### .-F~I~trE 

# ,/IN CLIRICI

# OFFICE' llJIRDECOURT, 8TA1E OFWASHINOTON i DATE 

### DEC 1

### 7 2015

# ~/:?**.~usncy**



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent, 

### v. MICHAEL J. 

### REEDER, Petitioner. ) ) ) ) ) ) ) ) )

--·-----..··----------------------·-- 

### ) 

### No. 90577-1
EnBanc

Filed 

### DEC 1'1 

### 2015

FAIRfiURST, J.---·Michael J. 

### Reeder appeals a published Court ofAppeals decision affirming his conviction on 14 counts ofsecurities fraud and 14 counts of theft in the first degree. We granted review oftwo issues.**First~** 

### Reeder claims that subpoenas duces tecum issued by a special inquiry judge (SIJ) 1 

### to financial institutions for Reeder's private bank records violated his constitutional rights under article I, section 7 of the Washington Constitution. Suspecting Reeder of securities fraud and theft, the prosecuting attorney sought a

1At times,.this opinionwill refer to the subpoenas duces tecum collectively as "subpoena." A "subpoenaduces tecum'' is a form ofsubpoenathat commandsthe witnessto testify andto bring documents. See BLACK'S LAW DICTIONARY 1654 (lOth ed. 2014).

### State v. Reeder, No. 90577-·1 subpoena from an SIJ to obtain Reeder's private bank records. Reeder moved to suppress the evidence ofhis bankrecords, claiming they were obtained in violation of his constitutional rights. The trial court denied the motion, and the Court of Appeals affirmed, finding thatthe subpoena issued by an SIJ was valid authority of lawunder article I, section 7 ofthe WashingtonConstitutionto obtainReeder'sbank records from the financial institutions. We affirm. Second, Reeder assertsthathis sentenceviolatesprinciples ofdoublejeopardy because the trial court imposed multiple punishments for the same offense. The Court of Appeals affirmed the trial court's sentence, finding that the State acted within its discretion to charge Reeder with separate counts for each fraudulent transaction. We affirmthe trial court's sentencebecausethe Statepresentedevidence supporting 14 separate transactions that were punishable under the securities fraud and theft in the flrst degree statutes. I. FACTS AND PROCEDURAL HISTORY Reeder met William McAllister through a company that provided nonbank real estate flnancing, PrivateMortgageInvestors Inc. BetweenMarch2006 andJune 2007, McAllister made a series of payments to Reeder for two real estate investments. During this time, McAllister paid Reeder approximately $1.7 million through several different checks or transactions.

2

### State v. Reeder, No. 90577-1 The first real estate transaction began when Reeder told McAllister that he had an opportunity to purchase two parcels ofland in Snohomish County. In June 2006, Reeder andMcAllister formed a limited liability company and opened a bank account to purchase the two properties. As down payments for the two properties, McAllisterloanedReeder $200,000 and $150,000 intwo separatetransactions. Both McAllister and Reeder signed an agreement documenting McAllister's loans. According to the agreement, Reeder had already signed the purchase and sale agreements for the two properties. However, the properties were not purchased or developed, and Reeder never returned McAllister's money. The second real estate transaction took place when Reeder told McAllister that there was an opportunity to purchase property inBellevue. Reeder knew at the time he made this representation that the owners ofthe Bellevue property did not intend to sell the property. Reeder showed McAllister a property appraisal that valued the property at $2 million. McAllisterrelied onReeder's representations and made a series ofpayments totaling $1.4 million. Reeder did notuse any ofthe funds to buy the property and did not return McAllister's money. The State obtained Reeder's bank records under RCW 10.27.170 usmg subpoenas issued by an SIJ.2 The bank records revealed that Reeder withdrew

2The State requested that the SIJ issue subpoenasto Bank ofAmericaNA; Whidbey Island Bank; Citibank; Capital One Bank; Experian; TransUnion; Equifax Credit Information Services; 3

### State v. Reeder, No. 90577-1 McAllister's money andthatheused the funds in casinos and for personal expenses. On April 8, 2011, Reeder was charged with 14 counts of securities fraud and 14 counts oftheft in the first degree. 3 

### The different counts were based onthe separate payments that McAllister made to Reeder. InJune 2011, Reedermovedto suppress his privatebankrecords, arguingthat they were obtained in violation ofhis constitutional rights because he believed the State did not have a valid warrant orjudicially issued subpoena as required by 

### State


### v.. Miles, 160 Wn.2d 236, 249, 156 P.3d 864 (2007). In November 2011, the State, by letter, informed Reeder that his bank records were obtained through an SIJ proceeding subpoena and were available for his inspection. Reeder also received copies ofthe SIJ subpoenas.4 

### Reeder requested release ofthe documentsjustifying the SIJ subpoenas. The State responded that SIJ proceedings are secret under RCW 10.27.090(3) and that the secrecy and confidentiality ofthe proceedings are critical to achieving the purpose ofan SIJ proceeding. However, the State recognized that

Northwest Plus CreditUnion; HSBC Bank, USA, NA; Wells Fargo Bank, NA; JP Morgan Chase; U.S. BankNational Association; and Boeing Employee's CreditUnion. 3The State filed an amended information on June 15, 2012. 4Reeder's attorney did not state that he obtained the subpoenas in question. However, the prosecuting attorney delivered several boxes ofrecords to Reeder's attorney, and the trial court judge stated, '·'I am going to take [the prosecuting attorney's] representation at this time that [the subpoenas] will be made available to you." Verbatim Report ofProceedings (July 2, 2012) at 46. Since there is not a specific discovery rule regarding the records produced at an SIJ proceeding, theprosecuting attorney here notedthathe compares SIJ proceedingsto materials obtainedthrough a grandjuryand provides records ofSIJ proceedings to defendants withpermissionfrom the court. !d. at 45; see CrR4.7; RCW 10.27.090(5). 4

### State v. Reeder, No. 90577-1 "dueprocess may require disclosure offacts containedwithinthe information sheets that provide the legal basis for obtaining the evidence." Clerk's Papers at 476. Thetrial courtdeniedReeder's motionto suppress the records obtainedbythe SIJ subpoena. Thejury found Reeder guilty of 14 counts ofsecurities fraud and 14 counts 

### offirst degree theft and entered special verdicts finding that each offense was
a major economic or serious offense. The court imposed an exceptional sentence. Reeder appealed the trial court's decision and sentence. Reeder raised four issues on appeal. 

### State v. Reeder, 181 Wn. App. 897, 907, 330 P.3d 786 (2014). The Court ofAppeals affirmed on all four issues, holding that (1) Reeder failed to allege facts showing that his trial attorney had a conflict of interest that deprived him of effective assistance ofcounsel, (2) the State did not violate Reeder's right to privacy by obtaining his bank records through the SIJ proceeding because it obtained the records pursuant to a valid, judicially reviewed subpoena, (3) the statute oflimitations period did not bar some or all ofthe State's charges againstReeder, and (4) the State acted within its discretion when it charged Reeder with separate counts for each transaction and his multiple punishments did not violate doublejeopardy.Jd. at 931. Reeder petitioned this court for review ofthree issues. We granted review of two issues: (1.) whether the State violated Reeder's right to privacyby obtaining his bankrecords through the SIJproceeding and (2) whetherReeder's sentence violated 

### 5

### State v. Reeder, 

### No. 90577-1 theprohibitionagainstdoublejeopardy. 5 Statev. 

### Reeder, 

### 181 Wn.2d 1014, 337P.3d 325 (2014). We affirm the Court ofAppeals on both issues. II. ISSUES A; Did the subpoena issued by the SIJ to financial institutions provide sufficient authority oflawunder article I, section 7to obtainReeder'sbanlc records? B.
.Did the trial court's sentence violate the constitutional prohibition against double jeopardy when it sentenced Reeder to several counts ofthe same crime? III. ANALYSIS A. The SIJ subpoena provided sufficient authority oflaw Reeder asserts that the subpoena issued by the SIJ did not provide the authority oflaw that is required by article I, section 7 because itwas notjustifiedby probable cause. 6 

### Article I, section 7 states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Though similar, the protections afforded by this provision are broader and qualitatively different than those protections afforded in the Fourth Amendment to the United States Constitution. State v. Gunwall, 

