fladistctapp|State v. Crumbley, 2D12-2882 (2014) -- eLawyers

(Fla. 4th DCA 2005), and attempted to follow those

procedures.

In mid-April 2012, the State filed a document entitled "State's

Memorandum of Law, Regarding Medical Records Seized in Search Warrant, and

Motion to Preserve Recording." In the first sentence of this document, the State moved

to "review medical records seized pursuant to a search warrant." The document recites

that the patient medical files "have been in the care, custody, and control of the Pasco

County Sheriff's Office and have not been reviewed pending a privacy hearing which

was set for April 30, 2012."2 The document further explains that the deputies had

prepared 856 letters to patients notifying them of this seizure, warning them that they

might be possible targets of the investigation, and notifying them of the hearing set for

April 30, 2012. A copy of a sample letter is attached to this opinion as Appendix A. The

document contained a thorough discussion of the applicable law.

Within a few days of the filing of this document, an objection to the review

of medical records was filed by an attorney representing an unidentified patient.

Apparently, a few more responses to the letters were received, but those responses

have been sealed and are not in our record.

The privacy hearing took place before Judge Susan Gardner on April 30,

2012. From the record, it is not clear that Dr. Crumbley or his attorney appeared at this

2It
is likely that the need for a privacy hearing was discussed with Judge
Susan Gardner at a hearing for which we have no transcript. The record simply does
not explain what prompted the filing of the document or how the hearing was set.

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hearing. If so, they were not active participants. At least two attorneys appeared for

patients whose names were not fully disclosed. Mr. York appeared for the hearing, but

the court concluded that he had no standing.

The only witness who testified at the hearing was the deputy who signed

the affidavit for the search warrant. His testimony was frequently interrupted by

objections and legal discussions among the lawyers and the judge. He provided

testimony about obtaining the warrant and executing the warrant. He explained that

sheriff's personnel had reviewed these records for the limited purposes of obtaining the

names and addresses of the patients. They looked at 904 patient files relating to 855

patients. They sent letters to all 855 patients; 208 of those letters were returned as

undeliverable. Of that group, 8 patients were determined to be deceased. Thereafter,

the sheriff's personnel attempted alternative addresses for the returned letters.

Ultimately, the deputy testified that 739 letters were delivered and 116 were

undeliverable.

The deputy also explained the type of information that the investigators

needed to extract from these files to prove the case and a method of giving each patient

an identifying number to preserve privacy. He testified that a few patients had made

contact with him to obtain copies of their records.

Two portions of this testimony probably create the most controversy.

First, the deputy admitted that, while the patients were not the target of this

investigation, if the reviews revealed probable criminal conduct by the patient, then the

patient would be further investigated. Second, he admitted that the Department of

Health had served a subpoena on the sheriff to produce records for use in an

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administrative investigation and that the sheriff had complied with the subpoena. It is

not clear from this record what was given to the Department of Health.

Near the end of the hearing, Judge Gardner explained:

I'm the wrong one sitting here. . . . [T]here's a very intricate
part of this puzzle that has already been determined and I'm
having to jump on somebody else's back and look at this.
This case needs to be assigned to Judge Siracusa.
He's the one that has the probable cause. Everything is
hinging on that warrant right now and that's—he had the
benefit of hearing the affidavits and having sworn testimony
in his chambers, and I'm just playing catch up here.
And I'm not the one who made that decision, so I
don't feel that I'm the appropriate one to hear this argument.

Accordingly, Judge Gardner filed a notice of recusal on May 1, 2012. The

case, however, was not assigned to Judge Siracusa but rather to Judge Linda Babb.

On May 15, without any further proceedings, Judge Babb, "upon the court's own

motion," entered an eight-page order requiring the Pasco County Sheriff's Office to

immediately seal all seized patient medical records until further order of the court. The

Office of the State Attorney was ordered to notify all affected patients of this action.

That office was also required to deliver to the court the original letters and objections

received from all affected patients without retaining a copy. The letters and objections

were to be placed in a sealed file by the clerk of court.

A week later, Judge Babb entered a second order requiring the court

reporter to preserve the record of the hearing before Judge Gardner and to file a sealed

copy of the hearing with the clerk of court.3 The State's request to have access to the

3Thecopy of the transcript in our record is not sealed. From its content we
see no reason to seal the transcript of this court proceeding.

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records was denied as moot, and a related hearing was cancelled as moot. The State

has timely appealed these two orders.

II. THE TRIAL COURT'S ORDER

The trial court's order provides a detailed explanation of its ruling.

