Rush Limbaugh v. State of Florida, Text of appellate decision

4th District Court, West Palm Beach, Florida ^ | Oct 6 2004

[george wythe]

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 2004

RUSH LIMBAUGH,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

__________________

CASE NO. 4D03-4973

__________________

Opinion filed October 6, 2004

Petition for writ of certiorari to the Circuit Court

for the Fifteenth Judicial Circuit, Palm Beach

County;

Jeffrey A. Winikoff, Judge;

L.T. Case No. 502003CA013316XXOCAN.

Roy Black, Jackie Perczek and Christine Ng of

Black, Srebnick, Kornspan & Stumpf, P.A.,

Miami, for petitioner.

Barry Krischer, State Attorney for the Fifteenth

Circuit, and James L. Martz, Assistant State

Attorney, West Palm Beach, for respondent.

Mary E. Baluss, Washington, D.C., and Brian

A. Kahan of Kahan & Associates, P.L., Boca

Raton, for Amici Curiae National Foundation for

the Treatment of Pain, and Florida Pain Initiative.

Jon May of May & Cohen, P.A., Fort

Lauderdale, Randall C. Marshall of ACLU

Foundation of Florida, Inc., Miami, Professor

Michael Masinter, Nova Southeastern University,

Fort Lauderdale, and Robert C. Buschel of

Buschel, Carter, Schwartzreich & Yates, Fort

Lauderdale, Amicus Curiae American Civil

Liberties Union of Florida, Inc.

Nancy W. Gregoire of Bunnell, Woulfe,

Kirschbaum, Keller, McIntyre & Gregoire, P.A.,

Fort Lauderdale, and Andrew Schlafly, AAPS

General Counsel, New York, New York, for

Amicus Curiae The Association of Americ an

Physicians & Surgeons, Inc.

FARMER, C.J.

In this petition for certiorari, we are asked to

decide whether the authority of the State to seize

medical records in a criminal investigation by

search warrant is limited by a patient’s right of

privacy. We conclude that the State’s authority to

seize such records by a validly issued search

warrant is not affected by any right of privacy in

such records.

The background may be briefly sketched.

Police received statements from two individuals

that they had sold petitioner "large quantities" of

Hydrocodone and Oxycontin "over the course of

many years." Acting on this information, police

obtained a list of petitioner’s prescriptions from a

local pharmacy. These records are described as

showing that petitioner had obtained prescriptions

for controlled substances from four different

physicians within a five-month period. Police then

began investigating whether petitioner should be

charged with violating the "doctor shopping"

statute.1

Police prepared an affidavit and obtained search

warrants. See § 933.07(1), Fla. Stat. (2003). The

warrants described the items to be seized as:

"[R]ecords specifically and only pertaining to

[petitioner] including the medical records,

medical questionnaire, cash receipts, sections of

appointment book pertaining to [petitioner],

canceled checks, medical insurance forms

__

1 See § 893.13(7)(a)8, Fla. Stat. (2003) ("It is unlawful

for any person ... [t]o withhold information from a

practitioner from whom the person seeks to obtain a

controlled substance or a prescription for a controlled

substance that the person making the request has

received a controlled substance or a prescription for a

controlled substance of like therapeutic use from

another practitioner within the previous 30 days."

[e.s.]).__

 

submitted or prepared to be submitted to

insurance companies, computerized records

related to the ordering of narcotics, DEA

prescriptions numbers and forms, records of

dispersing or issuing prescriptions for controlled

substances, written and or computerized

pertaining only to [petitioner]."

In keeping with the actual text of the warrant

application, we read the warrants as seeking only

those medical records "related to the ordering of

narcotics, DEA prescriptions numbers and forms,

records of dispersing or issuing prescriptions for

controlled substances, written and or computerized

pertaining only to [petitioner]." A Judge issued

the warrants after review of the affidavit. These

warrants were directed to the offices of three

physicians and a clinic (providers) from which

petitioner had received medical care and services,

including prescriptions.

According to petitioner, in producing the records

none of the providers made any distinction as to

which of their records pertained to prescriptions

and which did not. In response to the warrants, all

of the providers simply turned over to the police all

of petitioner’s medical records in their possession.

After police received the records, they placed

them under seal, and the State Attorney sent the

following notice to petitioner:

"The State is presently investigating a possible

violation of Florida State Statute 893.13 against

your client [petitioner]. Pursuant to Florida

State Statute 395.3025(4)(d) and F.S.S. 933, the

State has seized thru a lawfully obtained search

warrant the medical records and/or files of your

client.... This was done November 25, 2003.

"This letter will serve as notice to you, as

council [sic] for [petitioner] that 10 days from

the date of the same, the State will move to

unseal those medical records and/or files which

were seized on November 25, 2003, and sealed

without viewing any of the contents in the

presence of the administrator or doctor pending

your opportunity to be heard on your clients right

[sic] privacy issues, in reference to the ongoing

investigation.

"This letter constitutes proper notice as

contemplated by Florida State Statute

395.3025(4)(d).

"Any legal objection to this action must be

submitted in writing to the undersigned prior to

the expiration of the ten day period."

Petitioner’s attorney responded by invoking all of

his rights. He objected to the seizure and any

review of the medical records. He specifically

referred to a claimed right of privacy in personal

medical affairs. Although no criminal charges had

yet been filed against petitioner, he demanded that

the matter be set for hearing before a Judge.

Petitioner then filed a petition for certiorari in the

circuit court, praying that the court quash the

search warrants and bar the State from again

seizing his medical records on account of what he

described as bad faith in seeking the warrants

without prior notice to him. Ultimately a hearing

was held before a Circuit Judge. Although the

Judge received extensive oral argument from

petitioner’s counsel, he refused to accept evidence

and also denied a request for leave to file a written

memorandum after the hearing. The court denied

all relief. Petitioner then filed an appeal to this

court, which we have treated as a petition for

certiorari to review the decision of the circuit

court.

Because the circuit court’s jurisdiction of this

case arose from a petition for certiorari, and our

review here has been based not by appeal of right

but only by certiorari, we briefly explain our

jurisdiction. In this kind of second tier review, our

jurisdiction is quite limited. See Combs v. State,

436 So. 2d 93 (Fla. 1983) (in second tier review,

district courts should not be as concerned with

mere existence of legal error as much as with

seriousness of error and should be allowed a large

degree of discretion so that they may judge each

case individually); Haines City Community Dev.

v. Heggs, 658 So. 2d 523 (Fla. 1995) (standard of

review for certiorari in district court in reviewing

order of circuit court acting in its review capacity

is whether circuit court afforded procedural due

process and whether circuit court applied correct

(2)

law, which is synonymous with observing essential

requirements of law); Ivey v. Allstate Ins. Co.,

774 So. 2d 679 (Fla. 2000) (cautioning district

courts to be prudent and deliberate when deciding

to exercise second tier review, but not so wary as

to deprive litigants and the public of essential

justice).

