People v. Muchmore

California Court of Appeal Apr 17, 1979 No. Crim. 8940Published

Before: Brown (Gerald)

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Holding. The court held that a defendant cannot challenge the prosecution's compliance with the California Right to Financial Privacy Act or the validity of a subpoena for the first time on appeal, and that the right to privacy does not protect bank records used to facilitate fraud.

Issues

Whether the defendant waived his right to challenge the prosecution's compliance with the California Right to Financial Privacy Act by failing to object at the trial level.
Whether the police are required to notify a bank customer before requesting financial records during a criminal investigation involving alleged fraud.
Whether Government Code section 7480 violates the California Constitution's guarantee of privacy.

Disposition. affirmed

Quotations verified verbatim against the opinion

“He cannot now complain of a lack of compliance when had he objected at the trial level, the prosecutor would have had the opportunity to produce the crime report and the officer who filed it.”

“There is no need under such circumstances to notify the customer in advance; any objections he might have to disclosure are secondary to the interests of society.”

“the right to privacy does not apply when the customer is using a bank account to defraud the bank”

[34]

Opinion

BROWN (Gerald), P. J.

Stephen Jeffrey Muchmore appeals the judgment after he pleaded guilty to one count of passing bad checks with intent to defraud (Pen. Code, § 476a).

On June 8, 1977, Muchmore opened a checking account at the California Canadian Bank (Bank) in San Diego with a $50 deposit. Two days later he deposited a check drawn on a Massachusetts bank for $841.75 less $50 cash. The check was returned because the account had been closed. During the next two months Muchmore passed a number of checks at various commercial establishments drawn on Bank which were returned because of insufficient funds (N.S.F.). On August 23, 1977, Detective Richard P. Shaw sent a form letter to Bank stating a criminal report had been filed against Muchmore and asking for information on his account. On September 29, 1977, after returning 42 checks because of insufficient funds, Bank closed Muchmore’s account. On November 23, 1977, a subpoena duces tecum was issued for Muchmore’s bank records. He challenges the police requests for information.

Muchmore concedes when a customer draws a N.S.F. check on a bank, the bank is not a neutral party to the transaction and the depositor’s right of privacy becomes secondary to the bank’s interest in protecting itself from wrongdoing

(Burrows

Superior Court,

13 Cal.3d 238, 245 [118 Cal.Rptr. 166, 529 P.2d 590];

People

Superior Court (Abrahms)

55 Cal.App.3d 759, 772 [127 Cal.Rptr. 672]). However, these cases were decided before the California Right to Financial Privacy Act (Gov. Code, §§ 7460-7493). Under the act a state or local agency is prohibited from requesting or receiving the financial records of any customer or a financial institution unless it follows certain procedures. In general, in order to get access to bank records the act requires the customer’s consent, a warrant or a subpoena except in a few defined situations. One of these exceptions reads:

People v. Muchmore

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