*1 thаt, has, therefore, We immunity. agree waived herein it has coverage, insurance liability that SRS has extent of sovereign immunity. waived defense Young. regard Reversed and re- with defendant Affirmed Department regard Beloveand the manded with to defendants and Rehabilitation Services. Social Judy D. Welch Vermont 1105] A.2d [624 No. 90-392 Johnson, Allen, Gibson, Dooley, C.J., JJ. Present: Morse Opinion Filed October February Reargument Denied Motion *3 L. Jeffrey Amestoy, Attorney General, and Susan R. Harritt, Assistant Attorney General, for Montpelier, Plaintiff-Appellee. Allen,
E.M. E. General, Defender Anna Saxman Nelson, William Defenders, Appellate Montpelier, Defend- ant-Appellant.
Gibson, J. Defendant Judy Welch appeals orders of the dis- trict court two denying motions to suppress evidence and two motions to dismiss. She was charged with concealing material facts obtaining prescriptions for regulated drugs. 18 V.S.A. 4223(a)(3) (h). & Defendant argues that her right to privacy was aby violated inspection of her prescription records at Rutland area pharmacies, that the investigation of her prescriptions for “doctor shopping” tainted confes- sions she made after signing an immunity agreement, and that she lacked the requisite rea for mens the alleged violations. We affirm.
I. 5,1988, On Judy October Welch was as a working nurse at the (RCC). Rutland Correctional Center She was at relieved 2:30 p.m. by McDonald, nurse Nancy but before for the leaving day Welch went to a neighborhood pharmacy to pick up prescrip- tion of Vicodan for an inmate. This was unusual because the pharmacy routinely delivered prescriptions. Later that after- ten contained
noon, prescription that the McDonald discovered on the tablets indicated of the twelve tablets instead Vicodan showed that entry label, prescription-log and that defendant’s too, This, unusual be- was had been ordered. tablets “10-12” definite, an in a ordered normally are prescriptions cause McDonald Checking pharmacy, with amount. approximate, twelve tablets. had contained prescription that the confirmed McDonald the correctional called evening, Later in the Welch unusual call all an “everything right,” if was facility and asked events, including these reported her make. McDonald count, Michael Superintendent in the RCC discrepancy pill O’Malley. a drug had previously that Welch had
O’Malley, who knew behest, O’Malley’s on 7. At met with her October problem, admitted meeting McDonald after telephoned Welch took no further O’Malley two tablets. that she had taken the 1989, however, an em- incident. In March action regarding attorney drug diver- alleging wrote to state’s ployee RCC thereafter, O’Malley shortly infirmary, from the sions RCC “po- about attorney inquiring received a letter from state’s Su- Assistant drug O’Malley assigned tential abuse” RCC. matter. Robinson to investigate Stewart perintendent defendant as part interviewed April On Robinson a so- Defendant read and signed internal RCC investigation. Garrity Jersey, v. New U.S. Garrity warning, see called evi- (1967), information or any which informed her her in against could not be used might provide dence she taken the then admitted that she had criminal She proceeding. container October. Vicodan tablets from the two on prepared summary investigation A of the internal RCC 3. April Trooper complaint attorney, a result of the to the state’s
As Police Task Force Drug of the Vermont State Steven Brown On or about investigation. began independent McDonald, who related March he interviewed nurse him of defendant’s admission October 5 and told the events of He Vicodan tablets. also interviewed that she had taken two defendant had ad- who confirmed that O’Malley, Robinson and had, words, in O’Malley’s mitted the Vicodan incident pre- knew of defendant’s already off the Brown wаgon.” “fallen *5 drug problem. During vious the course of investigation, his RCC, Brown reviewed files at the but did not exam- pharmacy ine personnel records other files related to RCC’s internal investigation. attempted defendant, He to interview but she re- fused gave and instead him prepared statement that did not mention the October 1988 After incident. Brown concluded his investigation, the state’s attorney decided bring charges against defendant for of diversion the two Vicodan tab- lets. Boutin,
Lt. Gary one of Brown’s supervisors, suggested check of area pharmacies to see if defendant was “doctor shop- — i.e., ping” securing prescriptions controlled substances from more than one practitioner. Brown all the called phar- macies Rutland and obtained information on pre- defendant’s scriptions from four of them. He discovered that some of the prescriptions He overlapped. went to the pharmacies, obtained the original prescriptions, then the practitioners visited in- volved. Three of them signed statements to the effect that de- fendant had not told them about existing prescriptions, a fact that would have been material ato decision to medi- prescribe cation for her. In interviews, these Brown nо saw patient files and sought only verify the evidence he already had. of On the basis this investigation, charged the State de- fendant with four counts of a material concealing fact obtain- ing regulated substances.