### 106 Wn.2d 54, 65, 720 P.2d 808 (1986); City of Seattle v. McCready, 

### 123 Wn.2d 260, 267, 868 P.2d 134 (1994); State v. Eisfeldt,

5We did not accept review ofthe conflict ofinterest issue. 6"Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficientto establish areasonable inferencethatthe defendantis probablyinvolved in criminal activity and that evidence ofthe crime can be found at the place to be searched." State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). 6State v. Reeder, No. 90577-·1 163 Wn.2d 628, 634, 185 P.3d 580 (2008). Article I, section 7 necessarily includes those legitimate expectations ofprivacy protected by the Fourth Amendment. State

v. Garcia-Salgado, 170 'Wn.2d 176, 183, 240 P.3d 153 (2010). The analysis of article I, section 7 breaks down into two parts-"'private affairs"' and "'authority oflaw."'In re Pers. Restraintof Maxfield, 133 Wn.2d 332, 339,945 P.2d 196 (1997). Ifaprivate affairis notdisturbed,thenthere is no violation ofarticle I, section 7. Miles, 160 Wn.2d at 244. Ifa valid privacy interest has been disturbed, thenwe mustdeterminewhetherthe disturbancewasjustifiedby authority oflaw. Id. 1. Private affairs Article I, section 7 protects '"those privacy interests which citizens ofthis state have held, and should be entitled to hold, safe from governmental trespass."' Maxfield, 133 Wn.2d at 339 (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). To determine whether a privacy interest exits under article I, section 7, we must examine whether a particular expectation ofprivacy is one that a citizen ofthis state should be entitled to hold. McCready, 123 Wn.2d at 270. Part ofthis inquiry focuses on what kind of protection has been historically afforded to the interest asserted, and part ofit focuses on the nature and extent ofthe information thatmay be obtained as a result ofgovernment conduct. Miles, 160 Wn.2d at 244.



### . 7State v. Reeder, No. 90577-1 InMiles, the court found thatprivate bankrecords heldby a third party could potentiallyreveal sensitive personal information. I

### d. at 246. Bankrecords canreveal where thepersonhastraveled, theperson'sreadinghabits, andtheperson's financial condition. I

### d. at 246-47. After noting that bankrecords were historically protected, the court held that bank records are considered private affairs protected by the constitution. I

### d. at247 ("Little doubt existsthatbankingrecords, because ofthetype ofinformation contained therein, are within a person's private affairs."). Reeder's bankrecords areprivate affairsunder article I, section7.7The StateinvadedReeder's private affairs by obtaining his bankrecords from a third party. 2. Authority of law Since the State invadedReeder'sprivate affairs by obtaininghis bankrecords from financial institutions, this case turns on whether a subpoena issued by an SIJ pursuantRCW 10.27.170 is sufficient authority oflaw to support such an invasion. a) SIJ proceedings The legislature created the SIJ proceeding to provide an additional investigatory tool for the prosecuting attorney. 22 WASH. STATE JUDICIAL COUNCIL,

. . TWENTY-SECOND BIENNIAL REPORT 18 (1969-1970) (hereinafter JUDICIAL REPORTS). An SIJ "is a superior courtjudgedesignatedby a majority ofthe superior courtjudges ofa countytohearandreceive evidenceofcrime andcorruption."RCW

7The State does not contestthat bank records are protectedby article I, section 7. 8

### State v. Reeder, No. 90577-1 10.27.020(7)" We have heldthat an SIJ is a neutral magistrate. 

### State v. Neslund, 103 Wn.2d 79, 88, 690 P.2d 1153 (1984). An SIJ has the authority to issue subpoenas for testimony or evidence when there is "reason to suspect crime or corruption." RCW 10.27.170. The SIJ proceeding was created by the Criminal Investigatory Act of 1971, chapter 10.27 RCW. LAws OF 

### 1971, 1stEx. Sess., ch. 67. The enactment ofchapter 10.27 RCW was intended to reorient the grandjury system as it relates to modern society. JUDICIAL.REPORTS,

### supra, at 17. Chapter 10.27RCWwas "enactedonbehalf of the people of the state of Washington to serve law enforcement in combating crime and corruption." RCW 10.27.010. Under chapter 10.27 RCW, 8 

### a grandjuryin washington "consists of twelve persons, is impaneled by a superior court and constitutes a part of such court." RCW 10.27.020(6). The grand jury hears, examines, and investigates evidence concerning criminal activity and corruption. Id. 

### The grandjurymay issue indictments after a hearing and upon a finding ofprobable
cause. RCW 10.27.150. In contrastto a grandjury, an SIJ cannot issue subpoenas once a defendant is charged with a crime. 

### State v. Manning, 86 Wn.2d 272, 275, 543 P.2d 632 (1975). SIJs also cannot issue indictments and do not make the decision of whether to

8This opinion cites to the current version ofchapter 10.27 RCW. RCW 10.27.070through

.100 and
.120 through
.150 were amended in 2010 to remove gender basedterms. LAws OF 2010, ch. 8, §§ 1019-1026. 9State v. Reeder, No. 90577-1 prosecute. Neslund, 103 Wn.2d at 86; JUDICIALREPORTS, supra, at 18. Like a grand jury, the SIJ proceedings are secret and confidential. RCW 10.27.090(3). The records from an SIJ proceedingor a grandjury are available onlyto the attorney that instituted the hearing, and such attorney may introduce the evidence collected atthe proceeding at any other grandjury ortrial. RCW 10.27.090(4). The courtmaymake available evidence presented before an SIJ to a criminal defendant if on "proper application and upon a showing ofgood cause" the court determines that "doing so is in the furtherance ofjustice."9 RCW 10.27.090(5)(a). b) Judicially reviewedsubpoenasprovidesufficientauthorityof law 'to obtain banking recordsfromfinancial institutions Reeder argu.es that because bank records are private affairs under article I, section 7, the only authority oflaw that canjustify the invasion is a warrant based

on probable cause. 10

9According to the Washington Association of Prosecuting Attorneys' (WAPA) model policy for using SIJ proceedings, it is recommended that the prosecuting attorney obtain an order from the SIJ authorizing disclosure as required by the prosecuting attorney's discovery obligations in the event the investigation results in criminal charges. WAPA Model Policyfor Using**Sp~cial** Inquiry Judge Proceedings, http://www.waprosecutors.org/ docs/2012%20SIJ %20 Model%20 Policy_1.pclf. The prosecuting attorney's discovery obligations are set forth in CrR4.7 and require the prosecuting attorneys to disclose, among other things, transcripts from grand juries when authorized bythe court and any documents that the prosecuting attorney intends to use at trial that were obtained from or belonged to the defendant. CrR 4.7 (a)(1)(iii), (v). 10Reeder notes that Michigan has a similar SIJ statute. The Michigan statute requires the judge to "have probable cause to suspect that any crime" has been committed before suchjudge may make an order directing an inquiry into the complaint. MICH. COMP. LAws § 767.3. Washington's SIJ proceedings, chapter 10.27 RCW, are based onMichigan's statute. Manning, 86 Wn.2d at**273~74.** However, unlike chapter 10.27 RCW, the Michigan statute is considered investigatory in nature because thejudge is permitted to issue an indictment. Jd. at**274~**75. 10

### State v. Reeder, No. 90577-1 Our cases have found that the authority of law to collect private records encompasses.morethan awarrantbased onprobable cause. 

### See Gunwall, 106 Wn.2d at 68-69 ("[T]he 'authority oflaw' required by Const. art. 1, § 7 in order to obtain records indudes authority granted by a valid, 

### (i.e., constitutional) statute, the

common law or a rule ofthis court."); 

### Maxfield, 133 Wn.2d at 342 ("'authority of law includes legalprocess suchas a searchwarrantor subpoena'" (internal quotation marks omitted) (quoting 

### Gunwall, 106 Wn.2d at 68-69)); 

### see alsoMiles, 160 Wn.2d at 247. Permitting the disturbance of private affairs pursuant to a constitutional statute represents the framers' intent to give both the legislature and the courts the ability to provide the law authorizing the disturbance ofa citizen's private affairs. Charles W. Johnson & Scott P. Beetham, 

### The Origin of Article I, 

### Section 7 ofthe Washington State Constitution, 31 SEATTLE

### U.L. REv. 431, 449 (2008). This court has also found that if a subpoena, rather than a warrant, is the authority of law, such subpoena must be justified by some reason besides the statutory authority granting the power to issue the subpoena. 

