STATE OF OHIO, Plаintiff-Appellant/Cross-Appellee, - vs - MELISSA C. MYERS, Defendant-Appellee/Cross-Appellant.
CASE NOS. CA2014-02-002, CA2014-02-004
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLINTON COUNTY
1/20/2015
2015-Ohio-160
HENDRICKSON, P.J.; S. POWELL and M. POWELL, JJ., concur.
CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CRI 2013-5163
John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, 140 North Main Street, Suite B, Springboro, Ohio 45066, for appellee/cross-appellant
OPINION
HENDRICKSON, P.J.
{¶ 1} Plaintiff-appellant/cross-appellee, the state of Ohio, appeals a decision of the Clinton County Court of Common Pleas granting a motion to suppress filed by defendant-appellee/cross-appellant, Melissa C. Myers. Myers cross-appeals a decision of the Clinton County Court of Common Pleas denying her motion to dismiss the indictment. For the reasons stated below, we reverse in part and affirm in part the decision of the trial court.
{¶ 3} As part of Detective Luken‘s investigation into Myers, he ran a query with the Ohio Automated Rx Reporting System (OARRS). OARRS is an electronic database maintained by the Ohio State Board of Pharmacy that stores information for prescription drugs that are Schedule II through Schedule V controlled substances and other dangerous drugs.1 Among the information stored on the database for each prescription is patient identification, prescriber and pharmacy information, and the name, dosage, and strength of the drug dispensed. Detective Luken received an OARRS report which contained Myers’ prescription information, including the names of prescribing physicians, the phаrmacies that filled those prescriptions, and the specifics as to what type of drug she was prescribed. Detective Luken did not obtain a warrant or Myers’ consent prior to running the query on OARRS.
{¶ 4} Under the subscriber rules of OARRS, Detective Luken is not permitted to give the OARRS report directly to Myers’ physicians or pharmacies. Therefore, Detective Luken transferred the information contained on the OARRS report to a spreadsheet and then sent the spreadsheet to the listed pharmacies to confirm the infоrmation was accurate. Detective Luken also sent Myers’ physicians the spreadsheet and asked for a written statement from
{¶ 5} On June 6, 2013, Myers was indicted on seven counts of deception to obtain a dangerous drug in violation of
{¶ 6} On January 30, 2014, the trial court granted Myers’ motion to suppress. The court found that Myers had a reasonable expectation of privacy in her prescription drug information stored on OARRS. Therefore, the Fourth Amendment required Detective Luken obtain a search warrant before accessing Myers’ prescription drug information on OARRS. The trial court suppressed all evidence “gleaned by Detective Luken in accessing OARRS without a warrant in furtherance of his targeted, criminal investigation of [Myers]” and all evidence “flowing from that constitutional violation.” However, the trial court denied Myers’ motion to dismiss the indictment. The court reasoned that the indictment should not be dismissed on the bаsis of the failure to record the grand jury testimony because Myers had not demonstrated a “particularized need” to view the grand jury transcripts.
{¶ 7} The state now appeals, asserting a sole assignment of error. Myers cross-appeals, also asserting an assignment of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE‘S MOTION TO SUPPRESS.
Standard of Review
{¶ 11} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness сredibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038. “An appellate court, however, independently reviews the trial court‘s legal conclusions based on those facts and determines, without deference to the trial court‘s decision, whether as a matter of law, the facts satisfy the appropriate legal standard.” Cochran at ¶ 12.
Ohio Automated Rx Reporting System
{¶ 12} In 2005, the Ohio General Assembly enacted
{¶ 13} Disclosure of the information stored in OARRS is governed under
Reasonable Expectation of Privacy
{¶ 14} The Fourth Amendment to the United States Constitution protects individuals from unreasonable governmental searches and seizures. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675 (1985). In order to employ Fourth Amendment protections, a defendant must have a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507 (1967). The United States Supreme Court has directed reviewing courts to consider a two-part test in order to determine whether the Fourth Amendment is implicated. “First, has the individual manifеsted a subjective expectation of
{¶ 15} Both the United States Supreme Court and the Ohio Supreme Court have addressed the extent of constitutionally protected privacy interests in an individual‘s prescription records. Whalen v. Roe, 429 U.S. 589, 604, 97 S.Ct. 869 (1977); and Stone v. Stow, 64 Ohio St.3d 156 (1992). In Whalen, the United States Supreme Court found that a New York statutory scheme that compiled prescription information did not invade “any right or liberty protected by the Fourteenth Amendment.” Whalen at 603-604. Under the statute, patients who received prescriptions for highly addictive drugs and the prescribing physicians were identified, patient and the prescription information was forwarded to the state department of health, and this information was assembled in a database where certain state employees responsible for drug enforcement had access to the information. Id. at 593-595.
