No. 65 October 13, 2016 425

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DENNY D. GHIM,

Petitioner on Review.

(CC C111491CR; CA A152065; SC S063021)

On appeal from the Court of Appeals.*

Argued and submitted November 10, 2015.

Morgen E. Daniels, Salem, argued the cause and filed 

the briefs for petitioner on review. Also on the briefs was 

Ernest G. Lannet, Chief Defender, Office of Public Defense 

Services.

Rolf C. Moan, Assistant Attorney General, Salem, argued 

the cause and filed the brief for respondent on review. Also on 

the brief were Ellen F. Rosenblum, Attorney General, Paul 

L. Smith, Deputy Solicitor General, and Robert M. Wilsey, 

Assistant Attorney General.

Julia E. Markley, Perkins Coie LLP, Portland, filed the 

brief for amicus curiae American Civil Liberties Union of 

Oregon, Inc. Also on the brief was Kristina J. Holm.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

KISTLER, J.

The decision of the Court of Appeals and the judgment of 

the circuit court are affirmed.

______________

** On appeal from Washington County Circuit Court, Gayle A. Nachtigal, 

Judge. 267 Or App 435, 340 P3d 753 (2014).

** Linder, J., retired December 31, 2015, and did not participate in the decision of this case.
426 State v. Ghim

Case Summary: Defendant moved to suppress bank records that the 

Department of Consumer and Business Services (DCBS) had obtained, as a 

result of an administrative subpoena, during the course of its investigation into 

defendant’s possible sale of unregistered securities. The trial court denied defendant’s motion, and the Court of Appeals affirmed. Held: The court assumed that 

defendant had a protected privacy interest in his wife’s bank records. However, 

DCBS’s administrative subpoena did not violate defendant’s rights under 

Article I, Section 9, because: (1) the subpoena was issued subject to a properly 

authorized statutory scheme, and (2) the subpoena was supported by information 

independent of DCBS’ initial, improperly served, subpoena, and thus did not warrant suppression under the fruit of the poisonous tree doctrine.

The decision of the Court of Appeals and the judgment of the circuit court 

are affirmed.
Cite as 360 Or 425 (2016) 427

KISTLER, J.

The question in this case is whether an agency’s use 

of an administrative subpoena to obtain defendant’s wife’s 

bank records violated Article I, section 9, of the Oregon 

Constitution. The trial court denied defendant’s motion to 

suppress evidence that the agency uncovered as a result of its 

subpoena, and the Court of Appeals affirmed. State v. Ghim, 

267 Or App 435, 340 P3d 753 (2014). Relying on State v. 

Johnson, 340 Or 319, 131 P3d 173 (2006), the Court of Appeals 

held that defendant had no constitutionally protected privacy 

interest in the bank records. It followed that the agency’s use 

of an administrative subpoena to obtain those records did not 

violate Article I, section 9. We allowed defendant’s petition for 

review and now affirm, on different grounds, the trial court’s 

judgment and the Court of Appeals decision.

I. FACTS

The state charged defendant and his wife with 17 

counts of criminal mistreatment, first-degree theft, and 

aggravated first-degree theft. Midway through trial, defendant’s wife filed a motion in limine to exclude copies of her 

bank records, which the Department of Consumer and 

Business Services (DCBS) had obtained by administrative 

subpoena, from being admitted into evidence. Defendant 

joined in that motion and, throughout the trial, adopted his 

wife’s arguments on that issue.1

 In summarizing the facts, 

we first describe the evidence brought out at the hearing on 

that motion—essentially, the circumstances that prompted 

DCBS to subpoena the wife’s bank records and how the information that DCBS discovered as a result of its investigation 

became part of the criminal proceeding against defendant 

and his wife. We then describe the motion in limine, the 

arguments that the parties made regarding the motion, the 

trial court’s rulings, and the Court of Appeals decision.

A. DCBS investigation

Ruth Johnson is an investigator for DCBS. In 

January 2009, Johnson received a call from Von Renchler, 

1 Only defendant is a party to this appeal. Because he joined in his wife’s 

motion and arguments on this issue, we refer in this opinion to defendant’s wife’s 

motion and related arguments as defendant’s motion and arguments.
428 State v. Ghim

who had purchased investment properties from defendant 

and his wife. Von Renchler told Johnson that he and his wife 

were supposed to be receiving payments on their investment. However, they had received no payments. According 

to Von Renchler, defendant’s wife had said that payments 

were being sent to the Von Renchlers’ bank account by wire 

transfer, but no funds were transferred to the account. 

Afterwards, defendant’s wife gave the Von Renchlers a 

check, which her bank refused to honor. Von Renchler told 

Johnson that he and his wife felt as if defendant and his wife 

were giving them “the runaround.”

