LA1: Court order for prescription records issued without probable cause violates right of privacy, federal and state

Court order for prescription records issued without probable cause violates right of privacy, as recognized by federal courts. Also, state’s constitution grants more protection. State v. Pounds, 2015 La. App. LEXIS 485 (La.App. 1 Cir. March 9, 2015):

Skinner [State v. Skinner, 10 So.3d 1212 (La. 2009)] involved a criminal investigation that is similar to the case herein. In Skinner, the district attorney received a tip from a pharmacist that Skinner was obtaining medication with multiple overlapping prescriptions. Based on that tip, the district attorney filed motions for production of prescription and medical records in the district court. The district court issued an order requiring eight pharmacies to produce Skinner’s records Skinner, 10 So.3d at 1213-14. The district attorney then prosecuted Skinner based on information derived from those records. On appeal, the Louisiana Supreme Court held that, absent one of the narrowly drawn exceptions, Skinner’s prescription records were protected from warrantless search and seizure as part of a criminal investigation. Because the district attorney failed to obtain a search warrant, the Louisiana Supreme Court concluded that the information obtained from the pharmacies should have been suppressed. Skinner, 10 So.3d at 1218.

As noted in Skinner, a majority of the federal Circuit Courts of Appeals have concluded the constitutional right to privacy extends to medical and/or prescription records. Skinner, 10 So 3d at 1217 (citing Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (constitutional right to privacy in prescription drug records), cert. denied, 546 U.S. 1138, 126 S.Ct 1147, 163 L.Ed.2d 1001 (2006); Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert. denied, 534 U.S. 840, 122 S.Ct. 96, 151 L Ed.2d 56 (2001); Doe v. Southeastern Pennsylvania Trans. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995), cert. denied, 519 U.S. 808, 117 S.Ct. 51, 136 L.Ed.2d 15 (1996); Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995); Doe v. New York, 15 F.3d 264, 267 (2d Cir. 1994); Doe v. Attorney General of the United States, 941 F.2d 780, 795-796 (9th Cir, 1991), vacated on other grounds sub nom. Reno v. Doe, 518 U.S. 1014, 116 S.Ct 2543, 135 L.Ed.2d 1064 (1996); see also Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) (assuming such right exists)). Considering the federal jurisprudence and Louisiana’s constitutional requirement of a heightened privacy interest for its citizens, the Louisiana Supreme Court held that absent the narrowly drawn exceptions permitting warrantless searches, a warrant is required to conduct an investigatory search of medical and/or prescription records.

As the Court held in Skinner, a right to privacy in one’s medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Skinner, 10 So.3d at 1218. Considering that the holding in Skinner is controlling in this case, we find the trial court erred in denying the defendant’s motion to suppress those prescription and medical records obtained without a warrant. A warrant is required to conduct a search and seizure of such records for criminal investigative purposes in this case. The ruling of the trial court denying the defendant’s motion to suppress evidence is hereby reversed, and this case is remanded to the trial court for further proceedings allowing the defendant the opportunity to withdraw his guilty pleas.

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