Petitioner contends that his constitutional right of

privacy has been violated as a result of the

issuance of the search warrants without any prior

notice to him and an adversarial hearing to

determine whether such warrants should have

been issued. He argues that unless this court

reviews the decision, his right of privacy will be

lost without any appellate court ever considering

the matter until the damage had long since been

done. Owing to the nature of the right asserted,

and the absence of any pending case against

petitioner in which he might raise the issue, we

deem the nature and context of the right asserted

important enough to exercise our discretion in

favor of review at this point. We deem it

necessary to consider the underlying issue, namely

whether Florida law recognizes a right of privacy

in medical records that would limit the State’s use

of search warrants in regard to medical records in

a criminal investigation.

Petitioner’s primary argument is that this court

should recognize a general rule that the State may

not use search warrants to avoid a constitutional

right of privacy in medical records. He asks us to

hold that search warrants for medical records are

subject to a right of privacy in the Florida

Constitution. The provision he relies on says that

"[e]very 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." Art. I, § 23, Fla. Const. (1980)

(privacy amendment).

From its general text, one might have thought

that article I, section 23, did have the effect of

restricting the government’s power to seize

personal medical records, even under the separate

constitutional article relating to searches and

seizures. See Art. I, § 12, Fla. Const. ("The right

of the people to be secure in their persons, houses,

papers and effects against unreasonable searches

and seizures, and against the unreasonable

interception of private communications by any

means, shall not be violated. No warrant shall be

issued except upon probable cause, supported by

affidavit, particularly describing the place or places

to be searched, the ... things to be seized ... and

the nature of evidence to be obtained."). Because

article I, section 23, lacks any stated authority to

seize personal medical records merely because

they are relevant, one might have supposed they

would be immune even from search warrants.2

Moreover, because the United States Constitution

has been interpreted to exclude any right of

privacy in search and seizure cases under the

Fourth Amendment,3 one might also suppose that

__

2 Cf. John Sanchez, Constitutional Privacy in

Florida: Between the Idea and the Reality Falls the

Shadow, 18 NOVA L. REV. 775 (1994) (arguing that

Florida courts have given article I, section 23, only

grudging effect); Rasmussen v. S. Fla. Blood Serv . Inc.,

500 So. 2d 533 (Fla. 1987) (privacy interests of blood

donors defeated AIDS victim’s claim to subpoena

names and addresses of blood donors who may have

contributed the tainted blood); Atwell v. Sacred Heart

Hosp., 520 So. 2d 30 (Fla. 1988) (natural child who was

not formally adopted by family that raised him entitled

t o access to hospital record of his birth even though

name of birth mother therein revealed).

3 See U.S. Const., Amend. iv ("The right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.");

Katz v. United States, 389 U.S. 347, 350-51 (1967)

("[T]he Fourth Amendment cannot be translated into a

general constitutional ‘right to privacy.’ That

Amendment protects individual privacy against certain

kinds of governmental intrusion, but its protections go

further, and often have nothing to do with privacy at

all. Other provisions of the Constitution protect

personal privacy from other forms of governmental

invasion. But the protection of a person’s general right

to privacy — his right to be let alone by other people

— is, like the protection of his property and of his very

life, left largely to the law of the individual States."). __

(3)

the addition of a separate right of privacy to the

Florida Constitution inaugurated specific privacy

protection as to issues arising under article I,

section 12.4 These intuitions are not the law,

however.

In 1982, the voters of Florida amended article I,

section 12, on searches and seizures to conform its

interpretation to the United States Supreme

Court’s construction of the comparable provision

in the Fourth Amendment.5 This "conformity

amendment" had been proposed by the Florida

Legislature to reverse the Florida Supreme

Court’s construction of article I, section 12, which

among other things had refused to recognize a

good faith exception to the warrant requirement

that the United States Supreme Court had found in

the Fourth Amendment.6

Since then the Florida Supreme Court has made

clear that, as a result of the conformity

amendment, the right of privacy in article I, section

23, has no application to searches and seizures

complying with artic le I, section 12. In State v.

Hume, 512 So. 2d 185 (Fla. 1987), the court said:

"right-of-privacy provision, article I, section 23,

of the Florida Constitution, does not modify the

applicability of article I, section 12, particularly

since the people adopted section 23 prior to the

present section 12."

512 So. 2d at 188. One year later, the court said

that it had "rejected the contention that our

 

__

4 In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989)

("Since the people of this state exercised their

prerogative and enacted an amendment to the Florida

Constitution which expressly and succinctly provides

for a strong right of privacy not found in the United

States Constitution, it can only be concluded that the

right is much broader in scope than that of the Federal

Constitution.").

5 See Art. I,§ 12, Fla. Const. (1982) (adding the

following: "This right shall be construed in conformity

with the 4th Amendment to the United States

Constitution, as interpreted by the United States

Supreme Court.").

6 See House Joint Resolution No. 31-H (June 24,

1982).

__

 

right-of-privacy provision under article I, section

23, of the Florida Constitution prohibited the

introduction of [defendant’s conversation in his

home with an undercover police officer]."

Madsen v. State, 521 So. 2d 110, 110 (Fla. 1988).

In State v. Hester, 618 So. 2d 1365 (Fla. 1993),

the court restated that "our right of privacy

provision, article I, section 23, does not modify the

applicability of article I, section 12, particularly

since section 23 was adopted prior to the present

section 12." 618 So. 2d at 1366; see also State v.

Jimeno, 588 So. 2d 233 (Fla. 1991) (same).

Because the privacy amendment came before the

conformity amendment, the privacy amendment

does not apply to cases to which article I, section

12, is applicable. Logically, therefore, any statutes

enacted after the adoption of the conformity

amendment could have no different application in

the context of search and seizure than article I,

section 23, itself does.

Nevertheless, petitioner reads a right of privacy

restriction into the State’s power to seize medical

records by search warrant. He implicitly

acknowledges that search warrants are designed

to seize relevant evidence upon a showing of

probable cause under article I, section 12.

Notwithstanding that recognition, however, he

concludes that search warrants are not sufficient

to protect his privacy interests in items protected

by the constitution.

