Limits on Warrantless Searches of Pharmacy and Medical Records in Florida

Searches of Medical and Pharmacy Records in Florida
A recent decision out of the Fourth District Court of Appeals, Gore v. State, 36 Fla. L. Weekly D2500a (Fla. 4th DCA, No. 4D10-777, November 16, 2011), establishes some important limitations on warrantless searches of pharmacy records and medical records. The case also establishes that Florida residence do have an expectation of privacy in pharmacy records. The case also draws a clear distinction between pharmacy records which have little protection and medical records which have must greater protections.

In the Gore case, law enforcement officers went to pharmacies without a search warrant and spoke to different doctors who had prescribed Mr. Gore various prescriptions. The law enforcement officers also interviewed the doctors about whether Mr. Gore had told them that he was obtaining other prescriptions from different doctors during that same time period. The defense attorneys filed a motion to suppress the pharmacy records obtained including the prescribing physicians’ names, any statements made by the physicians, and medical records. At the motion to suppress hearing, the defense attorney and prosecutor stipulated to the
following facts:
The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received would have been fraudulent because of the withholding information.
The officer goes to various pharmacies, pulls patient’s profiles. From those patients’ profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, Dr. Gulati and Dr. Ortega, and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.
Searching Pharmacy Records without a Warrant in Florida

Based on a de novo review of these stipulated facts, the Court noted that Florida courts have previously held that Florida Statute Section 893.07(4) authorizes police to search pharmacy records without a warrant. In State v. Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010), the Court found that right to privacy protected by Article I, Section 23, of the Florida Constitution is not absolute. Instead, the test for determining whether a violation of Florida's right to privacy comes from Winfield v. Division of Pari-Mutuel Wagering, 477 So. 3d 544, 547 (Fla. 1985) in which the Florida Supreme Court has adopted the following test:
First, courts must determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, the burden shifts to the State to show 
(a) that there is a compelling state interest warranting the intrusion into the individual’s privacy and
(b) that the intrusion is accomplished by the least intrusive means.
See Tamulonis, 39 So. 3d at 528. The Tamulonis court acknowledged that an individual has some expectation of privacy in his or her prescription records which must be balanced with the State of Florida's compelling interest in regulating controlled substances.

Disclosure and Use of Pharmacy Records Must be Narrowly Tailored

The Gore Court when on to cite Justice Johnson of the Vermont Supreme Court, in her dissenting opinion in State v. Welch, 624 A.2d 1105 (Vt. 1992) to explain why the used and disclosure of pharmacy records should be narrowly tailored:
Such records contain extremely private and potentially embarrassing information about the patient. They may disclose highly personal facts concerning a person’s lifestyle, ailments, or sources of stress and anxiety. These are matters of great sensitivity that go to the heart of our concerns for privacy. This fact is recognized by the very statutory provision that permits inspection of pharmacy records, which is entitled “Records confidential.” That provision allows inspection “only to federal or state officers or their specially authorized agent whose duty it is to enforce the federal drug laws,” and forbids those who gain knowledge of any prescription from divulging such knowledge, except in connection with a prosecution.
Id. at 1116 (Johnson, J., dissenting).

The Gore Court when on to conclude:
the police may secure pharmacy records of Chapter 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. There is some expectation of privacy in pharmacy records. The police may obtain the permitted records without obtaining a warrant or a subpoena. Doctors’ names appear on all prescription records; hence, the police may secure doctors’names on Chapter 893 pharmacy prescription records, as well, without a warrant or a subpoena.
Warrantless Search of Medical Records in Florida

The Gore Court also concluded that the trial court erred by denying Defendant’s motion to suppress the warrantless search of his medical records and physician’s statements because medical records and physician’s statements are protected by the statutory physician-patient privilege. Therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant under Florida Statute Section 456.057(6) & (7)(a), Fla. Stat. (2008).