After speaking with Von Renchler, Johnson became 

concerned that defendant and his wife were selling unregistered securities, which DCBS is charged with regulating. Johnson arranged to meet with the Von Renchlers 

and asked them to bring their records, including copies of 

checks that they had written to or received from defendant’s 

wife, so that Johnson could begin her investigation. At the 

meeting, the Von Renchlers discussed their investment 

with defendant and his wife and gave Johnson copies of the 

checks that defendant’s wife had sent them. Johnson told 

the Von Renchlers that she would “subpoena [defendant’s 

wife’s] bank records to take a look to see what happened to 

their money, to see if their money had gone where they were 

told it was going to go.” She explained that, if the money had 

gone where it was supposed to go, then she would speak with 

defendant and his wife, talk to them about what they were 

doing, and deal with any issues administratively.

Pursuant to ORS 59.315 and ORS 192.596, Johnson 

issued three subpoenas to the banks on which defendant’s 

wife had written checks to the Von Renchlers.2

 Johnson sent 

copies of the subpoenas by certified mail to defendant’s wife. 

In examining the records that she received in response to 

the subpoenas, Johnson saw “large deposits coming into 

[defendant’s wife’s bank] account,” which allowed Johnson 

2 As discussed below, ORS 59.315(1) authorizes DCBS to subpoena witnesses and to require the production of books, papers, and other documents

“[f]or the purpose of an investigation *** under the Oregon Securities Law.” ORS 

192.596(1) authorizes financial institutions to disclose their customers’ financial records to state agencies pursuant to a statutorily authorized administrative 

subpoena.
Cite as 360 Or 425 (2016) 429

“to identify [other] individuals that [she] believed were possibly making investments with [defendant and his wife].” 

Johnson then spoke with the persons whom she had identified from the bank records. She also spoke to property 

owners in Washington, where the investment properties 

were supposedly located, and she collected information from 

government agencies to determine whether the investment 

properties existed. Finally, in reviewing the bank records 

that she received, Johnson came across questionable financial transactions involving defendant’s mother, who was the 

subject of a guardianship.

During the year in which Johnson pursued her investigation for DCBS, she did not contact the Von Renchlers’ 

attorney. When asked why she had not done so, she explained 

that the Von Renchlers’ attorney was “dealing with a bad 

check [from defendant’s wife], with trying to get payment.” 

In her view, that matter “had nothing to do with what [she] 

was looking at,” which was “whether we were having a sale of 

an unlicensed, unregistered security in the State of Oregon.”

In March 2010, more than a year after Johnson 

began her investigation, the Von Renchlers asked Johnson if 

telling the police about the bad check they had received from 

defendant’s wife would impede her investigation. Johnson 

said that it would not, and she added that the Von Renchlers 

could mention her name if they filed a police report. They 

did, and an officer contacted Johnson regarding her investigation. Before then, Johnson had not had any contact with 

any law enforcement agency.

B. Defendant’s motion in limine

As noted, the state charged defendant and his wife 

with 17 counts of criminal mistreatment, first-degree theft, and 

aggravated first-degree theft.3

 The first day of trial, the state 

called 11 witnesses. Most of those witnesses were persons to 

3 Before trial, the Von Renchlers recovered their investment from defendant 

and his wife. Although the Von Renchlers testified at trial, their transactions with 

defendant and his wife did not give rise to any criminal charge. Rather, defendant and his wife’s transactions with other investors gave rise to the theft and 

aggravated theft charges, and defendant and his wife’s handling of his mother’s 

finances gave rise to the criminal mistreatment charges. As noted below, the 

trial court found defendant guilty of two of the 17 counts. The trial court found 

defendant’s wife guilty of all 17 counts. Only defendant’s appeal is before us.
430 State v. Ghim

whom defendant and his wife had sold investment properties. 

We assume, as the parties do, that, except for the Von Renchlers, 

those witnesses were persons whom Johnson had identified as a 

result of reviewing the subpoenaed bank records.

The second day of trial, defendant filed a document 

captioned “motion in limine,” in which he asked the court “to 

exclude from evidence bank records of defendant[’s wife] as 

having been seized without proper court process.” Defendant 

contended that, “[e]ven if properly obtained under state 

administrative process, * ** that information [may not] be 

admitted against defendant [in] the criminal proceeding 

given privacy protections under Oregon statutory and constitutional provisions.” Although defendant asked the court 

to keep the bank records from being admitted, he did not 

ask the court to strike the testimony of the 11 witnesses 

who had testified the day before, nor did he ask the court to 

strike any exhibit offered in connection with that testimony.

The parties addressed defendant’s motion in limine

at three separate points during the trial, and the issues 

evolved as the trial progressed. The parties first discussed 

the motion shortly after it was filed. That discussion was 

fairly cursory. The prosecutor explained that the records 

had been obtained pursuant to statutorily authorized 

administrative subpoenas and that he was not aware of 

any limitation on obtaining bank records that way. Relying 

on Canadian authority, defendant responded that he had 

a constitutionally protected privacy interest in his wife’s 

bank records. He reasoned that an administrative subpoena 

lacked the procedural and substantive protections associated with a search warrant. He acknowledged, however, 

that the victims could choose to disclose their bank records 

and that he and his wife “los[t] any privacy protection when 

they send a check out to somebody.”

