Appellate Court affirmed, finding that although the Fourth Amendment of the U.S. Constitution would not prohibit this disclosure, and the search and seizure provision of the Illinois Constitution should be read in limited lockstep with the federal constitution, that same approach does not apply to the privacy clause of the Illinois constitution. The Illinois state constitution provides both privacy and search and seizure clauses, stating: “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. While, the federal constitution makes no explicit mention of privacy, but guarantees only the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Accordingly, the Court held that the privacy clause of the state constitution expands upon the rights granted in the federal constitution as well as those guaranteed by the Illinois search and seizure provision, and as such, provides a right to privacy in financial records. In affirming the Trial Court’s holding, the Appellate Court also dismissed the State’s secondary arguments based on Ms. Nesbitt’s employer-employee relationship and the inevitable-discovery doctrine.
