Fraud investigators know better than anyone that financial crimes are a mountain of paperwork. Identity theft and fraud cases lead investigators to potentially hundreds of victims with pages and pages of Personally Identifying Information (PII). While fraud investigations always lead to piles of paperwork, a suspect’s financial records may contain a treasure trove of evidence. Financial records can reveal accounts under the suspects control, the movement of their money, what they are buying and where, and even the location of where they spend their ill-gotten gains. In this article we cover methods of collecting the financial evidence you need to successfully make your case, specifically: Consent, Record Release Laws, Voluntary Disclosure by Financial Institutions, and Search Warrants.
SEARCH WARRANT
The most common method of obtaining fraud and identity theft evidence is via a financial search warrant. Financial Crimes investigators typically write multiple search warrants per case spanning banks, credit card companies, and companies like Western Union and PayPal. A successful fraud investigator isn’t just a master of spreadsheets, they keep a finger on the pulse of financial technology to understand what new apps money can be funneled through and how new technology like cryptocurrency will impact victims.
While the process for of getting a warrant is the same as any other general warrants, there are some notable differences.
Nondisclosure Orders:
Most states have laws that permit financial institutions to notify the customer that it has received a warrant for their records. That can mess up your case if the suspect know you are looking at them. A nondisclosure order prohibits the financial institution from making any notification for a set number of days, conclusion of the investigation, or in some states indefinitely!
Particularity:
Financial Crimes Search Warrant need to describe the records that they seek to collect with particularity. Being as specific as possible not only prevents defense claims of overbroad search warrant, it helps the institution know what records they must produce and where they need to look. When you ask for “any and all” records, you may be getting more than you bargained for. Want more information on particularity? Check out or article Understanding Search Warrants: Particularity in search warrants.
Time Restrictions:
Most states have a requirement to produce records promptly and set a number of days for the financial institution to comply; in California companies have 10 days. Due to the volume of records, financial institutions or the affiant can request extend time to comply. It is generally accepted that the warrant is deemed “served” when it is delivered to the financial institution with the search extending beyond 10 days to collect the records.
Custodian of Records:
While a standard warrant allows officers to go to a place and collect a thing, financial search warrants rely on the financial institution’s custodian of records collect the requested records and deliver them to the officers.
How far back should I go?
A common question that that we get asked is how far back should a search warrant seek for records? Well, it depends. Search warrants should always specify a date range for records like 7/1/2023 at 0000 hours PDT through 8/28/2023 at 2359 hours PDT, but how far back you go is case dependent. Most financial institutions have robust record retention policies, so we recommend collecting as narrow of a window as possible; you can always ask for more if you need more with another warrant. It is important to remember that once you collect it, you have to analyze it and ultimately write a report about it…
CONSENT
Not all cases require search warrants; sometimes the easiest way to collect the evidence you need is via consent. The victim is generally permitted to authorize the financial institution to release account information to a designated officer through the use of FCRA 609(e) letter.
The Fair Credit Reporting Act (FCRA) section 609(e), provides identity theft victims the right to obtain documents related to the fraudulent transactions or accounts opened using their personal information. This provision enables victims to access information that can help them prove their case or simply better understand the extent of the fraud.
The FCRA 609(e) letter is a written request from an identity theft victim to a creditor or a business, asking for the records of the fraudulent transactions or accounts opened in their name without their permission. This might include credit applications, transaction records, and other pertinent documents.
The key components of a 609(e) letter typically include:
- Identification of the Victim: The letter must clearly identify the person making the request and usually includes proof of identity to ensure the business knows they are corresponding with the actual victim.
- Claim of Identity Theft: The victim must clearly state that they have been a victim of identity theft and that the request for documentation is in line with their rights under Section 609(e) of the FCRA.
- Specific Information or Documents Requested: The victim should clearly state what documents or information they are seeking, whether it’s records of specific transactions, account opening documents, or other relevant details.
- A Mention of the Timeline: Under the FCRA, businesses typically have 30 days to respond to a 609(e) request.
- Any Relevant Attachments: This might include a copy of the police report or an identity theft report to validate the claim.
- Law Enforcement Agency: If the letter is being written on behalf of the victim by a law enforcement agency, the letter should identify the Officers or Detectives that the information may be released to.
