VOLUME 2

New material:
    § 33.26. Listening in on conference calls [New]

Chapter 22 Arrest and other seizures of persons

§ 22.33 n. 319
    DOJ's policy on the use of deadly force is available online at DOJ's website along with commentary on the policies on use of force in noncustodial and custodial situations.

Chapter 23 Searches of persons

Chapter 24 Body searches

§ 24.35 n. 295.4
    295.4. DNA Sampling of Federal Offenders Under the USA PATRIOT ACT of 2001, A.G. Order No. 2664-2003, 68 FR 11481.

Chapter 25 Searches of prisons, parolees, probationers and as a condition of bail

Chapter 26 Border searches and stops

§ 26.1 n. 4
    See What Gives Customs the Right to Search Me? on the Customs Service website. This document also seeks to assure travelers that border searches of the person and belongings are conducted nondiscriminatorily and with tact and sensitivity.

§ 26.2 n. 13
    On March 1, 2003, the border inspection functions of the U.S. Customs Service, the Immigration and Naturalization Service, and the Animal and Plant Health Inspection Service, along with the U.S. Border Patrol, were transferred to the Bureau of Customs and Border Protection.

Chapter 27 Immigration stops and searches

Chapter 28 Seizures and searches of vessels

Chapter 29 Seizures and searches of mail and packages

Chapter 30 Seizures and searches of luggage and other containers

Chapter 31 Inventory searches

Chapter 32 Airport and bus and train station searches and seizures

§ 32.9 n. 96
    See generally Legal Aspects of Searches of Airline Passengers in the USA and Searches of Airline Passengers in the USA: Sexual Issues, by lawyer-consultant Dr. Ronald B. Standler, Concord, NH, http://www.rbs2.com/.

§ 32.9 n. 99
    In 2001, with regulations adopted in 2002, airline passenger security screening was delegated to the Transportation Security Administration of the Department of Transportation under the U.S. Department of Homeland Security. TSA's mission is to "protect[ ] the Nation's transportation systems to ensure freedom of movement for people and commerce." Thus, TSA is required to inspect all checked baggage and screen passengers and carry-on luggage. 49 U.S.C. § 44901.
    The relevant regulations are as follows:
    49 C.F.R. § 1540.105, Security responsibilities of employees and other persons: "(a) No person may: (1) Tamper or interfere with, compromise, modify, attempt to circumvent, or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure, or procedure implemented under this subchapter. (2) Enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such areas."
   49 C.F.R. § 1540.107, Submission to screening and inspection, provides: "No individual may enter a sterile area without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area under this subchapter."
    49 C.F.R. § 1540.109, Prohibition against interference with screening personnel, provides: "No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter."
    Observation: Note that it is not a violation of the law or regulation to make snide comments about being targeted for a personal search as long as one submits to it. At least TSA respects free speech.

Chapter 33 Lesser intrusive forms of electronic surveillance

§ 33.4 n. 40
    See DOJ's Procedures for Lawful, Warrantless Monitoring of Verbal Communications (May 30, 2002).

§ 33.26. Listening in on conference calls [New][fn199]
    Does a participant in a conference call have an expectation of privacy in the call? Not between the known participants.[fn200]
    What if a law enforcement officer gets access to the call and listens in without their knowledge? That, on the surface, would seem to clearly violate an expectation of privcy, but what if a participant is a snitch and gives the number to the police to access the call? Would this be assuming the risk as in Hoffa v. United States[fn201] of "misplaced confidence"? Maybe, maybe not. In Hoffa the conspirators knew who was sitting there; they just did not know his true motive. If a law enforcement officer has surreptitiously entered the conference call and nobody knows he or she is there, a coconspirator having given the call in number to the police, is this different? One would think so because that immediately distinguishes the underpinnings of Hoffa.
    199. See generally Becky Dale, Is Dialing Into a Conference Call an Interception? Va. Law. Weekly (Dec. 6, 2004) (discussing VA indictments and civil cases concerning an alleged "interception").
    200. Cohen Brothers, LLC v ME Corp., S.A. (2004, Fla App 3D) 872 So 2d 321, 29 Fla L Weekly D907 (no REP in contents of conference call that was recorded by a participant; while FL has a wiretapping statute, this was not a wiretap, and the recording occurred outside of FL).
    201. Hoffa v United States (1966) 385 US 293 17 L Ed 2d 374, 87 S Ct 408, discussed in §§ 2.3 & 8.7.