II. Defendant first contends Trooper Brown violated her rights under the Fourth Amendment to the United States Con- I, stitution and Chapter Article 11 of the Vermont Constitution
when he inspected pharmacy her records without a warrant. argues Defendant that she has a legitimate expectation pri- in her vacy pharmacy records they because are medical records and society recognizes the confidentiality medical records. The State contends that there is no legitimate expectation privacy prescription records that must be kept readily avail- able, law, pursuant to Vermont for inspection by offi- authorized cials. The trial court found that a privacy existed, interest but concluded that no search warrant was required because exten- sive federal and state regulatory govern schemes controlled regu- “pervasively fell within the and the records
substances New warrant See requirement. to the industry” exception lated (because (1987) owner auto- Burger, 482 U.S. York reduced ex- industry, has closely regulated junkyard, mobile standard Amendment Fourth privacy, pectation *6 applica- has lessened for search government reasonableness tion). privacy possesses first whether defendant discuss We records. in her pharmaceutical interest A. noted, right protected by the recently As we privacy to Article 112is the be right Fourth Amendment1 and the both into legitimate intrusions government unreasonable free from 6,1, 587 A.2d Kirchoff, 156 Vt. of expectations privacy. (1991). value,” id., this is the same under While “core 992 Constitutions, our Article States and Vermont both the United Supreme from the States diverged 11 has United jurisprudence Berard, State v. analysis of the Fourth Amendment. Court’s (1990) (federal law “tends to 306, 310, 118, 120 576 A.2d Vt. ju Eleven role Article derogate judiciary central of A.2d Wood, 148 State v. Vt. risprudence”); (1987) (in and judicial curtailing from review focusing away to from unlawful governmental be free scope protected right 11). conduct, with Article incompatible federal test is Amendment, an individual must dem Under the Fourth in the place a legitimate expectation privacy onstrate court seized will consider or the items before searched to the Constitution states: The Fourth Amendment United States houses, persons, papers, right people secure in their and bе seizures, violated, effects, against shall not be unreasonable searches and cause, issue, upon probable supported Oath or but and no Warrants shall searched, affirmation, particularly place and describing the to be and persons things to or be seized. I, Chapter Article of the Vermont Constitution states: houses, themselves, papers, people right hold their and That the have a seizure; warrants, ,. possessions, and without free from search or therefore them, made, affording and oath affirmation first sufficient foundation or messenger may required or whereby or be commanded officer his, persons, suspected places, any person her or their seize or search described, contrary right, ought property, particularly not are to that granted. not to be Illinois, search was unreasonable. Rakas v. whether (1978). U.S. 143-44 n.12 places Defendant particular em- the Rakas criterion that the on phasis interest must privacy Amendment, derive from “a source outside of the Fourth either by reference to of real or concepts personal law or to property that are understandings recognized permitted by society.” Id. Defendant does not assert any property interest the prе- records, scription but contends that prescription records are confidential medical records and that her legitimate expectation derives from privacy society’s recognition of the privacy such records.
Defendant not may standing have to assert her Fourth Roe, claim, see Whalen v. Amendment 429 U.S. 603-04 (1977) (limited official access to prescription records for dan- gerous does drugs implicate interests), patient’s privacy but we need not today. decide that issue reachWe merits defendant’s claim under Article 11 of the Vermont Constitution find our analysis would be the same under either the federal *7 or state constitutions.
In
whether
deciding
defendant has standing to assert
her privacy claim under Article 11 of
Constitution,
the Vermont
we look at
objective
relationship of the person
place
to the
seized,
searched or
subjective
items
as
to
opposed
a
evaluation
of the legitimacy
Wood,
of the person’s expectation of privacy.
489,
908;
148 Vt. at
A.2d
Kirchoff,
see also
156 Vt. at
— i.e.,
994 (inquiry
is objective
A.2d
whether reasonable
person should know
to
occupant sought
public).
exclude
A de
fendant “need
a
only
possessory,
assert
or
proprietary
partici
patory interest
in the item
or
seizеd
the area searched to
establish
to assert an
standing
Article Eleven challenge.”
Wood,
Here,
148Vt. at
B. 11, a a warrant and prob Article search requires Under circumstances which make the except exceptional cause in able Be probable-cause requirement impracticable. warrant and 310-11, at 120-21. Article 11 does not rard, at 576 A.2d 154 Vt.
79 an contemplate absolute on warrantless searches or prohibition seizures, but circumstances under which warrantless searches permitted or seizures are must be jealously carefully Jewett, State v. 328, 958, 148 Vt. drawn. 532 A.2d (1986). in instant analysis questions: Our case involves two first, inspection whether defendant’s prescription records justified an as to the warrant exception requirement, and second, for a whether authority inspection may be used to gather evidence regarding pre- individual’s scription activity.
1. The trial court in adopted “pervasively regulated dustry” exception the warrant requirement and concluded that the warrantless inspection prescriptions for controlled substances was This reasonable. the warrant re exception been quirement applied has allow warrantless administrative inspections of businesses that are closely regulated by the gov such ernment where are inspections necessary for effective en forcement of the Burger, 699-701, law. See U.S. at “[Wjhere cases cited therein. the privacy interests of the owner are weakened and the in government interests regulating par ticular businesses are concomitantly heightened, warrantless inspection of commercial may well be premises reasonable within the Fourth Amendment.” Id. meaning at 702. War rantless inspections upheld have been in cases involving liq dealer, States, Colonnade Catering Corp. v. United uor 397 U.S. 72, 77 (1970), Biswell, United v. dealer, a gun States 406 U.S. (1972), Donovan 315-16 a mining Dewey, company, (1981), U.S. junkyard, Burger, and an automobile U.S. 712. in We believe the state’s regulating phar interest macies and the illicit use controlling drugs is as as that great of the federal government the just-named indus regulating Whalen, (state tries. See U.S. has “vital interest controlling the distribution of dangerous drugs”); Common wealth v. Lipomi, (1982) 385 Mass. 432 N.E.2d (state pharmacies interest is as as fed urgent cases). eral regulatory liquor interests in and gun The “pervasively regulated has industry” exception been adopted in several states in litigation involving owners pro-
