State v. Wiedeman
| Citation | 286 Neb. 193,835 N.W.2d 698 |
| Decision Date | 12 July 2013 |
| Docket Number | No. S–11–888,S–11–888 |
| Parties | State of Nebraska, Appellee, v. Kimberly D. Wiedeman, Appellant. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge. Affirmed.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
[286 Neb. 193]1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
3. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.
4. Constitutional Law: Due Process. The Due Process Clause of the 14th Amendment contains a substantive component that provides at least some protection to a person's right of privacy.
5. Constitutional Law: Due Process. The substantive component of the 14th Amendment protects (1) the individual interest in avoiding disclosure of personal matters and (2) the interest of independence in making certain kinds of important decisions.
6. Controlled Substances: Health Care Providers: Statutes. The State has broad police powers in regulating the administration of drugs by the health professions.
[286 Neb. 194]7. Constitutional Law: Controlled Substances: Records. Patients' substantive 14th Amendment privacy interests in prescription records are limited to the right not to have the information disclosed to the general public.
8. Constitutional Law: Controlled Substances: Public Health and Welfare: Records. A legitimate request for prescription information or records by a public official responsible for safeguarding public health and safety, subject to safeguards against further dissemination of those records, does not impermissibly invade any 14th Amendment right to privacy.
9. Constitutional Law: Search and Seizure: Words and Phrases. A “search” under the Fourth Amendment occurs whenever an expectation of privacy that society is prepared to consider reasonable is infringed.
10. Constitutional Law: Search and Seizure: Words and Phrases. A reasonable expectation of privacy is an expectation that has 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.
11. Constitutional Law: Search and Seizure. The “persons, houses, papers, and effects” listed in the Fourth Amendment as protected objects remain central to understanding the scope of what the amendment protects.
12. Controlled Substances: Health Care Providers: Statutes. A reasonable patient buying narcotic prescription drugs knows or should know that the State, which outlaws the distribution and use of such drugs without a prescription, will keep careful watch over the flow of such drugs from pharmacies to patients.
13. Constitutional Law. There is no reasonable expectation of privacy in personal information a defendant knowingly exposes to third parties.
14. Controlled Substances: Health Care Providers. An investigatory inquiry into prescription records in the possession of a pharmacy is not a search pertaining to the pharmacy patient.
15. Controlled Substances: Records. A patient who has given his or her prescription to a pharmacy in order to fill it has no legitimate expectation that governmental inquiries will not occur.
16. Criminal Law: Records. Issuance of a subpoena to a third party to obtain records does not violate the rights of a defendant about whom the records pertain, even if a criminal prosecution is contemplated at the time the subpoena is issued.
17. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a totality of the circumstances test. The question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause.
Kimberly D. Wiedeman was charged and convicted of 10 counts of acquiring a controlled substance by fraud. The controlled substances were obtained pursuant to prescriptions written for chronic pain issues, but Wiedeman did not inform her medical providers that she was being prescribed similar medications elsewhere. Wiedeman argues that the fraudulent act was the singular failure to disclose to the other medical providers and that she should not be charged with multiple counts based on multiple prescriptions from the same doctor. Wiedeman also argues that her medical and prescription records were obtained in violation of her constitutional rights.
Wiedeman was charged with 10 counts of acquiring a controlled substance by fraud, in violation of Neb.Rev.Stat. § 28–418 (Reissue 2008), a Class IV felony. Wiedeman was charged with violating § 28–418 on or about April 1, 2010 (count I), April 14 (count II), May 3 (count III), May 24 (count IV), June 1 (count V), June 13 (count VI), June 21 (count VII), July 19 (count VIII), August 9 (count IX), and August 23 (count X).
Before trial, defense counsel made a plea in abatement, arguing that it was improper for the State to charge Wiedeman with 10 different counts of acquiring a controlled substance by fraud when there were merely 10 times Wiedeman filled prescriptions obtained through a single act of alleged deceit. The court overruled the motion.
Defense counsel next filed a motion to suppress Wiedeman's prescription records, because “[t]he search of [Wiedeman's] records was done without a warrant and was in violation of [Wiedeman's] rights under the Fourth and Fourteenth Amendments to the United States Constitution; Sects. 1, 3, and 7 of the Bill of Rights to the Nebraska Constitution.” The Scotts Bluff County Attorney had obtained Wiedeman's pharmacy records after issuing subpoenas to the various pharmacies in Scotts Bluff County pursuant to Neb.Rev.Stat. § 86–2,112 (Reissue 2008).
At the hearing on the motion to suppress, the prosecution offered exhibit 2, which was a copy of its subpoena to the pharmacy at Walgreens. No other subpoena was offered into evidence. Defense counsel admitted during the hearing that the prosecution had provided him with copies of three or four other subpoenas for three or four other pharmacies, and the investigator testified that all the subpoenas were identical. Nevertheless, defense counsel argued that the prescription records should be suppressed not only because any search is presumptively unreasonable without a warrant, but also because there was only one subpoena in evidence.
Defense counsel also moved to suppress the medical records and all physical evidence seized during a search of Wiedeman, her home, and her vehicle, arguing that the warrants for those searches were invalid.
The trial court denied the motion to suppress. The court explained that § 86–2,112 and Neb.Rev.Stat. § 28–414 (Cum.Supp.2010) provided for the investigation of prescription records without a warrant. The court found that the warrants for medical records and other items seized were supported with probable cause and that the places to be searched and things to be seized were described with particularity. The case went to trial.
At trial, the evidence against Wiedeman consisted primarily of the prescription records and the testimony and records of her medical providers.
Wiedeman suffered from chronic pain associated with rheumatoid arthritis and spinal fusions performed in 2004 and [286 Neb. 197]2009. In August 2009, Wiedeman saw neurologist Dr. Betty Ball for her neck issues. Wiedeman continued to see Ball until August 2010.
Separately, beginning sometime in 2009 and continuing until July 2010, Wiedeman was a patient of nurse practitioner Cheryl Laux at the Chimney Rock Medical Center in Bayard, Nebraska (Chimney Rock). On January 12, 2009, Wiedeman signed a pain contract with Chimney Rock, apparently in conjunction with pain management issues resulting from her 2009 spinal fusion surgery. In the contract, Wiedeman agreed to receive opioid medication only from Chimney Rock and not from any other source. Wiedeman further agreed to fill her prescriptions for opioid medications at only one pharmacy of her choosing, not at multiple pharmacies. Laux testified that she did not know Wiedeman had any other medical providers.
During this period, Wiedeman also went to Quick Care Medical Services from time to time. There, she saw nurse practitioner Jodene Burkhart and also, as can be surmised from the record, a “Dr. Harkins.” In December 2009, Burkhart ran blood tests that indicated Wiedeman had rheumatoid arthritis. Burkhart prescribed hydrocodone and...
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