Chapter 34 Administrative and regulatory searches and seizures

Chapter 35 Military searches and seizures

Chapter 36 Foreign searches and seizures

Chapter 37 National Security searches and seizures

Chapter 38 Other searches and seizures authorized by special needs

Chapter 39 Subpoena duces tecum

    Elliott B. Oppenheim, MD/JD/LLM Health Law, Rush Limbaugh's Quest for Medical Privacy Within the Context of a Criminal Investigation © 2004, reprinted by permission of the author and Terra Firma Publishing, www.comedco.com.

    Justice Arthur Goldberg wrote "the right of privacy is a fundamental personal right, emanating 'from the totality of the constitutional scheme under which we live.'"[1] What privacy will remain in the “Information Age?”

INTRODUCTION:
    Rush Limbaugh is a well recognized and conspicuous “talk show host,” reaching millions in his audience. It is a little hard to imagine that the police would have gone to so much trouble to investigate Mr. Limbaugh had he not been so prominent.[2] The police initiated an investigation upon information from two informants[3] and then proceeded, believing that Limbaugh may have violated Florida’s “doctor shopping” statute. The police obtained a warrant which they served on Limbaugh’s physicians and the doctors, without resistance, turned over the entirety of his medical records.
    This case concerns a compelling collision between the subpoena powers and search and seizure through a search warrant against the backdrop of a famous person’s rights to privacy. Mr. Limbaugh’s attorney is similarly famous: Mr. Roy Black, Attorney at Law of Miami, Florida.[4]
    The issue in the case swirls on the interpretation of various Florida statutes intended to provide privacy of medical records as opposed to various Florida statutes about search warrants. Which right wins in a criminal investigation where the target has not been charged and there is no case yet underway? And, what about HIPAA.[5]
    Obviously, a Florida appellate court case ranks low in legal hierarchy but how this court engaged in the analysis will, most certainly, guide other courts which may have a much wider and broader influence. Further, in criminal investigations, there seems to be a tendency for law enforcement increasingly to delve where no law enforcement has previously gone. What about medical privacy in the context of the criminal investigation. HIPAA[6] may affect some of theses forays.[7]

CASE FACTS:
    Two police informants told the police that they had sold Mr. Limbaugh large quantities of hydrocodone[8] and oxycontin[9] over the course of many years. Acting on that information,[10] the police obtained a list of defendant's prescriptions from a local pharmacy. Police then discovered that Limbaugh obtained prescriptions for controlled substances from four different physicians within a five-month period.[11]
    Florida’s “doctor shopping” statute prohibits people from obtaining controlled substances from practitioners, termed “registrants” under the controlled substance laws, without disclosing these other relationships. Next, the police prepared an affidavit and obtained search warrants. In response to the warrants, all of the providers simply turned over all of defendant's medical records in their possession.
    The appellate court reasoned that the Florida Legislature's purpose in enacting the subpoena statutes was not connected to search warrants. The State's authority to seize defendant's medical records by a validly issued search warrant was unaffected any right of privacy in such records. Since a judge reviewed the information to determine probable cause, the judicial gasket in search and seizure, the Court concluded that the State satisfied its burden.
    The Court, in denying Limbaugh’s motion, did not prohibit Limbaugh from having the issuing judge examine the records to insure that all the records produced fell within the scope of the warrants, and to seek other protective relief to prevent improper disclosures to third parties of records irrelevant to the prosecution — essentially, the very relief Limbaugh sought.
    The issue in Limbaugh was “whether the authority of the State to seize medical records in a criminal investigation by search warrant is limited by a patient's right of privacy.” The Court concluded that since the search warrant was validly issued by a judge, there was no invasion of Limbaugh’s zone of privacy.[12]