Petitioner also relies on Florida’s medical

records subpoena statutes in arguing that he was

entitled to notice and a hearing before the State

could seize and review his medical records.7 One

__

7 See § 395.3025(4)(d), Fla. St at. (2003) ("Patient

records are confidential and must not be disclosed

without the consent of the person to whom they

pertain, but appropriate disclosure may be made

without such consent to . . . [i]n 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 by the party seeking

such records to the patient or his or her legal

representative."); § 456.057(5)(a)3, Fla. Stat. (2003)

("Except as otherwise provided in this section and in s.

440.13(4)(c), such records may not be furnished to, and

__

(4)

statute, found in chapter 395, deals with the 

regulation of hospitals. The other, found in

chapter 456, generally regulates all health care

providers other than hospitals. Both statutes were

originally passed at the same time in a different

form. See Ch. 83-108, Laws of Fla. (introducing

notice requirement for issuance of subpoenas for

medical records). It is important to note that the

Legislature enacted these statutes one year after

the conformity amendment was adopted.

Although these are separate statutes, their text

is identical in substance. First, they require health

c are providers to recognize a right of privacy in

medical records. Second, they establish that

outsiders may not subpoena such records from

medical providers without prior notice to the

patient. It is true that the subpoena provision is a

subdivision of the two statutes and that they are

not labeled as subpoena statutes. We also

recognize that the primary thrust of these two

statutes is to require health care providers to

recognize their patient’s right of privacy in the

records they create and maintain. Yet, for

purposes of this case, the operative effect of the

statutes really lies only in the subdivisions limiting

the use of subpoenas for medical records.8

We do not believe the Legislature’s purpose in

enacting these subpoena statutes had anything to

do with search warrants, a term that appears

 

__

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 . . . [i]n 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."). [hereinafter referred to as

subpoena statutes]

8 And so, when we refer to the medical records

subpoena statutes, or just the subpoena statutes, we

refer only to the subdivisions dealing with subpoenas

of medical records.

 

__

nowhere within either of them. Their rather

limited purpose was to correct a practice in the

use of subpoenas for medical records in both civil

and criminal cases by private and governmental

lawyers. Before these statutes were adopted,

subpoenas for discovery and trial were readily

obtainable by any attorney without judicial

supervision. The attorney could serve a subpoena

without any prior notice or permission. Usually

the records were not in the possession of the

patient, who might not even be a formal party in

the case. Private medical records of this kind are

usually kept by third party providers of medical

services.

Under this old procedure, attorneys

could obtain subpoenas merely by asking the Clerk

for them. In fact, attorneys could (and did) carry

subpoenas around in their brief cases, issued in

blank by the Clerk for this purpose. This practice

was in wide-spread use. These statutes were

apparently intended only to alter this former use of

subpoenas where medical records are concerned.

Since their enactment, the Legislature has

amended them several times, but not in any way

material to the issue we face today. It should be

carefully noted that these subpoena statutes were

adopted one year after the people of Florida

adopted the conformity amendment to our State

Constitution.

Because this case involves search warrants, not

subpoenas, the issue really turns on the content of

the search warrant statutes.9 Nothing in any

statute purports to limit the use of search warrants

in regard to medical records. Section 933.02(3)

expresses no limitations as to the kind of property

that may be had by a search warrant. To the

contrary, section 933.02(3)’s term any property

self-evidently includes medical records because of

the absence of any limiting text. And the

presence of one actual limitation in subsection (2)

of 933.07(1) demonstrates beyond any quibble that

__

9 See § 933.07(1), Fla. Stat. (2003) (providing for

issuance of search warrants); § 933.02(3), Fla. Stat.

(2003) ("Upon proper affidavits being made, a search

warrant may be issued ... when any property [e.s.]

constitutes evidence relevant to proving that a felony

has been committed. . . .").

__

 

(5)

when the Legislature proposes to restrict search

warrants as to specified property it will say so in

the statute.

As we said, the statutes affirming a right of

privacy in medical records apply only to

subpoenas. Therefore, we take the omission of

any reference to search warrants as a plain

legislative decision that search warrants for

medical records are not affected by these

provisions. See Dobbs v. Sea Isle Hotel, 56 So.

2d 341, 342 (Fla. 1952) ("The legislature made one

exception to the precise language of the statute of

limitations. We apprehend that had the legislature

intended to establish other exceptions it would

have done so clearly and unequivocally.").10 In

short, by their clear terms, neither of the two

subpoena statutes on which petitioner relies would

seem to have any application when the State

proceeds by search warrant. Yet petitioner

argues that Judges should interpret them to have

that effect.

In construing statutes, Judges are not free to add

or delete provisions from plain statutory text. See

McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla.

1998) (when the language of the statute is clear

and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the

rules of statutory interpretation and construction;

the statute must be given its plain and obvious

meaning). When engaged outside of the common

law, as here, Judges are not meant to be fixers of

statutory omissions and have no authority to fill

statutory voids or enlarge the domain of statutes

already adopted. Holly v. Auld, 450 So. 2d 217

(Fla. 1984) (courts lack power to construe clear

statute to extend, modify, or limit, express terms or

reasonable and obvious implications; to do so

would be abrogation of legislative power). This

means that Judges are not free to reconstruct

statutes dealing only with subpoenas and extend

10 See also State v. Tsavaris , 394 So. 2d 418, 426 (Fla.

1981)(distinguishing between search warrants and

subpoenas and holding that requirements of Fourth

Amendment apply to subpoenas in criminal case only

to ensure that breadth of subpoena is reasonable).

them to cover search warrants as well.

The issuance of these search warrants was

based on a finding by a Judge that the medical

records to be seized were relevant to the

commission of a felony being investigated by the

State. § 933.02(3), Fla. Stat. (2003) ("Upon

proper affidavits being made, a search warrant

may be issued ...when any property constitutes

evidence relevant [e.s.] to proving that a felony

has been committed ...."). The State had the

burden of satisfying the Judge that there was

probable cause that petitioner’s medical records

were relevant to the commission of a crime as to

which there was also some evidence of his

involvement. The State satisfied that burden

because the Judge signed the search warrant, and

nothing we have been shown suggests any error in

that regard.

If these subpoena statutes were nevertheless

somehow applicable to search warrants, in one

real sense they would be unnecessarily redundant.

Except for prior notice, the greater showing

required by search warrants — probable cause

and relevancy — exceeds that which these

subpoena statutes require. If a mere reasonable

suspicion is constitutionally sufficient for the State

to seize medical records by subpoena, obviously

the probable cause necessary for the issuance of

a search warrant affords even greater protection.