Although we disagree with some of its reasoning, the detailed explanation has been

very helpful in this court's analysis. The order provides a good summary of the

procedural history of the case and of the testimony at the hearing. In the section

discussing its analysis, the court first examines the search warrant and the affidavit

supporting its issuance. The court concludes: "The affidavit set forth facts establishing

probable cause regarding the actions of the doctors at Harbour Medical Group, but it

lacked sufficient information about individual patients." It further explains: "While the

search warrant did authorize the seizure of patient medical records and prescription

records, because the affidavit alleged no facts regarding individual patients, there was

no probable cause for a warrant for individual patients' records for the purpose of

prosecuting patients."

The court then turns to section 456.057, Florida Statutes (2010, 2011),

which protects the privacy of patient records maintained by health care providers.

Relying heavily on this court's decision in Mullis v. State,

(Fla. 2d DCA

2011), the court concludes that such medical records can only be obtained by issuance

of a subpoena in compliance with section 456.057(7). The court recognizes that the

Fourth District did not apply section 456.057(7) in the context of a search warrant in

Limbaugh v. State,

(Fla. 4th DCA 2004), and that it allowed procedures




                                            -8-
similar to the procedures employed by the deputies in Rattray,

, but it

concludes that it must follow the Second District's decision in Mullis,

Finally, it recognizes that article I, section 23, of the Florida Constitution

provides a right of privacy applicable to medical records and questions whether the

actions of the deputies may have already violated those rights. Although the order

seals the records "until further of this court," it contains no explanation as to how the

State might ever get access to these records having already violated section

456.057(7), and having no probable cause as to individual patients. Although no one

moved to suppress this evidence challenging the sufficiency of the affidavit supporting

the search warrant, the court's own motion determines that the affidavit was insufficient

due to the lack of evidence as to each patient.

III. JURISDICTION

Dr. Crumbley argues that this appeal cannot proceed because the order is

a nonfinal, nonappealable order, and because the State has failed to name the patients

as necessary parties to this appeal. We reject both arguments.

As to the argument that the patients are necessary parties to this appeal,

the action in the trial court was a criminal prosecution against Dr. Crumbley. Legally,

none of the patients are "parties" to that proceeding. They filed no motion seeking relief

other than the anonymous objection to the review of medical records. The motion

challenged by this appeal is the court's own motion. As a practical matter, the trial

court's order sealing the records and the correspondence would seemingly prevent the

State from serving these patients and naming them in the style of this appeal. We note

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that the State served its notice of appeal on all attorneys who appeared for unnamed

patients. Those attorneys have not appeared for the patients in this appeal.

This appeal involves an order that prevents the State from developing its

evidence in the criminal case against Dr. Crumbley. The patients create factual

complexities in resolving these legal issues, but they are not parties to the action and

they are not bound by any ruling. If they wish to bring a civil action alleging a violation

of their privacy rights, nothing in this criminal action would bar that civil action. Indeed,

the complexity of this case arises mostly from the need to implement procedures to

protect the privacy rights of people who are not and never will be parties to the action.

Thus, we conclude there is no basis to dismiss this appeal for lack of any necessary

party.

Whether the order on appeal is reviewable under rule 9.140(c)(1)(B) may

be a closer question. No party filed a motion to suppress. The court's own motion is

not expressly a motion to suppress, but the ruling concludes that the affidavit in support

of the warrant is legally insufficient. The order not only suppresses the evidence, it

seals the information so that the State can never know what evidence is contained

within the sealed documents. Dr. Crumbley suggests that the order does not prevent

the State from using other methods to obtain the sealed files, but he does not provide

any procedure that would actually work to obtain these records unless the State were to

develop probable cause to bring separate criminal proceedings against at least a

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majority of the patients. Accordingly, we conclude that the order is functionally an order

suppressing evidence seized by search and seizure.4

IV. THE WARRANT DID NOT REQUIRE PROBABLE
CAUSE AS TO EACH PATIENT

We conclude that the trial court erred when it required the deputy to have

probable cause of criminal activity by a patient in order to obtain a search warrant for

the patient's medical records when those records were needed to investigate criminal

activity by persons other than the patient. There are many situations in which medical

records of victims are needed during criminal investigations. The fact that the records

are not those of the criminal, but rather of some presumably innocent person, does not

prevent the records from being relevant to the criminal prosecution. We can find no

authority to support this additional probable cause requirement when seeking a search

warrant.

The trial court's error is perhaps revealed in the statement: "While the

search warrant did authorize the seizure of patient medical records and prescription

records, because the affidavit alleged no facts regarding individual patients, there was

no probable cause for a warrant for individual patients' records for the purpose of

prosecuting patients." These medical records were not obtained "for the purpose of

prosecuting patients." They were obtained for the purpose of prosecuting Dr. Crumbley.