### Miles, 160 Wn.2d at 248. In 

### Miles, this court held that an administrative subpoena issued under the Securities Act ofWashington (Securities Act), 11 was insufficient authority oflawto obtain a person's private bank records. Id. at 252. After noting that a warrant or judiciallyissued subpoena could provide authority oflaw, the court found that the

11Chapter 21.20 RCW. 11

### State v. Reeder, No. 90577-1 Securities Act did notprovide the protections afforded by either process. 

### !d. at 247. The Securities Act gave subpoena authorityto the director ofthe Securities Division ofthe Washington State Department ofFinancial Institutions. 

### Id. at 243. Under the Securities Act, the director or any officer has the authority to '"subpoenawitnesses, compel their attendance, take evidence, and require the production of any books, papers, correspondence, memoranda, agreements, or other documents or records which the director deems relevant."' 

### !d. at 243 (quoting RCW 21.20.370(1)). The Securities Act further provided that the director could exercise his or her subpoena authority at his or her discretion. 

### !d. The courtin

### Miles heldthatthere mustbe some

. . further justification to invade a person's private affairs than just the statute authorizinga subpoena and that subpoenas, especially for a criminal investigation, must be subject tojudicial review to reduce mistaken intrusions ofpeople's private affairs. 

### Id. at 248-50. Here, the Court ofAppeals heldthat the subpoena issued by the SIJ provided sufficient authority oflaw to obtain Reeder's bank records. 

### Reeder, 181 Wn. App. at 917. The court reasoned that "a neutral magistrate determined that evidence presented by the petitioner established a reasonable suspicion that Reeder had committeda crime andreasonto believetherecords describedinthe subpoenawould provide material evidence ofthat crime." 

### Id.

12

### State v. Reeder, 

### No. 90577-1 The Court of Appeals correctly held that the subpoena provided sufficient authority oflaw to obtain bankrecords held by financial institutions. The subpoena
was issued pursuant to the SIJ's power under RCW 10.27.170, a presumably constitutional statute. 12 

### Unlike the statute in Miles 

### that authorized the director to issue a subpoena based on his or her discretion, RCW 10.27.170 requires that the SIJ issue a subpoena only if there is "reason to suspect crime or corruption." Moreover, under RCW 10.27.170, a subpoena is issued by an SIJ who is a superior courtjudge and neutral magistrate. Neslund, 

### 103 Wn.2d at 88; RCW 10.27.020(7). Amicus curiae Washington State Attorney General's Office (AGO) notes that the court in Miles 

### identified a warrant 

### or a subpoena as two separate procedures to satisfy the authority of law requirement, demonstrating that either are sufficient. However, ifa subpoena is the authority, it must bejustified by some reason and it must be subject tojudicial review. The court in Miles 

### did not specify that probable
cause is required, only thatthe subpoenamustbe based on some reason. A subpoena issued by an SIJ to obtain bank records held by financial institutions is proper authority oflaw to invade one'sprivate affairs under article I, 

### section 7 because it is based on some reason and is subject tojudicial review.

12Cases reviewing RCW 10.27.170 have not questioned whether this prov1s10n is constitutional. Statutes are presumed constitutional. Sch. Dists. ' All. for Adequate Funding of Special Educ. v. State, 170 Wn.2d 599,605-06,244 P.3d 1 (2010). 

### 13State v. Reeder, No. 90577-1 c) Reason to suspect crime or corruption is sufficient to justifY issuance of a subpoena by an SIJ Since a judicially reviewed subpoena issued pursuant to a constitutional statute can be authority oflaw under article I, section 7, we must determine whether "reason to suspect crime or corruption" is a sufficientjustification for a subpoena issued by an SIJ for private bank records. RCW 10.27.170. Because Washington case law has not specifically addressed this issue, the Court ofAppeals analogized SIJ subpoenas to subpoenas issued by federal grandjuries. Reeder, 181 Wn. App. at 916. Like the Washington grandjury system set forth in chapter 10.27 RCW, the federal "grandjury occupies a unique role in our criminaljustice system." United States v. R. Enters., Inc., 498 U.S. 292,297, 111 S. Ct. 722, 112L. Ed. 2d795 (1991). The federal grandjury "is an investigatory body charged with the responsibility of determining whether or not a crime has been committed." 

### ld. The Supreme Court of the United States has held that a subpoena issued by a federal grandjury does not needto bejustifiedby probable cause. See 

### id. The CourtinR. Enterprisesreasonedthat "theGovernmentcannotberequired tojustify the issuance ofa grandjury subpoenaby presenting evidence sufficient to establish probable cause because the very purpose ofrequesting the information is to ascertain whether probable cause exists." Id. A showing of less than probable

cause is adequate because the Supreme Courthas noted that a subpoena issued by a 14State v. Reeder, 

### No. 90577-1 federal grandjury intrudes less on one's privacy rights than a search or seizure and,
as**such~** 

### does not receive the same Fourth Amendment protections as a search or seizure. United States v. Dionisio, 

### 410 U.S. 1, 10, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) ("The compulsion exerted by a grandjury subpoena differs from the seizure effected by an arrest or even an investigative 'stop."'). According to the Supreme Court, a subpoena, unlike a search warrant, does not involve a stigma because it is served in the same manner as other legal process. Id. 

### Moreover, a subpoena can generally be alter,ed and remains under the supervision ofthe court at all times. 

### Id. A subpoena issued by a grand jury also has a different and lesser effect on the recipient than a subpoena issued in the context ofa prospective criminal trial where the crime charged and the defendant are identified. R. Enterprises, 

### 498 U.S. at 297. A .federal grandjury's investigatory powers are not unlimited. See 

### id. at 299. Grand juries are not entitled "to engage in arbitrary fishing expeditions." 

### Id. A federal court on motion '"may quash or modify a subpoena ifcompliance would be unreasonable or oppressive."' Id. 

### (quoting FED. R. CRJM. P. 17(c)). What is reasonable depends on context. I

### d. Since grandjuries do not announce the subject oftheir investigations, a party that would like to challenge the subpoena may have little knowledge as to the government's purpose in seeking production of the requested information. I

### d. at 299-300. Despite some ofthe barriers to contesting a subpoenaJ the Court inR. Enterprises 

### held that a subpoena couldbejustifiedby less 

### 15

### State v. Reeder, No. 90577-1 than probable cause to achieve the purpose ofgrandjury investigations. I

### d. at 297, 299. Here, the Court of Appeals held that similar to a federal grand jury, the purpose ofthe SIJ proceeding is to gather evidence about suspected crimes to assist the prosecuting attorney or a grandjury in determining ifprobable cause exists to issue anindictment. 

### Reeder, 181 Wn. App. at 917. The Court ofAppeals held that, like a federal grand jury subpoena, the appropriate level of justification for subpoenas issued by an SIJ could be something less than probable cause. 

### Id. Reeder contends that the Court ofAppeals erred by examining federal cases discussing federal grand juries because the protections ofthe Fourth Amendment differ from the protections ofarticle I, section 7. In addition, Reeder asserts that SIJ subpoenas are not analogous to grand jury subpoenas because an SIJ is not empowered to issue or reject indictments. Subpoenas are simply an investigatory tool. 

