The STATE of Texas, v. Steven Mack HARDY, Appellee.
No. 1061-94.
Court of Criminal Appeals of Texas, En Banc.
Nov. 19, 1997.
Opinion Dissenting from Denial of Rehearing Jan. 14, 1998.
Because there is no evidence that the alleged wrongful acts of the Bank were the producing cause of Brown‘s damages and certain acts of the Bank could not give rise to DTPA violations, the trial court correctly rendered judgment n.o.v. Accordingly, we affirm the judgment of the court of appeals.
Carol M. Cameron, Asst. Dist. Atty., Houston, Matthew Paul, State‘s Atty., Austin, for State.
OPINION ON APPELLEE‘S PETITION FOR DISCRETIONARY REVIEW
KELLER, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and MANSFIELD, HOLLAND and WOMACK, Judges, joined.
Appellee was charged with the misdemeanor offense of driving while intoxicated. Before trial, he filed a motion to suppress medical records containing blood-test results. The trial court granted the motion to suppress but its decision was subsequently reversed by the Court of Appeals. We granted review to determine whether the Court of Appeals erred in holding that appellee possessed no privilege or reasonable expectation of privacy in his medical records. We will affirm.
1. Facts
Appellee was involved in an automobile accident on December 3, 1992. Trooper Authier of the Department of Public Safety investigated the scene and formed the opinion that appellee was intoxicated.1 Due to
Before trial, appellee filed a motion to suppress the blood test results and other medical record evidence on the basis that the records were obtained in violation of the physician-patient-privilege under the
In his petition for discretionary review, appellee argues that the
2. Prior cases
In Comeaux, the defendant was involved in a car accident. Id. at 48. The DPS trooper at the scene did not believe that the defendant was intoxicated. Id. The defendant was subsequently taken to a hospital, where a sample of his blood was drawn for medical purposes in accordance with the order of an attending physician. Id. at 48-49. The tests performed upon the defendant‘s blood did not include a blood alcohol content analysis. Id. at 49. A police officer subsequently used a false authorization form to acquire a portion of the blood sample, and a blood alcohol test was conducted by law enforcement agents. Id. at 48-49.3
A four-judge plurality opinion held that the State‘s acquisition of the blood sample violated the Fourth Amendment and the Texas constitutional counterpart. Id. at 53. Relying heavily upon
Because Comeaux is only a plurality opinion, it is not binding precedent. In a subsequent opinion, we did cite Comeaux with approval for the proposition that there is a reasonable expectation of privacy in physician-patient communications. Richardson v. State, 865 S.W.2d 944, 952-953 & 953 n. 7 (Tex.Crim.App.1993). This comment, however, was mere dicta because the question in the case was whether a pen register constituted a search under Article I, § 9 of the Texas Constitution. See Richardson, generally. Moreover, the existence of a reasonable expectation of privacy in physician-patient communications, generally, does not necessarily mean that medical records would carry an expectation of privacy in every situation. Nevertheless, while Comeaux and Richardson are not binding, we may look to those opinions for their persuasive value. With that consideration in mind, we address the privilege and constitutional issues.
However, in some cases construing the rules of appellate procedure, we have indicated that this Court may not “abridge, enlarge, or modify” a litigant‘s substantive rights when we repeal a statutory provision and replace it with a rule. Davis v. State, 870 S.W.2d 43, 45-46 (Tex.Crim.App.1994)(This Court may not, through appellate rule, enlarge appellate jurisdiction provided by former statute—nonjurisdictional defects occurring after the plea); Lyon v. State, 872 S.W.2d 732, 734-736 (Tex.Crim.App. 1994)(same); Flowers v. State, 935 S.W.2d 131, 132-134 (Tex. Crim.App.1996)(This Court may not, through appellate rule, restrict appellate jurisdiction recognized under former statute—claim that plea was involuntary). These cases relied upon statutory language in former
The starting point in an analysis of the meaning of a statute is, of course, the language of the statute itself. When the language of the statute is unambiguous, we must give effect to the plain meaning of the words unless doing so would lead to absurd results. Boykin v. State, 818 S.W.2d 782, 785-786 & 786 n. 4 (Tex.Crim.App.1991). When the language of a statute is ambiguous, we may look to extratextual factors for guidance in determining the statute‘s meaning. Id. Following these principles, we find the rationale in Davis, Lyon, and Flowers to be inapplicable to the present case for two reasons.