See State v. Rivers, 787 So. 2d 952 (Fla. 2d DCA

2001) (constitutional right of privacy in medical

records overcome by State’s showing of

reasonable suspicion for issuance of investigative

subpoena).

Search warrants have generally not required

prior notice because of the understandable fear

that the property’s custodian might cause the

evidence to disappear if he knew the State was

seeking to seize it in a criminal investigation.

Indeed, in State v. Viatical Services Inc., 741 So.

2d 560, 562-3 (Fla. 4th DCA 1999), Judge Warner

noted the absence of any authority for an

adversary hearing before the issuance of a search

warrant and recognized that a criminal

(6)

investigation might actually be impaired by such a

hearing. That is precisely the argument made by

the State in this case in using a search warrant

rather than an investigative subpoena. Such

decisions are well within prosecutorial discretion,

and no one here has made a sufficient showing

otherwise.

In deciding to employ search warrants, rather

than subpoenas, to reach petitioner’s medical

records, the State cast a wary eye on our decision

in Viatical. There, the State had obtained a

search warrant to seize a viatical settlement

company’s files in connection with a fraud

investigation. Along with business and financial

records, the files contained the confidential

medical records of persons who were insured by

life insurance policies. Counsel for the company

under investigation objected to the issuance of a

search warrant, asserting the right of privacy in

the medical records of the insureds, who were not

targets of the investigation. The trial court decided

to hold an adversarial hearing prior to issuing the

warrant. In granting the State certiorari relief, we

held that it was improper to hold an adversarial

hearing before the warrant could be issued, saying:

"While we can find no authority for allowing an

adversarial hearing prior to the issuance of a

search warrant, which hearing may severely

compromise a criminal investigation, we dismiss

the writ for failure to show irreparable harm.

Nevertheless, despite our conclusion that the

state has failed to show irreparable harm in

this case, holding an adversarial hearing

prior to the issuance of a search warrant is

contrary to statute. See § 933.07, Fla. Stat.

(1997). Pre-seizure hearings are ‘necessarily

ex parte, since the subject of the search

cannot be tipped off to the application for a

warrant lest he destroy or remove evidence.’

" [e.s., c.o.]

741 So. 2d at 562-63.

Although the State read Viatical to support the

issuance of warrants for medical records without

a pre-seizure hearing, it was apparently concerned

about language in Viatical that established certain

procedures for protecting the privacy interests in

medical records post-seizure. In Viatical, we

directed the trial court on remand to "issue the

warrant on condition that the insured’s medical

records be sealed until a post-seizure hearing may

be held on the issue of the right to privacy." 741

So. 2d at 564.

In this case, and in an abundance of caution, the

State followed the above procedure described in

Viatical. After seizing the records, it kept the

records sealed, then notified petitioner of the

seizure and his opportunity to be heard on the

privacy issue before the seized records could be

unsealed. Though commendable, these steps

were not required. In Viatical, we stated that

when there are privacy rights which merit

protection, the court must fashion a remedy to

protect them. In that case, however, we were

concerned about protecting the privacy rights of

innocent third parties. Here, petitioner is the

target of the criminal investigation, not a third

party not implicated in the crimes under

investigation. The Judge who reviewed the

warrant application’s supporting affidavits found

probable cause to believe that the medical records

contained evidence of criminal wrongdoing.

In issuing the warrant, the Judge impliedly

determined that the privacy rights of petitioner

were outweighed by the State’s legitimate need to

secure the information in furtherance of its

investigation and prosecution of the suspected

crimes. Thus, the circuit court was not obligated

to do anything further before allowing the State to

review the seized records.

Obviously, Viatical does not support a

conclusion that the constitutional right of privacy

has any limitation on the use of search warrants

for medical records. To hold that it does would

conflict with the supreme court’s holdings that the

right of privacy provision has no application to

constitutionally valid search and seizure. To

repeat what we have already shown, the supreme

court has made clear that the privacy amendment

does not "modify the applicability [e.s.] of article

I, section 12." Hume, 512 So. 2d at 188. This

(7)

means that the applicability of article I, section

12, is not displaced or affected by the privacy

amendment. The propriety of a search warrant is

measured by the requirements of article I, section

12, not by article I, section 23. The supreme

court’s holdings in Hume-Madsen-Hester make

clear that the constitutional right of privacy does

not further restrict the State’s powers of search

and seizure in the criminal context beyond those

requirements imposed by article I, section 12, and

the Fourth Amendment. We know from the

addition of the citrus canker provision to section

933.07(2) that the Legislature is aware of its

authority to add burdens in obtaining search

warrants. It needs repeating that it simply has not

done so for medical records. We therefore cannot

agree that article I, section 23, has any affect on

the State’s authority over items properly seized by

a valid search warrant, or that it requires any

further post-seizure hearing as to general

relevancy.

Petitioner places heavy reliance on State v.

Johnson, 814 So. 2d 390 (Fla. 2002), to support a

privacy limitation on search warrants for medical

records. The precise issue the court faced there

was whether the exclusionary rule should bar the

State from attempting to correct a failure to give

prior notice of the issuance of a subpoena to seize

medical records. The State did not proceed by

search warrant in that case, as it has done here.

Indeed, as the court itself explained:

"The issues before us are whether the State can

avoid the procedural requirements of section

395.3025(4)(d) by use of its investigative

subpoena power, and if not, what sanction is to

be imposed when the State does not comply

with these procedural requirements. Based on

the clear language of the statute, we hold that

the state attorney’s subpoena power under

section 27.04, Florida Statutes (1997), cannot

override the notice requirement of section

395.3025(4)(d)." [e.s.]

814 So. 2d at 393. There is not a single word

anywhere in the opinion suggesting or implying

that the holding also applies to search warrants.

To extend this holding on the use of subpoenas to

search warrants would be, well, unwarranted.

Petitioner seems to suggest that the issuing

Judge’s determination of probable cause, and of

the relevancy of his medical records to the crime

being investigated, is somehow insufficient. He

argues that before any warrant could be issued we

should require an adversarial hearing, with prior

notice to petitioner. We think the issuing Judge’s

determination is all that is required under article I,

section 12. Nothing in the constitution or search

warrant statutes requires a post-seizure hearing to

rec onsider the relevancy or probable cause

determinations made by the issuing Judge. This

would amount to a judicially created limitation on

search warrants.