### See Manning, 86 Wn.2d at 274. However, Reeder does not explain why this difference should require a higher level ofjustification for subpoenas issued by an SIJ. Reeder contends that grand juries are a unique historical device that were meant to screen unwarranted or malicious prosecutions. Unlike the historical grand juries, Reeder contends that SIJ proceedings give prosecuting attorneys free rein to invade a person's private affairs with little justification. However, Reeder's 16State v. Reeder, No. 90577-1 assertions disregard that grandjuries have historically existed for dual purposesprotecting the individual from the government and examining the situations that are sti11 in inquiry stage to discover evidence for the prosecuting attorney. 3 WAYNE R. LAFAVEET AL., CRIMINAL PROCEDURE§ 8.1(a) (3d eel. 2007). Cases examining federal grand juries serve as a helpful companson to determine ifthe justification for an SIJ subpoena is sufficient. Like federal grand juries, grandjuries in Washington were created to investigate crime and determine whether a crime occurred. RCW 10.27.150 ("After hearing, examining, and investigating the evidence before it, a grand jury may, in its discretion, issue an indictment."). The legislature intended the SIJ proceedings to supplement the grand jury system. Such intent is shown by the legislative history ofchapter 10.27 RCW and the legislature including the statutory provisions governing SIJ proceedings in the same section as those statutory provisions governing grandjuries. See JUDICIAL REPORTS, supra, at 17-18. SIJ proceedings are similar to federal grand jury proceedings in their purpose and structure. The purpose of an SIJ subpoena is to assist the prosecuting attorney to obtain evidence that can then be turned over to a grandjury. Id. Both grandjuries and SUs have the authority to issue subpoenas and to call witnesses. RCW 10.27.140(3). Both also produce evidence available to prosecuting attorneys in criminal prosecutions. RCW 10.27.090(4). Like federal grandjuries, the reports and testimony during SIJ proceedings are confidential and 17

### State v. Reeder, No. 90577-1
not disclosed to the public unless there is sufficientreason. RCW 10.27.090(3), (5); FED. R. CRTM. P. 6(e)(2), (3). Whether to disclose grandjury evidence rests in the discretion ofthe trial court. 

### State v. Sponburgh, 84 Wn.2d 203, 210, 525 P.2d 238 (1974). Like a federal grand jury, an SIJ's powers are not unlimited. An SIJ proceeding canbe initiated onlyifthere is reasonto suspectthat crime or corruption has occurred. RCW 10.27.170. The power of the prosecuting attorney to obtain evidence through a subpoena is subject to judicial review. The SIJ reviews the request oftheprosecutingattorneyfor a subpoenato ensuretherequestis sufficiently justified. Subpoenas can be quashed on a motion. CrR 4.8(b)(4). Considering the similarities ofSIJ proceedings and federal grandjuries, the Court ofAppeals did not
err by examining federal cases discussing federal grandjuries. Where SIJ proceedings differ from state or federal grand juries, SIJ proceedings provide greater protections. An SIJ proceeding cannot be used where chargeshave alreadybeenfiled against a defendant, and an SIJ cannotindependently investigate the alleged crime or issue an indictment. Because an SIJ cannot issue an indictment, it does not serve an investigative role. 

### See Manning, 86 Wn.2d at 275. To ensure neutrality, the SIJ is disqualified from a subsequentproceeding involving the case under investigation. RCW 10.27.180. Therefore, a subpoena issued by an

18

### State v. Reeder, No. 90577-1 SIJ, like a subpoena issued by a federal grand jury, can be justified by less than probable cause, and "reason to suspect crime or corruption" is sufficient. d) Our decision in. Garcia-Salgado does not require a subpoena issued by an SIJto bejustifiedbyprobable cause Reeder contends that Garcia-Salgado requires probable cause to justify an invasion into his private affairs. In Garcia-Salgado, the defendant was ordered to submitto acheek swab for deoxyribonucleic acid (DNA)pursuantCrR4.7(b)(2)(vi). 170 Wn.2d at 182. This court found that because a cheek swab to procure DNA is a search under the Fourth Amendment to the United States Constitution, it must be supported by a warrant, unless the searchmeets one ofthe exceptions to the warrant requirement. ld. at 184. The court found that a court order could satisfy the warrant requirement under the Fourth Amendment and article I, section 7 if the order contains all the elements of a warrant. I

### d. a 187. After finding that there was not sufficient evidence ofprobable cause to support the court order, this court held that the defendant was searched in violation ofthe federal and state constitutions. I

### d. at 188-89. Reeder asserts that a subpoena issued by an SIJ should be treated as the equivalent ofthe court order examined in Garcia-Salgado. In contrast, the Court of Appeals found that the holding in Garcia-Salgado did not provide any guidance regarding thejustification needed for a subpoena. Reeder, 181 Wn. App. at 918.

19

### State v. Reeder, No. 90577-1 The Court ofAppeals was correct. The two cases differ inprocedural posture and in the privacy interests at stake. The defendant in 

### Garcia-Salgado was already charged with a crime, andthe court orderwas usedto investigate. 170 Wn.2d at 182. UnderRCW 10.27.170, an SIJ cannot issue a subpoenato gather evidence against a defendant already charged with a crime. 

### See State v. Burri, 87 Wn.2d 175, 178, 550 P.2d 507 (1976). Theprivacy interest at stake was different in 

### Garcia-Salgado. The DNA cheek swab in 

### Garcia-Salgado was a search under the Fourth Amendment. 170 Wn.2d at 184. The Fourth Amendment does not protect information in bank records, 

### United**~)tates** 

### v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (noting that under the Fourth Amendment, there is a lack ofany legitimate expectation ofprivacy in bankrecords). 13 We hold that the subpoena issued by the SIJ for Reeder's bank records satisfies the authority oflawrequirementunder article I, section 7. Our cases do not require that the authority oflaw under article I, section 7 must satisfy the probable

cause requirement ofa warrant. Rather, we have recognized that ajudicially issued subpoena can be sufficient authority of law to invade a citizen's private affairs.

13The dissent argues thatthe courtrelies solely onthefederal FourthAmendmentprecedent while ignoring article I, section 7. Dissent at 6. We directthe dissent to pages 8-18 ofthis opinion for an in-depth analysis ofhowthe subpoenaofbanking records from a financial institutionduring an SIJ proceeding is consistent with this court's interpretation ofarticle I, section 7, despite the privacy interests individuals have in their banking records. 20

### State v. 

### Reeder, No. 90577-1 Justifying a subpoena for bank records held by financial institutions on less than probable cause aligns with the purpose ofthe grandjury and SIJ proceedings. B. Reeder's sentence did not violate doublejeopardy Reeder was charged with 14 counts ofsecurities fraud and 14 counts oftheft in the first degree. Reeder argues that his multiple convictions violate double jeopardy principles. "Claims of double jeopardy are questions of law, which we review de novo." 

### State v. 

### Hughes, 166 Wn.2d 675, 681,212 P.3d 558 (2009).

. The double jeopardy clause of the Fifth Amendment and the state constitutional protection against doublejeopardy, article 

### I, section 9, offer the same scope ofprotection. 

### State v. 

### Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998). The Fifth Amendment encompasses three distinct protections. 

### State v. 

### Goeken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). First, it "'protects against a second prosecution for the same offense after acquittal."' 

### I

### d. (quoting 

### North Carolina 

### v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. 

### Ed. 2d 656 (1969)). Second, "'[i]t protects against a second prosecution for the same offense after conviction."' I

### d. (quoting

### Pearce, 395 U.S. at 717). Third, "'itprotects against multiple punishments for the same offense."'

### Id. (quoting

### Pearce, 395 U.S. at 717). Reeder claims thathis convictions violate the third protection. When a defendant is convicted for violating one statute multiple times, the proper inquiry is "what 'unit of prosecution' has the Legislature intended as the 21State v. Reeder, No. 90577-1 punishable act underthe specific criminal statute." Adel, 136 Wn.2d at 634. The legislature has the power to define what conduct is punishable. 

### Id. The scope ofthe criminal act as defined by the legislature is considered the unit ofprosecution. 

### Id. Doublejeopardy protects a defendant from being convicted twice under the same statute for committingjust one unit ofprosecution. I

### d. The issue is one ofstatutory interpretation and legislative intent. 

### Id. If the legislature fails to state a unit of prosecutionin a criminal statute, any ambiguity mustbe construedin favor oflenity. 

### Id. at 634-35. In Adel, the cot1rt found that a defendant's sentence violated principles of double jeopardy where he was charged with two counts of simple possession of marijuana. 

### ld. at 631. Adel was found with marijuana in two places: the ashtray of his car and the cash register counter ofhis store. 

### !d. The court began its analysis by examiningthe statute and determined that the unit ofprosecution was possession of 40 grams ofmarijuana regardless ofwhere the drug was located. 

### Id. at 637. The court held that even though Adel had marijuana in two places, his conduct constituted only one violation ofthe possession statute, and the court reversed his conviction. 

