Law enforcement use of the Ohio Automated Rx Reporting System does not violate any reasonable expectation of privacy or the doctor-patient privilege. Here, a police officer was investigated for doctor shopping to obtain schedule III and IV drugs from multiple doctors, and the department acquired the records from pharmacies around town, created a spreadsheet, then verified all the prescriptions with the doctors, who all said they wouldn’t have prescribed if they’d known he was doctor shopping. State v. Myers, 2015-Ohio-160, 2015 Ohio App. LEXIS 135 (12th Dist. January 20, 2015):
[*17] After Whalen, the Ohio Supreme Court addressed a constitutional challenge made by a group of doctors, patients, and pharmacists regarding a statutory scheme where prescription information was collected by police officers and State Board of Pharmacy employees. Stone, 64 Ohio St.3d at 157. In Stone, local communities set up a system to collect prescription drug data where the data was collected onto computer floppy disks, the disks transferred the information to a central records system at a police station, and a master file was created and kept for 90 days. Id. at 158. The program’s objective was to “establish a system of collecting and analyzing data on the diversion of controlled substances from legitimate channels to illicit channels.” Id. In achieving this objective, law enforcement officials and State Board of Pharmacy employees could inspect the pharmacy prescription records without a warrant. Id. at 160.
[*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 prohibited, 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 Fourth Amendment rights asserted by the physicians and patients, the Court stated:
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 circumstances 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 R.C. 4729.80(A)(2) by testifying that his duties include enforcement of drug-related laws and that Myers was the subject of an active drug abuse investigation being conducted by the Greater Warren County Drug Task Force. Additionally, Detective Luken established he abided by Ohio Adm.Code 4729-37-08(B). Detective Luken testified that prior to running a query on OARRS, he submitted a Prescription Profile Request form where he attested to an open investigation into Myers, a case number, and his supervisor’s approval of the query.
[*21] The statutory schemes in Whalen and Stone are similar to the case at bar. Like Whalen and Stone, the prescription information of patients is stored on OARRS, including the name, date, and dosage of medication and prescriber and patient identification. Further, similar to Stone, prescription drug information is collected to monitor the misuse and diversion of controlled substances and other dangerous drugs. Additionally, as in Stone and Whalen, access to the prescription information stored on OARRS is limited. Only specified individuals may obtain the data, including law enforcement officers who are engaged in a specific investigation involving an individual or drug. Further, public disclosure of the information is prohibited. In fact, both the statutory schemes in the present case and in Stone make improper disclosure of prescription information a crime.
[*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 law enforcement under the statutory scheme. In regards to the claims of patients and doctors, Stone never addressed the administrative exception. Therefore, Stone is directly applicable to the case sub judice.
[*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 [physicianpatient] privilege is not a constitutional 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.