80 Board v. Arizona State Mendez See of pharmacies.
prietors v. Hosto (1981); 972, 91, 974 89, 628 P.2d Ariz. Pharmacy, 129 (1979); Lipomi, 401, 405 147, 153, 577 S.W.2d Brickell, 265 Ark. Mass, Rednor, v. 93; 203 N.J. 381, N.E.2d 432 v. Curco People (1985); 544, 508, A.2d 503, Super. (Crim. 74, Ct. Inc., Misc. 2d 350 N.Y.S.2d Drugs, (Tex. 798, State, App. Crim. v. Poindexter 1973); 545 S.W.2d rec 1977). pharmacy upheld inspections have Federal courts an adminis standard less-than-probable-cause on the ords 880(d)(1) cause to § (probable 21 U.S.C. trative warrant. See interest public is “valid warrant inspection issue administrative or regulations”); of this subchapter enforcement the effective 1987) (lit (7th 1161, 1165 v. Cir. Nechy, 827 F.2d United States to show order had investigator § means all of 880 reading eral handled drugstore was that warrant secure administrative Schiffman, 572 F.2d United States substances); controlled 1978) (“valid (5th is constitu interest” 1137, public Cir. warrant, though even less for administrative tional standard search). cause for probable than stringent anyone selling potentially has long required Vermont narcotics, accurate records. keep including dangerous drugs, records 1904, such Legislature required the early As as sold, the time the article and quantity “the kind specify made, sale is to whom such when, person the name of officers, members to all health open which record shall be to exam may who wish of health and state officials state board 1915, re 143, Legislature § In No. 13. ine the same.” narcotics. Records of their for the use of quired рrescriptions and to be “at all years, not less than two to be for kept sale were authori police officials and] open inspection [health times 197, § No. 4. of cities and towns.” ties and officers police Drug the Uniform Narcotic adopted In Legislature Act, 1945, many statutory into put place No. which today, including requirement in effect still provisions and federal state open records be pertinent Id. In 17. narcotics laws. enforcing responsible officials the state’s short, consistently recognized has Legislature that official access drug industry regulating interest enforcement. drug critical to effective records is to prescription industry qualifies conclude that Vermont’s pharmaceutical We regulated industry.” “pervasively as
Pronouncing
industry “pervasively regulated” will
alone
inspection.
validate warrantless
The United States
Court has held that
the context of
Supreme
regulatory
“[i]n
*10
of
system business
that is
inspection
premises
carefully limited
time,
in
place,
scope,
and
the
of the search
legality
depends not
Biswell,
a
on consent but on the
of valid
authority
statute.”
at 315. In
Burger,
the
a
upheld,
U.S.
Court
Fourth
against
Amendment challenge,
regulation
New York’s
of the automobile
which
junkyard industry,
allowed warrantless
of
insрection
re
records of
quired
automobile
because the statute satis
parts,
three
necessary
inspections
fied
criteria
make the
(1)
reasonable:
the state
a
in
must have substantial
interest
reg
(2)
ulating
industry,
the
must
regulation
reasonably serve the
(3)
interest,
achievement of state
and
the
must
statute
inform
industry
inspections
the
will be made on
regular
a
basis
must place
and
restraints
discretion
appropriate
upon the
of
Burger,
inspecting
officers.
In further junk- of automobile regulations that the New York held Court reason- only were not inspections yards permitting analogized The Court necessary. also able but were in junkyard in inspection their facing police exigency inspect gun to investigators seeking facing to that Burger Biswell, that in order for the de- namely, in storeroom dealer’s effective, “‘unan- to be regulations function of terrent 4 drug prescrip require records and chapter also sections of Other 4210(d) (records § readily inspection: 18 V.S.A. kept available for tions be “subject kept years to dispensing drugs to for three be authorized sale engaged in of this state . . . inspection a federal officer or an officer chapter”); (prescrip § drug laws or of this enforcement of the federal only to federal or state offi open for tions and records “shall be 4218(c) (each by duly cers”); licensed party § to transaction of sale years “in such a regulated drugs keep record for three manufacturer of 4215(a) (pharmacist § shall readily inspection”); way accessible for as to be patient, pe for prescriptions, with full name and address keep record of inspection by readily a federal years, to be accessible riod of three “so as drug laws or of engaged of the federal in the enforcement or state officer... chapter.”). this nounced, even frequent, are Burger, inspections essential.’” Biswell, 316). U.S. at 710 (quoting U.S. The need for authority to conduct warrantless inspections pharmacy rec- Indeed, ords arises from the same federal exigency. pro- law anyone make, hibits from refusing to or furnish keep, records required to be under kept the Controlled Substances Act. 21 842(a)(5). § U.S.C. it Although may argued be that the defend- case, in ant this a customer and not a pharmacist, was never position records, to alter or pharmacy hide this does affect the need for official authority inspect those records without a warrant. To hold otherwise would place investigators in the cu- position rious having secure a warrant in order to examine records which it is unlawful for the pharmacist to refuse to pro- vide. We address this question further our discussion of the use of inspection authority gathering evidence, be- low.
With respect
to the third Burger
criterion,
the Supreme
Court stated that “the regulatory statute must perform the two
basic functions of a warrant:
it must advise the owner of the
commercial
premises
the search is being made
pursuant
the law and has a properly defined
it
scope, and must limit the
discretion of the inspecting officers.” Burger,
We therefore hold that the warrantless inspection of pharmacy records 18, 84, maintained under Title chapter per missible, and agree with the trial court that un- inspection statutory in this case conformed to Brown Trooper
dertaken authority and was reasonable.
2.
Next,
whether a warrantless
inspection
we consider
a criminal prosecution.
evidence for
may
gather
be used
have held that the
warrant
jurisdictions
exception
Some
only
inspections,
to routine administrative
requirement applies
v.
Frodyma,
See Commonwealth
investigations.
not to criminal
Penn,
(1982);
434, 440,
925,
Mass.
436 N.E.2d
(1991).