The trial court did not find defendant’s Canadian 

authority persuasive, and it reasoned that, even if DCBS 

could not issue an administrative subpoena for the banks’ 

records, the prosecutor could subpoena the custodians of the 

records to appear as witnesses at trial and bring the records 

with them. Based on that reasoning, the court tentatively 

denied defendant’s motion in limine, and the trial continued.
Cite as 360 Or 425 (2016) 431

At the end of the second day of trial, the parties 

returned to the motion in limine. The prosecutor advised 

the court that, on examining the subpoenas that DCBS had 

issued, he realized that Johnson had served the subpoenas 

on defendant’s wife by certified mail rather than personally, 

as the bank records statutes require. See ORS 192.596(2) 

(authoring banks to disclose a customer’s records in response 

to administrative subpoenas but requiring personal service 

on the customer). The prosecutor also noted that the motion 

in limine was, in effect, a motion to suppress. He argued 

that, if defendant had filed a motion to suppress before 

trial, as other statutes required, the state could have reissued the subpoenas and served them properly. The prosecutor argued that the court could simply deny defendant’s 

motion in limine as untimely. In lieu of doing so, however, 

the prosecutor suggested continuing the trial and allowing 

the state to issue a second set of subpoenas for the bank 

records.

The trial court agreed that defendant’s motion in 

limine was effectively an untimely motion to suppress. It also 

agreed that, if defendant had filed a timely pretrial suppression motion, the state could have cured any service error. 

Rather than deny defendant’s motion as untimely, the court 

continued the trial for a month and gave the state the opportunity to subpoena the records a second time. The prosecutor noted that he expected that defendant would argue that 

the second set of subpoenas was the fruit of the poisonous 

tree, but he asserted that the state inevitably would have 

discovered the records if the service error had been identified earlier. The trial court agreed.

Defense counsel suggested that the state could get 

the custodians of the bank records to recertify the banks 

records, “but [proposed that the state should] do it through 

a court subpoena so they [the custodians] don’t have to 

recopy everything.” After suggesting a second time that 

the prosecutor could issue a subpoena duces tecum for the 

records that DCBS previously had obtained, defense counsel 

explained, “I’m not really concerned about the form of this 

subpoena here because my argument is going to be that it 

really doesn’t matter, it’s already been tainted.”
432 State v. Ghim

The court continued the case for approximately a 

month, and the prosecutor issued subpoenas duces tecum

pursuant to ORS 136.583 on the banks in which defendant 

and his wife held accounts.4

 The subpoenas were personally 

served on defendant and his wife, and the custodians produced the requested bank records. Those records consisted of 

account applications, monthly account statements, notices of 

overdrafts, copies of checks written to third parties, deposit 

slips, and copies of certified checks deposited in defendant 

and his wife’s bank accounts.5

When the trial resumed, the parties returned to 

defendant’s motion a third time. By this time, defendant 

had filed a memorandum in support of the motion in limine, 

which he now characterized as a motion to suppress. The 

memorandum argued that, under the Oregon Constitution, 

defendant and his wife had a constitutionally protected privacy interest in her bank records and that “[t]hese subpoenas from the State amounted to search warrants without 

probable cause.” In arguing that motion, defendant contrasted health care records with bank records. He contended 

that, even though medical patients lack a constitutionally 

protected privacy interest in their health care records, bank 

records are different. In defendant’s view, the account holder 

owns the bank records, which by tradition, policy, and statute have been kept “secret, protected.” The state responded 

that, as a matter of property law, a customer has no ownership interest in bank records. Rather, the bank creates 

and maintains the records so that it can administer its customers’ accounts accurately. The trial court agreed with 

the state, although it noted that the parties appeared to 

acknowledge that Johnson had not followed the statutorily 

required procedure for subpoenaing the bank records and 

that the state had sought to cure that error by subpoenaing 

the records a second time.

4 Both the district attorney and the defense counsel may subpoena witnesses 

to appear at a criminal trial. See ORS 136.565 (district attorney); ORS 136.567 

(defense counsel). Those subpoenas may require the witness either to bring 

books, papers and documents with them to trial or to produce those documents 

before trial. ORS 136.580; see also ORS 136.583 (authorizing production of outof-state documents if certain requirements are met). 

5 Defendant does not contend that the bank records that the custodians 

produced differed in any material way from the records that they produced in 

response to DCBS’s administrative subpoenas.
Cite as 360 Or 425 (2016) 433

The state called Johnson, who confirmed that she 

had not served the initial administrative subpoenas personally on defendant’s wife but had sent them instead by certified mail. Johnson also testified, however, that defendant’s 

wife had acknowledged receipt of the subpoenas. Finally, 

Johnson testified that, if she had been aware of the service 

error, she would have cured the problem by reissuing the 

subpoenas. The prosecutor, for his part, represented that, in 

the course of pursuing the report that the Von Renchlers had 

filed with the police, the district attorney’s office would have 

subpoenaed the bank records if Johnson had not already 

done so.