CASE ANALYSIS:
    To understand the Court’s conclusion, one must first understand some additional details. There was NO ongoing prosecution when the investigation took place.
    The Florida “doctor shopping” statute states:
    "It is unlawful for any person ... to withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days."[13]

THE WARRANT AND THE HEALTH CARE PROVIDERS’ RESPONSE:
    Following usual police procedures, the police prepared an affidavit and obtained search warrants.[14] The warrants, directed to three physicians and a medical clinic from whom Limbaugh received medical care and services, including prescriptions,[15] were specific, seeking:
    "Records specifically and only pertaining to [petitioner] including the medical records, medical questionnaire, cash receipts, sections of appointment book pertaining to [petitioner], canceled checks, medical insurance forms submitted or prepared to be submitted to insurance companies, computerized records related to the ordering of narcotics, DEA prescriptions numbers and forms, records of dispersing or issuing prescriptions for controlled substances, written and or computerized pertaining only to [petitioner]."[16]
    These providers then responded by releasing all their records![17]
    Next, after the police obtained the records, they placed them under seal, and the State Attorney[18] sent the following notice to Mr. Limbaugh’s attorney:
    "The State is presently investigating a possible violation of Florida State Statute 893.13 against your client [petitioner]. Pursuant to Florida State Statute 395.3025(4)(d) and F.S.S. 933, the State has seized thru a lawfully obtained search warrant the medical records and/or files of your client.[19]
    Further, the State proposed to unseal the medical records in ten days "without viewing any of the contents in the presence of the administrator or doctor pending your opportunity to be heard on your client's right [sic] privacy issues, in reference to the ongoing investigation."[20]
    Limbaugh moved to quash,[21] claiming that this warrant was bad faith since there was no prior notice.[22] When the circuit court judge refused to grant any relief, Limbaugh then appealed to the appellate court.[23] Since there was no matter pending, Limbaugh had not yet been charged, the appellate court was also limited in the relief it would be able to provide.[24]

THE COLLISION:

THE STATE’S NEED TO INVESTIGATE CRIME V. PATIENT'S RIGHT TO MEDICAL PRIVACY:
    Does medical information differ in some way from telephone records, electronic surveillance, or other forms of intrusive police investigatory techniques? Which one of us would like a judge to read our personal medical records, to cull through them visit by visit, to then decide which the police are entitled to and to then protect the rest? Is there anyone who would tell the doctor “the truth” to obtain medical care if this were the prevailing practice? Is medical data so different from other personal information that there should be a special procedure created for criminal investigatory techniques?
    Similarly, when an health care provider receives a search warrant, must the practitioner immediately retain counsel to advise him how to appropriately proceed? Should the physician redact information and eventually face the court’s wrath where the surgery is eventually viewed as too extensive?
    The State of Florida and the appellate court answered these questions by permitting the entirety of the records to undergo judicial scrutiny.
    What are the implications for health care providers and, more important, for patients?
    At this point in America, the legal fact is that when there is a criminal investigation, there are few real protections which will obstruct the wheels of justice. The law of confidentiality and privilege centers on the concept that such rights to privacy may be used as a sword but never a shield — never to cloak wrongdoing.
    In a nutshell, then, Limbaugh’s relief ran against the prevailing legal current. Limbaugh was offended where the state did not give him a prior right to resist the warrant.[25] If the State were to proceed without a preliminary determination about the validity of the warrants, Limbaugh would sustain irreparable damage, he argued.[26] Is there a privacy right in medical records to protect the information in the sword of a criminal investigation.[27]
    Florida’s Constitution is quite specific: "every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein."[28] It was this language Limbaugh wanted the appellate court to follow, limiting the state’s intrusion into his medical affairs free from a law enforcement inquisition.[29]
    At this point the Court interpreted Florida constitutional “intuitions” against the backdrop of the federal constitution.[30] Florida, in 1982, enacted a “conformity amendment” to conform to the comparable Fourth Amendment provision.[31] Limbaugh walked out on a thin limb, at this point, advancing the theory that the warrant provision, requiring a judge to examine information and to make a probable cause determination, was still insufficient. He was entitled to a pre-deprivation hearing.
    According to the Florida medical record subpoena statutes, Limbaugh felt he was entitled to notice and a hearing before the State could examine his medical records.[32] The statutes created a duty for health care providers to recognize a right of privacy in medical records. Moreover, the statutes forbid outsiders from subpoenaing medical records from medical providers without prior notice to the patient.[33]
    This case then took an interesting turn, where the court distinguished the legal powers between a subpoena and a warrant.[34] The Florida search warrant statutes did not exclude or in any way exempt medical records from the warrant powers, therefore, reasoned the Court, Limbaugh’s contention that the subpoena statutes offered him no protection.[35] Without equivocation, the Florida appellate court stated, “[t]he right to privacy has no application to constitutionally valid search and seizure.”[36] In short, there is nothing special about medical information.
    In denying Limbaugh’s writ, the Court held, “the constitutional right of privacy in medical records is not implicated by the State's seizure and review of medical records under a valid search warrant without prior notice or hearing.”[37] The Court did allow Limbaugh to require an in camera inspection of the records to insure that all of the records obtained fell within the scope of the warrant and to prevent “improper disclosures to third parties” which did not relate to the intended prosecution.[38] … but how much medicine do typical judges understand to make such a determination? … or are they able to even read the records, given the typical state of medical charting?

THE DISSENT:
    The Honorable Judge May dissented, observing that in the majority’s denial it allowed the very review the Petitioner sought![39] Judge May was concerned that the Legislature did not create an exception for medical records in terms of seizure of property.
    Judge May noted that under HIPAA there is a “trend to enhance, not eliminate, the privacy afforded to patients and their medical records.”[40] In addition, Judge May supported the protected status of medical records, writing, “[w]hether they are obtained by means of a subpoena or a warrant, their protected status remains the same.”[41]
    Justice May observed that search warrant laws “were not designed to set the parameters of ‘disclosure’ of items otherwise protected by our constitution.”[42] In his view “[a] magistrate's determination of what might appear relevant at the time a warrant is issued is … insufficient to protect an individual's right to privacy in their medical records. Only when the records have actually been seized can a full, fair, and specific determination of relevancy be made.”[43]
    In Limbaugh, the warrant was non-specific, seeking “medical records” not “medical records related to prescriptions,” the Justice reasoned.[44] Here, Justice May showed considerable insight about medical practice habits and health care professionals’ lack of sophistication in the ways of the law, stating, “[t]he medical providers, professionals in medicine, are but lay persons in the law. They bundled up all of the medical records, even those irrelevant to the crime under investigation, … and turned them over to the State.”[45]
    To fail to provide Limbaugh with the relief he sought denies him protection since his “privacy interest in his medical records is forever lost,”[46] the Judge wrote and noted that a post-seizure hearing would be of little value. Justice May advocated a procedure where, applying only to medical records, “it would be a better practice for the State to keep the warrant and the accompanying affidavit under seal until an impartial magistrate is able to determine relevancy.”[47]