In Burger,
790,
3d
576 N.E.2d
Ohio St.
observed, however, that adminis
Supreme
United States
Court
as
“may
purpose
pe
trative
have the same ultimate
regulations
laws,”
713,
inspecting
nal
482 U.S. at
and that the
officers
regulatory authority
they
that case acted within their
when
ex
if
vehicles had
parts
amined vehicle
ascertain
been
(where
716;
Nechy,
stolen. Id.
see also
Finally, § we address defendant’s claim that 12 V.S.A. and V.R.E. 503 this case from dis- prohibited prescribers closing any information to Brown when he Trooper interviewed them to The trial court concluded that verify prescriptions. any information communicated to a defendant prescriber by 4223(b), was not under 18 V.S.A. which nullifies privileged in an where the communication made privilege attempt .is drugs argues obtain Defendant this is circular illegally. *13 declare information non- reasoning whereby may the improper it in interviews privileged already engaged has after in order to of violations. gather evidence
Interviews with are not dealt with prescribers chap reasoning ter We that the trial court’s raises a circu agree 84. larity, but we do not that the interviews here concede were Without whether or not the information improper. deciding communicated to the and thence prescribers Trooper Brown any was we find that error was harmless. At the privileged, time interviews, had in already Brown his possession prescrip tions that by indicated violations defendant. He probable that sought merely had indeed been verify prescriptions each by prescriber, written and elicited from them the opinion that had of a they been aware concurrent from an prescriber, other own their decisions would prescribing have course, been affected. Of prescribers dangerous drugs are subject themselves to regulatory provisions pursuant to chap (d) See, 4210(a), § ter 84. e.g., V.S.A. must (physicians keep records, subject to federal inspection by authorized and state officers, sold, received, of all regulated drugs administered, dis used); pensed id. 4217 professionally (physicians must re abuse). all cases of If port here, error drug there was it was harmless. sum,
In we hold that defendant prevail cannot her chal- to the lenge constitutionality of the
her at the prescription records various pharmacies.
III. Defendant next argues Brown’s investi- doctor-shopping gation prompted by knowledge involuntary statements made to she RCC which personnel she admitted taking the admissions, claims, Vicodan tablets. Those she tainted evi- Brown, dence obtained which should therefore have been The trial court suppressed. agreed her statements were fired, made under threat of being her motion granted she suppress statements made to Superintendent O’Malley 7,1988, on October those she made to nurse McDonald over the on telephone October and those made to Assistant Su- at the perintendent April Robinson interview on 1989. Rut- Brown at the evidence gathered did not suppress court had investigation proceeded that his finding land pharmacies, investigation. from the RCC independently and the Vermont both the United States Under in order to be Constitutions, voluntary a confession must be Florida, a criminal defendant. Chambers used against *14 430, 450-51, Badger, State v. (1940); 141 Vt. 450 U.S. 239 (1982). removal “under threat of 336,348 Statements made A.2d O’Malley, in this office,” those defendant made case from like Garrity, McDonald, Robinson, See involuntary. and are properly suppressed, statements were at 500. Defendant’s U.S. of those therefore, product evidence as any gathered 440-41, 450 Badger, tainted. See Vt. statements would be (evidence an initial ille that is the product A.2d at 342-43 purgеd should be unless suppressed is tainted and gality taint). Further, if of coerced product the State has used the proceedings, to future “springboard” statements as In re an source for its evidence. independent must demonstrate (1988); Hill, 149 Vt. 431, 439-40, see also 545 A.2d (1963) States, v. United Wong Sun (inquiry 371 U.S. defendant was obtained objected by whether the evidence means suffi illegality by of that or instead “‘by exploitation taint’”) purged primary to be ciently distinguishable (1959)). Evidence of Guilt (quoting Maguire, a letter to the following Brown’s March 1989 inquiry began Brown learned of de- attorney state’s from RCC employee. his interview with McDonald on or during fendant’s admissions talk O’Malley about March after defendant’s with but talk on with when she April signed before her Robinson Garrity warning. Suppressed statements therefore mingled independent with observations McDonald. The independent observations, however, a virtual certainty indicated to had taken the Vicodan tablets. these observa- Among Welch in personally tions were defendant’s unusual behavior retriev- tablets, prescription, missing range the inmate’s ing “10-12” in the medication and the call that log, evening noted It from if was all was not asking everything right. defendant therefore, suppressed for Brown to necessary, “exploit” in order to build a case defendant. against statеments that Lt. Boutin’s argues suggestion Defendant check itself pharmacies tainted defendant’s knowledge admissions, trial but the court found that Lt. Boutin suggested the pharmacy check because of his his knowl experience, prior edge of defendant’s drug problem, and McDonald’s observa tions. The court found further that Brown declined the offer of files, O’Malley Robinson to review RCC rec personnel its ords, materials, or its internal investigation and the court con cluded that the not predicated State’s case was the RCC upon investigation internal or upon personnel RCC records or files. agree We that the record shows an independent basis for Brown’s inspection of the records. mo pharmacy Defendant’s tion was denied. properly
IY. Defendant’s next claim is that the Garrity warning immu- nized prosecution her from on based her statements Robin- addition, son on 3. In April she argues Robinson was acting on behalf of the interview, State when he initiated the therefore, she is immune pursuant to V.S.A. 1664.
The rule in Garrity and defendant’s signature on the “Employee form Warning” foreclose the use of her statements or evidence any derived from those in statements subsequent criminal proceedings. Garrity, But 385 U.S. 497-98. defend ant’s on argument this is point essentially a reworking the “taint” argument, and is consequently meritless. We have held that the trial finding court’s of an independent source for the State’s case on the doctor-shopping charges supported by record. under Garrity Immunity is not implicated here.
Defendant also claims immunity § under V.S.A. 1664. This statute grants authority to immunize individuals compelled to or testify jury court grand proceedings who wish invoke their right against self-incrimination. Their testimony, and any it, evidence derived directly indirectly or from cannot be used in subsequent criminal proceedings them. against Defendant asserts that the Department Corrections and the State are the entity, same because Brown needed no subpoena order to see records at the She RCC. contends that Robin- son was on behalf of acting the State when he provided defend- is, that concludes she She Warning.
