Oregon requires hospitals to report persons who show up for treatment who the hospital reasonably believes were involved in driving under the influence. Here, the hospital also reported defendant’s BAC to the police. “[W]e reject defendant’s invitation to overrule Gonzalez and consequently conclude that, even assuming that the hospital staff’s disclosure of defendant’s BAC to Dunlap pursuant to ORS 676.260(1) was state action, it did not violate a privacy interest protected by Article I, section 9.” The hospital was not a state actor under the Fourth Amendment. State v. Miller, 284 Ore. App. 818, 2017 Ore. App. LEXIS 507 (April 19, 2017):
Here, the trial court found, and it is undisputed on appeal, that hospital staff took and tested defendant’s blood for medical purposes. That fact distinguishes the situation here from the one in Ferguson, where, as the majority repeatedly noted, the patients’ blood was taken and tested with the specific goal of obtaining evidence to incriminate the patients. Instead, the situation here is of the type that the Ferguson majority repeatedly explained that it was not addressing: This is a case “in which [medical personnel], in the course of ordinary medical procedures aimed at helping the patient [him]self, come across information that under rules of law or ethics is subject to reporting requirements.” Id. at 80-81; see also id. at 81 n 18 (such reporting requirements “are simply not in issue [in Ferguson]”). Thus, Ferguson’s holding—that the Fourth Amendment prohibits state-actor hospital staff, acting with the specific purpose of collecting evidence to incriminate patients, from taking patients’ urine, testing it for drugs, and disclosing the test results to the police, in the absence of informed consent—does not apply to the situation before us.
The Court in Ferguson did state that “[t]he reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with nonmedical personnel without her consent.” 532 U.S. at 78. However, although the Court may have recognized a general expectation of privacy in medical test results, it also noted that state statutes imposing “dut[ies] to provide law enforcement officials with evidence of criminal conduct acquired in the course of routine treatment” “might lead a patient to expect that members of the hospital staff might turn over evidence acquired in the course of treatment to which the patient had consented.” 532 U.S. at 78 n 13. That is, the existence of mandatory reporting statutes suggests that society does not accept as reasonable an expectation of privacy in information subject to mandatory reporting.
There may be a limit on how much the acknowledged expectation of privacy in the results of medical tests can be eroded by the enactment of mandatory reporting statutes. See generally Wendy K. Mariner, Reconsidering Constitutional Protection for Health Information Privacy, 18 U Pa J Const L 975, 976 (2016) (noting that state mandatory reporting laws require disclosure by physicians, hospitals, laboratories, and pharmacies of vast amounts of individually identifiable health information). However, as explained below, defendant’s categorical arguments in this case do not raise that question, and, accordingly, we need not, and do not, answer it here.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)