### Id. To determine ifthe State violated doublejeopardy principles here, we must examine the statutes in question.

22

### State v. Reeder, No. 90577-1 1. 

### Securitiesfraud Washington's security fraud statute, RCW 21.20.010, states: It is unlawful for any person, in connection with the offer, sale or purchase ofany security, directly or indirectly: (1) To employ any device, scheme, or artifice to defraud; (2) To make any untrue statement ofa material fact or to omitto state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or (3) To engage in any act, practice, or course ofbusiness which operates or would operate as a fraud or deceit upon any person. The term "sale" "includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value." Former RCW 21.20.005(10) (2002) (now codified at RCW 21.20.005(14)). Theterm "'[s]ecurity'

means any note; stock; treasury stock; bond; debenture; evidence ofindebtedness; certificate of interest or participation in any profit-sharing agreement; ... or, in general, any interest or instrument commonly known as a 'security.'" FormerRCW 21.20.005(12)(a) (2002) (now codified at RCW 21.20.005(17)(a)). The statute prohibits any misleading acts in connection with the sale of a security. Because the definition of "sale" includes every sale of a security, it indicates the legislature's intent for each transaction or sale to constitute the unit of prosecution. Therefore, the State was correctto assert, andthe Court ofAppeals was correct to find, that the unit ofprosecution in the securities fraud statute is every separate sale ofa security. 

### Reeder, 181 Wn. App. at 926. 23State v. Reeder, 

### No. 90577-1 In contrast, Reeder argues that the unit ofprosecution in RCW 21.20.010 is the security. Even though there were many separate payments and misrepresentations, according to Reeder because there was only one security at issue, there can be only one count of securities fraud. Reeder also points to the prosecuting attorneytellingthejuryto find thatthe securities fraud offenses were all part ofa continuing impulse or scheme. Reeder cites State v. Mahmood, 

### 45 Wn. App. 200,206, 724 P.2d 1021 (1986), to support his argument that his securities fraud sentence violates doublejeopardy. Reeder states that the Mahmood 

### court found that RCW 21.20.010 describes a single offense.ld. Whatthe Mahmood

### courtheldwas thatunderRCW 21.20.010, "making
an untrue statement and omitting to make a material statement are not separate offenses
.... [T]hey may inhere in the same transaction." ld. 

### The Mahmood 

### court addressed whether the State could charge the separate alternatives listed in RCW 21.20.010(2) as separate crimes. It 

### did not find that the unit of prosecution for securities fraud was the entire unlawful scheme. As the State notes, by finding that the alternatives described in RCW 21.20.010(2) can be part ofthe same transaction, the court in Mahmood 

### indicated that each transaction is a separate violation ofthe securities fraud statute.

24

### State v. Reeder, No. 90577-1 Since the State presented evidence that 14 different misleading sales took place between Reeder and McAllister on several different dates, Reeder's sentence does not violate the principles ofdoublejeopardy. 2. 

### Theft in thefirst degree

"A person is guilty oftheft in the first degree ifhe or she commits theft of: (a) [p]roperty or services which exceed(s) one thousand five hundred dollars in value." Former RCW 9A.56.030(1)(a) (2005). "Theft" as charged here means obtaining control "[b]y color or aid ofdeception to obtain control over the property

or services ofanother or the value thereof, with intentto deprive him or her ofsuch property or services." RCW 9A.56.020(1)(b). One '"exerts unauthorized control'"

overproperty when one [h]a[s] any property or services in one's possession, custody or control as ... agent ... or competent authority to take or hold suchpossession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use or to the use ofany person other than the true owner or person entitled thereto. Former RCW 9A.56.010(19)(b) (2006) (now codified at RCW 9A.56.010(22)(b)). Prosecuting attorneys generallyhave discretion in deciding whetherto aggregatethe crimes or to charge them separately. 

### See State v. Lewis, 115 Wn.2d 294, 299, 797 P.2d 1141 (1990). Reeder argues that Washington's theft statute does not define the unit of prosecution for theft in the first degree and, therefore, the statute is ambiguous as to 25State v. Reeder, 

### No. 90577-1 whether multiple acts oftheft that were part ofan ongoing plan could be punished separately. It 

### follows then, Reeder asserts, that the rule of lenity dictates that the statute be construed in his favor. He also argued that if a criminal impulse is continuing, it is one crime. To challengehis theftconvictions, Reeder cites State v. Turner, 

### 102 Wn. App. 202, 6P.3d 1226 (2000). In Turner, 

### the court found thatthe first degree "theftstatute is ambiguous as to the unit ofprosecution for theft by different schemes or plans against the same victim over the same period oftime." ld. 

### at 204. The defendant in Turner 

### stole from his employer in several ways, and in total there appeared to be 72 individual acts oftheft. Id. 

### at 203-04. The State initially charged Turner with one count offirst degree theft for each unlawful act. Id. 

### at 204. The State then amended the information to charge Turner with four counts of first degree theft. ld. 

### The different counts werebasedonthe differentmethods by which Turner allegedly stole from his employer. ld. 

### The comt held that the charges violated double jeopardy principles. Id. 

### at 203. The court also noted that the statute makes no mention of schemes or plans but insteadthe unit ofprosecution is the "exertion ofunauthorized control over the property of the employer, where the property exceeds $1,500 in value." Id. 

### at 208. The court's holding and reasoning in Turner 

### does not conflict with the Court of Appeals decision here. The prosecuting attorney charged Reeder with 14 26

### State v. Reeder, No. 90577-1 individual counts ofobtaining unauthorized control over the property or services of another. Unlike the counts in 

### Turner that were based on different schemes, each count here was based on a separate transaction that occurred at a separate time. 

### !d. Reeder cites 

### State v. Dash, 163 Wn. App. 63,259P.3d 319 (2011), to support his argument that so long as his criminal impulse continued, the transactions were part ofone crime. 14 In 

### Dash, the court stated that "[w]here 'successive takings are the result ofa single, continuing criminal impulse or intent and are pursuant to the**~xecution** 

### ofa general larcenous scheme or plan, such successive takings constitute

a single larceny regardless ofthe time which may elapse between each taking."' 

### !d. at 68 (quoting 

### State v. Vining, 2 Wn. App. 802, 808-09, 472 P.2d 564 (1970)).. However, in 

### Dash, the court was not addressing or interpreting the unit of prosecution in a particular statute. Rather, the court addressed whether a criminal scheme as a whole was within the statute of limitations. The defendant in 

### Dash argued that thejury instructions allowedthejuryto convicthim without finding that

a criminal act occurred within the statute oflimitations. 

### Id. at 67. The 

### Dash court agreed with the defendant and reversed his conviction because thejury instructions did not require the jury to make a finding as to when the defendant's criminal

14Reeder also cites State v. Mermis, 105 Wn. App. 738, 20 P.3d 1044 (2001), to support his argument thathis actions were a single, continuous scheme. InMermis, the court stated, "Ifthe impulse continues, the crime is not complete until the continuing impulse has been terminated." Id. at 745. Like in Dash, the Jovfermis court was discussing whether a criminal impulse terminated within the statute oflimitations.The court was not discussing the unit ofprosecution in the theft statute. Jd. at 746. 27State v. Reeder, 

### No. 90577-1 impulse terminated and, therefore, it could not be determined whether the jury convicted the defendant ofcriminal acts within the statute oflimitations. I

### d. at 71. The rule articulated in Dash 

### does not affect the issue here, which is whether individualtransactions may be charged separately withoutviolating doublejeopardy principles. There is evidence that Reeder fraudulently obtained control over McAllister'spropertythrough 14 differenttransactions and, therefore, it was within the prosecuting attorney's discretion to charge Reeder with 14 individual counts of theft in the first degree. We hold that Reeder's sentence did not violate double jeopardy principles because he was_ not charged multiple times for the same offense. Each count was based on evidence of 14 distinct times that Reeder's conduct violated each statute. IV. CONCLUSION We affirm the Court ofAppeals. First, the Court ofAppeals was correct to hold that the subpoena issued by the SIJ for bank records held by financial institutions was sufficient authority oflaw under article I, section 7. Authority of**l~w** 

### under article I, section 7 canbe ajudiciallyissued subpoena so long as itis based
on some reason. The subpoenahere was issued by a neutral magistrate andbased on
reason to suspect crime or corruption. Second, the Court ofAppeals was correct to hold that Reeder's sentence did not violate principles ofdoublejeopardy. Reeder's



### 28

### State v. Reeder, No. 90577-1 sentence was supported by 14 individual acts that were within each statute's unit of prosecution.