ant with the Employee must § that the State 1664 and therefore, immunized under that evidence any proffered a doubt reasonable prove “beyond totally independent compelled from sources was derived 1664(a). § testimony.” V.S.A. Immunity ap is groundless. conclusion
Defendant’s before or a only testify proceeding to those called plies their and who wish to invoke grand jury a court or ancillary to makes no refer self-incriminаtion. statute against rights Id. if Moreover, even we proceedings. ence to administrative are Corrections Department to find that the State were authority grant had entity, statutory Robinson no the same to the belongs solely presiding That immunity. prerogative attorney. or attorney state’s request general judge, Hamlin, (c); 97,107, A.2d see State v. 1664(b), 146 Vt. Id. § (1985). noted, Further, as Brown previously pos we have information, separate apart independently acquired sessed defendant, justified that pros made from statements rejection of find no error in the trial court’s defend ecution. We immunity arguments. ant’s
V. that that argues prove the State failed to Finally, defendant fact when she obtained she concealed material knowingly drugs from different overlapping prescriptions regulated does not that 18 V.S.A. practitioners. dispute The State 4223(a)(2) rea, “knowing” mens but requires argues beyond evidence was sufficient a reasonable doubt prove by deliberately withholding concealed material facts defendant her The trial court prescriptions. agreed. information about must from what person Intent often be inferred Cole, circumstantial evidence. does, proved (1988). of “con Vt. 554 A.2d The definition hide, secrete, withhold knowledge is “to from the сeal” *16 (6th others,” 1990), Dictionary Black’s Law ed. all of which intentional, The trial court found knowing connote conduct. in job was a trained nurse whose at the RCC defendant inmates, that the drugs overlapping cluded and dispensing prescrip- from different all involved prescriptions dispensers very tions for the same The court a rea- drug. concluded that sonable could find a jury beyond reasonable doubt that defend-
ant had of concealed the material fact prior prescription drugs obtained violation of the law. are that the We satisfied beyond evidence sufficient to support reasonable doubt the court’s conclusion that defendant had concealed material information.
Affirmed.
Johnson, J., dissenting. Today, the majority rules that the have police unlimited access to the prescription records of ev- ery pharmacist the state of Vermont may, without war- cause, rant or probable search those records in hopes finding law, violations of not by pharmacists, by but In patients. other words, aas consequence today’s rec- ruling, of all persons ords held aby are pharmacist open Vermont unrestricted surveillance the police. great
One of the justices conservative of the United States <([t]he Supreme Court once history observed thаt of liberty has largely been the history observance of procedural safe guards.” States, (1943) McNabb v. United 318 U.S. J.). (Frankfurter, The requirements probable cause and valid search surely warrants are valued among most procedural safeguards against unreasonable searches and seizures con tained in our An constitution. insistence the observance of upon requirements these one the principal defining qualities be tween totalitarian governments governments devoted protection the liberties of free men and Today’s women. decision, albeit motivated a well-meaning desire to curb abuse of prescription drugs, represents perilous .step away from these constitutional values.
The majority permits the warrantless search this case based on an exception to the warrant for adminis- requirement trative searches of commercial enterprises. is despite This that, outset, fact from the the State admits the search was aimed at gathering against evidence pa- individual tient rather than conducting a routine administrative inspec- tion of a regulated business. I Because believe that allowing searches to uncover criminal evidence under the guise administrative search undermines Arti- еxception *17 90 our recent disregards and Constitution 11 of the Vermont
ele I dissent. provision, constitutional law that interpreting case unreason this state from the of people 11 protects Article af private into their intrusions able, governmental warrantless (1991). 988, 10, A.2d 994 Kirchoff, 156 Vt. 1, 587 fairs. State v. the trial the court doubt, indeed both is little There their interest in privacy that individuals have majority agree, extremely private “contain Such records records. prescription patient. the information” about embarrassing and potentially Slaton, 301, 328, A.2d 556 v. Super. 383 Pa. Commonwealth (1989) dissenting) (citing J., concurring and 1343, (Kelly, 1356 records), of confidentiality health regarding review articles law (1992). may highly 207, They disclose aff’d, 530 Pa. 608 A.2d ailments, or lifestyle, concerning person’s facts personal Ingraham, Roe v. 480 F.2d anxiety. sources of stress and See (2d 1973) (members ailments for public of know 102, 108 n.7 Cir. of great These are matters commonly prescribed). which drugs This concerns for sensitivity privacy. that to heart our go permits very statutory by provision fact is recognized records, is con entitled “Records which inspection pharmacy provision 4211. That allows fidential.” See V.S.A. their authorized “only specially to state officers or federal or laws,” and duty drug it is to enforce federal whose agent di knowledge from those who gain forbids prosecu except such in connection with knowledge, vulging added); has Id. V.R.E. (patient see also (emphasis tion. confi “any from disclosing other privilege prevent person” treatment). purposes communications made dential searches interest implicated, Where a privacy fac that are circumstances permitted only exceptional are tied needs. See exigency special tually narrowly v. (1991); Savva, State 774, v. 75, 87, A.2d 159 Vt. (1990). Berard, 312, 118, 121 An 306, exigency 154 Vt. 576 A.2d moment, is created circumstances by particular exigen or by society’s “perceived shifts winds political Kirchoff, 587 A.2d 995-96. 156 Vt. day.” cies See limit cannot Thus, the trial court’s allusion crisis” “drug intrusive against our constitution afforded protection Scott, People 79 N.Y.2d searches. See governmental (1992) (respon- N.E.2d 583 N.Y.S.2d sibility judicial branch not to crises or respond temporary shape enforcement, law to goals advance of law rather to but Moreover, safeguard constitutional rights). when “special require needs” warrantless searches certain con- regulatory texts, always we have insisted such searches be carried out objective through guidelines that law of- preclude enforcement from Berard, ficers targeting specific individuals. See 154 Vt. at *18 (routine 314, 576 A.2d at cells); 122 prisoners’ search of Record, 84, (1988) (random 88, 422, 150 Vt. 548 A.2d 425 DUI roadblock). short, In this Court has permitted reg- ulatory needs, searches circumstances but evincing special only explicit guidelines when ensure that not a the searches are pretext singling for out individuals.
