State v. Russo, 16430

CourtSupreme Court of Connecticut
Writing for the CourtMaynard
Citation790 A.2d 1132
PartiesSTATE OF CONNECTICUT v. NICHOLAS RUSSO16430 THE SUPREME COURT OF THE STATE OF CONNECTICUT
Decision Date19 February 2002
Docket Number16430

STATE OF CONNECTICUT
v.
NICHOLAS RUSSO

No. SC 16430

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued May 31, 2001
February 19, 2002

Counsel Kevin T. Kane, state's attorney, for the appellant (state). James S. Brewer, with whom were John T. Forrest and, on the brief, Matthew Allen, certified legal intern, for the appellee (defendant). Alinor C. Sterling and Philip D. Tegeler filed a brief for the Connecticut Civil Liberties Union Foundation et al. as amici curiae.

Sullivan, C. J., and Katz, Palmer, Vertefeuille and Zarella, Js.

Palmer, J.

Opinion

The state, with the permission of the trial court, appeals from the judgment of that court dismissing an information charging the defendant, Nicholas Russo, with multiple counts each of the crimes of forgery in the second degree in violation of General Statutes § 53a-139 (a) (4), (FN1) and obtaining a controlled substance (FN2) by forging a prescription in violation of General Statutes § 21a-266 (a) (2). (FN3) The state claims that the trial court improperly granted the defendant's motion to suppress certain records of the defendant's prescriptions that the state had obtained from several pharmacies without a search warrant and without the defendant's consent. We agree with the state that the trial court improperly granted the defendant's motion to suppress the defendant's prescription records and, accordingly, reverse the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The state filed an information charging the defendant with thirty-two counts of obtaining Tylenol with codeine No. 3 (Tylenol 3), a controlled substance, (FN4) by forging a prescription in violation of § 21a-266 (a) (2), and thirty-two counts of forgery in the second degree in violation of § 53a-139 (a) (4). (FN5) The defendant moved to suppress certain records of his prescriptions that the state had obtained from several pharmacies without a warrant and without the defendant's prior consent. The defendant's motion to suppress was predicated on his contention that he has a reasonable expectation of privacy in his prescription records and, therefore, that the state had obtained those records in violation of his rights under the fourth amendment to the United States constitution, (FN6) made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

The trial court conducted a preliminary hearing on the defendant's motion to suppress, limited to the issue of whether the defendant had standing to seek the suppression of prescription records in the possession of a pharmacy. After that hearing, the court issued a written decision in which it concluded that the defendant had a constitutionally protected privacy interest in those records and, consequently, that he had standing to challenge the state's use of such records in its case-in-chief. (FN7)

Thereafter, the trial court held an evidentiary hearing on the defendant's motion to suppress. At the conclusion of the hearing, the trial court made the following factual findings. (FN8) At all times relevant to this case, the defendant was a detective with the Hartford police department. The defendant's supervisor, Lieutenant David Kenary, was the commander of the Hartford police department's crimes against persons and property unit. Marcus Brown was a diversion investigator with the federal Drug Enforcement Administration, assigned to conduct regulatory inspections of pharmacies.

On or about September 9, 1997, Kenary called Brown to arrange a meeting at the Hartford police department. The purported purpose of the meeting was to exchange information about Santo Buccheri, a Hartford physician, and his issuance of prescriptions for controlled substances. At the meeting, Kenary informed Brown that he believed that Buccheri was overprescribing controlled substances and dispensing samples to his patients without maintaining proper records. Kenary asked Brown to notify him if the defendant's name surfaced during any investigation of Buccheri and provided Brown with the defendant's date of birth and home address.