Although we are urged to engage in statutory

construction to deduce some unarticulated

legislative purpose limiting warrants, the supreme

court has made clear that there must be a

"hopeless inconsistency" between statutes before

the rules of construction — such as in pari

materia — may be employed to defeat the plain

language of one in favor of the other. State v.

Parsons, 569 So. 2d 437 (Fla. 1990) ("There first

must be a hopeless inconsistency between the two

statutes before rules of construction are applied to

defeat the express language of one of those

statutes."); Starr Tyme Inc. v. Cohen, 659 So. 2d

1064 (Fla. 1995) (same). In other words, it is

improper to resort to the canons of statutory

construction when the texts of different statutes

are plain and unambiguous. See A.R. Douglass

Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So.

157, 159 (Fla. 1931) ("The intention and meaning

of the Legislature must primarily be determined

from the language of the statute itself and not

from conjectures aliunde.

When the language of

the statute is clear and unambiguous and conveys

a clear and definite meaning, there is no occasion

for resorting to the rules of statutory interpretation

and construction; the statute must be given its

plain and obvious meaning."). This is simply

another application of the principle that Judges are

not empowered to add or remove words or plain

meaning from statutes. Holly v. Auld, 450 So. 2d

(8)

at 219 (not court’s duty or prerogative to modify

or shade clearly expressed legislative intent in

order to uphold policy favored by the court).

Accordingly, we hold that the constitutional right

of privacy in medical records is not implicated by

the State’s seizure and review of medical records

under a valid search warrant without prior notice

or hearing. We therefore deny the writ. Our

denial, however, is without prejudice to petitioner

to seek review by the issuing Judge to insure that

all the records produced fall within the scope of

the warrants,11 and to seek other protective relief

to prevent improper disclosures to third parties of

records irrelevant to this prosecution.

TAYLOR, J., concurs.

MAY, J., concurs in part and dissents in part with

Opinion

__

11 See § 933.14(1), Fla. Stat. (2003) (issuing Judge may

order property seized by warrant returned where the

property delivered up is "not the same as that described

in the warrant").

__

 

(9)

MAY, J., concurring in part and dissenting in part.

I concur in that part of the majority’s opinion

holding the State may use a search warrant to

search for and seize a person’s medical records.

I dissent from that part of the opinion that turns a

blind eye to section 23, article I of the Florida

Constitution and the age-old protection afforded

those records.

While using eight pages to hold that section 23

provides no protection, the majority ends the

opinion with the following: "Our denial, however,

is without prejudice to petitioner to seek review by

the issuing Judge to insure that all the records

produced fall within the scope of the warrants, . .

. and to seek other protective relief to prevent

improper disclosures to third parties of records

irrelevant to this prosecution." Slip Op. at 8.

(Footnote omitted.) This is the very review sought

by the petitioner in this case, which is why I would

grant the petition. The majority holds there is no

right to protec tion of one's medical records when

a search warrant is issued, yet fashions its own

form of relief that I find evident in Florida's

Constitution and the statutes designed to protect a

person's medical records.

Unlike the majority, I see a distinction between

the right to search and seize medical records,

which is controlled by article I, section 12 of the

Florida Constitution and "disclosure" of those

records, which I believe is controlled by section

23.

With regard to search and seizure, section

933.07(1), Florida Statutes (2003), authorizes the

search of property or persons described for the

purpose of bringing the property or person(s)

before a magistrate or other court. The statute

does not distinguish among types of property.

There is no special exception for medical records.

When the legislature enacted sections 395.3025

and 456.057, Florida Statutes (2003) to address the

"disclosure" of medical records, it neither

referenced the warrant statute in them nor

amended the warrant statute to reference the

medical records statutes.

However, in response to the citrus canker crisis

in 2002, the legislature amended the warrant

statute to require the court to "conduct a court

proceeding prior to the issuance of such search

warrant upon reasonable notice" and to "receive,

hear, and determine any objections by property

owners to the issuance of such search warrant."

See § 933.07(2), Fla. Stat. (2003). No similar

requirement was added to the warrant statute with

regard to medical records.

Thus, I conclude, as does the majority, that

search warrants may be used to search and seize

medical records, pursuant to section 12. Indeed,

common sense suggests that law enforcement

would itself be handcuffed if required to give

notice to a person before lawfully "seizing"

evidence. However, the warrant statute simply

does not address the issue of "disclosure."

This is the point at which I no longer see "eye to

eye" with the majority. The special nature of the

doctor-patient relationship dates back 2400 years

to the age of Hippocrates. From that point

forward, medical records have been the focus of

constitutional, statutory, and regulatory protections.

See, e.g., Art. I, § 23, Fla. Const. See also §§

395.3025 and 456.057, Fla. Stat. (2003); Health

Insurance Portability and Accountability Act

[HIPPA], 42 U.S.C.A. § 210 et seq. (1996); 10

U.S.C.A. § 1102 (2004); 38 U.S.C.A. § 7332

(2004); 42 C.F.R. §§ 405.2138, 405.2139,

417.106, 417.486 (2004); Wanda E. Wakefield,

J.D., Annotation, Physician-Patient Privilege as

Extending to Patient’s Medical or Hospital

Records, 10 A.L.R. 4th 552 (1981).

Yet, the

majority cannot see any constitutional or statutory

basis to provide a meaningful post-seizure hearing

to insure that only those records "relevant" to the

criminal investigation are "disclosed."

Perhaps the first indication of the privacy

interest in medical records is found in the

Hippocratic Oath. It provides in part: "What I

(10)

may see or hear in the course of the treatment or

even outside of the treatment in regard to the life

of men, whic h on no account ought to be spread

abroad, I will keep to myself, holding such things

shameful to be spoken about." See Hippocrates,

Physician’s Oath, STEADMAN’S MEDICAL

DICTIONARY 579 (22d ed. 1972).

Centuries later, the citizens of Florida would

amend their constitution to add section 23. It

provides for the "right to be let alone and free

from governmental intrusion into the person’s

private life . . . ." Art. I., § 23, Fla. Const. And,

while the majority points out that our supreme

court has held section 23 does not affect search

and seizure under section 12, it seemingly

overlooks the court’s recognition that medical

records fall within the right to privacy afforded by

section 23. State v. Johnson, 814 So. 2d 390

(Fla. 2002).

