There is no reasonable expectation of privacy in medical records including the results of defendant’s BAC test. State v. Hoffman, 321 Or. App. 330 (Aug. 10, 2022):
In Carpenter, the Court “decline[d] to extend Smith and Miller” and the third-party doctrine to cover 127 days’ worth of an individual’s cell-site location information (CSLI) retrieved from his cellphone company. Carpenter, 585 U.S. at __, 138 S Ct at 2217. The Court recognized that the government’s warrantless request for CSLI records implicated two lines of cases regarding the privacy interest at issue. Id. at 2214-15. First, the Court drew upon its long line of cases addressing a person’s expectation of privacy in his physical location and movements. Id. at 2215. Second, the Court explained that the request for CSLI also implicated the third-party doctrine, under which it reiterated that “the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.” Id. at 2216. Analyzing the defendant’s privacy interest in his CSLI data at the intersection of those two lines of cases, the Court held that given the uniquely personal nature of the location information revealed through CSLI, the fact that the information was held by a third party did not negate the defendant’s privacy interest in that data. Id. at 2217. The Court established that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured by CSLI, and that CSLI represented the “rare case where the suspect has a legitimate privacy interest in records held by a third party.” Id. at 2222.
Defendant argues that, as in Carpenter, his privacy interest in the results of the medical blood draw was not subject to the third-party doctrine due to the “deeply revealing nature” of the information disclosed by the medical blood draw.
Carpenter is distinguishable. Defendant draws upon the emphasis on CSLI’s underlying nature in Carpenter, arguing that his medical records reveal information of the same intensely personal nature as CSLI. Carpenter’s emphasis on the underlying nature of CSLI, however, was done in an intentionally “narrow” manner so as to “not disturb the application of Smith or Miller.” 585 U.S. at __, 138 S Ct at 2220. Carpenter did not purport to revolutionize the third-party doctrine, but instead relied on a line of precedent establishing a right to privacy in an individual’s physical movements to establish a specific instance where an individual retained a privacy interest in GPS information maintained by a third party.
There is no such line of precedent supporting an expectation of privacy in the results of defendant’s medical blood draw. Defendant’s medical blood draw instead implicates case law establishing that an individual’s right to privacy in medical records is not absolute. Ferguson, 532 U.S. at 84 n 24; Miller, 284 Ore. App. at 831-32; see also Whalen v. Roe, 429 U.S. 589, 602, 97 S Ct 869, 51 L Ed 2d 64 (1977) (explaining that “disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient”). In addition to being unsupported by precedent, the specific disclosure of a BAC test result contemplated by ORS 676.260 is limited in nature and circumstance and differs significantly from months of GPS data revealing an individual’s every physical movement. Information disclosed pursuant to that reporting requirement is limited to a specific test result in circumstances where the patient is believed to have been drinking and driving. Where the underlying nature of the relevant information and implicated precedent do not suggest that Carpenter’s “narrow” ruling encompasses a privacy interest in the information subject to mandatory reporting at issue here, Carpenter does not affect our analysis in Miller.
Third, defendant asserts that his arguments are distinct from those made by the defendants in Miller and Fincher because defendant argues that ORS 676.260, as a state statute, cannot act as a limitation on a privacy right protected by the Fourth Amendment. Although defendant is correct that, generally, state laws cannot negate a recognized privacy interest under the Fourth Amendment, that argument does not address whether the existence of ORS 676.260 helps reflect society’s understanding that such an expectation of privacy is unreasonable in the first instance. See Miller, 425 U.S. at 442-43 (explaining that legislation (the Bank Secrecy Act) can reflect the legislature’s assumption that there was no privacy interest in that information). The defendant’s arguments in Miller left that question unaddressed, as do defendant’s arguments here. Miller, 284 Ore. App. at 831-32. Defendant’s invocation of the general principle that state law cannot supplant constitutional standards therefore does not affect the controlling nature of Miller on this case.
Thus, as we concluded in Miller, defendant did not have a reasonable expectation of privacy in the results of his medical blood draw under the limited circumstances addressed by ORS 676.260, and the trial court did not err in denying his motion to suppress the medical blood draw.
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)