Several states have laws that allow for the collection of financial records from victims of identity theft. Often a FCRA 609(e) letter will also cite state specific laws like California’s Financial Code §§ 4002 and 22470, Civil Code § 1748.95 and Penal Code § 530.8. California family support agencies have the authority to request records necessary to enforce a family support order against a parent. On written request the financial institution may disclose the number of accounts that have been opened by the parent, current balances, and the address of the branch where the account is located.
New York: New York’s Banking Law has various sections that address the confidentiality of financial records.
Texas: The Texas Finance Code contains provisions relating to the confidentiality and sharing of financial records.
Florida: Florida Statutes has sections related to the confidentiality of financial records, particularly within its Banking and Finance chapter.
Illinois: The Personal Financial Protection Act in Illinois has provisions related to safeguarding consumers’ financial information.
RECORDS RELEASE LAWS
The Right to Financial Privacy Act (RFPA) of 1978 is a federal law in the United States that was established to provide a level of protection for the financial records of individuals. Essentially, it places restrictions on the federal government’s ability to access personal financial records kept by financial institutions, except under specific circumstances. It applies to individuals’ financial records held by “financial institutions”, but for the purposes of the RFPA, a “financial institution” isn’t just banks; it broadly includes businesses that lend money, transfer money, or provide similar financial services.
Right to Financial Privacy Act Requirements:
- Notice and Opportunity to Object: Before obtaining financial records, the government agency must usually provide the individual with notice and an opportunity to object. The individual then has 10 days from the date of receiving the notice to challenge the request in court. This applies in situations where a person, like a victim, either will not consent or cannot be contacted to provide consent.
- Administrative Subpoena or Summons: An agency might use an administrative subpoena or summons to request financial records, but they must have issued the notice to the individual unless there’s a delay authorized by the RFPA.
- Search Warrant: In criminal investigations, law enforcement can use a search warrant to obtain financial records. In such cases, prior notice to the individual is not required.
- Judicial Subpoena: In cases related to a pending judicial proceeding, a judicial subpoena can be used to obtain financial records. Again, the individual must be notified.
- Formal Written Request: For intelligence or counterintelligence purposes, including foreign intelligence, a formal written request can be made by a government authority to a financial institution. The individual’s notification is not a requirement in this scenario.
- Exceptions: There are situations in which access to financial records can be granted without prior notice or without the individual’s consent, such as emergencies, authorized intelligence activities, or instances where there are reasons to believe that notice might lead to evidence tampering, intimidation, or other interference with investigations.
- Certification of Compliance: Whenever a government authority accesses financial records under the RFPA, they must certify their compliance with the act. This ensures they are acting within the bounds of the law and helps hold them accountable.
Voluntary Disclosure by Financial Institutions
When a financial institution is the victim, they may voluntarily furnish an account holder’s financial records to investigators. An institution is considered a “victim” not only when it experiences a tangible financial loss due to a crime but also when there’s a potential for such loss. The case People v. Nosler illustrates a financial institution being a victim. This case involved Rodney Owens and Gerald E. Nosler transporting stolen cattle and using Owen’s Visa card to fuel trucks that his accomplice, Nosler, later utilized. When questioned, Owens claims his Visa card was “lost.” Because of the card’s lost status, his bank willingly handed over the credit card receipts to investigators which ended up being crucial evidence in the trial for grand theft. This lead to convictions for both men. In their appeal, Owens and Nosler argued that the receipts should be dismissed as evidence since the bank hadn’t endured a tangible loss and therefore wasn’t a “victim.” However, the court determined that a tangible loss wasn’t a prerequisite. The court held that Owen’s claim had the potential of placing financial responsibility on the bank.
Bad Checks:
In California, officers investigating bad check cases can contact the bank and request information. The financial institution will release some account information upon receipt of a written notice that states a crime report has been filed and the financial institutions checks were being used fraudulently. So, what kind of information can you get with a simple letter and a case number?
- Account opening and closing dates.
- Signature card.
- Surveillance and ATM images and videos showing the suspect using the victim’s account.
- The number and amount of dishonored items and items that created overdrafts.
- Overdrafts agreements.
- Dates, amounts, and balances of all deposits and debits.
Want to learn more about search warrants? Follow our blog series to learn more about how search warrants work, tips & tricks for writing great warrants, and insights on evidence that law enforcement can collect. There is a lot to learn, so rely on the experts at WarrantBuilder.com! Sign up for a free trial and learn why cops across the country trust Warrant Builder for fast, efficient, and complete search warrants.