Our legislature has consistently protected

medic al records. Most significantly, sections

395.3025 and 456.057 specifically address the

"disclosure" of medical records. The majority

suggests these statutes are irrelevant to the issue

before the Court because they were only intended

to relate to the issuance of subpoenas. Slip Op. at

6. I disagree.

I know the difference between a subpoena and

a warrant. I also recognize the protective

mechanism devised by the legislature to prevent

unwarranted "disclosure" of medical records. See

§§ 395.3025 and 456.057, Fla. Stat. (2003). Our

supreme court has clearly indicated the privacy

interest in medical records trumps the State’s

investigative subpoena powers. Johnson, 814 So.

2d 390. In doing so, the Court upheld the privacy

interest in a person’s medical records and

continued to afford meaning to section 23 of the

Florida Constitution in the face of the State’s right

to investigate criminal activity. I would do the

same here.

Our legislature continued to protect medical

records in legislation to address the

over-prescription of drugs by a doctor. Those

statutes provide for a warrant to search the

doctor’s office, but patient’s medical records are

obtainable only by consent or through a subpoena

issued pursuant to section 456.057.1 2 See §§

458.341 and 458.343, Fla. Stat. (2003).

Perhaps the most recent reminder of the

importance of a person’s privacy interest in

medical records can be found in Congress’s

amendments to HIPPA. See Health Insurance

Portability and Accountability Act [HIPPA], 42

U.S.C.A. § 210 et seq. (1996). The amendments

further demonstrate the trend to enhance, not

eliminate, the privacy afforded to patients and their

medical records.

In State v. Viatical Services, Inc., 741 So. 2d

560 (Fla. 4th DCA 1999), this court reviewed the

privacy interest in medical records in the context

of a search warrant. This court was asked to

balance the same competing interests present in

this case. We held the trial court "should have

limited the seizure by allowing the records to be

sealed, rather than precluding seizure of what it

found probable cause to believe would contain

evidence of criminal wrongdoing." Id. at 564.

We directed the trial court "to issue the warrant

on condition that the insured’s medical records be

sealed until a post-seizure hearing may be held on

the issue of the right of privacy." Id.

According to the majority, Viatical does not

support a conclusion that the constitutional right of

privacy has any limitation on the use of search

warrants for medical records. Slip Op. at 7. I

agree. What Viatical does support, however, is

that medical records are protected. They should

be afforded that protection by the process outlined

in Viatical.13 The common thread woven

__

12 The majority acknowledges that these statutes

were enacted subsequent to the constitutional

amendment to section 12. I take this as an indication

that the legislature still holds medical records in a

privileged category of their own.

13 The majority also distinguishes Viatical by

suggesting it dealt with innocent third parties as

__

(11)

throughout these statutes and the cases

interpreting them is the privacy interest in medical

records. Medical records fall within a sphere of

privacy afforded by section 23.14 Hunter v. State,

639 So. 2d 72 (Fla. 5th DCA 1994) (followed by

Ussery v. State, 654 So. 2d 561 (Fla. 4th DCA

1995)). Whether they are obtained by means of a

subpoena or a warrant, their protected status

remains the same.

The simple fact remains -- our legislature has

mandated greater protection for a person’s

medical records than other types of property.

That protection is found under the statutory

headings of "confidentiality" and "patient’s

records." See §§ 395.3025 and 456.057, Fla. Stat.

(2003). I would therefore focus on the

confidentiality and privacy interests in these

medical records statutes rather than the subpoena

process they employ.

Our task should be to construe and harmonize

competing statutory provisions. Mann v.

Goodyear Tire & Rubber Co., 300 So. 2d 666

(Fla. 1974); Wilensky v. Fields, 267 So. 2d 1 (Fla.

1972); see also First Mortg. Corp. of Vero

Beach v. Stellmon, 170 So. 2d 302 (Fla. 2d DCA

1964) (statutes should be construed so that all

parts are meaningful). We should not ignore one

provision simply to enforce the other. Howarth v.

City of DeLand, 158 So. 294, 298 (Fla. 1934).

Recognizing the right to privacy in medical

records and ensuring only those relevant to the

crime under investigation are "disclosed" in the

__

opposed to the innocent (until proven guilty) first party

involved in this case. Slip Op. at 7. In my view, that is

a distinction without a difference as relates to a

person’s right to privacy under section 23.

 

14 As Justice Arthur Goldberg once wrote while

discussing the right to privacy under the U.S.

Constitution, "the right of privacy is a fundamental

personal right, emanating ‘from the totality of the

constitutional scheme under which we live.’" Griswold

v. Connecticut, 381 U.S. 479, 494 (1965) (Goldberg, J.,

concurring (quoting Poe v. Ullman, 367 U.S. 497, 521

(1961)).

__

 

least intrusive manner does not engraft a

restriction on the State’s power of search and

seizure.15 For if not the court system, who will

give meaning to section 23? See John Sanchez,

Constitutional Privacy in Florida: Between the

Idea and the Reality Falls the Shadow, 18

NOVA L. REV. 775 (1994).

Warrants are a means by which the State may

"search" and "seize" relevant evidence when

probable cause exists to believe that a crime has

been committed. They were not designed to set

the parameters of "disclosure" of items otherwise

protected by our constitution. A magistrate’s

determination of what might appear relevant at the

time a warrant is issued is simply insufficient to

protect an individual’s right to privacy in their

medical records. Only when the records have

actually been seized can a full, fair, and specific

determination of relevancy be made.

In this case, the warrant requested "medical

records," not medical records related to

prescriptions. The medical providers,

professionals in medicine, are but lay persons in

the law. They bundled up all of the medical

records, even those irrelevant to the crime under

investigation, as the majority acknowledges, and

turned them over to the State. If we simply deny

the writ, there is no protection afforded the

petitioner. Once disclosed, the petitioner’s privacy

interest in his medical records is forever lost.

While there is value in a post-seizure hearing,

there is no value in a post-"disclosure" hearing.

In my view, the hearing afforded the petitioner

did not allow the parties to address significant

issues before "disclosure" was ordered. This is

due in part to the initial positions taken by the

__

15 I find the majority’s reliance on State v Hume, 512

So. 2d 185 (Fla. 1987), Madsen v. State, 521 So. 2d 110

(Fla. 1988), and State v. Hester, 618 So. 2d 1365 (Fla.

1993), to avoid the import of section 23, to be

misplaced. Each of those cases dealt with whether the

State had properly seized evidence. Not one of them

dealt with the "disclosure" of otherwise privileged

medical records.

__

(12)

parties, each asserting the dominance of either the

medical records or warrant statute. They were

unable to reach the real issue - "disclosure." A

meaningful hearing on the issue of "disclosure"

should include an in camera review of the records

seized to determine their relevance and a

determination as to whom the relevant records can

be disclosed.