In making the distinction between pharmacy and medical records, the Gore Court reasoned:
The fact that the police had already secured doctors’ names from prescriptions at pharmacies does not waive the requirements of law. There is a danger of medical professionals willing to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals in submission to apparent police authority.
The language in Section 456.057 is intentionally broad in protecting information from being disclosed by a health care practitioner and in assuring that the condition of a patient may not be discussed. The protection extends to all patient records. The State is not precluded from obtaining the information it seeks. Its agents must only follow the law and either seek a patient’s written authorization or the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or a search warrant.
The object of the physician-patient privilege is to encourage patients to be entirely forthcoming and candid in their statements to their treating physicians. These conversations and the records with regard thereto protect our most fundamental right, the pursuit of life itself.
In the past few years, Florida has seen a huge spike in the number of arrests and criminal investigations for felony charges related to prescription medication including:
  1. Doctor shopping; 
  2. Withholding information from a physician;
  3. Obtaining a prescription by fraud; and
  4. Trafficking in prescription medication.
Those numbers are expect to increase dramatically as Florida's prescription-drug database launched on September 1, 2011. The program was intended to deter doctor shopping and over-prescribing, but does nothing to address the problem of addiction.

Florida has been particular hit since it is estimated that in 2010, 90 of the top 100 oxycodone-purchasing doctors in the nation were from Florida. Although many of those oxycodone pills were transferred out of state in drug trafficking schemes, a disproportionate number of those pills were used by addicts in Florida.

As law enforcement officers become more aggressive in the investigative techniques they use to prosecute both addicts and the alleged drug trafficker of prescription medications, the Courts will be forced to determine additional limitations on the warrantless search of pharmacy and medical records.

Leslie Sammis is a criminal defense attorney at the Sammis Law Firm in Tampa who represents individuals charged throughout the Tampa Bay area with drug crimes related to doctor shopping, withholding information from a physician, obtaining a prescription by fraud; and trafficking in prescription medication in Tampa for HIllsborough County, St. Petersburg and Clearwater in Pinellas County, Bartow and Lakeland in Polk County, and New Port Richey and Dade City in Pasco County, Florida. 

Florida's Drug Laws Constitutional According to Third District Court of Appeals

A three-judge panel with the Third District Court of Appeals rejected the holding of Miami-Dade Circuit Judge Milton Hirsch, which dismissed 39 felony possession of drug cases in August of 2011. Senior Judge Alan Schwartz authored the opinion finding that the 2002 version of Florida's drug laws are constitutional. Judge Vance E. Salter and Judge Ivan Fernandez concurred.

The Third District Court of Appeals found that Florida law does not require a prosecutor to prove mens rea or conscious violation of the drug laws. The appellate decision was not based on the order by Judge Milton Hirsch although the issues were the same. Instead, the appellate decision was based on the case of Jasper Little who was convicted on two occasions of selling cocaine, first in 2003 and then again in 2004. He was sentenced to 364 days in prison. Mr. Little represented himself, pro se, in a post-conviction motion.

The opinion is extremely short and quoted below:

Rejecting the holding of Shelton v. Sec'y, Dep't of Corrs., No. 6:07–CV–839–ORL–35–KRS, (M.D.Fla. July 27, 2011) and State v. Washington, No. F11–11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) FN1, that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional. Accord, e.g. Parker v. State, No. 3D11–2575 (Fla. 3d DCA Nov. 9, 2011) (per curiam affirmance citing Taylor ); Holcy v. State, No. 5D10–3437 (Fla. 5th DCA Nov. 1, 2011) (per curiam affirmance citing Flagg ); Edwards v. State, No. 3D11–2437 (Fla. 3d DCA Oct. 26, 2011) (per curiam affirmance citing Taylor ); Flagg v. State, No. 1D11–2372 (Fla. 1st DCA Oct. 13, 2011); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA), rev. denied 51 So.3d 465 (Fla.2010); Miller v. State, 35 So.3d 162 (Fla. 4th DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA 2006); Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005); Wright v.. State, 920 So.2d 21 (Fla. 4th DCA 2005). Accordingly, the order under review denying postconviction relief is Affirmed.
FN1. Taylor states:
The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v. State, 684 So.2d 736 (Fla.1996), and eliminated knowledge of the unlawful nature of the offending substance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), review denied, 915 So.2d 1198 (Fla.2005), Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, No. SC05–1120, 928 So.2d 336 (April 4, 2006), and Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005), however, it is not. 
So it appears the issue is dead in the Third Circuit unless or until overturned by the Florida Supreme Court. The other district courts in Florida have yet to issue a ruling addressing the issue.

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