LA: There is a federal reasonable expectation of privacy in one’s drug prescription records requiring a search warrant for access. State v. Skinner, 10 So. 3d 1212 (La. 2009) [just on Lexis]:
More importantly, the Court’s decision holding the regulatory scheme was not facially unconstitutional was explicitly based upon the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, Whalen, 429 U.S. at 604, 97 S.Ct. at 878; the Court explicitly distinguished Fourth Amendment privacy interests from Fourteenth Amendment privacy interests. Whalen, 429 U.S. at 598 n.23, 97 S.Ct. at 876; 429 U.S. at 599 n. 24, 97 S.Ct. at 876. The Court noted that the right of the individual to be free in his private affairs from governmental surveillance and intrusion is a constitutional right directly protected by the Fourth Amendment. Whalen, 429 U.S. at 600 n.24, 97 S.Ct. at 876. In response to the Roe plaintiffs’ argument that their Fourth Amendment privacy interest was invaded by New York’s regulatory statute, the Court explicitly declined to extend the Fourth Amendment’s privacy interest to that situation which did not involve “affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations.” Whalen, 429 U.S. at 604 n.32, 97 S.Ct. at 878.
A majority of the federal Circuit Courts of Appeals have concluded the constitutional right to privacy extends to medical and/or prescription records. 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). Contra Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding that constitutional right of privacy does not apply to medical records). As noted by the United States Tenth Circuit Court of Appeals, information contained in prescription records may not only reveal facts about what illnesses a person has, but may reveal information relating to procreation, such as fertility medication or contraceptives. Douglas, 419 F.3d at 1102.
We are cognizant that the issue of whether a warrant is required to conduct an investigatory search of prescription records, in contrast to the regulatory disclosures at issue in Whalen, is one that has not been settled. Douglas v. Dobbs, 419 F.3d 1097, 1103 (10th Cir. 2005). Nevertheless, we do not find that Whalen’s upholding of a regulatory scheme for the monitoring of prescriptions for controlled substances diminishes a person’s Fourth Amendment privacy interest to permit warrantless governmental intrusion during the course of a criminal investigation.
Considering the federal jurisprudence and Louisiana’s constitutional requirement of a heightened privacy interest for its citizens, we find that the right to privacy in one’s medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, absent the narrowly drawn exceptions permitting warrantless searches, we hold a warrant is required to conduct an investigatory search of medical and/or prescription records. We are not prepared to extend Whalen, which balanced the individual’s privacy interest against the state’s reasonable exercise of its regulatory power, to find Louisiana allows warrantless searches and seizures of its citizens’ medical and pharmacy records for criminal investigative purposes.
FL1 holds that any privacy interest in records is not sufficient to require suppression of a statutory request for production of pharmacy records. HIPAA is not a bar either. State v. Carter, 2009 Fla. App. LEXIS 18194 (Fla. App. 1st DCA November 30, 2009):
Finally, article I, section 23 of the Florida Constitution does not support the suppression order on appeal. Patients right to privacy in their medical records is not absolute. Such privacy rights “Will yield to compelling government interests and “the control and prosecution of criminal activity is a compelling state interest. State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). Regulation of the sale and distribution of dangerous drugs has been recognized as a “vital interest of the state. Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). Other jurisdictions with statutes similar to section 893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have “a limited expectation of privacy in pharmacy records. Murphy v. State, 115 Wn. App. 297, 62 P. 3d 533, 539 (Wash. Ct. App. 2003); see also State v. Russo, 259 Conn. 436, 790 A. 2d 1132 (Conn. 2002) (warrantless seizure of pharmacy records valid due to statutory provision for same); State v. Welch, 160 Vt. 70, 624 A.2d 1105 (Vt. 1992) (warrantless survey of pharmacy records authorized by statute). In an appeal of administrative proceedings against a licensed oral surgeon for improperly prescribing controlled substances, Florida’s Third District Court of Appeal held that the surgeon “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and was thus precluded from challenging the warrantless search of the pharmacy’s records. Cushing v. Dep’t of Prof’l Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to 893.07(4), Fla. Stat.). In Cushing, the Court concluded: “we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980). Id.
