State v. Sun

• Decision Date: 01 June 2011
• Docket Number: No. 4D10–3514.,4D10–3514.
• Citation: 82 So.3d 866
• Parties: STATE of Florida, Appellant, v. Jeffrey Singming SUN, Appellee.
• Court: Florida District Court of Appeals

82 So.3d 866

STATE of Florida, Appellant,

v.Jeffrey Singming SUN, Appellee.

No. 4D10–3514.

District Court of Appeal of Florida, Fourth District.

June 1, 2011.

Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant/cross-appellee.

Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellee/cross-appellant.

GROSS, C.J.

In this prosecution for doctor shopping, the trial judge suppressed the defendant's patient contracts and statements from his doctors, which a police officer obtained without a subpoena or warrant, and denied suppression of the defendant's pharmacy records, likewise obtained without a subpoena or warrant. ¹ The state appeals that part of the order concerning the medical records, and the defendant cross-appeals the court's ruling on the pharmacy records. We affirm the order in all respects.

I. FACTS

The facts are undisputed. A deputy arrested Jeffrey Sun's brother for driving under the influence. In the car, the deputy found a notebook. Seeing that the notebook contained information on different pharmacies and dollar amounts, the deputy suspected doctor shopping. This suspicion led him to turn the notebook over to Detective Eric Keith. Detective Keith inspected the notebook and started an investigation that brought him to a CVS pharmacy in Juno Beach. There, Detective Keith sought the brother's prescription history. The pharmacist helpfully pointed out that the brother had a twin, Sun, and gave Detective Keith patient profiles for both men. Visiting several other area pharmacies, Detective Keith obtained Sun's patient profile from each, all without a warrant or a subpoena.

The investigation shifted into its next phase. Detective Keith compared all of Sun's patient profiles to determine whether Sun had gotten the same or similar medications from two or more physicians within a thirty-day period. Sun had. Detective Keith proceeded to contact the three prescribing physicians. He asked each if they had a patient in their care with Sun's name and birth date, and each said yes. When asked, each doctor denied knowing Sun had been seeing other doctors who had been giving him the same or similar prescriptions. They provided written statements to that effect and handed over Sun's signed patient contracts. In his probable cause affidavit, Detective Keith noted “they did not disclose the nature of any of Sun's underlying health condition(s) that [necessitated] issuance of the prescriptions.” As with the pharmacy records, Detective Keith had neither a warrant nor a subpoena for these items.

The state charged Sun with oxycodone trafficking, contrary to subsection 893.135(1)(c)1.a., Florida Statutes (2009), and withholding information from a practitioner, which is prohibited by subsection 893.13(7)(a)8., Florida Statutes (2009). Subsection 893.13(7)(a)8. proscribes the withholding of information from a practitioner to obtain a prescription for a controlled substance, when the person has obtained the same or a similar prescription from another practitioner within the past thirty days. This practice is known as doctor-shopping.

Sun moved to suppress the pharmacy records, the patient contracts, and the doctors' statements. Sun offered three legal bases in support of the items' suppression. First, he argued Detective Keith violated section 456.057, Florida Statutes (2009), which provides for the confidentiality of medical records and information and sets forth those circumstances that allow law enforcement to obtain them. Second, he contended that Detective Keith's taking of the items violated his right to privacy under Article I, Section 23 of the Florida Constitution. Finally, Sun asserted the seizure was illegal under Article I, Section 12 of the Florida Constitution.

After a hearing, the trial judge granted Sun's motion as to the patient contracts and doctors' statements, but denied it as to the pharmacy records. Florida's constitutional right to privacy and statutory doctor-patient privilege protected the patient contracts and doctors' statements, and Detective Keith failed to follow the section 456.057 procedure to obtain them. Accordingly, the judge suppressed them. He ruled, however, that subsection 893.07(4), Florida Statutes (2009), empowered Detective Keith to obtain the pharmacy records without a warrant or subpoena, so he did not grant the motion to suppress those items.

