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In re Superior Court Order8/21/1984
NCNB challenges the order on a number of grounds. We dispose first of the constitutional arguments it attempts to bring forward. It is well established that a corporation such as NCNB has only a limited right, not applicable here, to object to process for production of documents on Fourth Amendment grounds. California Bankers Assoc. v. Shultz, 416 U.S. 21, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974). Even if we were to find the order affects the constitutional privacy interests of NCNB's customers, which it does not, United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976),
it is clear that NCNB has no standing to contest that any such interests have been violated. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh'g denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979). NCNB's constitutional contentions, couched in its argument that the State must show some probable cause to obtain disclosure, must therefore be rejected.
We note that Congress has re-established, since Miller, supra, a certain degree of privacy in bank records, by passage of the "right to Financial Privacy Act of 1978." 12 U.S.C. § 3401 et seq. (1982). That Act prohibits access by Government authorities to financial records in the manner sought here. 12 U.S.C. §§ 3402, 3403 (1982). The Act applies only to agencies or departments of the United States, however, not the State of North Carolina. 12 U.S.C. § 3401(3) (1982). See Suburban Trust Co. v. Waller, 44 Md. App. 335, 408 A. 2d 758 (1979) (bank disclosure case merely citing federal Act as reflective of policy).
NCNB focuses the bulk of its argument on the lack of statutory authority for issuance of the order. It is true that no statute specifically authorizes issuance of an order to examine bank records. Even though, as we have noted above, neither the bank nor the customer has a constitutionally protected expectation of privacy in the bank records, there is however little effective procedure for law enforcement officials to examine bank records at the investigatory stage of a proceeding. Subpoenas are not available by statute until an action has been commenced. G.S. 15A-802; G.S. 1A-1, Rule 45 (may only issue in a pending cause). Obviously, at the investigatory stage there is insufficient evidence to support a finding of probable cause, and administrative or criminal search warrants cannot be used. G.S. 15-27.2; G.S. 15A-241 et seq. The grand jury does have power to initiate an investigation for which no bill of indictment has been submitted, but only if it finds probable cause for the charges. G.S. 15A-628(a)(4). Accordingly, the only statutory avenue open to the prosecutor in a case such as this is to prepare a bill of indictment without probable cause, submit it to the grand jury and obtain subpoenas in the hope that the witness(es) would provide sufficient probable cause to bring the investigation to a successful close. See G.S. 15A-623, 15A-626, 15A-628. This would necessarily involve the burdensome examination of numerous records, in this case some 3,400, before the
grand jury. There is apparently no prohibition against resubmitting the same information on a new bill of indictment, other than the roadblocks to investigation outlined above and the obvious expense and delay of again reviewing large numbers of financial records before the grand jury. See G.S. 15A-629.
However, the existence of some statutory procedure does not preclude other procedure. Where the General Assembly has expressly and constitutio
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