Beginning on October 31, 1997, Brown went to pharmacies located in the vicinity of both Buccheri's office and the defendant's home and, without a search warrant, asked each of the pharmacies to provide him with the defendant's prescription records. (FN9) The records contained information about prescriptions that each pharmacy had filled for the defendant, including the name of the prescribing physician, the date on which the defendant had submitted the prescription to the pharmacy, the type and quantity of drug prescribed and the price of the drug. (FN10) The pharmacies complied with Brown's requests. (FN11) Brown later returned to each pharmacy and, again by request, obtained copies of the actual prescription forms that the defendant had presented to the pharmacies. (FN12)

The trial court noted that, although Brown's testimony suggested that his purpose in obtaining the defendant's pharmacy records was to rule out the defendant as a target of the investigation, other evidence presented at the hearing indicated that the defendant was the focus of the investigation. Specifically, the trial court alluded to a report prepared by Brown on November 19, 1997, that identified the defendant as the target of Brown's investigation. The court also noted that, prior to preparing that report, Brown had not requested records of Buccheri's prescribing practices but, instead, had requested only the defendant's prescription records. The trial court found that the purpose of Brown's investigation was to determine whether the defendant had been abusing controlled substances, and that Buccheri was under investigation only because he was the defendant's physician. Accordingly, the trial court determined that Brown was not conducting an administrative inspection of the pharmacy pursuant to 21 U.S.C. § 880 (FN13) when he obtained the defendant's prescription records but, rather, was acting in pursuance of a criminal investigation of the defendant in cooperation with the Hartford police department.

The trial court further concluded that, inasmuch as Brown's conduct in obtaining the defendant's prescription records constituted a search in the course of a criminal investigation, Brown was required to obtain either a search warrant or the defendant's prior consent. Because Brown had obtained neither, the court granted the defendant's motion to suppress.

Thereafter, the trial court granted the state's motion to dismiss the information for lack of sufficient evidence. The trial court also granted the state's motion for permission to appeal. See General Statutes § 54-96. (FN14) This appeal followed. (FN15)

On appeal, the state does not challenge the trial court's findings of fact. (FN16) Rather, the state contests the legal conclusions rendered by the trial court on the basis of those factual findings. In particular, the state claims that Brown legally obtained the defendant's prescription records without a warrant or the defendant's consent, upon the consent of the pharmacists who voluntarily turned those records over to Brown. The state further claims that the defendant's fourth amendment rights were not violated when Brown, acting as a criminal investigator in concert with the Hartford police, requested and received those prescription records without a search warrant or the defendant's consent. Although we acknowledge that, in general, the defendant has a constitutionally protected privacy interest in his prescription records, we nevertheless conclude that his privacy rights were not violated in this particular case.

I.

We first address the issue of whether Brown, acting in conjunction with the Hartford police, had statutory authority to obtain records of the defendant's prescriptions for controlled substances in connection with the criminal investigation of the defendant. (FN17) Specifically, the state claims that a law enforcement official legally may obtain records of prescriptions for controlled substances from a pharmacist upon that pharmacist's consent, without a warrant and without the consent of the person for whom the prescription has been issued. The defendant, in contrast, maintains that law enforcement personnel are not vested with the authority to review prescription records without a warrant. We agree with the state.

The state's claim raises an issue of statutory construction over which our review is plenary. E.g., Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998). ''Our resolution of [this claim] is governed by well established principles. [I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.'' (Internal quotation marks omitted.) Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001).

General Statutes § 21a-265 (FN18) provides in relevant part that ''[p]rescriptions . . . shall be open for inspection only to federal, state, county and municipal officers, whose duty it is to enforce the laws of this state or of the United States relating to controlled substances, and to third party payors having a formal agreement or contract to audit such prescriptions . . . in connection with claims submitted to such payors. . . .'' General Statutes § 21a-265 further provides that ''[n]o such officer or third party payor having knowledge by virtue of his office of any such...