Articles of the Code of Criminal Procedure, 1965, that govern posttrial appellate and review procedure in criminal cases are hereby repealed pursuant to Section 4 of this Act. The court of criminal appeals is granted rulemaking power to promulgate rules of posttrial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.
The court of criminal appeals has the full rulemaking power in the promulgation of rules of evidence in the trials of criminal cases, except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant.
We generally presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible. Morter v. State, 551 S.W.2d 715, 718 (Tex.Crim.App.1977), quoting Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 591, 298 S.W.2d 93, 96 (1957). The appellate procedure and evidence sections of the statute were both drafted by the Senate-House Select Committee on the Judiciary, and they were contained in two consecutively numbered bills that were later combined into a single bill passed into law by the Legislature.5 We must presume, therefore, that the Legislature intended to add meaning to the statute by placing a repealer reference in the “substantive rights” section of the appellate procedure provisions and by failing to place such a reference in the counterpart section of the evidence provisions. The logical conclusion is that the legislature intended to confer absolute authority to repeal specified provisions relating to evidence but intended to confer only limited authority to repeal specified provisions relating to appellate procedure.
This interpretation of the language of former
Moreover, the legislative history, while ambiguous, is at least consistent with our interpretation. Professor Guy Wellborn, a resource witness for the bill, testified that most of the repealed statutes would be replaced by rules of evidence that were “identical in effect,” but some rules would be inconsistent
Further, in their final report, the Select Committee on the Judiciary recommended granting this Court rule-making powers “so that the rules may be judicially promulgated and that statutory provisions in conflict with the code [of rules of evidence] may be repealed” (emphasis added; bracketed material inserted). Final Report, Senate-House Select Committee on the Judiciary: Recommendations to the 69th Legislature, January 1985, p. 75. With their report, the Committee submitted an “attached code” to this Court “as being worthy of promulgation.” Id. Although our research has failed to uncover a copy of a proposed draft of the Rules of Criminal Evidence designated as the “attached code,” we have discovered in the committee materials a draft of the rules marked as the “final draft,” dated November 7, 1984. In that draft, proposed rule 510, concerning the physician-patient privilege, is identical to
However, even if we assumed that the legislature intended to prevent changing the substantive rights of litigants, the rationale in Davis, Lyon, and Flowers would be inapplicable for a second reason: the change in practice presented by the case at bar involves matters of procedure rather than substantive rights. The Medical Practices Act created a physician-client privilege but excepted criminal cases from that privilege. See
UNKNOWN COMMITTEE MEMBER: And it says in any criminal prosecution where the patient was a victim, witness, or defendant. And that pretty well obliterates the physician-patient privilege. Although if I let my imagination run wild I suspect I could come up with a situation where the medical records of someone who is neither a victim, witness, nor a defendant might be relevant in a criminal prosecution. My guess is the legislature did not intend to do anything but obliterate physician patient privilege when they added that language but it‘s not clear to me. . . .
UNKNOWN COMMITTEE MEMBER: The only issue that we have to address here is whether this language “in any criminal prosecution where the patient is a victim witness, or defendant” was intended by the legislature to be a blanket exception to the physician-patient privilege. If it is, there‘s no physician-patient-privilege in criminal proceedings and we can just go with the language there is no physician-patient privilege. My thinking was that the chances of a physician-patient problem coming up in a context where the patient was neither a victim, witness, or defendant was so remote that, in fact a blanket exception had been created. We‘d just need to say there is no physician-patient privilege.
PROFESSOR WELLBORN: This is clearly what the legislature intended by that exception. There‘s no question that when they say the privilege doesn‘t apply when the patient is a victim, witness, or defendant that what they meant to say is that the privilege doesn‘t apply in a criminal case. I don‘t think there is any doubt about that. So that would, the motion is to effectuate in the most straightforward way what the legislature‘s already done. [Vote to change the rule from “victim, witness, or defendant” language to current language carried eight to two].
Hearing, Senate-House Select Committee on the Judiciary, Subcommittee on Criminal Matters, October 15, 1984, Tape 3, transcript at 28-31 (on microfilm).
While the “prosecution” and the “victim, witness, or defendant” language was deleted from
Finally, our conclusion that the Legislature intended to give effect to
Appellee contends, however, that the Legislature did overturn
Notwithstanding Rule 501, Texas rules of Criminal Evidence, and Rule 501, Texas Rules of Civil Evidence, the privilege of confidentiality may be claimed in any criminal, civil, or administrative proceeding....
