State v. Welch

• Decision Date: 30 October 1992
• Docket Number: No. 90-392,90-392
• Citation: 160 Vt. 70,624 A.2d 1105
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Judy D. WELCH.

Page 1105

624 A.2d 1105

160 Vt. 70

STATE of Vermont v. Judy D. WELCH.

No. 90-392.

Supreme Court of Vermont.

Oct. 30, 1992.

Motion for Reargument Denied Feb. 24, 1993.

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

E.M. Allen, Defender General, and Anna E. Saxman and William Nelson, Appellate Defenders, Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ. GIBSON, Justice.

Defendant Judy Welch appeals orders of the district court denying two motions to suppress evidence and two motions to dismiss. She was charged with concealing material facts in obtaining prescriptions for regulated drugs. 18 V.S.A. § 4223(a)(3) & (h). Defendant argues that her right to privacy was violated by a warrantless inspection of her prescription records at Rutland area pharmacies, that the investigation of her prescriptions for "doctor shopping" was tainted by confessions she made after signing an immunity agreement, and that she lacked the requisite mens rea for the alleged violations. We affirm.

I.

On October 5, 1988, Judy Welch was working as a nurse at the Rutland Correctional Center (RCC). She was relieved at 2:30 p.m. by nurse Nancy McDonald, but before leaving for the day Welch went to a neighborhood pharmacy to pick up a prescription of Vicodan for an inmate. This was unusual because the pharmacy routinely delivered prescriptions. Later that afternoon, McDonald discovered that the prescription contained ten Vicodan tablets instead of the twelve tablets indicated on the label, and that defendant's prescription-log entry showed that "10-12" tablets had been ordered. This, too, was unusual because prescriptions are normally ordered in a definite, not an approximate, amount. Checking with the pharmacy, McDonald confirmed that the prescription had contained twelve tablets. Later in the evening, Welch called McDonald at the correctional facility and asked if "everything was all right," an unusual call for her to make. McDonald reported these events, including the discrepancy in the pill count, to RCC Superintendent Michael O'Malley.

O'Malley, who knew that Welch had previously had a drug problem, met with her on October 7. At O'Malley's behest, Welch telephoned McDonald after the meeting and admitted that she had taken the two tablets. O'Malley took no further action regarding the incident. In March 1989, however, an employee of RCC wrote to the state's attorney alleging drug diversions from the RCC infirmary, and shortly thereafter, O'Malley received a letter from the state's attorney inquiring about "potential drug abuse" at RCC. O'Malley assigned Assistant Superintendent Stewart Robinson to investigate the matter.

On April 3, Robinson interviewed defendant as part of the internal RCC investigation. Defendant read and signed a so-called Garrity warning, see Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967), which informed her that any information or evidence she might provide could not be used against her in any criminal proceeding. She then admitted that she had taken the two Vicodan tablets from the prescription container in October. A summary of the internal RCC investigation was prepared on April 3.

As a result of the complaint to the state's attorney, Trooper Steven Brown of the Vermont State Police Drug Task Force began an independent criminal investigation. On or about March 24, 1989, he interviewed nurse McDonald, who related the events of October 5 and told him of defendant's admission that she had taken two Vicodan tablets. He also interviewed Robinson and O'Malley, who confirmed that defendant had admitted the Vicodan incident and had, in O'Malley's words, "fallen off the wagon." Brown already knew of defendant's previous drug problem. During the course of his investigation, Brown reviewed pharmacy files at the RCC, but did not examine personnel records or other files related to RCC's internal investigation. He attempted to interview defendant, but she refused and instead gave him a prepared statement that did not mention the October 1988 incident. After Brown concluded his investigation, the state's attorney decided not to bring criminal charges against defendant for diversion of the two Vicodan tablets.

Lt. Gary Boutin, one of Brown's supervisors, suggested a check of area pharmacies to see if defendant was "doctor shopping"--i.e., securing prescriptions for controlled substances from more than one practitioner. Brown called all the pharmacies in Rutland and obtained information on defendant's prescriptions from four of them. He discovered that some of the prescriptions overlapped. He went to the pharmacies, obtained the original prescriptions, and then visited the practitioners involved. Three of them signed statements to the effect that defendant had not told them about existing prescriptions, a fact that would have been material to a decision to prescribe medication for her. In these interviews, Brown saw no patient files and sought only to verify the prescription evidence he already had. On the basis of this investigation, the State charged defendant with four counts of concealing a material fact in obtaining regulated substances.

