A doctor who prescribed medical marijuana whose patient records were searched under a search warrant sought by the DEA and IRS had no standing in those records as to himself, but he did have standing to assert patient privacy because nobody else could. Sterner v. United States Drug Enforcement Agency, 467 F. Supp. 2d 1017 (S.D. Cal. October 11, 2006):
A federal court’s judicial power is limited to “cases” or “controversies.” U.S. Const., Art. III § 2. A necessary element of Article III’s “case” or “controversy” requirement is that a litigant must have “‘standing’ to challenge the action sought to be adjudicated in the lawsuit.” Valley Forge College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000). The “irreducible constitutional minimum” of Article III standing has three elements. LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered “an injury in fact–an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). Second, plaintiff must show a causal connection between the injury and the conduct complained of; i.e., “the injury has to be fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.” Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)) (alterations in original). Third, it must be “likely,” and not merely “speculative,” that the plaintiff’s injury will be redressed by a favorable decision. Id. at 561.
The court’s standing analysis, however, does not end here. The court can also impose “prudential limitations” on the class of persons seeking federal jurisdiction, including requiring that a litigant can only assert his own legal rights, and not the rights of a third party. See, e.g., United States v. Raines, 362 U.S. 17, 22-23 (1960); Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). “This rule flows from a concern that third parties will not adequately represent the individuals whose rights they seek to vindicate.” Retired Chicago Police Ass’n, 76 F.3d at 862. Thus, in determining whether a party can assert a cause of action on behalf of others, a reviewing court must ask two questions: 1) whether the litigants have suffered an injury in fact sufficient to rise to an Article III controversy; and 2) whether, as a prudential matter, the plaintiff properly represents the interest of any other individual in the complaint. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989); Singleton v. Wulff, 428 U.S. 106, 112 (1976).
The complaint lists several allegations resulting from the seizure of Plaintiff Sterner’s patient treatment history records. Cplt. at 16. Plaintiff Sterner alleges that, in violation of the search warrant, Defendant Toussaint seized entire patient files even when the medical files could be easily separated from payment records. Id. The complaint seeks injunctive relief barring Defendants from use or dissemination of “any patient information and/or patient identities” for violating Plaintiffs’ first amendment rights (see Cplt. at 15), as well as “Plaintiff Sterner’s patients clearly established right to privacy.” See Cplt. at 21.
Plaintiff argues that the physician-patient privilege endows him with standing to pursue this action on behalf of his patients. Doc. No. 33 at 3. Although federal law does not recognize a physician-patient privilege, see Hutton v. Martinez, 219 F.R.D. 164, 166 (N.D. Cal. 2003), courts have consistently acknowledged the right of a physician, as a custodian of records, to assert the privacy rights of his patients. In In re Search Warrant, 810 F.2d 67 (3d Cir. 1987), physician plaintiff sought to assert his patient’s rights to privacy when medical records were seized from his office pursuant to a search warrant issued as part of an insurance fraud investigation. Id. at 70. In finding a physician has standing to assert the privacy rights of his patients; the court first recognized that “‘[a]s a practical matter, the absence of notice … of the subpoena means that no other person other than [the movant] would be likely to raise the privacy claim,'” and therefore the physician would be the “proper proponent to assert this claim on behalf of his patients.” Id. at 71, quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 574 (3d Cir. 1980). The court also found, due to a substantial stake a physician has in the outcome, the level of adverseness high enough to overcome any prudential concerns. Id. at 71 n.3. In Pagano v. Oroville Hospital, 145 F.R.D. 683 (E.D. Cal. 1993) (overturned on other grounds), the court also recognized a physician’s duty, as custodians of their patients’ medical records, to assert the privacy rights of their patients. Id. at 696. Citing several California state cases, the court found that physicians “must be permitted to speak” for their absent patients where a physician’s rights are coincident with their patients. Id., citing Wood v. Superior Court (Bd. of Medical Qual.), 166 Cal.App.3d 1138, 1145 (1985). This Court finds these cases persuasive, and therefore finds that a physician, as a custodian of his patient’s records, has standing to assert privacy rights on behalf of his patients. Taking the facts asserted here as true, the information Plaintiffs seek to protect is highly personal and, in light of the Government’s primary interest in financial matters and accounting, should outweigh any interest that the Government may have. Accordingly, this Court DENIES Defendant Toussaint’s motion to dismiss based on the alleged lack of standing of Plaintiff to assert claims on behalf of his patients.
Officer lacked reasonable suspicion to detain the defendant based on a review of the videotape when he cited the defendant for driving on a suspended license for an unknown reason. The defendant was driving a rental car with an expired rental agreement but which defendant said had been extended which he had already noted on the rental agreement with the name of the person he talked to and the date. The officer asked for consent and defendant refused. The officer then brought the dog out, but the continuation of the detention was without reasonable suspicion. Enriquez v. State, 2006 Ark. App. LEXIS 864 (December 6, 2006).
Officers responded to an emergency call that there was a man slumped over the wheel of a car in a convenience store parking lot with the engine running. They opened the door, and defendant was not responsive. When they pulled him upright, in plain view was cocaine, which was validly seized. Vitale v. State, 946 So. 2d 1220 (Fla. App. 4th Dist. January 3, 2007, released for publication January 19, 2007).