4. Fourth Amendment
While an appellate court must view the historical facts in the light most favorable to the trial court‘s determination, whether those facts, once determined, give rise to a reasonable expectation of privacy is a question of law to be reviewed de novo. Villarreal v. State, 935 S.W.2d 134, 138 n. 5 (Tex. Crim.App.1996); Id. at 145 & 149 (Keller, J. concurring). In determining whether an expectation of privacy is viewed as reasonable by “society,” the proper focus, under the Fourth Amendment, is upon American society as a whole, rather than a particular state or other geographic subdivision. Villarreal, 935 S.W.2d at 139; Id. at 149 n. 2 (Keller, J. concurring)(citing California v. Greenwood, 486 U.S. 35, 43-44, 108 S.Ct. 1625, 1630-31, 100 L.Ed.2d 30 (1988)).
There is no question that the drawing of blood from a person‘s body infringes an expectation of privacy recognized by society as reasonable. Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989). Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by government agents also constitutes an invasion of a societally recognized expectation of privacy. Id. However, the present case does not involve the drawing or analysis of blood by government
The Supreme Court has on one occasion addressed society‘s expectations with regard to records held by a third party. In United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the Court held that a depositor possessed no reasonable expectation of privacy in bank records relating to his account. Id. at 440-443, 96 S.Ct. at 1622-1624. In support of its holding, the Supreme Court explained that a depositor voluntarily exposes his financial information to the banking institution and assumes the risk that those records will be conveyed to the government. Id. at 442-443, 96 S.Ct. at 1623-1624. Like the bank, the hospital is a third party entrusted with personal information. But, release of medical information to hospitals is less optional than the release of financial information to banks. A person can choose not to maintain a bank account, but it hardly seems reasonable to expect someone to forego medical attention.
We note that five Texas appellate courts have addressed, in published opinions, whether, after the promulgation of
However, because Fourth Amendment expectations are those of American society, this Court cannot unilaterally make a policy choice on the matter. Moreover, the absence or inapplicability of a privilege does not foreclose the existence of a societally recognized expectation of privacy. A privilege stands as an absolute bar to the disclosure of evidence (absent an exception) while the Fourth Amendment merely imposes certain reasonableness requirements as a condition for obtaining the evidence. That medical records have not been given the absolute protection of a privilege does not mean they might not possess the qualified protections embodied by the Fourth Amendment.
Nevertheless, whether a privilege exists may be some evidence of societal expectations. Comeaux, 818 S.W.2d at 52 n. 7. But, although no privilege exists in criminal cases, a privilege does exist in civil cases and outside the litigation context. See
The physician-patient privilege did not exist at common law but is purely a statutory innovation. 2 Weinstein‘s Evidence ¶ 504[01], 504-9. The drafters of the Federal
No consensus exists in court decisions on whether an expectation of privacy exists in medical records, even in the DWI context. See Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135, 138 (1994)(reasonable expectation of privacy exists); People v. Perlos, 436 Mich. 305, 462 N.W.2d 310, 315-322 (1990)(no reasonable expectation of privacy exists); Tims v. State, — So.2d —, 1997 WL 592561, *3-*6 (Ala. Crim.App. 1997)(same); State v. Fears, 659 S.W.2d 370, 375-376 (Tenn.Crim.App.1983), cert. denied, 465 U.S. 1082 (1984)(same). See also Conrad, slip op. at 6 n. 7 and cases cited therein. In Riedel, the Pennsylvania Supreme Court found a reasonable expectation of privacy but held that the statute in question requiring disclosure of the records was an adequate substitute for the warrant requirement under the Fourth Amendment. 651 A.2d at 178-183. In Perlos, the Michigan Supreme Court held that no reasonable expectation of privacy existed under the circumstances presented, to wit: in the results of a blood alcohol test conducted by hospital staff for medical purposes on an individual involved in a car accident. 462 N.W.2d at 316 & 321. The Michigan Court expressly declined to make a blanket holding that medical records were not protected by the Fourth Amendment. Id. at 321. Perlos noted that the statute in question required the disclosure of test results only under the following conditions: (1) when there is an accident, (2) when medical personnel draw blood and conduct a chemical test, (3) when they do so on their own initiative for medical purposes, (4) when the subject is the driver of the vehicle, and (5) when the State makes a request for the records. Id. at 320. The Michigan Court also noted that the State could not gain unfettered access to all medical records but only to the chemical test results, nor could the authorities “obtain a blood sample for their own discretionary testing.” Id. In supporting its limited holding, the Michigan Court analogized to various statutes requiring third parties to report to the government certain information, such as prescription drugs, child abuse, deadly weapon injuries, and financial activity. Id. at 321. In Tims, the Alabama Court of Criminal Appeals held that any expectation of privacy the defendant may have had in his medical records was unreasonable because of (1) the absence of any general physician patient privilege, (2) the existence of implied consent laws and other statutory laws granting prosecutors access to blood alcohol test results, and (3) society‘s strong interest in curtailing drunk driving. 1997 W.L. at *4, — S.W.2d at —. Tims found evidence both in the general medical records context and in the specific blood-alcohol test context that the Alabama Legislature did not recognize an expectation of privacy. 1997 W.L. at *3, — S.W.2d at —. The Tims court also relied in large part upon Perlos for its holding. Id. at *5, at —. In Fears, the Tennessee Court of Criminal Appeals held that, like the bank records in Miller, medical records involved no reasonable expectation of privacy simply because the records were possessed by a third party.