29

### State v. Reeder, No. 90577-1

WE CONCUR:

/

30State v. Reeder (Michael J), 

### No. 90577-1 (Gordon McCloud, J., 

### dissenting)

No. 90577-1 GORDON McCLOUD, J. (

### dissenting)-Petitioner Michael Reeder argues that the State may not search an individual's personal banking records without probable cause. In support of this argument, he relies primarily on this court's decision in 

### State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010), which held that probable cause must support a court order to submit to a DNA (deoxyribonucleic acid) cheek swab. The majority rejects this argument in an analysis predicated on two erroneous conclusions: first, that the Fourth Amendment to the United States Constitution does not limit federal grand jury subpoenas; second, that article I, section 7 ofthe Washington State Constitution affords greater privacy protections for DNA than for financial records. The first conclusion conflicts with United States Supreme Courtprecedent; the second conflicts with this court's precedent. Perhaps because itproceeds from these flawed premises, the majority opinion results in a holding that is both sweeping and confusing: personal banking records



### 1State v. Reeder (Michael J), No. 90577-1 (Gordon McCloud, J., dissenting)

are "private affairs"

### protectedby article I, 

### section 7, 1butthe State may searchthem pursuantto a special inquiryjudge (SIJ) subpoenabased only on '"reasonto suspect crime or corruption,"'2 provided that the subject of the search has 

### not yet been chargedwith any crime, 3 because 

### the Fourth Amendment does not protect personal banking records. 4 Because SIJ subpoenas function similarly to federal grand jury subpoenas, and because this casepresents a question offirst impression in Washington,5 I agree that we should lookto Fourth Amendmentcase lawto inform our analysis. 6 Butwe

1Majority at 8. 2 Majority at 14 (quoting RCW 10.27.170). 3 Majority at 19-20. 4Majority at 20. 5The majority cites three cases for the principle that "the authority oflaw to collect private records encompasses more than a warrant based on probable cause." Majority at 11 (citing State v. Gunwall, 106 Wn.2d 54, 68-69, 720 P.2d 808 (1986); State v. Maxfield, 133 Wn.2d 332, 342, 945 P.2d 196 (1997); State v. Miles, 160 Wn.2d 236, 247, 156 P.3d 864 (2007)). Butthe only one ofthese cases that actually addresses a subpoena-Milesheld that the subpoena was not valid "authority of law" under article I, section 7. 160 Wn.2d at 240, 247-48 (striking down statute that authorized state Securities Division to issue "administrative subpoena[s]"). Thus, this courthas approvedjudicial subpoenas, like the one at issue in this case, only in dicta. There is no precedent from this court defining the permissible scope ofsuch subpoenas. 6There are very few United States Supreme Court casesthat directly address Fourth Amendment limits on federal grandjury subpoenas. The few cases that do directly address these limits hold that the Fourth Amendment prohibits any grand jury subpoena "too sweeping
... 'to be regarded as reasonable."' United States v. Dionisio, 410 U.S. 1, 11, 2State v. Reeder (MichaelJ), No. 90577-1 (Gordon McCloud, J., dissenting)
may do so only to the extent that federal precedent is consistent with the limits of Washington's more protective article I, section 7. We may not rely on federal precedent to conclude that article I, section 7 does not protect a privacy interest in one's personal banking records. Nor may we rely, as the majority does, on federal precedentaddressing grandjury subpoenas incircumstances fundamentally different

93 S. Ct. 764, 35 L. Ed. 2d 67 (1973) (quoting Hale v. Henkel, 201 U.S. 43, 76, 26 S. Ct. 370, 50 L. Ed. 652 (1906), overruled inpart on other grounds by Murphy v. Waterfront Comm 'n ofN.Y Harbor, 378 U.S. 52, 66-67, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964)); see also United States v. R. Enters., Inc., 498 U.S. 292, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991) (interpreting Federal Rule ofCriminal Procedure 17(c), which provides that "[o]n motion made promptly, the court may quash or modify the subpoena ifcompliance would be unreasonable or oppressive"). Reeder argues that this federal standard is inconsistent with article I, section 7 because "[u]nlike the Fourth Amendment, article I, § 7 protects citizens against all warrantless searches, regardless ofwhetherthey are reasonable." Suppl. Br. ofPet'r at 12 (citing State v. Eisfeldt, 163 Wn.2d 628, 634-35, 185 P.3d 580 (2008)). Thus, he implicitly argues that Washington's constitution prohibits SIJ subpoenas in all circumstances. Reeder is correct that this court has sometimes distinguished article I, section 7 protections on the basis that "[u]nlike in the Fourth Amendment, the word 'reasonable' does not appear in any form in the text of article I, section 7 of the Washington Constitution." State v. Morse, 156 Wn.2d 1, 9, 123 P.3d 832 (2005). We have relied on this difference to reject two federal exceptions to the warrant requirement: (1) the "good faith" exception (where an officer mistakenly but "reasonably" believes no warrant is necessary), id. at 9-10; and (2) the "private search doctrine" (where an individual consents to a search by a "private actor" who later informs police aboutwhatthe "search"revealed). Eisfeldt, 163 Wn.2d at 635-38. But that distinction is not relevant here. Our state constitution clearly authorizes grandjuries. WASH. CONST. art. I, § 26 ("No grandjury shall be drawn or summoned in any county, except the superior judge thereof shall so order."). Thus, as a matter oftextual logic, the "authority oflaw" contemplated in article I, section 7 must include grandjuryand other analogous subpoenapowers. BecauseI agree with the majority and the Court ofAppeals in this case that SIJ subpoena powers under RCW 10.27.170 are basically analogous to a grandjury's subpoena powers, I agree that federal precedent on the grandjury's subpoenapower can inform our analysis. 3State v. Reeder (Michael J), No. 90577-1 (Gordon McCloud, J., dissenting) from those present in this case (i.e., 

### United States v. R. Enters., Inc., 498 U.S. 292, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991), discussed 

### infra). Instead, we should rely on federal case law addressing circumstances analogous to those presented here: subpoenas for electronic communications and otherdigital data, issuedtothirdparty serviceproviders. WhenI consultthose cases, I conclude that an SIJ subpoena is insufficient "authority of law" under article I, section 7 of Washington's Constitution to support the search of an individual's personal banking records. I therefore respectfully dissent. I. THE MAJORITY'S ANALYSIS CONFLICTS WITH FEDERAL PRECEDENT HOLDING THAT THE FOURTH AMENDMENT LIMITS GRAND JURY SUBPOENAS AND STATE PRECEDENT HOLDING THAT PERSONAL BANKING RECORDS AREFULLY PROTECTED PRIVATE AFFAIRS As noted above, the majority's analysis proceeds from two erroneous conclusions. First, the majority concludes that federal grandjury subpoenas may issue on less than probable cause "because the Supreme Court has noted that a subpoena issued by a federal grandjury intrudes less on one's privacy rights than a search or seizure and, as such, does not receive the same Fourth Amendment protections." Majority at 14-15 (citing 

### UnitedStates v. Dionisio, 410 U.S. 1, 10, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973)). Second, the majority concludes thattheprivacy interest at stake in this case-the privacy interest in one's personal banking

4State v. Reeder (MichaelJ.), No. 90577-1 

### (Gordon McCloud, J., 

### dissenting) records-is "different" from [i.e., lesser than] the privacy interest in one's DNA sample (addressed in Garcia-Salgado, 

### 170 Wn.2d at 184). Majority at 20. Contraryto the majority's first conclusion, Dionisio 

### does not hold that grand jury subpoenas are "[do] not receive the same Fourth Amendment protections." Majority at 15. Instead, that caseholds onlythat subpoenas to appear

### before agrand jury are not "seizures" for purposes ofFourth Amendment protections. Dionisio, 

### 410 U.S. at 9. WhiletheDionisio 

### Courtupheld a grandjury's authorityto subpoena
avoice exemplar, it didnot do so because grandjurysubpoenas are free from Fourth Amendment constraints. It 

### did so because the voice (unlike private records) is "constantly exposed to the public" and thus triggers no reasonable expectation of privacy. Id. 