The trial court openly reflects its concern about the deputy's suggestion

that a review of the records could lead to further investigation of patients. That concern

is valid. The search in this case was done to prove a third-degree felony against three

4Even if we concluded that the order on appeal was not appealable, these
errors would permit review by certiorari. See, e.g., Limbaugh,

.


                                           - 11 -
people. There is a high probability that some of the medical records obtained in the

search could help establish criminal cases involving far more serious crimes by at least

a few of these patients. If law enforcement were using a prosecution of a minor offense

in order to obtain otherwise unavailable, confidential information to prosecute other

defendants, that would raise significant issues.

             But that specter is not a legal justification to prevent the State from having

any access to the medical records in the investigatory materials that it seized under

what remains a lawful warrant. Clearly, a defendant in a subsequent criminal action

could file a motion to suppress on this theory.5 On remand, these considerations may

warrant limits on the nature and extent of the State's access to these records, but they

are not a basis to seal the records on a theory that the deputy needed probable cause

as to each patient when the records were seized in this context.

                             V. LIMBAUGH AND MULLIS

             We reject the trial court's conclusion that this court's decision in Mullis,

, prevented the trial court from following the law established in Limbaugh,

, and Rattray,

. In Mullis, this court considered a case in

which a law enforcement officer simply contacted doctors' offices during its investigation

to determine whether a suspect was obtaining controlled prescription drugs from

multiple

doctors. 79 So. 3d at 749-50

. The law enforcement officer never even

attempted to obtain a search warrant. The officer's contact pressured the staff at the




             5We   emphasize that we express no opinion on the legal or factual merit of
such a theory.


                                           - 12 -
doctors' offices, perhaps unintentionally, to violate their nondisclosure requirements

under section 456.056(7), which provides in pertinent part:

              (6) Any health care practitioner licensed by the department
              or a board within the department who makes a physical or
              mental examination of, or administers treatment or
              dispenses legend drugs to, any person shall, upon request
              of such person or the person's legal representative, furnish,
              in a timely manner, without delays for legal review, copies of
              all reports and records relating to such examination or
              treatment, including X rays and insurance information. . . .
              (7)(a) Except as otherwise provided in this section . . . such
              records may not be furnished to, and the medical condition
              of a patient may not be discussed with, any person other
              than the patient or the patient's legal representative or other
              health care practitioners and providers involved in the care
              or treatment of the patient, except upon written authorization
              of the patient. However, such records may be furnished
              without written authorization under the following
              circumstances:
              ....
              3. In any civil or criminal action, unless otherwise prohibited
              by law, upon the issuance of a subpoena from a court of
              competent jurisdiction and proper notice to the patient or the
              patient's legal representative by the party seeking such
              records.

              Section 456.056(7) does not prevent an ordinary citizen from exercising

his or her First Amendment right to call a doctor's office seeking information about a

patient. Instead, it bars the doctor's office from giving out that information.

Mullis, 79 So. 3d at 752-53

, essentially concludes that law enforcement officers are not free to use

their indicia of authority to pressure or cajole the staff at medical offices to violate this

statute. As we later explained in Ruilova v. State,

125 So. 3d 991

, 993 (Fla. 2d DCA

2013), the violation described in Mullis,

, concerned investigatory material

that probably never would have been admissible at trial. Whether the violation would

actually lead to suppression of admissible evidence at a trial is still an open question in




                                             - 13 -
this district. The Fourth District has suppressed physical evidence obtained in violation

of section 456.056(7) in a doctor shopping case. See State v. Sun,

82 So. 3d 866

, 874

(Fla. 4th DCA 2011). However, the evidence was not obtained by a search warrant.

Id. at 868.

              In Limbaugh,

, the Fourth District considered another case

of doctor shopping. In that case, after obtaining information from pharmacies, the police

obtained a warrant to seize the suspect's medical records.

Id. at 389-90.

The Fourth

District expressly held that the "State's authority to seize such records by a validly

issued search warrant is not affected by any right of privacy in such records."

Id. at 389.

Thus, it is clear that the outcome in Sun,

82 So. 3d 866

, would have been different if law

enforcement had used a search warrant in that case.

              In

Limbaugh, 887 So. 2d at 389-90

, the records sought were those of the

suspect. The trial court in this case questioned whether that holding would apply in a

case where the records were those of third parties.

Id. at 396.

The Fourth District itself

extended the holding in Limbaugh to a case that is similar to this case in Rattray,