Although a judicial consensus is absent, we find the strongest approach to be one that focuses on the unique circumstances of the DWI-accident scenario, as was done in Perlos and Tims. To begin with, the Supreme Court has held that certain intrusions do not involve expectations of privacy because of the limited nature of the intrusion by government agents and/or the previous frustration of privacy expectations by nongovernmental agents. “The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” United States v. Jacobsen, 466 U.S. 109, 117, 104 S.Ct. 1652, 1658-59, 80 L.Ed.2d 85 (1984).
The Supreme Court next determined that the chemical test violated no reasonable expectation of privacy. Id. at 122-125, 104 S.Ct. at 1661-63. The test would merely show whether the substance was cocaine. Id. at 123, 104 S.Ct. at 1661-62. A positive test result would compromise no legitimate expectation of privacy because cocaine is contraband; and, a negative result would reveal nothing of special interest Id. While a seizure of the property occurred when the cocaine was tested—and indeed a small quantity was actually destroyed—the Supreme Court held that the seizure was reasonable in the absence of a warrant because of the law enforcement interests involved and because the destruction of a trace amount of cocaine had only a de minimis impact on the defendant‘s possessory interests in the property. Id. at 125, 104 S.Ct. at 1662-1663.
Many similarities exist between the present case and Jacobsen. With regard to the blood alcohol test results, appellee‘s expectations of privacy could potentially have been implicated at three different stages: (1) the physical intrusion into his body to draw blood, (2) the exercise of control over and the testing of the blood sample, and (3) obtaining the results of the test. But in the first two stages, appellee‘s expectation of privacy had already been frustrated by the actions of nongovernmental agents. The physical intrusion occurred and the blood was tested by medical personnel for medical purposes. While appellee definitely possessed a privacy interest in the former, see Skinner (cited above), and may have possessed a privacy interest in the latter, see Comeaux (plurality opinion, cited above), those interests were frustrated by the actions of medical personnel. The only question remaining is whether appellee had a reasonable expectation of privacy at the third stage—his test results.
A subpoena for blood alcohol and drug information about the driver in an automobile accident is somewhat analogous to the chemical test in Jacobsen. A subpoena directed solely at blood alcohol and drug tests would, like the chemical test in Jacobsen, be a very narrow investigatory method designed to elicit evidence for a very narrow purpose.
Moreover, in several contexts, Legislatures across the nation have conferred upon law enforcement officers the ability to obtain blood samples following traffic accidents. All fifty states have “implied consent” laws which provide that any person operating a motor vehicle on public highways is deemed to have given consent to chemical testing (without a warrant) after an arrest where an officer has reasonable grounds to believe that the suspect was driving in an intoxicated condition. Annotation, Driving While Intoxicated: Subsequent Consent to Sobriety Test as Affecting Initial Refusal, 28 A.L.R.5th 459, 472 (1995). Ordinarily, the “implied consent” provisions require the offending motorist to either submit to a chemical test or suffer suspension of his driver‘s license. Id. at 459. Many statutes also permit officers to conduct a chemical test (without a warrant) on an unconscious person under the theory that such person has not withdrawn his implied consent. Annotation, Admissibility in Criminal Case of Blood Alcohol Test Where Blood Was Taken from Unconscious Driver, 72 A.L.R.3d 325, 357–361 (1976); Id. at 28-29 (Supp.1997). Some statutes even permit ob
We express no opinion concerning whether society recognizes a reasonable expectation of privacy in medical records in general, or whether there are particular situations in which such an expectation might exist. We note only that, given the authorities discussed, whatever interests society may have in safeguarding the privacy of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident.