The trial court recognized that, under ORS 

192.606(5), “[e]vidence obtained in violation of ORS 192.583 

to 192.607 [the bank records statutes] is inadmissible in 

any proceeding.” The court reasoned that, even though 

DCBS had not served the administrative subpoenas personally on defendant’s wife as ORS 192.596(2) requires 

and even though ORS 192.606(5) prohibits the admission 

of bank records obtained in violation of the bank records 

statutes, ORS 192.606(5) did not prohibit DCBS or the 

state from serving a second set of subpoenas on the banks 

to obtain the same records. Regarding defendant’s fruit-ofthe-poisonous-tree argument, the trial court agreed with 

the state that the Von Renchlers’ complaints to both DCBS 

and the police had led to those agencies’ efforts to investigate defendant and his wife’s sales of investment properties, 

that the Von Renchlers’ complaints were independent of any 

information that was later learned as a result of Johnson’s 

administrative subpoenas, and that the bank records inevitably would have been discovered.6

 The court accordingly 

admitted the records. After considering all the evidence, the 

6 In reaching that conclusion, the trial court assumed that, even if the bank 

records were inadmissible under ORS 192.606(5), that statute did not preclude 

admitting the testimony of the witnesses who had been discovered as a result of 

the subpoenaed bank records. Cf. United States v. Ceccolini, 435 US 268, 98 S Ct 

1054, 55 L Ed 2d 268 (1978) (holding that, for Fourth Amendment purposes, testimony offered by witnesses discovered as result of illegal search may be attenuated from that illegality). Defendant has not specifically challenged that assumption, although the second memorandum that he filed in support of the motion 

in limine asserted generally that all evidence derived from Johnson’s subpoena 

should be excluded.
434 State v. Ghim

trial court found defendant guilty of two of the 17 counts and 

not guilty of the remaining 15 counts.7

C. Defendant’s appeal

Before the Court of Appeals, defendant argued two 

propositions. First, he contended that, under Article I, section 9, he had a protected privacy interest in his wife’s bank 

records. Second, he argued that, even though the legislature had authorized government agencies to obtain bank 

records, the resulting statute was unconstitutional “without 

either a warrant or probable cause and a warrant exception.” In arguing the latter point, defendant urged the Court 

of Appeals to follow a Washington Supreme Court decision, 

which had held that the Washington Constitution prohibited 

an agency with both regulatory and criminal investigative 

authority from issuing a subpoena that was not subject to 

review by a neutral magistrate. See State v. Miles, 160 Wash 

2d 236, 247-49, 156 P3d 864 (2007).8

 It followed, defendant 

contended, that DCBS’s use of an administrative subpoena 

to obtain his wife’s bank records violated Article I, section 9, 

of the Oregon Constitution.9

7 The trial court found defendant guilty of first-degree theft from the 

Woos (count 16) and aggravated first-degree theft from Kang (count 17). Both 

the Woos and Kang testified the first day of trial, before defendant filed the 

motion in limine to exclude his wife’s bank records. As noted, defendant did 

not move to strike either the Woos’ or Kang’s testimony. The state, however, 

has not argued that, in light of those victims’ unchallenged testimony, any 

error in admitting the bank records was harmless, and we do not consider that 

issue.

8 In Miles, a state agency investigating a securities violation subpoenaed a 

bank for its customer’s records. The agency did not notify the customer of the 

subpoena, and it directed the bank not to tell the customer that it had subpoenaed the records. 160 Wash 2d at 241. The agency also asked the bank to respond 

quickly to the subpoena because the statute of limitations for prosecuting theft 

was about to expire. Id. The court held that the Washington Constitution required 

the intervention of a neutral magistrate, especially when an agency is investigating criminal charges. Id. at 247-49. 

9 At one point in his brief, defendant recognized that the bank records statutes “correlate with the bounds of legal and social norms relating to bank records 

in Oregon” and thus mark the extent of the privacy that Article I, section 9, protects. And he acknowledged that “an administrative agency may gain access to 

such records in the course of enforcing the rules that the agency is charged with 

enforcing.” Although defendant’s argument was not completely clear, he appears 

to have concluded, in reliance on the Washington decision in Miles, that an 

administrative subpoena issued without the supervision of a neutral magistrate 

violated Article I, section 9.
Cite as 360 Or 425 (2016) 435

In the Court of Appeals, defendant did not raise 

three issues regarding the second set of subpoenas. First, 

he did not argue that the trial court erred in ruling that 

the state could issue a second set of subpoenas to cure the 

statutory service problem with the first set of subpoenas. 