{¶ 16} The United States Supreme Court held that the disclosure did not violate an individual‘s privacy interest in confidentiality of personal matters because the disclosures were not “meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care.” Id. at 602. Security measures were implemented to protect the data from disclosure, public disclosures were expressly prohibited, and a willful violation of the nondisclosure provisions was a crime. Id. at 594-595. Further, the United States Supreme Court held that the statute did not violate the privacy interest of “autonomy in making personal decisions” because while “some individuals’ concern for their own privacy may lead them to avoid or postpone needed medical attention * * * requiring such disclosures * * * does not automatically amount to an impermissible invasion of privacy.” Id. at 602.
{¶ 17} After Whalen, the Ohio Supreme Court addressed a constitutional challenge
{¶ 18} The Ohio Supreme Court found that the challenged statutory provisions do not violate a right of privacy under the Fourteenth Amendment of the U.S. Constitution or the similar provisions in the Ohio Constitution. Id. at 163. The Court relied on Whalen and reasoned that the scheme is constitutionally permissible because public disclosure of the information is prоhibited, the Ohio Administrative Code limits police officers’ access to records, and the program only collects data on Schedule II and IV drugs which have an especially high potential for abuse. Id. at 162-163. Additionally, the Court noted that while it was “somewhat troubled by police initiation of administrative searches” which was not present in Whalen, “the fact of police initiation, alone, [does not] require a finding that appellants’ privacy rights have been violated.” Id. at 162.
{¶ 19} The Ohio Supreme Court also addressed whether the statutory and administrative provisions at issue violate the Fourth Amendment of the United States Constitution and Section 14, Article I of the Ohio Constitution. Id. at 164. In regards to the
In our discussion of the right of privacy and the implications of Whalen v. Roe, supra, on that right, we concluded that the statutory and administrative provisions at issue, in the circumstances of the record before us, violate no right of privacy of patients or physicians. Our conclusion in that regard also applies to the patients’ and physicians’ challenge on Fourth Amendment grounds. The Fourth Amendment protects only against unreasonable searches. Whatever privacy interest the patients and physicians possess in these prescription records is limited to the right not to have the information disclosed to the general public. Disclosures to police officers, or to officials of the State Pharmacy Board, do not violate that right. Because the patients and physicians have no reasonable expectation of privacy in prescription records, as raised in the circumstanсes of this case (see Whalen, supra), their Fourth Amendment challenge cannot succeed.
(Emphasis added.) Id. at 166.