I dissent therefore from the majority’s decision

to keep its "Eyes Wide Shut" to the right to

privacy in a person’s medical records. I would

grant the petition, issue the writ, quash the order of

disclosure, and remand the case to the trial court

to determine the relevancy of the records seized

and to whom, if anyone, those records may be

"disclosed." The doctor shopping statute speaks

in terms of a patient’s obligation to inform his

doctors as to whether "controlled substances or a

prescription for a controlled substance of like

therapeutic use from another practitioner" has

occurred within the previous 30 days. See §

893.13(7)(a)(8), Fla. Stat. (2003). Thus, the

details of petitioner’s medical condition and

treatment unrelated to information concerning

disclosure of other prescriptions are not relevant

and should not be disclosed.16

NOT FINAL UNTIL DISPOSITION OF ANY TIMELY

FILED MOTION FOR REHEARING.

__

 

16 It would also seem advisable that when medical

records are the subject of a search warrant, it would be

a better practice for the State to keep the warrant and

the accompanying affidavit under seal until an impartial

magistrate is able to determine relevancy. Only in this

manner can the underlying philosophy of section 23 be

guaranteed.

(13) __

[foreverfree]

What'd FL do to RL?

ff

[Mr. K]

Rush should have raped some girls and violated interns. Then he would have been OK like clintoon.

[atruelady]

You know, Florida courts are getting as bad
or they are as bad as the 9th Circus Court
on the West Coast.

[Ken H]

Here is the relevant section of FL Statute 395:

(4)  Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to:

~snip~

(d)  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 by the party seeking such records to the patient or his or her legal representative.

The law says subpoena and proper notice shall be required for medical records. The DA failed on both counts, yet the Court says it is OK.

[curlewbird]

Here in Iowa a couple years ago, a baby's body was found in a recylcing dump. The county prosecuter went to the medical clinics demanding the names of women who were pregnant at that time. The clinics gave them the info but planned parenthood would not and took it to court citing privacy issues. The prosecutor finally backed off. Sounds like if he had been in Florida, he wouldn't have needed to back off! And this was a murder issue, not a doctor shopping issue!!

[george wythe]

The county prosecuter went to the medical clinics demanding the names of women who were pregnant at that time.

I might be misunderstanding you, but I don't see the parallel with Rush's case.

The prosecutor dealing with Rush went to a judge and obtained a search warrant, he didn't just "went to the medical clinics demanding" medical records.

[VeniVidiVici]

When engaged outside of the common law, as here, Judges are not meant to be fixers of statutory omissions and have no authority to fill statutory voids or enlarge the domain of statutes already adopted.

LOL!! Be still my beating heart.

If nobody reads anything else, read the dissent. The judge nailed it.

[george wythe]

Obviously this case is going to the Florida Supreme Court, since the issues raised in this case are highly important.

The appellate court addressed both the constitutional and statutory concerns about the use of warrant instead of subpoena.

Was the Florida Constitution violated when Rush’s medical records were searched and seized using a warrant?

In 1982, the voters of Florida amended article I, section 12, on searches and seizures to conform its interpretation to the United States Supreme Court’s construction of the comparable provision in the Fourth Amendment. ⁵ This "conformity amendment" had been proposed by the Florida Legislature to reverse the Florida Supreme Court’s construction of article I, section 12, which among other things had refused to recognize a good faith exception to the warrant requirement that the United States Supreme Court had found in the Fourth Amendment.⁶

Since then the Florida Supreme Court has made clear that, as a result of the conformity amendment, the right of privacy in article I, section 23, has no application to searches and seizures complying with article I, section 12.

Were Florida statutes violated when Rush’s medical records were searched and seized using a warrant?

We do not believe the Legislature’s purpose in enacting these subpoena statutes had anything to do with search warrants, a term that appears nowhere within either of them. Their rather limited purpose was to correct a practice in the use of subpoenas for medical records in both civil and criminal cases by private and governmental lawyers.

Before these statutes were adopted, subpoenas for discovery and trial were readily obtainable by any attorney without judicial supervision. The attorney could serve a subpoena without any prior notice or permission.

[coloradan]

Well, let's hear it from the Drug Warriors: Is your war so important that you have to take out on of your own? You should be celebrating this ruling - just another tool for LE, right?

[george wythe]

When engaged outside of the common law, as here, Judges are not meant to be fixers of statutory omissions and have no authority to fill statutory voids or enlarge the domain of statutes already adopted.

LOL!! Be still my beating heart.

If nobody reads anything else, read the dissent. The judge nailed it.

Maybe I'm reading this wrong, but you are not quoting the dissenting opinion. You are quoting the majority opinion.

[VeniVidiVici]

Correct. My excerpt was quoting the majority. I was merely poking fun at the fact that they were saying they couldn't fix "statutory omissions" or "enlarge the domain of statutes already adopted", as jurists seem to do this on a regular basis.

I then went on to say the dissent should be read.

[curlewbird]

IIRC, he had a warrant. PP didn't want to abide.

[george wythe]

Correct. My excerpt was quoting the majority.

OK, I got you.

[Born Conservative]

[TKDietz]

What you don't understand is that in real life judges are basically prosecutors in black robes. The "presumption of innocence" is a legal fiction that most all judges only play lip service to when they are on the bench. Judges tend to want people accused of criminal conduct to be convicted, and in most cases will bend over backwards for prosecutors to help them make their case. One of the ways trial judges will do this is to always try to find a way to rule in the prosecutor's favor in matters concerning the gathering of evidence. Appellate judges are a little farther removed from the business of getting convictions than trial judges. They are more concerned with seeing that technical rules are followed. Still though, they tend to want to see people accused of criminal conduct convicted too. So as long as a trial judge doesn't screw up too badly on the case, they will try to uphold the trial judge's decisions.

I understand your legal argument, however, the fact is that things don't tend to be so simple when it comes time for courts to determine the controlling law or laws. People will often ask me as a lawyer what the law is on something. Often, there is no easy answer. In many cases you can't just look up a statute and leave it at that, because there are often multiple statutes that apply along with caselaw and constitutional law that have to be read along with the statutes. It's confusing as hell and often there are legitimate disputes about what the law really is on something. Sometimes you just have to make your best educated guess and hope the courts go along with your interpretation. Because of the fact that judges in criminal cases tend to be prosecutors in robes, especially trial judges, they're much more likely to read things in a light most favorable to law enforcement and the prosecution.

