United States v. Bellosi-Mitchell, Case No.: RWT 10cr600

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtROGER W. TITUS
PartiesUNITED STATES OF AMERICA, v. GRACIE BELLOSI-MITCHELL
Docket NumberCase No.: RWT 10cr600
Decision Date05 September 2012

UNITED STATES OF AMERICA,
v.
GRACIE BELLOSI-MITCHELL

Case No.: RWT 10cr600

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: September 5, 2012


MEMORANDUM OPINION

Pending before the Court is Defendant Gracie Bellosi-Mitchell's Motion to Suppress Medical Records. As explained below, her motion will be denied because she did not have a reasonable expectation of privacy with respect to the records in question. Moreover, even assuming that she had a reasonable expectation of privacy, the warrantless search of her medical records was valid under the doctrine of consent.

I. Background

Bellosi-Mitchell operated a tanning salon called "Just Tan It" in a shopping center located at 10086 Southern Maryland Boulevard in Dunkirk, Maryland. On March 27, 2010, there was a fire at the shopping center. In the course of the investigation, Deputy Fire Marshal John A. Nelson received a call from James Nielson, a Home Depot Protection Specialist. Nielson told the Deputy Fire Marshal Nelson that store surveillance video captured the Bellosi-Mitchell and three other individuals purchasing materials that were used in the fire. As a result of this tip and other corroborating information, on March 29, 2010 and March 30, 2010 members of the Calvert County Sheriff's office obtained three search warrants for her home located on 12120

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Dunleigh Court. During the execution of these search warrants, law enforcement uncovered and seized large amounts of Schedule II narcotic drugs, including hydrocodone, oxycodone, methadone, amphetamine salts, as well as cash and unfilled prescriptions written by Dr. Ronald Hairston, who is now deceased.

In June 2010, after discovering the prescriptions written by Dr. Hairston in the Bellosi-Mitchell home, detectives with the Calvert County Sheriff's Office and agents with DEA began investigating whether Dr. Hairston issued prescription of controlled substances for no legitimate medical purpose. Law enforcement officials spoke with three sources that described Bellosi-Mitchell's history of obtaining prescriptions for controlled substances from Dr. Hairston, filling those prescriptions and selling the controlled substances to third-parties.

Based on this information, DEA Task Force Officer David Jacobs applied for and obtained a search and seizure warrant for Dr. Hairston's office located at 7306 Central Avenue in Capital Heights, Maryland from a United States Magistrate Judge. This warrant authorized the seizure of the records of patients that had been identified by investigators as patients for whom Dr. Hairston had prescribed large amounts of controlled substances. Gracie Bellosi-Mitchell does not appear to be one of the patients listed in the search warrant.

On September 8, 2010, federal agents executed the search warrant at Dr. Hairston's medical office. Pursuant to the warrant, agents seized, among other items, medical records specific to the patients listed in the search warrant attachment and materials related to Dr. Hairston's prescription of controlled substances. Dr. Hairston was present for the execution of the search warrant.

Dr. Hairston's wife, Barbara Hairston, arrived at the office during the execution of the search warrant and gave agents written consent to search the apartment that she shared with Dr.

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Hairston. She accompanied the agents to the apartment and opened the door for them with her key. At a previous suppression hearing, an agent described the layout of the apartment. The door opens to a living room/dining room. Behind the common space was the kitchen. A tiny hallway leads to a closet, bathroom and bedroom. The common room itself was in a state of disarray, which Mrs. Hairston attributed to the Hairstons' recent downsizing from a single-family home to an apartment. Stacks of tubs, boxes, file containers, paper bags, and papers littered the common room. An agent testified that Mrs. Hairston conversed with him and his colleagues during the search. For example, if the agent was looking at a stack of papers, she would tell him that those papers were tax papers or information on the house. According to the agent, Mrs. Hairston seemed familiar with the contents of the apartment.