Against this backdrop, the to in- majority permits police the the spect records an offi- individual based on an cer’s they hunch that will provide evidence that the individual has committed a crime. The arrives at majority holding by its that concluding the warrantless was a search inspection proper of a “pervasively regulated” business. con- This is remarkable clusion considering that the “pervasively regulated industry” exception adopted by the an majority exception to war- the rant requirement search, an administrative that even the that State contends this particular search was admin- istrative in nature. Therefore the warrantless search only could be supported by exigent needs, or circumstances special none which present here. application the administrative search exception is dis-
turbingly that, ironic in this case considering because of our searches, aversion to warrantless we have refused to follow fed- eral precedents that derogate “the central role of the judiciary Berard, 310, Article Eleven jurisprudence.” atVt. 120; A.2d at Wood, 479, see also State v. 487, 148 Vt. 536 A.2d (1987) 902, 907 (judiciary must “review and restrain overreach- ing Yet, searches and seizures by government”). the today the majority permits governmental per- intrusion that would not be mitted even under federal law. counterpart The federal to 880, § § warrant, U.S.C. an requires administrative standard, albeit under a diminished rec- inspect pharmacy ords the has unless officer the consent of the owner there is situation. That emergency statute contains another provi- war- for issuance of search cause” requiring “probable
sion substances.” controlled involving to offenses “relating rants law includes traditional fact that the federal 879. The U.S.C. of pharmacy that searches suggests strongly warrant provision of a crime requires evidence undertaken collect records cause. See Common- probable based on full-blown warrant 444-45, 436 N.E.2d Frodyma, wealth v. 386 Mass. (1982). the provision § 4211 suggests
Nothing language the authority more to provide than anything was intended to do random, inspections compliance for to make routine officers Kirchoff, at 11- Vt. of controlled Cf. premises. records (statutory provisions providing public A.2d at 995 not evidence intent on land do privileges private with certain unregu- from their affairs free right pursue limit landowners’ intrusion). questionable It is highly governmental lated states merely which provision, worded generally whether en- be law open records shall pharmacy laws, limits the drug sufficiently officers to enforce forcement searches to constitu- pass of bona fide administrative scope enunciated the United recently tional muster under test *19 691, v. Burger, New York 482 Court. U.S. Supreme States See (1987) (statute administrative permitting 703 warrantless time, limit of as well as inspectors, searches must discretion searches); Scott, 501, 79 at 593 of N.Y.2d place scope 1344, at at allow- (statutory provision N.E.2d 583 N.Y.S.2d 936 of ing vehicle-dismantling administrative searches only because re- held to violate state constitution businesses that searches occur requirement striction statute contained is hours). it cannot authorize war- certainly business But during in- If the did against legislature rantless searches individuals. to make warrantless provision police to allow tend of suspected records individuals inspections Article 11 of then the statute violates of activity, Vermont Constitution. 11 to avoid was the issuance sought evil Article primary Rеcord, 85, 548 150 Vt. at general
and enforcement of warrants. (1855)). Smith, v. 328, Lincoln at 423 27 Vt. 346 (citing A.2d Indeed, the was one of the causes primary abuse warrants the crown and against development the colonies’ revolt search and seizure in provisions colonial constitutions predat- Savva, ing the federal constitution. at 616 A.2d at Vt. searches, 779-80. Administrative such as those by- authorized industries, statutes that concern are “‘the 20th-cen- regulated tury equivalent’ of colonial writs of . . assistance . which were warrants general to and all authorizing officials search resi- dential and commercial premises ... to enforce various trade regulations and ... to halt the rampant of untaxed smuggling Scott, goods.” 497-98, N.Y.2d 593 N.E.2d at Krull, Illinois N.Y.S.2d at (quoting U.S.
(1987) (O’Connor, J., Given the dissenting)). similarity between searches pursuant made to the English general warrants out- by lawed the colonists and administrative searches made pur- suant modern-day to statutory provisions, we are bound to narrowly precisely construe such provisions so as not to subvert the basic privacy interests our protected constitu- tion. See id. By allowing inspect, warrant, police without prescription records individual citizens of criminal suspected activity, the majority ignores for rationale allowing — searches of judiсial certain industries without oversight routine, such random, searches are and limited to ensuring regulated highly businesses comply with administrative regula- —tions thereby allows law enforcement agencies to cir- cumvent the warrant requirement that we have so conscientiously guarded in past.