That's just the way things tend to work at least in my years of experience in criminal law, both as defense counsel and as a prosecutor. It's not necessarily that judges are bad people, this is just human nature. Most people accused of committing crimes are guilty and those administering the laws tend to want to see that they are enforced.

There is another factor at play that influences trial judges in state courts and that is that the majority of them are elected officials. They are taking a big risk every time they rule in favor of a defense motion because voters might think they are soft on crime. Appellate judges are often appointed and even if they are elected, they work in multi-judge panels off in the state capitol and they are less likely to have their names dragged though the mud in the paper if they make a ruling the general public doesn't agree with. There is less voter pressure on them to rule in favor of police and prosecutors.

Anyway, I am never shocked when I see courts rule in favor of prosecutors. That's going to happen ninety something percent of the time. The real shockers tend to be rulings in favor of the defense in criminal matters. Those are the ones that usually make the news. Just know that for every motion to suppress evidence granted that you read a big story about in the newspaper, there may have been dozens or even a hundred or more denied that never made the paper.

The big deal in Rush's case to me is that I have no doubt the prosecutor is going out of his way to nail Rush for political reasons. Now, I'm not a Rush fan myself and I'm not surprised there are many out their who would like to use his personal problems for political gain. I hope this illustrates to people the problem with having so many harsh drug laws. Rush could potentially do several years in prison if all allegations are proven and the prosecution does a good job in picking a jury, and if the judge really wants to hammer him (I think in Florida judges set the penalty unlike some states where jurors do the sentencing). I doubt he goes to prison and even though I don't care for him I hope he doesn't, because even if everything they say about him is true he's not a terrible criminal. A fat jerk maybe, but not a terrible criminal.

Whatever happens to Rush, make no mistake about it. Our criminal laws are often applied inconsistently. I see this happen all the time in drug cases and other types of cases. Some people are let go without prosecution while others are punished for the same conduct. Some people get hammered sentence-wise while others who are often more culpable are let off easy. The higher the potential sentences, the greater the inconsistency in sentencing. We have let criminal sentences get out of hand in many cases in this country and that is a guaranteed recipe for inconsistent results and morally reprehensible outcomes.

The problem is that instead of rolling up their sleeves and trying to come up with legislation aimed at fixing problems, our politicians for many years have taken the easy road and just added new penalties and increased the old ones as their "solution" for handling the problem of crime and drug addiction in this country. This shortcut is costing us dearly. Our prisons are jam packed and we can't keep up building new ones. We now lock up more people than any other country in the world. Our incarceration rate is over 700 per 100,000 while almost all of our industrialized peers only lock up less than 200 per 100,000. Quite a few lock up less than a 100 per 100,000. The nation closest to us in incarceration rates is Russia, were they lock up less than 600 per 100,000.

This is the wrong way for us to go. There is nothing "conservative" about it, and we need to change it. It's costing us billions and billions and billions of dollars. We could spend far less and get better results, and we wouldn't have so much inconsistency in the way people are treated for criminal conduct in this country. A guy like Rush would be facing drug treatment or some type of intensively supervised probation probably instead of possible prison time, as would all others in a similar predicament. And I can tell you, I have seen people accused of what Rush is accused of doing go to prison. I've also seen them get slapped on the wrist, or avoid prosecution altogether, allowed to walk free and continue with their drug abuse. It shouldn't be that way.

We should try to treat everyone with similar criminal histories the same for the same crime. We should strive to have punishments that fit crimes, and we should gear our system so that it's set up not just to deter people from committing crimes, but also such that we try to take those who do screw up and point them in the right direction so that we minimize the chances that they'll re-offend. Some need to be sent away for a long time if not forever for our protection. Many of the others can turn their lives around but in most cases prison isn't going to help them in that regard. Prison is a place where they go get raped, make knew criminal friends, and learn new criminal skills and attitudes. There are better ways to handle these people that still act as punishment and a deterrent for others that cost much less than prison but from which people emerge who are much less likely recidivate than those who go to prison only to be released a couple of years later.

BTTT

[gitmo]

Centuries later, the citizens of Florida would amend their constitution to add section 23. It provides for the “right to be let alone and free from governmental intrusion into the person’s private life . . . .” Art. I., § 23, Fla. Const. And, while the majority points out that our supreme court has held section 23 does not affect search and seizure under section 12, it seemingly overlooks the court’s recognition that medical records fall within the right to privacy afforded by section 23. State v. Johnson, 814 So. 2d 390 (Fla. 2002).

Our legislature has consistently protected medic al records. Most significantly, sections 395.3025 and 456.057 specifically address the “disclosure” of medical records. The majority suggests these statutes are irrelevant to the issue before the Court because they were only intended to relate to the issuance of subpoenas. Slip Op. at 6. I disagree. I know the difference between a subpoena and a warrant. I also recognize the protective mechanism devised by the legislature to prevent unwarranted “disclosure” of medical records. See §§ 395.3025 and 456.057, Fla. Stat. (2003). Our supreme court has clearly indicated the privacy interest in medical records trumps the State’s investigative subpoena powers. Johnson, 814 So. 2d 390. In doing so, the Court upheld the privacy interest in a person’s medical records and continued to afford meaning to section 23 of the Florida Constitution in the face of the State’s right to investigate criminal activity. I would do the same here.

Our legislature continued to protect medical records in legislation to address theover-prescription of drugs by a doctor. Those statutes provide for a warrant to search the doctor’s office, but patient’s medical records are obtainable only by consent or through a subpoena issued pursuant to section 456.057.1 2 See §§ 458.341 and 458.343, Fla. Stat. (2003).

Perhaps the most recent reminder of the importance of a person’s privacy interest in medical records can be found in Congress’s amendments to HIPPA. See Health Insurance Portability and Accountability Act [HIPPA], 42 U.S.C.A. § 210 et seq. (1996). The amendments further demonstrate the trend to enhance, not eliminate, the privacy afforded to patients and their medical records.

In State v. Viatical Services, Inc., 741 So. 2d 560 (Fla. 4th DCA 1999), this court reviewed the privacy interest in medical records in the context of a search warrant. This court was asked to balance the same competing interests present in this case. We held the trial court “should have limited the seizure by allowing the records to be sealed, rather than precluding seizure of what it found probable cause to believe would contain evidence of criminal wrongdoing.” Id. at 564. We directed the trial court “to issue the warrant on condition that the insured’s medical records be sealed until a post-seizure hearing may be held on the issue of the right of privacy.” Id.

[RS]

Great research ( tho I would have liked to have links )
but what does it boil down to regarding Rush ?