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41 practice notes
  • People v. Gonzales, No. S191240.
    • United States
    • United States State Supreme Court (California)
    • March 18, 2013
    ...(9th Cir.2007) 505 F.3d 922, 930, fn. 11;Caesar v. Mountanos (9th Cir.1976) 542 F.2d 1064, 1067–1068;State v. Russo (2002) 259 Conn. 436, 790 A.2d 1132, 1147–1150;McMaster v. Iowa Bd. of Psychology Examiners (Iowa 1993) 509 N.W.2d 754, 758–759;Alpha Medical Clinic v. Anderson (2006) 280 Kan......
  • People v. Gonzales, No. S191240.
    • United States
    • United States State Supreme Court (California)
    • March 18, 2013
    ...(9th Cir.2007) 505 F.3d 922, 930, fn. 11;Caesar v. Mountanos (9th Cir.1976) 542 F.2d 1064, 1067–1068;State v. Russo (2002) 259 Conn. 436, 790 A.2d 1132, 1147–1150;McMaster v. Iowa Bd. of Psychology Examiners (Iowa 1993) 509 N.W.2d 754, 758–759;Alpha Medical Clinic v. Anderson (2006) 280 Kan......
  • State v. Lutters, (SC 16982).
    • United States
    • Supreme Court of Connecticut
    • July 20, 2004
    ...taxicabs from the provisions of § 29-38, it easily could have expressed such an intent. See, e.g., State v. Russo, 259 Conn. 436, 450, 790 A.2d 1132 (if legislature had intended to limit access by law enforcement personnel to records of prescriptions for controlled substances, it easily cou......
  • State v. Legrand, AC 30577
    • United States
    • Appellate Court of Connecticut
    • June 7, 2011
    ...Cir. 2000). Our Supreme Court has concluded that a privacy interest exists in prescription records. State v. Russo, 259 Conn. 436, 460, 790 A.2d 1132, cert. denied, 537 U.S. 879,123 S. Ct. 79,154 L. Ed. 2d 134 (2002). 6. See, e.g., State v. Kalphat, 285 Conn. 367, 374-75, 939 A.2d 1165 (200......
  • Request a trial to view additional results
41 cases
  • People v. Gonzales, No. S191240.
    • United States
    • United States State Supreme Court (California)
    • March 18, 2013
    ...(9th Cir.2007) 505 F.3d 922, 930, fn. 11;Caesar v. Mountanos (9th Cir.1976) 542 F.2d 1064, 1067–1068;State v. Russo (2002) 259 Conn. 436, 790 A.2d 1132, 1147–1150;McMaster v. Iowa Bd. of Psychology Examiners (Iowa 1993) 509 N.W.2d 754, 758–759;Alpha Medical Clinic v. Anderson (2006) 280 Kan......
  • People v. Gonzales, No. S191240.
    • United States
    • United States State Supreme Court (California)
    • March 18, 2013
    ...(9th Cir.2007) 505 F.3d 922, 930, fn. 11;Caesar v. Mountanos (9th Cir.1976) 542 F.2d 1064, 1067–1068;State v. Russo (2002) 259 Conn. 436, 790 A.2d 1132, 1147–1150;McMaster v. Iowa Bd. of Psychology Examiners (Iowa 1993) 509 N.W.2d 754, 758–759;Alpha Medical Clinic v. Anderson (2006) 280 Kan......
  • State v. Lutters, (SC 16982).
    • United States
    • Supreme Court of Connecticut
    • July 20, 2004
    ...taxicabs from the provisions of § 29-38, it easily could have expressed such an intent. See, e.g., State v. Russo, 259 Conn. 436, 450, 790 A.2d 1132 (if legislature had intended to limit access by law enforcement personnel to records of prescriptions for controlled substances, it easily cou......
  • State v. Legrand, AC 30577
    • United States
    • Appellate Court of Connecticut
    • June 7, 2011
    ...Cir. 2000). Our Supreme Court has concluded that a privacy interest exists in prescription records. State v. Russo, 259 Conn. 436, 460, 790 A.2d 1132, cert. denied, 537 U.S. 879,123 S. Ct. 79,154 L. Ed. 2d 134 (2002). 6. See, e.g., State v. Kalphat, 285 Conn. 367, 374-75, 939 A.2d 1165 (200......
  • Request a trial to view additional results

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