Accordingly, we affirm the judgment of the Court of Appeals.
PRICE, Judge, dissenting.
Believing a reasonable expectation of privacy exists in the test results of a person‘s blood analysis, I respectfully dissent.
I. The Fourth Amendment
As stated by the majority, the issue is whether the government‘s acquisition of a written blood analysis violated appellee‘s Fourth Amendment constitutional right to privacy.1
To invoke the protections of the Fourth Amendment, the State, or its agent, must engage in action which constitutes a seizure and/or a search. Appellee‘s medical records have not been “seized” or “searched” under the Fourth Amendment, unless he had a legitimate expectation of privacy in them. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This determination compels a two-part inquiry: (1) whether appellee had a subjective expectation of privacy in his medical records and (2) whether this is an expectation that society is prepared to recognize as reasonable. California v. Greenwood, 486 U.S. 35, 39 (1988) (citations omitted).
II. Appellee‘s Subjective Expectation
It is difficult to discern the nature of appellee‘s expectations, at least on the night of the accident. After the investigating officer arrived on the scene, appellee was transported by Life-Flight to the hospital. Because of his injuries, appellee‘s active role in the events that took place after his arrival at the hospital is minimal. Appellee‘s blood tests were conducted solely under the direction of his attending physician.2
The State argues that appellee had no subjective expectation of privacy in the results of his blood tests because the tests
Medical records are not comparable to financial records. Medical tests are generally performed at the direction of the doctor and are necessary for effective diagnosis and treatment. While generated by and in the possession of a third party, unlike bank records, they are not documents intended to flow in the stream of commerce. Rather, they exist as part of the process of ensuring that a person receives adequate medical care. As recently explained by this Court, “that certain facts may be revealed in the necessarily candid process of diagnosis and treatment does not mean we no longer have a collective interest in insulating them from public scrutiny.” Richardson v. State, 865 S.W.2d 944, 952 (Tex.Crim.App.1993). When seeking medical treatment, patients assume that the information revealed to a doctor or nurse is private and shielded from disclosure. In fact, most people believe that the information contained in medical records is not accessible to even close family members. Therefore, it is fair to conclude that appellee harbored a subjective expectation of privacy in his medical records.3
III. Society‘s Expectation
The question, then, becomes whether society is willing to recognize appellee‘s expectation as a reasonable one. The Fourth Amendment‘s protections do not rest on views of the citizens of an individual state, but rather, on a broader societal perspective. Greenwood, 486 U.S. at 43. Reviewing the decisions of those states which have addressed this issue, however, fails to yield a societal consensus on the protection accorded to medical records. Outside of the criminal context, courts have held that an individual possesses a substantial privacy interest in his or her medical records. See McDonnell v. U.S., 4 F.3d 1227, 1253 (3rd Cir.1993) (recognizing privacy interest in medical records requested under Freedom of Information Act) and cases cited therein; Tarrant County Hosp. Dist. v. Hughes, 734 S.W.2d 675 (Tex.App. - Fort Worth 1987, no writ) (noting that medical records are within constitutionally protected zone of privacy). Courts reach different conclusions, however, when the same issue arises in a criminal proceeding.4 Judges’ votes are divided in
It is logical to suppose that society might find reasonable an expectation of privacy in those matters of a personal nature as opposed to more public matters. The information that is disclosed through blood analysis is highly personal. It may contain such information as test results revealing that the patient is afflicted with a socially stigmatized disease, and graphic details of symptoms described by the patient in an effort to assist in obtaining an accurate diagnosis. Blood testing may disclose serious medical conditions or genetic disorders. As such, doctors understand the importance of maintaining the confidentiality of their patients’ medical records. In addition, Section 5.08 of the Texas Medical Practice Act has only been repealed in the context of judicial proceedings.
IV. The Search
This conclusion, however, does not end the inquiry. Now, it is necessary to determine if a grand jury subpoena involves action by a
Despite being given broad powers to investigate, the power of the grand jury is not without limits. U.S. v. R. Enterprises, Inc., 498 U.S. 292, 297 & 299 (1991). The mere issuance of a grand jury subpoena is not “some talisman that dissolves all constitutional protections.” United States v. Dionisio, 410 U.S. 1, 11 (1973). Unlike the instant case, most cases upholding the broad inquisitive rights of grand juries involve business records or tax-related documents. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment § 4.13(e) (1987), at 383. The Supreme Court has noted the corporate character of these documents when conducting its Fourth Amendment analysis. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946). Additionally, the Court has stated that “corporations can claim no equality with individuals in the enjoyment of a right to privacy.” LaFave at 383, citing United States v. Morton Salt Co., 338 U.S. 632 (1950).