Defendant did not preserve search issue for appeal with conditional plea, so the appellate court lacked jurisdiction on that issue. State v. McDougald, 638 S.E.2d 546 (N.C. App. 2007).*
Consent during a knock and talk, where defendant first refused consent but relented after being told that the officers would get a search warrant and he would be excluded from the apartment until the search was completed, was still voluntary. Durlock v. State, 2007 Tex. App. LEXIS 11 (Tex. App. — Dallas January 3, 2007) (there was no mention of whether the search warrant would actually issue, which should be fatal, but the defendant’s “experience” with the criminal justice system seemed determinative):
The evidence shows appellant is an adult who has experienced previous encounters with law enforcement officials. He acknowledged that he agreed to allow the officers to search his apartment rather than wait for a search warrant. He was not in custody and there is no evidence of physical punishment. The trial court could have determined any initial misgivings appellant might have had about consenting to a search of his apartment were insufficient to vitiate his subsequent decision to consent to the search. “[M]ost confrontations with the police are uncomfortable–given the implicit difficulty in refusing any request from a peace officer who stands cloaked in the authority of law enforcement. …” Carmouche, 10 S.W.3d at 333. “But the Constitution does not guarantee freedom from discomfort.” State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999). The Constitution “presumes that an actor is invested with a vibrant sense of his own constitutional rights and will assert those rights when they are implicated.” Carmouche, 10 S.W.3d at 333. Looking at the totality of the circumstances, we conclude the record supports a finding by clear and convincing evidence that appellant’s consent to search was free and voluntary. The trial court did not abuse its discretion when it denied appellant’s motion to suppress. Appellant’s first and second issues are overruled.
Not a search case, but interesting for prosecutors and defense lawyers alike is Valle v. State, 2006 Tex. App. LEXIS 11129 (Tex. App. — Amarillo December 29, 2006), holding that insufficient evidence of possession was shown as to the driver of a tractor trailer who consented to a search of the contents of the truck where drugs were found. This was distinguished from a drug courier in a smaller vehicle because of the way the contraband was packaged and hidden in the truck, and long haul truck drivers carry for third persons and seldom know exactly what they are hauling.
Again, appellant questioned the factual sufficiency of the evidence. And, as previously mentioned, addressing that issue obligates us to consider the entirety of the evidence in a neutral light. Thus, we need not ignore the fact that the officers were not qualified by the State as or otherwise shown to be experts on the matter of commercial trucking procedures or the conduct of commercial truckers. Nor must we ignore the fact that in commenting about the ability of charcoal and flour to absorb odors, the officers were again not shown to have any specialized training in the matter. Nor can it be forgotten that neither they nor the State explained what effect plastic wrapping had on the ability of charcoal and flour to absorb smells. Moreover, in reading the testimony of the officers, one is left with the unmistakable impression that whatever conduct a suspect engages in, they can interpret it as indicative of criminality. To that we add 1) the numerous links (discussed above) that weigh against there being a nexus between appellant and the contraband, 2) one officer’s own testimony that he has seen reefers being used to haul cars, 3) another’s testimony that a trucker may simply drive up to a loading dock, remain in the truck, have others load the goods, obtain whatever receipt is given him, and then drive off, 4) the inability of the officers to confirm whether or not the contact person named on the bill of lading and receipt worked for the companies at which the goods were received, 5) the lack of evidence suggesting that appellant had any experience in or history with the drug trade, 6) the absence of evidence contradicting appellant’s version of how he came to acquire the limited cargo he had, and 7) the inability of one officer to place appellant inside the trailer and of the other to inform the jury of any indicia he thought was enough to show appellant knew of the drugs.
Into the mix we throw in another observation. The circumstances before us are unlike those involved in the usual drug stop. We do not have an individual simply operating a vehicle on a public roadway. We have a person whose job it is to transport, over long distances, property belonging to third parties. Moreover, if the officers at bar are to be believed, the property is most likely packaged by third parties, as opposed to the driver. This is a setting ripe for the unwitting carriage of illegal goods. Consequently, both jurors and the judiciary must tread cautiously to avoid convicting the unwitting.
In sum, while an abundance of information floats around in the record it means little when placed in context. It may be (as the officers suggested) the responsibility of a long-haul driver to exercise care over his cargo but not even the law of bailments equates the duty of care with a knowledge of content. To say otherwise would be to divine apples from oranges. And, that appears to be a general flaw running throughout the case. Tidbits of information were tossed before the jury but there lacked a cohesive thread tying them together. This is not to say that the State’s effort was less than noteworthy. Rather, it connotes the difficulty in proving guilt in cases such as this.
So, from the totality of the evidence when considered in a neutral light, we can say that objective basis exists of record upon which to find “the evidence supporting conviction [to be] so weak that the verdict “seems ‘clearly wrong and manifestly unjust[.]'” Evans v. State, supra. To the extent that the dissent disagrees, we note that the two cases it relies on, Menchaca v. State, 901 S.W.2d 640 (Tex. App.-El Paso 1995, pet. ref’d) and United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993), are inapposite. For instance, Menchaca involved drugs being transported within a car as opposed to being hidden within the cargo of a trailer hauled by a common carrier. Nor do we have here evidence of nervousness on the part of the driver or a document indicating how and where the drug deal would be completed, unlike the situation in Menchaca. As for Garza, the court also had before it indicia absent here. They included 1) nervousness and trembling on the part of the courier, 2) a false bill of lading hidden in the truck, 3) admission by the courier of falsification of his log book along with an implausible explanation, 4) suspicious circumstances involving Garza’s delayed departure and 5) abandonment of his unlocked truck for a time. But, most importantly, neither opinion dealt with the factual, as opposed to legal, sufficiency of the evidence. This is of import because evidence that is legally sufficient to support a verdict does not ipso facto mean it is factually sufficient.