II. THE STATE'S APPEAL

In challenging the suppression of Sun's patient contracts and doctors' statements, the state argues that Sun's right to privacy and doctor-patient privilege were reduced once Detective Keith discovered possible doctor shopping, a criminal act implicating the state's compelling interest in drug abuse prevention and control. The state's narrow focus on its interest in obtaining the items misses the point. This case is not about the state's interest in curbing drug abuse. Rather, it is about what the police can and cannot do in furthering that interest. We agree with the trial judge that Detective Keith wholly failed to follow the statutory procedure to obtain the items, and that suppression was the proper remedy.

A. The Relevant Law

Our analysis begins with Article I, Section 23 of the Florida Constitution, which in pertinent part provides: “Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.” This right to privacy is fundamental but not absolute. State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Thus, the right will yield to a compelling state interest, a requirement that is satisfied by an “ongoing criminal investigation ... when there is a clear connection between illegal activity and the person whose privacy has allegedly been invaded.” Id. The state constitutional right to privacy protects medical records. See id. (“A patient's medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution....”).

In addition to the constitutional right to privacy, section 456.057, Florida Statutes (2009), creates a broad doctor-patient privilege of confidentiality that protects both medical records and communications between a person and his doctor. See Acosta v. Richter, 671 So.2d 149, 15051, 154, 156 (Fla.1996) (contrasting the pre–1988 version of the statute that created “a limited statutory privilege of confidentiality for certain medical records” with the post–1988 version, similar in material respects to the current version, that created “a broad and express privilege of confidentiality as to the medical records and the medical condition of a patient” or, stated differently, “a physician-patient privilege of confidentiality for the patient's personal medical information”).

Section 456.057 also lays out the procedures a third party must follow to obtain the release of medical records and confidential information. Similar to the hospital records statute at issue in Johnson, section 456.057 represents a “legislative attempt to balance a patient's privacy rights against legitimate access to” the patient's medical information. Johnson, 814 So.2d at 393. The statute establishes procedural safeguards which, if followed, allow the state to obtain protected information without contravening the privacy protection of Article I, Section 23. See State v. Rutherford, 707 So.2d 1129, 1131–32 (Fla. 4th DCA 1997), disapproved on other grounds by Johnson, 814 So.2d 390.

Because Detective Keith did not follow the statutory procedures, there are only three real questions: (1) whether the patient contracts fall within the scope of the right to privacy in medical records; (2) whether the doctors' statements fall within the scope of the doctor-patient privilege; and, if so, (3) whether the trial judge properly suppressed the items. We answer all three in the affirmative.

B. The Patient Contracts

The first subsection relevant to the state's appeal is 456.057(7)(a), Florida Statutes (2009), which applies to medical records. In pertinent part, that subsection provides that

such [medical] records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:

....

3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records.

§ 456.057(7)(a). To obtain medical records, the statute requires law enforcement to obtain a subpoena after notice to the patient. See id.

The definition of medical records, and thus the scope of subsection (7)(a), is provided in the immediately preceding subsection: “reports and records relating to [a doctor's] examination or treatment [of the patient], including X rays and insurance information.” § 456.057(6); see also State v. Shukitis, 60 So.3d 406 at 407–408 (Fla. 2d DCA 2010) (looking to subsection (6) for the definition of subsection (7)(a)'s “such records”).

Appellate courts have faced similar issues of scope. In those cases, the trial courts did not consider the applicability of subsection 456.057(7)(a) to records and information obtained from physicians, so the appellate courts remanded with instructions to “make specific findings as to which portions of the physician information amounted to” medical records per subsection (6). Shukitis, 60 So.3d at 409. See also State v. Wright, 59 So.3d 263 (Fla. 4th DCA 2011) (same); Lamb v. State, 55 So.3d 751 (Fla. 2d DCA 2011) (same); State v. Herc, 67...