See Ghim, 267 Or App at 438 n 3 (so noting). Specifically, 

defendant did not argue that either the statutory exclusion 

provision in ORS 192.606(5) or Article I, section 9, prohibited the state from serving a second set of subpoenas on the 

banks once it learned that DCBS had failed to serve the first 

set of subpoenas in compliance with ORS 192.596. Second, 

defendant did not argue that the second set of subpoenas 

would be valid only if DCBS reissued them; that is, he did 

not argue that the second set of subpoenas violated Article I, 

section 9, because the prosecutor issued them under ORS 

136.583 rather than DCBS reissuing them under ORS 

59.315(1). Finally, he did not challenge the trial court’s ruling that the second set of subpoenas was not the product of 

the first set of subpoenas. Rather, he took the position in the 

Court of Appeals that the use of anything less than a warrant or an exception to the warrant requirement to obtain 

his wife’s bank records violated Article I, section 9.

As noted, the Court of Appeals resolved defendant’s 

argument by holding that a customer has no constitutionally 

protected privacy interest in his or her bank records. 267 Or 

App at 440-41. It recognized, as defendant argued, that the 

legislature has required financial institutions to keep their 

customers’ information private, subject to certain exceptions. Id. at 441-42 (discussing ORS chapter 192). The court 

explained, however, that the administrative subpoenas that 

DCBS issued came within one of those exceptions, and it 

declined to find in Article I, section 9, a greater degree of 

privacy than the legislature had granted in the bank record 

statutes. Id. We allowed defendant’s petition for review to 

consider whether DCBS’s use of administrative subpoenas 

to obtain his wife’s bank records violated Article I, section 9.

II. ARTICLE I, SECTION 9

On review, defendant raises two related but separate issues. The first is whether he has a constitutionally 

protected privacy interest in records that the bank created 
436 State v. Ghim

and maintained for its own use. The second is whether, if he 

has a protected privacy interest in those records, the administrative subpoenas that DCBS issued were an unreasonable search within the meaning of Article I, section 9. We 

begin with the first issue.

A. Protected privacy interest

Defendant argues that the fact that the bank created and maintained its records for its own use does not 

necessarily mean he has no protected privacy interest in 

those records. In his view, both the existence and the extent 

of his privacy interest turn on three factors: the nature of 

the information that the bank collected; “the context of the 

disclosure of the information—including the relationship 

between the person claiming the privacy interest and the 

third party that receives the information”; and “the context 

of the conduct by which the state accessed the information.” 

Put differently, defendant contends that a person can have a 

protected privacy interest in information held by third parties, the extent of which will vary depending on the contextual factors he identifies.

On that issue, the state does not argue on review 

that the mere fact that the bank created and maintained 

its records for its own use necessarily means that defendant 

has no protected privacy interest in those records. Rather, 

it recognizes that the question is a contextual one, although 

it argues that, in this case, context and history lead to only 

one conclusion: customers have no constitutionally protected 

privacy interest in their bank records. It necessarily follows, 

the state concludes, that any required disclosure of those 

records did not constitute a search and that, as a result, the 

subpoenas issued by DCBS and the prosecutor did not violate Article I, section 9.

The question whether a person has a constitutionally protected privacy interest in information that a third 

party collects and maintains for its own use has arisen with 

increasing frequency, driven in large part by the ability that 

computers provide to store, aggregate, and analyze vast 

amounts of data. See, e.g., United States v. Jones, 565 US ___, 

132 S Ct 945, 181 L Ed 2d 911 (2012) (Sotomayor, J., concurring) (questioning whether, in light of those technological 
Cite as 360 Or 425 (2016) 437

changes, the Court should revisit its Fourth Amendment 

cases and recognize a constitutionally protected privacy 

interest in bank and phone records); Jane Bambauer, Other 

People’s Papers, 94 Tex L Rev 205 (2015) (reasoning that 

the type of information and the use that government makes 

of it bear on the constitutionality of government action); 

Christopher Slobogin, Making the Most of United States v. 

Jones in a Surveillance Society: A Statutory Implementation 

of Mosaic Theory, 8 Duke J Const L & Pub Pol’y 1 (2012) 

(reasoning that justification for searches of third-party data 

should be roughly proportional to the intrusiveness of the 

search and recognizing the potential legitimacy of legislative justification).

In this case, the issue arises in the context of records 

that a bank maintains of its customers’ transactions with 

third parties. Similar issues can arise regarding the phone 

numbers a person called, cell phone location, and Internet 

search histories, to name only a few. And the answer to the 

question whether a person has a constitutionally protected 

privacy interest in information held by third parties can 

vary, according to the parties’ arguments, depending on 

contractual and other restrictions that apply to the third 

party’s use and dissemination of the information, general societal norms, and the level of generality with which 

the government analyzes the data. See State v. Howard/

Dawson, 342 Or 635, 640-41, 157 P3d 1189 (2007) (relying 

on the absence of any property interest or subconstitutional 

right or relationship that restricted a garbage company’s 

handling of trash once the company collected it in holding 

that the defendants had no protected privacy interest under 

Article I, section 9).