One particular tub was located under an electronic piano/keyboard in the common room; the tub was covered with a green cloth, a metronome, kitchen spoons and ladles, and other items. The tub bore no labels or markings suggesting the nature or owner of its contents. Both parties agree that the tub was not locked. Agents opened the lid of the tub easily, exerting no force to do so. At no time did Mrs. Hairston object to the search of the tub. Inside, agents found Bellosi-Mitchell's medical file and the files belonging to 12 other patients. The agents could identify that the file belonged to Bellosi-Mitchell because the file tab was labeled. The agents did not then open Bellosi-Mitchell's medical file but stacked the file on the ottoman in the common area.

Two hours later, Dr. Hairston returned home. Bellosi-Mitchell's medical file had not been opened or moved from the ottoman. Dr. Hairston himself also provided both oral and written consent to search the apartment and seize Bellosi-Mitchell's medical files. The agents removed her file from the apartment, made a copy of the file for the prosecutor, and stored the original file in evidence.

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On September 29, 2010, Bellosi-Michell was indicted on one count of conspiracy to distribute and possess with intent to distribute controlled substances under 21 U.S.C. § 846 and one count of possession with intent to distribute controlled substances 21 U.S.C. § 841(a). On April 4, 2011, the Grand Jury returned a superseding indictment and on December 21, 2011, the Grand Jury returned a second superseding indictment. On, February 24, 2012, Bellosi-Mitchell filed a Motion to Suppress Medical Records. On June 21, 2012, the Court held a hearing on this motion.

II. Discussion

A. Bellosi-Mitchell's Motion to Suppress Medical Records will be denied because she did not have a reasonable expectation of privacy in these medical records

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A "Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33 (2001). In other words, a defendant enjoys the protections of the Fourth Amendment if she "has a legitimate expectation of privacy in the invaded place" or the item seized. Rakas v. Illinois, 439 U.S. 128, 143 (1978); see United States v. Rusher, 966 F.2d 868, 873-74 (4th Cir.1992). Because Bellosi-Mitchell had a subjective expectation of privacy with respect to her medical records, the first inquiry is whether her expectation of privacy was a reasonable one. In determining whether an individual has a privacy expectation that the law recognizes as reasonable, courts will look to some "source outside of the Fourth Amendment." Rakas v. Illinois, 439 U.S. 128, 143 n. 12. (1978)1

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1. The inquiry into whether an individual has a Fourth Amendment reasonable expectation of privacy in her medical records is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information to the government.

Before embarking on an analysis of the reasonableness of Bellosi-Mitchell's expectation of privacy in certain medical records, it is important to focus on the constitutional basis for the right asserted. The inquiry into whether an individual has a reasonable expectation of privacy in her medical records under the Fourth Amendment is distinct and separate from whether an individual has a Fourteenth Amendment privacy right against compelled disclosure of medical information. See Katz v. United States, 389 U.S. 347, 350-51 (1967) (Fourth Amendment privacy right "cannot be translated into a general constitutional right to privacy" under the Fourteenth Amendment). The Supreme Court emphasized this point in the seminal case of Whalen v. Roe, 429 U.S. 589 (1977). There, the Court addressed the question of whether a New York statute, which required prescriptions for drugs that had been classified "Schedule II" to be forwarded to the New York State Department of Health, invaded a constitutionally protected zone of privacy. Id. at 598. In holding that the New York statute was constitutional, the Court reasoned that, although the Fourth Amendment forbids government searches in areas where an individual has a reasonable expectation of privacy, the Fourth Amendment privacy interest was not at issue; rather, the only privacy right at issue was the Fourteenth Amendment's individual privacy right against compelled disclosure to the state. Id. at 604. n.32 Unlike the Fourth Amendment analysis where one either has or does not have a reasonable expectation of privacy in the places searched during a criminal investigation, the Fourteenth Amendment analysis

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involves a balancing test in which courts weigh the individual's privacy interest against the rationale underlying the compelled disclosure of information to...

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