Moreover, the owners of pervasively regulated businesses are on notice of the special government affairs, interest their consent, and they impliedly businesses, in such engaging the abridgement of certain rights exchange right v. Biswell, do business all. See United States 406 U.S. (1972) (warrantless scheme Gun Control Act poses justifiable limited threat expectation of privacy be- cause dealer who chooses to engage pervasively regulated so business does with that his understanding business records will subject be to inspection). This a far cry from the individ- *20 who, ual afflicted with or injury, disease prescribed regu- is a lated drug by in physician the course of medical treatment. That has person no choice but to have the prescription by filled If pharmacist. prescribed the drug is one which the police interest, have an the mere act of having filled 94 af- person’s private on that police the intrude permits
now prescrip- for other looking the reviewing prescription, fairs by case, or one’s doctor tions, and, having in this occurred as the stat- does not simply permit Article questioned. doctors that far. ute go 11, I the Article believe dissent on my I
Although
ground
States
under the United
would be
even
improper
instant search
Fourth
interpretations
ever-narrowing
Court’s
Supreme
Court,
This exception searches, administrative as evidenced the United States administrative pronouncement Court’s most recent on Supreme (1987). New Yorkv. In Bur- Burger, searches. See U.S. a decision of the New York Court of ger, the Court reversed a statute to conduct permitting police that struck down Appeals York’s junkyards. searches automobile New it court had struck down the law because authorized highest of criminality to uncover evidence solely searches “undertaken People regulatory to enforce a scheme.” comprehensive and not 926, 929, Burger, N.Y.2d 493 N.E.2d (1986). Court held that “dis- Supreme N.Y.S.2d course crimes an otherwise evidence of covery closely administrative inspection [of proper [warrantless] industry] does not render that search regulated illegal v. Burger, New York 482 U.S. suspect.” administrative scheme added). however, out, pointed The Court (emphasis at 716 *21 solely pur- made it that the was “undisputed inspection was was scheme,” that there “no administrative suant to the a actually ‘pre- inspection that the instant was reason to believe the of pe- of violation obtaining respondent’s text’ for evidence laws.” Id. nal at 716-17 n.27. herein, motive the to the statement
Contrary majority’s the is a relevant consideration under conducting search officers a routine ad- Burger. Burger was concerned with The Court evidence, that criminal investigation uncovered ministrative administra- any criminal unrelated to investigation not with a Slaton, 213, 608 Commonwealth v. Pa. at A.2d tive search. major- the Burger holding much more limited than at 8. The is here, an inspection which its ity’s holding gives blessing was to evidence that from the start purpose gather whose sole a crime. It is irrelevant that defend- had committed defendant in the ant with criminal violation defined same charged a was pharmacy records. The inspection statute that authorizes for targeted that medical records were dis- point is defendant’s not of a lawful were the incidental ad- covery; they discovery search. ministrative Slaton, where here is similar to the one in the
The situation Supreme recently upheld suppression Court Pennsylvania inspected narcotics who first agents, evidence obtained records individual with consent suspected more of the then returned records pharmacist, inspect after of the had to the investigation pharma- the focus turned court, cist. to the in the State’s According “primary flaw” as an position agents’ was its characterization action “ad- search,” attempt which the court labeled as an “to ministrative prem- in the expectation diminish privacy [the defendant’s] Id. ises A.2d at Distinguishing searched.” 7. Burger being decision as con- Supreme United States Court’s a routine conducted investigation initially cerned with was compliance regulations, ascertain with administrative court stated: bar, narcotics only purpose
In the case agents’ alleged was to ac- searching investigate Slaton’s pharmacy when the first search was con- This true even tivity. claimed adminis- agents The never to have ducted. instead, outset but at the purpose trative declared an their was to additional on- gather desire information criminal at that time was investigation subject whose going search, therefore, than was not someone other Slaton. Burger conducted, an administrative as the case basis, requires, regular discretionary on but act offi- investiga- cials who involved ongoing were it tion. was never claimed that the searches were Since administrative, the parameters of an admin- question here. istrative search The traditional Fourth relevant *22 search, warrant a requirements Amendment for valid in this case. apply therefore* Mass,
Id. at 214, 8; Frodyma, A.2d at see at 608 also 386 438- (because 441, 436 N.E.2d at entire justification 928-29 for showing required lesser obtain аdministrative warrant is grounded search, on limited scope administrative such war- v. crime); rant cannot People be used to search for evidence of Pace, (1984) (court 336, 340, 443, 101 A.D.2d 475 446 N.Y.S.2d concluded it need not consider allowing whether statute war- rantless sufficiently specific administrative searches had guide- lines to pass constitutional muster because a search is “[w]hen not as a routine regulatory undertaken adminis- inspection the But cf. State v. trative search simply inapplicable”). rationale is Rednor, (1985) (in 544, Super. N.J. 497 A.2d search, determining constitutionality of court must concern it- searcher). conduct, self with propriety not motivation of The lower courts adopted federal have conflicting positions on whether the motivation law enforcement officers should the validity affect of an administrative search warrant. Com- Acklen, (6th United States v. 1982) pare 70, F.2d Cir. (validity of administrative search warrant should on depend search, scope manner and of inspector); motivation (3d United States v. Prendergast, 585 F.2d 1978) 70-71 Cir. Russo, (same), United v. with States 517 F. Supp. 84-86 (E.D. 1981) (administrative Mich. warrant cannot support search of records to for gather possible evidence prosecution); Lawson, United States v. (D. Supp. 158, F. 164-66 Md. (once 1980) of search from рurpose shifts administrative com- pliance evidence, for quest criminal government must secure warrant supported by probable full cause because individual’s privacy interest heightened). majority cites three cases uncover sus police intent of the that the the proposition valid admin an otherwise cannot taint activity criminal pected endorsement hardly ringing Those cases are search. istrative construe First, all three cases of view. majority’s point for the noted, has Amendment, repeat this Court as yet, Fourth derogate precedents it will not follow stated that edly jurisprudence. in Article Eleven judiciary role of the central In one Berard, A.2d at 120. v. State See, 154 Vt. e.g., it not decide whether cases, that it need the court stated pursuant searches administrative allow warrantless would had, government situations where investigations Acklen, to the institution, prosecution. itself committed as court another, state appellate an intermediate F.2d at 74. In said, analysis, absent the Fourth Amendment construing rec searching pharmacist’s police that the motivation Rednor, 509, 497 irrelevant. Super, 203 N.J. ords was in the sen was revealed holding But the of its gist A.2d at 547. that the followed, phar the court concluded wherein tenсe in the because he records privacy macist had no expectation subject gov to pervasive a business willingly engaged had States v. case, Id. In the third United ernment regulation. (7th 1987), the court la Cir. Nechy, 827 F.2d 1166-67 *23 to allow law enforcement compelled the fact that it was mented as a for inves subterfuge search warrants to use administrative (“We Id. at 1166 not are activity. criminal suspected tigating is government which the justification with a mode of happy the if in one would violate in two what done steps allowed to do Amendment.”). Fourth issue, the same recently that have addressed courts In addition to the Massa-
however,
not felt so constrained.
have
cited,
highest
the
already
cases
Pennsylvania
chusetts and
law en-
held that
recently
York and Ohio have
courts of New
based on probable
must obtain a warrant
forcement authorities
of an on-
part
as
enterprises
searching regulated
cause before
law
statutory
permits
even where
investigation,
criminal
going
the Su-
Despite
of the enterprises.
searches
administrative
the New
Burger,
holding
limited
relatively
Court’s
preme
analysis
that
and de-
rejected
Appeals recently
York Court of
down under
it had earlier struck
that the same statute
termined
the state cоnstitutional
also violated
the Fourth Amendment
searches.
provision
governmental
unreasonable
prohibiting
491-92,
Scott,
1339,
at
593 N.E.2d at
at
79 N.Y.2d
583 N.Y.S.2d
grounded
931. The
its
on the “fundamental as-
holding
court
that an
cannot
sumption”
exception
administrative-search
be
is
invoked when the search
undertaken to uncover evidence of a
crime,
scheme
underlying regulatory
designed
and
497,
a means
criminal
Id. at
give police
enforcing
sanctions.