The record in this case sheds little light on those 

issues. For example, although the state and defendant ask 

us to look to the Internet to find the terms of the agreements 

that governed the banks’ obligation to keep his wife’s financial records confidential, those agreements are not part of 

the record. The record does not disclose the extent, if any, 

to which defendant’s wife agreed to permit the disclosure of 

her financial information to third parties for various purposes and thus may have diminished any right to privacy 

she might claim. Similarly, there is no testimony regarding 
438 State v. Ghim

the customary use of the information held by the bank or 

the extent to which the bank must disclose financial transactions to federal and state regulators charged with ensuring the solvency of the bank, tax collection, or compliance 

with limitations on monetary transfers. Accordingly, to the 

extent that the state argues that defendant had no protected 

privacy interest in the bank records because those records 

were subject to state and federal regulatory review, this 

record does not disclose the extent, if any, to which regulatory review might diminish any right to privacy that defendant had in his wife’s records.

If the right to privacy under Article I, section 9, 

presents a contextual question, as the parties argue, this 

record contains little evidence that bears on that issue. All 

that we can tell from this record is that the Oregon legislature has required financial institutions to keep customers’ financial transactions confidential, subject to certain 

exceptions. See ORS 192.583 to 192.607. One of those exceptions is the disclosure of customers’ financial information in 

response to administrative subpoenas. ORS 192.596. Given 

the limited record before us, we conclude that this case provides a poor vehicle for deciding whether defendant had a 

protected privacy interest in his wife’s bank records.10 We 

accordingly assume that defendant has a protected privacy 

interest and turn to the second issue that defendant has 

raised, whether the administrative subpoenas that DCBS 

issued to obtain those records for its civil investigation complied with Article I, section 9.

B. Administrative subpoenas

In the trial court, defendant argued that DCBS’s 

use of an administrative subpoena to obtain his wife’s bank 

records violated his Article I, section 9, rights. In his view, 

only a warrant or an exception to the warrant requirement, 

coupled with probable cause, would justify requiring the 

bank to produce his wife’s records. He took the same position 

in the Court of Appeals. In this court, defendant has shifted 

his position. He now argues that, because the subpoena was 

10 We accordingly do not reach defendant’s claim that our decision in Johnson, 

340 Or at 336, either has no application in the context of bank records or should 

be reconsidered. We express no opinion on that issue.
Cite as 360 Or 425 (2016) 439

a search, “it was subject to the reasonableness requirement 

of Article I, section 9.” He contends that “[a] search is reasonable if it is supported by a warrant, justified by an exception to the warrant requirement, or conducted pursuant to 

a properly authorized administrative scheme.” Defendant 

notes that DCBS neither obtained a warrant nor sought 

to come within an exception to the warrant requirement. 

He also contends that DCBS’s subpoenas were not issued 

pursuant to a properly authorized administrative scheme, 

apparently on the ground that DCBS failed to “comply with 

the statute that sets forth the subpoena process required to 

access bank records.”

To the extent that defendant argues on review that 

only a warrant or an exception to a warrant requirement 

will justify requiring a third party to turn over another 

person’s records, that argument is difficult to square with 

this court’s cases. This court has long recognized that an 

administrative subpoena issued as part of a civil investigation will comply with Article I, section 9, as long as the subpoena is “relevant to a lawful investigatory purpose and *** 

no broader than the needs of the particular investigation.” 

Pope & Talbot, Inc. v. State Tax Com., 216 Or 605, 614-15, 

340 P2d 960 (1959);11 see Dept. of Rev. v. Universal Foods 

Corp., 311 Or 537, 545-46 n 6, 815 P2d 1237 (1991) (reaffirming that, “where certain limits on breadth and relevancy are 

satisfied, neither the Fourth Amendment nor Article I, section 9, of the Oregon Constitution [is] offended” by a statutorily authorized administrative subpoena); Southern Oregon 

Broadcasting Co. v. Dept. of Revenue, 287 Or 35, 40, 597 

P2d 795 (1979) (upholding subpoena for taxpayer’s records 

11 In Pope & Talbot, the court quoted the following passage to describe the 

limits that the state and federal constitutions place on an agency’s use of an 

investigatory subpoena:

“‘Of course a governmental investigation into corporate matters may be 

of such a sweeping nature and so unrelated to the matter properly under 

inquiry as to exceed the investigatory power. But it is sufficient if the inquiry 

is within the authority of the agency, the demand not too indefinite and the 

information sought is reasonably relevant. The gist of the protection is in 

the requirement, expressed in terms, that the disclosure sought shall not be 

unreasonable.’”

Pope & Talbot, Inc., 216 Or at 616 (quoting United States v. Morton Salt Co., 338 

US 632, 652-53, 70 S Ct 357, 94 L Ed 401 (1950)) (citations and internal quotation 

marks omitted).
440 State v. Ghim

to determine whether income method for valuing its worth 

applied).