{¶ 20} Based on the guidance from the United States Supreme Court in Whalen and the Ohio Supreme Court in Stone, Myers did not have a reasonable expectation of privacy that her prescription records stored on OARRS would not be disclosed to Detective Luken in his request of Myers’ prescription drug information. Initially, we note that the evidence established that Detective Luken complied with the statutory and regulatory requirements in accessing Myers’ prescription records stored on OARRS. At the suppression hearing, Detective Luken demonstrated compliance with {¶ 21} The statutory schemes in Whalen and Stone are similar to the case at bar. Like {¶ 22} In its decision granting Myers’ motion to suppress, the trial court carefully explained OARRS, the relevant statutes governing the database, the facts underlying this case, and Myers’ asserted privacy interest in her prescription records. While the trial court‘s decision was thorough and well-reasoned, the court mischaracterized the Ohio Supreme Court‘s holding in Stone. The trial court found Stone distinguishable as that decision was limited to whether the administrative exception to the warrant requirement applies in law enforcement‘s access to prescription records. The trial court reasoned that Stone does not govern the present case because the state has not argued Detective Luken could access the records stored on OARRS under the administrative exception. However, the discussion in Stone concerning the administrative search exception to the warrant requirement was within the context of pharmacists’ reasonable expectation of privacy. Stone expressly stated that doctors and patients do not have a reasonable expectation of privacy that their prescriptions records will not be disclosed to lаw enforcement under the statutory scheme. In regards to the claims of patients and doctors, Stone never addressed the administrative exception. {¶ 23} Furthermore, we disagree with the trial court‘s reasoning that Myers had a reasonable expectation of privacy in her prescription records because the records were covered by physician-patient privilege. The physician-patient privilege is a statutory privilege and not a constitutional privacy right. State v. Desper, 151 Ohio App.3d 208, 2002-Ohio-7176, ¶ 32 (7th Dist.). The Ohio Supreme Court has stated: “[E]rror involving [physician-patient] privilege is not a сonstitutional violation. In the first place, the privilege is not a requirement of due process.” State v. Webb, 70 Ohio St.3d 325, 334 (1994). Therefore, a motion to suppress would not be an appropriate remedy even if Myers’ physician-patient privilege was compromised because the violation would be statutory in nature, not constitutional. See State v. Otterman, 9th Dist. Summit No. 21005, 2002-Ohio-5772, ¶ 19. {¶ 24} Myers argues Stone is distinguishable because in Stone the plaintiffs’ prescription drug information was subject to a mass collection by law enforcement. Unlike Stone, Myers’ prescription drug information was obtained as a result of a targeted сriminal investigation. We are unpersuaded that the fact none of the plaintiffs in Stone were subject to a targeted criminal investigation renders Stone distinguishable. The inquiry of whether an individual has a reasonable expectation of privacy under the Fourth Amendment does not turn on the purposes for which the information will be used. Rather, the proper inquiry is whether the party has a subjective expectation of privacy in the object of the search that society is prepared to recognize as reasonable. See Katz, 389 U.S. at 361. {¶ 25} Additionally in Stone, the statutory scheme permitted the exact type of targeted investigation that occurred in this case. In Stone, the program resulted in several convictions {¶ 26} Consequently, Myers did not have a reasonable expectation of privacy that her prescription records stored on OARRS would not be disclosed to Detective Luken in his request of prescription drug information pursuant to {¶ 27} The state‘s sole assignment of error is sustained. {¶ 28} Cross-Assignment of Error No. 1: {¶ 29} THE TRIAL COURT ERRED IN FAILING TO DISMISS THE INDICTMENT. {¶ 30} Myers argues that her motion to dismiss the indictment should have been granted because the grand jury proceedings were not recorded. Myers maintains that a {¶ 31} Grand jury proceedings are secret, and “an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Fulton, 12th Dist. Clermont No. CA2002-10-085, 2003-Ohio-5432, ¶ 37, citing State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two of the syllabus; see {¶ 32} “Pursuant to {¶ 34} In regards to Myers’ physician-patient privilege argument, while the Ohio Rules of Evidence do not apply to proceedings before grand juries, the evidence rules do apply in regards to privileges. {¶ 35} Implicated in both Myers’ physician-patient privilege argument and argument {¶ 36} However, the definition of deception includes “knowingly deceiving another * * * by withholding information * * *.” (Emphasis added.) {¶ 37} Lastly, Myers’ argument that there is a lack of integrity in the entire criminal investigation process because Detective Luken searched the OARRS database without a warrant is also without merit. As discussed in the state‘s assignment of error, Myers did not have a reasonable expectation of privacy in her prescription records. Therefore, Detective {¶ 38} The judgment of the trial court is reversed in part and affirmed in part. The trial court‘s decision granting Myers’ motion to suppress all evidence obtained by Detective Luken‘s warrantless search of Myers’ prescription information stored on OARRS is reversed. Myers’ Fourth Amendment rights were not violated because she did not have a reasonаble expectation of privacy that her prescription records would not be disclosed to Detective Luken in his request of prescription drug information pursuant to S. POWELL and M. POWELL, JJ., concur.