The Supreme Court has yet to determine whether a grand jury subpoena for medical records invades a person‘s reasonable expectation of privacy and would constitute a search and, therefore, be subject to the same scrutiny—under the Fourth Amendment—that a search warrant is. Several courts, including the Supreme Court, which have examined the constitutionality of a grand jury subpoena ordering a defendant to provide a blood sample consistently hold that such a directive does involve a Fourth Amendment search. Schmerber v. California, 384 U.S. 757 (1966)6; In re Grand Jury Proceedings (T.S.), 816 F.Supp. 1196 (W.D.Ky.1993); Henry v. Ryan, 775 F.Supp. 247 (N.D.Ill.1991); People v. Marquez, 152 Ill.2d 381, 178 Ill.Dec. 406, 604 N.E.2d 929 (1992); Woolverton v. Multi-County Grand Jury, 859 P.2d 1112 (Okla.Crim.App.1993).
Certain other physical evidence, on the other hand, may be constitutionally obtained through a grand jury subpoena. In the context of subpoenas for a handwriting or voice exemplar, the Supreme Court determined that the Fourth Amendment offers “no protection for what ‘a person knowingly exposes to the public’ No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.” Dionisio, 410 U.S. at 14 (citations omitted). Dionisio and its companion case, United States v. Mara, 410 U.S. 19 (1973), held, respectively, that subpoenas for a voice exemplar or a handwriting exemplar did not rise to a search under the Fourth Amendment because there was no reasonable expectation of privacy in a person‘s voice or handwriting.
Here, the governmental invasion was less intrusive than a subpoena for a blood sample—the subpoena required the hospital to release medical records containing the results of appellee‘s blood tests. Appellee was not forced to provide a blood sample, nor was the subsequent blood analysis performed at the behest of the State. However, the rationales of the blood sample cases, which held that a subpoena did constitute a search, more logically extend to appellee‘s situation than the rationales of the exemplar cases. Medical records containing the results of a blood analysis are not commensurate with physical characteristics knowingly exposed to the public. One‘s physical traits are generally
V. Reasonableness
The final constitutional question remains: Was this “search” reasonable under the Fourth Amendment? Here, the grand jury did not obtain a warrant, supported by probable cause and issued by a neutral magistrate, to “search” appellee‘s medical records. Absent an arrest, the minimum constitutional requirements for a warrantless search are (1) probable cause that incriminating evidence will be uncovered and (2) exigent circumstances justifying the search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This case presents no exigent circumstances. There is little danger that appellee would destroy the evidence or that a delay in obtaining a search warrant would impede the grand jury‘s investigation. Medical records, unlike alcohol in one‘s blood, does not dissipate over time and justify an immediate search. See Schmerber, 384 U.S. at 770-71. Additionally, it is unclear from the present record whether probable cause existed prior to the subpoena of appellee‘s medical records.7 Absent this preliminary showing of probable cause, a grand jury subpoena for medical records fails to satisfy the requirements of the Fourth Amendment. Since no constitutionally acceptable excuse was proffered precluding the procurement of a warrant, I would hold that the grand jury subpoena was an unreasonable search of appellee‘s medical records, thus violating his constitutional rights emanating from the Fourth Amendment.
I would reverse the judgment of the court of appeals and affirm the trial court‘s decision to grant appellee‘s motion to suppress. Because the majority holds otherwise, I dissent.
BAIRD, OVERSTREET and MEYERS, JJ. join.
BAIRD, Judge, dissenting to denial of appellee‘s motion for rehearing.
The majority‘s denial of rehearing in this case wholly ignores appellant‘s argument that the Legislature‘s re-enactment of
I admit to not being aware of the reenactment. Whether the other judges were aware, I will not hazard to guess. However, it seems to me, the legislative action should have been addressed in both the majority and dissenting opinions. When a motion for rehearing brings to the attention of the Court relevant authority that was not considered on original submission, we should not deny the motion out of some sense of embar
Accordingly, I dissent to the denial of appellant‘s motion for rehearing.
KELLER, Judge