Justice Linde explained, in a related context, the 

premise that underlies those decisions:

“Besides the historic objection to general warrants, the 

function of the guarantee [found in Article I, section 9,] is 

to subordinate the power of executive officers over the people and their houses, papers, and effects to legal controls 

beyond the executive branch itself. One measure of control 

is found in a carefully limited judicial warrant; another is 

found in legislative enactments defining and limiting official authority. Without these controls, executive officers 

could define and exert their own authority to search and to 

seize however widely they thought necessary.”

State v. Weist, 302 Or 370, 376-77, 730 P2d 26 (1986). As 

Weist teaches and Pope & Talbot holds, “legislative enactments defining and limiting official authority” can authorize 

an administrative subpoena to obtain evidence for a civil 

investigation that otherwise might infringe a constitutionally protected privacy interest.12 Indeed, if defendant were 

correct that customers have a protected privacy interest 

in their bank records that only a search warrant based on 

probable cause can reach, the common practice of using a 

legislatively authorized subpoena in civil cases to obtain a 

party’s bank records would be called into question.13

12 Some courts have reasoned that a subpoena duces tecum is less intrusive than a search warrant. As the district court explained in Stanford Daily v. 

Zurcher, 353 F Supp 124 (ND Cal 1972):

“[a] subpoena duces tecum * * * is much less intrusive than a search warrant: 

the police do not go rummaging through one’s home, office, or desk if armed 

only with a subpoena. And, perhaps equally important, there is no opportunity 

to challenge the search warrant [before it is executed], whereas one can always 

move to quash the subpoena before producing the sought-after materials.”

Id. at 130. The district court accordingly held that the state needed to use a subpoena rather than a warrant to obtain a third party’s papers. Id. The Supreme 

Court reversed, reasoning that the Fourth Amendment does not prefer a subpoena over a warrant. Zurcher v. Stanford Daily, 436 US 547, 98 S Ct 1970, 56 L 

Ed 2d 525 (1978).

13 The courts have recognized that subpoenas constitute sufficient state 

action to implicate any Article I, section 9, and Fourth Amendment interests 

that a party may have in the requested records. See Wayne R. LaFave, 2 Search 

and Seizure § 4.13 (5th ed 2012) (discussing government use of subpoenas in a 

criminal context). And, as the court explained in Weist, Article I, section 9, is not 

limited to criminal prosecutions but applies to civil actions as well. 302 Or at 376. 
Cite as 360 Or 425 (2016) 441

On review, defendant appears to recognize that the 

position that he took below is too broad. He now acknowledges 

that a warrant or an exception to the warrant requirement is 

not the only permissible means to obtain bank records. That 

is, he recognizes that a subpoena will also be “reasonable” 

for the purposes of Article I, section 9, if it is issued pursuant 

to a properly authorized administrative scheme. However, he 

asserts that DCBS did not issue its subpoenas pursuant to 

such a scheme. Additionally and perhaps alternatively, he 

argues that both sets of subpoenas failed to comply with the 

bank records statutes or that the second set of subpoenas 

was the fruit of the first set, which was tainted.

We begin with defendant’s assertion that DCBS 

did not issue its subpoenas pursuant to a properly authorized statutory scheme. On that point, the legislature has 

prohibited the sale of unregistered securities in Oregon, 

ORS 59.055, and it has given DCBS authority to regulate 

the offering and sale of securities within this state, ORS 

59.235.14 Among other things, DCBS may investigate 

“whether a person has violated or is about to violate any 

provision of the Oregon Securities Law or any rule or order 

of the director” of DCBS. ORS 59.245(1). DCBS may file suit 

to enjoin a violation of the Oregon securities laws and may 

seek restitution or damages on behalf of persons injured by 

a violation of those laws. ORS 59.255(1), (4). Finally, ORS 

59.315(1) provides that, “[f]or the purpose of an investigation *** under the Oregon Securities Law, the Director of 

[DCBS] may * ** subpoena witnesses * * * and require the 

production of books, papers, correspondence, memoranda, 

agreements or other documents or records which the director deems relevant or material to the inquiry.”

The administrative subpoenas that DCBS issued 

in this case fell squarely within its statutory authority to 

investigate the sale of unregistered securities in Oregon. 

Defendant has not explained why DCBS’s subpoenas were 

not issued pursuant to a properly authorized administrative 

14 In using the phrase “securities,” we refer only to those securities that are 

subject to registration in Oregon. Some securities are exempt from registration 

in Oregon. See ORS 59.025 (listing exempt securities); ORS 59.049 (defining 

when “[f]ederal covered securities” may be offered and sold in Oregon without 

registration).
442 State v. Ghim

scheme, nor has he explained why the information that 

DCBS sought was not relevant to its investigation into the 

sale of unregistered securities. See Pope & Talbot, Inc., 216 

Or at 616 (stating that standard).15 We accordingly disagree 

with his assertion that DCBS’s subpoenas were not issued 

pursuant to a properly authorized statutory scheme.