### at 14. In reaching that conclusion, the Dionisio 

### Court expressly noted that "a grandjury subpoena is [not] 

### some talisman that dissolves all constitutional protections." !d. 

### at 11. Anditexplainedthat grandjurysubpoenapowers are limited 

### at least bythe First, Fourth, 

### and Fifth Amendments." Id. 

### at 11-12; see also United States v. Miller, 

### 425 U.S. 435,444,96 S. Ct. 1619,48 L. Ed. 2d71 (1976) (subpoena for bankrecords does not violaterights ofthe investigationtarget "[s]ince noFourth Amendment interests of the [target] are implicated" 

### (emphasis added)). Contrary to the majority's second conclusion, article I, section 7 is equally protective ofan individual's privacy interest in personal banking records and his or
5State v. Reeder (Michael J.), No. 90577-1 (Gordon McCloud, J., dissenting) her privacy interest in DNA. The majority relies solely on federal Fourth Amendment precedent to conclude otherwise,7 but that precedent conflicts with our
caselawapplying article I, section7. InMiller, the case onwhichthemajorityrelies, the United States Supreme Court held that individuals retain no privacy interest whatsoever in their banking records since those records are held by a third party. 425 U.S. at 443 ("The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government." (citing UnitedStates v. White, 401 U.S. 745, 751-52, 91 S. Ct. 1122, 28 L. Ed 453 (1971)). ButMiller applied a Fourth Amendment doctrine-according to which "the Fourth Amendment does not prohibit the [government from] obtaining
... information revealed to a third party" 8 -that this court has repeatedly rejected under article I, section 7.9 Wehave consistentlyheld that this thirdparty search exception violates article I, section 7 protections because under our state constitution, individuals do not relinquish their privacy rightsjust by relying on common third party entities to store information orfacilitate communication. State v. Hinton, 179 Wn.2d 862, 874,

7 Majority at 20 (citing Miller, 425 U.S. at 443).
8Miller, 425 U.S. at 443 (citing White, 401 U.S. at 752; Hoffa v. UnitedStates, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963)).
9E.g., State v. Hinton, 179 Wn.2d 862,874,319 P.3d 9 (2014). 6State v. Reeder (Michael J), 

### No. 90577-1 (Gordon McCloud, J., 

### dissenting) 319 P.3d 9 (2014) ("This court has consistently declined to require individuals to veil their affairs in secrecy and avoid sharing information in ways that havebecome
an ordinary part of life."). Indeed, we have even rejected the third party search exception as appliedto curbsidegarbage. State v. Boland, 

### 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) ("It 

### would be improper to require that in order to maintain a reasonable expectation ofprivacy in one's trash
... the owner must forgo use of ordinarymethods oftrash collection."). And in State v. Miles, 

### we squarelyrejected the exception as applied to bank records. 160 Wn.2d 236, 247-48, 156 P.3d 864 (2007). Ofparticular relevance here, our reasoning in Miles 

### explains that banking records generally contain a significant amount of"sensitivepersonal information": Privatebankrecords maydisclosewhatthe citizenbuys, how often, and from whom. They can disclose what political, recreational, and religious groups a citizen supports. Theypotentiallydisclosewherethe citizen travels, their affiliations, reading materials, television viewing habits, financial condition, and more. Little doubt exists that banking records, because of the type of information contained, are within a person's private affairs. !d. 

### at 246-47. Nothing in this analysis suggests that article I, section 7 protects personalbankingrecords to alesserextentthanitprotectsDNA or garbage-indeed, it suggests that our state constitution affords the highest level of protection for personal banking records.

7State v. Reeder (MichaelJ.), No. 90577-1 

### (Gordon McCloud, J., 

### dissenting)

II. THEMAJORITYRELIES ON INAPPOSITEFEDERALPRECEDENTTo CONCLUDE THAT THE SIJ SUBPOENA AT ISSUE IN THIS CASE WAS VALID WITHOUT PROBABLE CAUSE 

### The majority relies on one United States Supreme Court decision-R. Enterprises, 498 U.S. 292-to conclude that '"the Government cannot be required tojustifythe issuance ofa grandjury subpoenaby
... establish[ing] probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists."' Majority at 14 (quoting R. Enters., 498 U.S. at 297). But two factors makeR. Enterprises entirely inapposite here. First, R. Enterprises did not address privacyinterests like those at issue inthis case-indeed, it did not really address privacy interests at all. The corporate defendants in R. Enterprises-all under investigation for allegedly transporting obscenematerials across statelines-challengedagrandjurysubpoenafor corporate records and sexually explicit videotapes. In re Grand Jury 87-3 

### Subpoena Duces Tecum, 884 F.2d 772 (4th Cir. 1989), rev'd inpart by R. Enterprises, 489 U.S. at 297. Withrespect to the corporaterecords, the Fourth Circuit Court ofAppeals held that the subpoena was "unreasonable and oppressive"' in violation ofFederal Rule of Criminal Procedure (FRCP) 17(c) because the government had not met the "relevancy, admissibility, and specificity" requirements established for trial subpoenas in United States v. Nixon, 418 U.S. 683, 699-700, 94 S. Ct. 3090,41 L. Ed. 2d 1039 (1974). R. Enters., 498 U.S. at 296-97. With respect to the videotapes, 8State v. Reeder (MichaelJ.), No. 

### 90577-1 (Gordon McCloud, J., 

### dissenting) the circuit court rejected the defendants' hybrid First Amendment/Fourth Amendment10 

### argument, GrandJury 87-3, 

### 884 F.2d at 778, but only after noting (in

an earlier ruling) that "[c]orporations do not have the equivalentprivacy rights 

### of individuals," In re GrandJury Subpoena: Subpoena Duces Tecum, 

### 829 F.2d 1291, 1299 n.ll (4th Cir. 1987) (emphasis added). The United States Supreme Court ultimately granted certiorari only as to the corporate records and heldthat theNixon 

### criteria do not apply to grandjury subpoenas. R. Enters., 

### 498 U.S. at 296-97. In reaching that conclusion, the Court discussed grandjury subpoenas generally and stated that they do not require a showing ofprobable cause. 

### Id. at 297. But the purpose ofthis discussion was to highlight the difference, from the government's perspective, 

### between subpoenas issued before and after the decision to charge. See id. 

### at 300 ("[o]ne simplycannot knowin advance whetherinformation soughtduring

an investigation will be relevant and admissible in a [subsequent] prosecution"). R. Enterprises 

### contains absolutely no discussion whatsoever ofany privacy interests held by the subject ofa grandjury investigation. (In fact, the Court remanded on what it called "theFirst Amendment issue." Id. 

### at 303 ("We express no view onthis issue and leave it to be resolved bythe Court ofAppeals.").)

10 

### U.S. CONST. amends. I, IV. 9State v. Reeder (MichaelJ.), No. 90577-1 

### (Gordon McCloud, J., 

### dissenting) Second, the analysis inR. Enterprises 

### is premised on a fact not present here: the issuance ofthe subpoena directly to the subject of the investigation. The R. Enterprises 

### Court held that a person seeking to avoid compliance with a grandjury subpoena bears the burden ofshowing that compliance would be unreasonable. !d. 

### at 301. In reaching that conclusion, the Court acknowledged that "reasonableness" limits on grandjurysubpoenas are meaningless ifthe target ofan investigation does not know the general subject matter ofthe grandjury's investigation. Id. 

### at 301-02 ("[a]fter all, a subpoenarecipient 'cannotputhis whole lifebefore the court in order to showthatthereis no crime to beinvestigated"' (quotingMarston's, Inc. v. Strand, 

### 114 Ariz. 260, 270, 560 P.2d 778 (1977) (Gordon, J., 

### specially concurring in part and dissenting in part)). The Court went so far as to suggest that "the Government [might be required] to reveal the general subject ofthe grandjury's investigation before requiring the challenging partyto carryits burden ofpersuasion." Id. 

### at 302. In this case, Reeder did not know that any SIJ subpoena had issued at all until 13 different financial institutions had already furnished the State with his personal records. Majority at 3-4. In short, the facts inR. Enterprises 

### differ so extremelyfrom thosepresenthere that that case is simplynot helpful to our analysis. (To the extent that its discussion ofreasonableness limits is relevant at all, it supports Reeder's position.)