II.

Defendant first contends that Trooper Brown violated her rights under the Fourth Amendment to the United States Constitution and Chapter I, Article 11 of the Vermont Constitution when he inspected her pharmacy records without a warrant. Defendant argues that she has a legitimate expectation of privacy in her pharmacy records because they are medical records and society recognizes the confidentiality of medical records. The State contends that there is no legitimate expectation of privacy in prescription records that must be kept readily available, pursuant to Vermont law, for inspection by authorized officials. The trial court found that a privacy interest existed, but concluded that no search warrant was required because extensive federal and state regulatory schemes govern controlled substances and the records fell within the "pervasively regulated industry" exception to the warrant requirement. See New York v. Burger, 482 U.S. 691, 702, 107 S.Ct. 2636, 2643, 96 L.Ed.2d 601 (1987) (because owner of automobile junkyard, a closely regulated industry, has reduced expectation of privacy, Fourth Amendment standard of reasonableness for government search has lessened application). We discuss first whether defendant possesses a privacy interest in her pharmaceutical records.

A.

As we recently noted, the privacy right protected by both the Fourth Amendment ¹ and Article 11 ² is the right to be free from unreasonable government intrusions into legitimate expectations of privacy. State v. Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991). While this "core value," id., is the same under both the United States and Vermont Constitutions, our Article 11 jurisprudence has diverged from the United States Supreme Court's analysis of the Fourth Amendment. State v. Berard, 154 Vt. 306, 310, 576 A.2d 118, 120 (1990) (federal law "tends to derogate the central role of the judiciary in Article Eleven jurisprudence"); State v. Wood, 148 Vt. 479, 487, 536 A.2d 902, 907 (1987) (in focusing away from judicial review and curtailing scope of protected right to be free from unlawful governmental conduct, federal test is incompatible with Article 11).

Under the Fourth Amendment, an individual must demonstrate a legitimate expectation of privacy in the place searched or the items seized before the court will consider whether the search was unreasonable. Rakas v. Illinois, 439 U.S. 128, 143-44 n. 12, 99 S.Ct. 421, 430-31 n. 12, 58 L.Ed.2d 387 (1978). Defendant places particular emphasis on the Rakas criterion that the privacy interest must derive from "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. Defendant does not assert any property interest in the prescription records, but contends that prescription records are confidential medical records and that her legitimate expectation of privacy derives from society's recognition of the privacy of such records.

Defendant may not have standing to assert her Fourth Amendment claim, see Whalen v. Roe, 429 U.S. 589, 603-04, 97 S.Ct. 869, 878-79, 51 L.Ed.2d 64 (1977) (limited official access to prescription records for dangerous drugs does not implicate patient's privacy interests), but we need not decide that issue today. We reach the merits of defendant's claim under Article 11 of the Vermont Constitution and find our analysis would be the same under either the federal or state constitutions.

In deciding whether defendant has standing to assert her privacy claim under Article 11 of the Vermont Constitution, we look at the objective relationship of the person to the place searched or items seized, as opposed to a subjective evaluation of the legitimacy of the person's expectation of privacy. Wood, 148 Vt. at 489, 536 A.2d at 908; see also Kirchoff, 156 Vt. at 10, 587 A.2d at 994 (inquiry is objective--i.e., whether reasonable person should know occupant sought to exclude public). A defendant "need only assert a possessory, proprietary or participatory interest in the item seized or the area searched to establish standing to assert an Article Eleven challenge." Wood, 148 Vt. at 489, 536 A.2d at 908. Here, defendant can claim no possessory or proprietary interest in the pharmacies or their records, and the term "participatory interest" is not defined in our cases; however, the dictionary defines the word "participate" as follows: "To receive or have a part or share of; to partake of; experience in common with others...." Black's Law Dictionary 1118 (6th ed. 1990). The Supreme Court of New Jersey has defined "participatory" to "connote[ ] some involvement in the underlying...