935;
1343,
at
at
Burger,
593 N.E.2d
583 N.Y.S.2d
see also
(“In
(Brennan, J.,
U.S. at 724
administra-
dissenting)
law of
searches,
with
tive
one
unusual
principle emerges
clarity
an
acceptance:
government may
unanimous
not use
admin-
violations.”).
istrative
to search for
inspection scheme
criminal
court,
limitation,
to the
without
According
exception
this
and permit
would swallow the rule
to circumvent tradi-
police
Scott,
tional warrant
requirements.
N.Y.2d
N.E.2d at
search seizure provision prohibits state constitution police from searching pursuant for evidence to a stat- authorizing ute warrantless “administrative” searches. State v. Penn, (1991). 61 Ohio St. 3d 576 N.E.2d In 792-93 case, of the state board in- police agents of pharmacy spected the records of a pharmacy after the police had a criminal already begun investigation pharmaсist. Calling attempt the State’s itself” “shelter behind the admin- istrative powers the board court “disingenuous,” the stated that “the board cannot act as surrogate police obvi- duty ate the obtaining constitutional search warrant” be- gathering general criminality. fore evidence of Id.
N.E.2d at 794.
I recognize case, it will always easy, be as it is this to determine whether a search is truly administrative charac- merely ter or uncover attempt evidence of crime. But this difficulty does not us to permit duty abdicate our to protect citizens this state from unconstitutional searches. If we are to allow law enforcement to inspect officials rec- personal ords, *24 judicial without oversight, pursuant exception to an that searches, permits routine administrative we cannot then shrug our in helplessness shoulders while that police exploit exception by it to on using gather evidence individuals of crimi- suspected not'invali- nal on the should activity. Suspicion part police but when exception, po- date an otherwise valid administrative solely information that a search made specific triggers lice have criminal evidence an indi- purpose gathering against for vidual, a warrant on cause is v. probable required. People based 583, Misc. 2d Ct. Brigante, (Sup. N.Y.S.2d 1986) (the litmus test for whether determining valid was to purpose administrative search is whether search crime, gather suspi- evidence of a not whether the had police cions of criminal activity). requires government
Our constitution warrant when the Dorn, activity. seeks to uncover evidence of criminal Cf. State v. (1985) 606, 616-17, 451, 457 145 Vt. 496 A.2d without (assuming, that deciding, seizure of records from barn of owner of welfare a warrant pharmacy suspected required fraud cause). based on full We cannot allow to circum probable police vent our steadfast stricture searches against wearing masks of administrative officials while pursuing Because the instant search violated Ar investigations. Further, ticle evidence from it must be gathered suppressed. unlawful, because the search of the pharmacy and the po lice uncovered evidence that search that led them to con during tact and interview defendant’s I believe that the prescribers, evidence obtained conversations with those police prescri and, therefore, bers was tainted must also be suppressed. See (1982) 430, 439-41, Badger, Vt. 450 A.2d 342-43 confession). (illegality of first confession tainted second There is one other about the that point mаjority’s opinion deserves if mention. Even the search of defendant’s phar- lawful, maceutical records had been I with the disagree major- ity’s conclusion that admission of the statements police obtained from defendant’s was harmless error. The physicians majority agrees the court’s admis- reasoning allowing — sion of the statements the statements were non- privileged they because were found to be made attempt — obtain is flawed because it allows the State to illegal drugs declare a communication nonprivileged doctor-patient after Nevertheless, confidentiality has been breached. the majority upholds ruling, stating court’s that admission of the evi- dence was harmless because the to find out police sought only
from the prescribers they whether would prescribed have if they medication had known of other concurrent prescriptions. I do not understand The majority’s reasoning. patient’s privilege very broad. Our law prohibits physicians from dis- closing “any information acquired attending patient professional capacity, and which was necessary enable the to act in that capacity.” See State v. Raymond, 139 Vt. provider 464, 470-71, (1981) 431 A.2d (privilege prevented nurse from testifying that breath); the defendant had alcohol on his 503(b) see also V.R.E. (privileged information includes “confi- dential communications made for the purpose of diagnosis treatment of mental, patient’s] physical, dental, [the or emo- condition”). tional Certainly the information disclosed this definitions, case meets these and the does not majority argue otherwise.
Once we conclude the communication is privileged, we cannot call it harmless unless “‘it is clear beyond a reasonable doubt jury that the would have guilty returned a verdict regardless of Wright, State v. the error.’” 519-20, Vt. 581 A.2d (1989) Hamlin, State v. (quoting 146 Vt. 499 A.2d (1985)). 45, 52 That is hardly the situation here. The doctors’ statements that were they unaware of other prescriptions, and that they would not have prescribed the if medication they had known of the other prescriptions, constituted the principal ele- — ment of the charged crime obtaining regulated drug by concealment of 4223(a)(3). a known fact. See 18 V.S.A. issue cannot be dismissed in fashion summary merely by con- cluding that the evidence is harmless. I
Accordingly, dissent not from only the majority’s conclusion that the warrantless search of defendant’s prescription records lawful, but also from the conclusion that admission of state- ments made to police by defendant’s doctors was harmless er- ror.
I am authorized to say that Justice joins Morse in this dis- sent.