10State v. Reeder (Michael J), No. 90577-1 (Gordon McCloud, J., dissenting)

III. THE MOST RELEVANT FEDERAL PRECEDENT SUGGESTS THAT THE SIJ SUBPOENAIN THIS CASEWASTHE EQUIVALENT OF AFULL SEARCHAND, AS SUCH, COULD NOT ISSUE ABSENT A SHOWING OF PROBABLE CAUSE Federal precedent distinguishing grand jury subpoenas from search warrants-and permitting the former to issue on less than probable cause-is predicatedinpart onthe assumptionthatthe subject ofan investigationwillhave the opportunityto contest the validity ofa subpoena: Subpoenas are not search warrants. They involve different levels of intrusion on a person'sprivacy. A search warrant allows the officerto enter the person's premises, and to examine for himself the person's belongings. The officer, pursuant to the warrant, determines what is seized. Moreover, ifevidenceorcontrabandofanysortis inplain sight, theofficermayseizeit, evenifitis notlistedinthe warrant. Theperson to be searched has no lawful wayto prevent execution ofthe warrant. In re GrandJury SubpoenasDatedDec. 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991) (citation omitted) (citingArizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 94 

### L. Ed. 2d 347 (1987)). In otherwords, grandjury subpoenas mayissue onless than probable cause onlybecause they do not entail the kind ofimmediate, unavoidable, andrelativelyopen-endedintrusioninto anindividual's zone ofprivacythat a search warrant authorizes. 11

11 In re SubpoenaDuces Tecum, 228 F.3d 341, 348 (4th Cir. 2000) ("the immediacy and intrusiveness of a search and seizure conducted pursuant to a warrant demand the safeguard ofdemonstrating probable cause to a neutraljudicial officer before the warrant issues, whereas the issuance ofasubpoenainitiates an adversaryprocess that cancommand the production [by the owner] of documents and things only after judicial process is afforded"). 11State v. Reeder (MichaelJ.), No. 90577-1 (Gordon McCloud, J., dissenting)
Forthis reason, "[s]ervice ofa forthwith subpoena [cannot] authorize an entry into a private residence." Id. at 854. The State acknowledged as much at oral argument in this case,12 but it insisted that article I, section 7 permits subpoenas for personal banking records because the Fourth Amendment does not recognize any privacyinterestindocumentsheldbya thirdparty. 13 Inotherwords, the Stateargued that this court should import into its case law on investigative subpoenas the very
same third party search exception (discussed in section I supra) that we have consistently rejected in our cases addressing other exceptions to the warrant requirement. See Hinton, 179 Wn.2d at 874; Miles, 160 Wn.2d at 245-46 (citing State v. Gunwall, 106 Wn.2d 54, 67, 720 P.2d 808 (1986)). That result, which the majority adopts, is illogical. Not only does it conflict with our precedent rejecting the relaxation ofprivacy protections in the third party search context and affirming the significant privacy interests that attach to personal

12 Wash. Supreme Court oral argument, State v. Reeder, No. 90577-1 (Feb. 24, 2015), at 15 min., 15 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. (conceding that the govermnent may not search "your home, your car, your person, your body" absent probable cause). This appears to conflict with another theory that the State articulated in its briefing and the majority endorses in its analysis: that "the Fourth Amendment has [no] application in the grand jury context," State's Suppl. Br. at 5 (footnote omitted).
13 Wash. Supreme Court oral argument, supra, at 15 min. 15 sec., 20 min. 45 sec. 12State v. Reeder (MichaelJ.), No. 90577-1 (Gordon McCloud, J., dissenting) banking records under article I, section 7, it also inverts the logic ofcases upholding federal grandjurysubpoenas. Those cases saythat subpoenas are less intrusivethan searchwarrants inpartbecausethe subpoenarecipient can object and obtainjudicial review. 

### In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000); 

### Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d at 854. But that protection evaporates whenthe subpoena issues secretlyto a thirdparty. 

### SeeIn re GrandJury Subpoena Served upon Niren, 784 F.2d 939, 941 (9th Cir. 1986) (noting that third party subpoenarecipient "cannotbe expected to risk a contempt citation in order to protectthe interests ofapowerless [investigationtarget]"). Itmakes no senseto rely

on the presence ofa disinterested third party intermediaryto 

### upholdthe subpoena in this case. Indeed, federal case law addressing subpoenas for digital communications heldbythird parties reaches the opposite conclusion. In 

### United States v. Warshak, the Sixth Circuit held that provisions in the Stored Communications Act, 18 U.S.C. §§ 2701-2711, authorizing government agents to obtain e-mail communications from a third partythrough an administrative or grandjury subpoena, violate Fourth Amendment protections. 631 F.3d 266,285-88 (6th Cir. 2010). The court reasoned that "a subscriber enjoys a reasonable expectation ofprivacy in the contents ofe[- ]mails" stored with a commercial internet service provider and that the government

13

### State v. Reeder (MichaelJ.), No. 90577-1 (Gordon McCloud, J., dissenting)
maynot, therefore, use a subpoenato circumventthe FourthAmendment's probable

cause requirement. 

### Id. at 288. In other words, the court held that when the government seeks to obtain e-mail from a thirdparty service provider, it undertakes
a full 

### search, which it may accomplish only by means of a warrant supported by probable cause. 

### Id.; see also In re Applicationfor Tel. Info. Neededfor Criminal Investigation, No. 15-XR-90304-HRL-1(LHK),
_ F. Supp. 3d _, 2015 WL 4594558 (N.D. Cal. July 29, 2015) (holding that government must obtain a warrant to access historical cell site location information), 

### appealfiled, No. 15-16760 (9th Cir. Sept. 3, 2015); Orin S. Kerr,

### A User's Guide to the Stored CommunicationsAct, and a Legislator's Guide to AmendingIt, 72 GEo. WASH. L. 

### REv. 1208, 1220 n.80 (2004) (noting that "the constitutionality of [the Stored Communications Act's subpoenaprovisions] is unclear"). (I note that law enforcement in Washington also routinely obtains warrants for digital data stored with internet service providers. 

### E.g., State v. Budd, 186 Wn. App. 184, 189, 347 P.3d 49 (describing detective serving search warrant on Yahoo! and Google in order to obtain suspect's Internet protocol address), 

### review granted, 183 Wn.2d 1014, 353 P.3d 641 (2015). There is nothing inherently onerous about this procedure.) Unquestionably, the State's conduct at issue inthis case also constitutes a full search. Under article I, section 7, personal banking records are entitled to no less

14State v. Reeder (Michael J.), No. 90577-1 (Gordon McCloud, J., dissenting) protection than e-mails or text messages (or garbage, for that matter). Like e-mail and text messages, those records canreveal a person'shabits, associations, religious beliefs, political views, travel history and plans, and financial condition, among other things. Miles, 160 Wn.2d at 246-47. Because bank records contain such sensitive information, this court has held that they trigger a reasonable expectation ofprivacy, notwithstanding theirretentionbythirdpartyinstitutions. 

### Id. at 244-45. When the State obtained Reeder's personal banking records-affording him no notice whatsoever-it violated this expectation. Ittherefore conducted a full search ofhis private affairs. CONCLUSION Consistent with our case law rejecting the third party search doctrine and federal case law distinguishing (highly intrusive) search warrants from (less intrusive) subpoenas, I wouldholdthat the SIJ subpoenainthis case violated article I, section 7 protections. I would hold that issuance ofa subpoenato a third partyto obtain the records of the target of an investigation violates article I, section 7 protections where, as here, the article I, section 7 interest at stake is in personal, private bank records. Under controlling Washington precedent, such personal,

15State v. Reeder (Michael J), No. 90577-1 (Gordon McCloud, J., dissenting) private records are entitled to the full measure ofprivacythat we accord to garbage and infrared emissions. 14 I therefore respectfully dissent.

14 See State v. Young, 123 Wn.2d 173, 182-84, 867 P.2d 593 (1994) (use ofinfrared thermal detection device transformed public police surveillance into "search" requiring a warrant). 16State v. Reeder (Michael J), No. 90577-1 (Gordon McCloud, J., Dissenting)

17