Defendant advances a related but separate set 

of arguments. He contends that the subpoenas that were 

issued in this case were constitutionally “unreasonable” 

because “the state did not comply with the statute that sets 

forth the subpoena process required to access bank records.” 

On that issue, defendant advances three arguments.

Defendant argues initially that the first set of subpoenas issued by DCBS failed to comply with the requirement in ORS 192.596(2) that the subpoenas be personally 

served on his wife. As noted above, however, defendant never 

argued in the Court of Appeals that the first set of subpoenas was deficient for that reason. Rather, he argued only 

that anything less than a warrant was insufficient. When a 

party has lost in the Court of Appeals, that party cannot ask 

us to reverse the Court of Appeals decision on a ground that 

the party did not raise in that court. See Tarwater v. Cupp, 

304 Or 639, 644-45, 748 P2d 125 (1988) (having argued and 

lost in the Court of Appeals on the ground that an instruction was correct, the state could not shift position in the 

Supreme Court and argue that the instruction was harmless); cf. State v. Suppah, 358 Or 565, 572-73, 369 P3d 1108 

(2016) (having won in the Court of Appeals, defendant could 

raise an issue on review to uphold the Court of Appeals decision that he had not raised in the intermediate court).

Defendant advances a second argument under the 

bank records statute. He contends that the second set of 

subpoenas, which the prosecutor issued pursuant to ORS 

15 We also note that defendant has not argued on review that DCBS issued its 

administrative subpoenas to obtain evidence for a criminal prosecution, nor has 

he explained on review why evidence uncovered in the course of a civil investigation into the sale of unregistered securities may not be used in a criminal trial for 

theft, aggravated theft, and criminal mistreatment. Cf. Nelson v. Lane County, 

304 Or 97, 104 n 5, 743 P2d 692 (1987) (plurality) (Article I, section 9, does not 

prevent evidence of “another crime” discovered during “a legally authorized and 

properly administered administrative inspection” from being used in a criminal 

prosecution). 
Cite as 360 Or 425 (2016) 443

138.563, sought information for a longer period of time than 

ORS 192.603(1) authorizes.16 That argument faces two procedural hurdles. Defendant failed to argue in either the trial 

court or the Court of Appeals that the subpoenas the prosecutor issued sought more information (information over a 

longer time period) than ORS 192.603(1) permitted. Beyond 

that, in the trial court, defendant expressly invited the prosecutor to use a court subpoena to obtain that information. 

As set out above, in the trial court, defendant invited the 

prosecutor to issue subpoenas pursuant to ORS 136.565 to 

obtain all the records that DCBS had obtained pursuant 

to its administrative subpoenas. We decline to reverse the 

Court of Appeals and the trial court on the basis of a perceived error that defendant did not raise below and in fact 

invited. See State ex rel Juv. Dept. v. S.P., 346 Or 592, 215 

P3d 847 (2009) (upholding Court of Appeals decision not to 

overturn trial court ruling in similar situation).

Defendant appears to raise a final issue on review 

regarding the second set of subpoenas. Defendant argued in 

the trial court that the second set of subpoenas was the fruit 

of the poisonous tree and appears to pursue that argument 

on review. As we understand defendant’s argument, he contends that the state based its decision to issue a second set 

of subpoenas on information that DCBS learned as a result 

of its issuance of the first set of subpoenas. The initial difficulty with defendant’s fruit-of-the-poisonous-tree argument 

is that the state put on evidence, which the trial court credited, that the second set of subpoenas would have been issued 

based on the Von Renchlers’ complaints to DCBS, which were 

independent of any information that DCBS learned after 

issuing its first set of subpoenas. Beyond that, defendant did 

not raise this issue in the Court of Appeals and thus failed 

to preserve it. See Tarwater, 304 Or at 644-45 (party cannot 

seek to reverse the Court of Appeals decision on a ground 

not raised in that court). In these circumstances, we decline 

to reach defendant’s fruit-of-the-poisonous-tree argument.

16 ORS 192.603 provides that, when a law enforcement agency requests 

account information from a financial institution to assist in a criminal investigation, the institution shall supply information limited to three months before and 

three months after the “date of occurrence of the account transaction giving rise 

to the criminal investigation.” ORS 192.603(1). 
444 State v. Ghim

Given the factual and legal posture in which this 

issue arises, we resolve this case on the following ground: 

Even if defendant has a protected privacy interest in his 

wife’s bank records, our decisions lead to the conclusion 

that the administrative subpoenas issued by DCBS did 

not violate defendant’s Article I, section 9, rights. We leave 

for another day the question whether and in what circumstances a defendant will have a protected privacy interest 

in information that a third party maintains, a question that 

can arise in differing factual circumstances which can have 

a bearing on its resolution. On that basis, we affirm the 

Court of Appeals decision and the trial court’s judgment.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.