ANALYSIS AND CONCLUSION:
    This Limbaugh case appears to be another example here the State, through statutes and police conduct attempts to meddle in medical care,[48] where, in this case, the State failed to regard medical records as anything more than evidence to fit the perceived crime.
    Doctor shopping is a serious medical and legal problem. As a matter of national policy, the Drug Enforcement Agency controls all aspects of controlled substance manufacture and distribution. Controlled substances may only be prescribed for therapeutic use and diversion, illicit sales and distribution, is a major social and medical problem. The vast majority of “drugs” in illicit trade originate from lawful drug manufacturers!
    To understand Limbaugh’s consternation one must understand a few points about medical records.[49] The way that medical records “work” is that a physician listens to the patient and obtains an history. This includes the history of present illness, a general past medical history, a family and social history and a review of systems.[50]
    Then the doctor would perform a physical examination to include the whole person and the systems: neurologic; orthopedic; genital; cardiovascular, etc.. Based upon this, the doctor would order medical testing: blood; urine; perhaps an electrocardiogram, and other x-rays. This “batch” would form the medical records which the police would then obtain.
    The problems arise, though, when a provider is faced with a warrant — who decides how to comply with the warrant? There are very judges so sophisticated that they would understand the interlinking within a medical record sufficient to support clinical decisions?
    It is interesting how the Police proceeded here since, under federal DEA[51] law and Florida law, they could have initiated their Limbaugh investigation by examining the medical licensees’ medical records for violations of controlled substance law. Those statutes tend to be far more liberal and allow investigators wide latitude. Investigators simply obtain an investigative subpoena from the licensing agency and they then have access to virtually any record they wish.
    As one of the quid pro quos for medical licensure, licensees agree to cooperate in such investigations … and the investigators do not need probable cause or any cause for that matter. Many states engage in unannounced, random, compliance checks where investigators simply examine files to make sure that licensee are prescribing controlled substances for legitimate medical purposes. Had the Florida officials preliminarily proceeded in this fashion, they may have completely avoided this confrontation…although they may have had a specific goal in mind: Limbaugh.
    There are several important problems here. First, health care professionals are liable for wrongful disclosure of protected health care information under HIPAA and various state statutes. Lack of sophistication of the law in this area is no excuse to turn over medical records without meeting appropriate statutory requirements.
    Another important issue is the erosion of privacy by medical record releases such as occurred here. Medical records contain all manner of information inextricably intertwined within them. A medical record, unlike a telephone record, is not merely a number. Suppose the Family History contains something inflammatory? Or sexual habits? Or juicy past medical history? Is a judge qualified to take a black pen and redact such information? Are we going to have a hearing where, at some point, the judge is to sit there with the defense attorney, the patient / suspect, and the patient's doctor so the judge can make an informed decision?
    It is premature to link the dots between Ferguson and Limbaugh to see any pattern, but law enforcement appears to be pushing the outer limits in its inertia to pursue justice. The general rule remains, however, that privacy, no matter how important, is a shield and never a sword. The State’s powers remain potent to investigate wrongdoing.
    Medical practice must confront technology in the computer era and in the era of information dissemination. Florida has created this medical duty for patients to make affirmative statements to a physician about their medical conduct. Perhaps, Limbaugh should challenge this statute since, as with the statute in Ferguson, the intrusion went too far. Can the State create such a duty? Isn’t the statute as written overbroad, vague, and ambiguous? Even, as applied to Limbaugh, weren’t the police just a bit aggressive? Most cases of real doctor shopping, in this author’s experience, are far more florid. Most statutes permit patient prosecution but lay the responsibility on the physicians, since they, not the patient, determine medical utilization.
    Finally, although there are only a few HIPAA cases, in Law v. Zuckerman,[52] a case of first impression in the Fourth Circuit, the court reviewed physician duties to involve the patients in a medical records request. Law was a civil, not a criminal matter so its applicability to the Limbaugh case is uncertain.
    Clearly, one obvious factor influenced how the police proceeded and the court reacted: there was no prosecution underway.
    At this writing Mr. Limbaugh has been charged with no wrongdoing.[53] One wonders to what degree a quest for “fifteen minutes of fame” influenced the police in The Information Age.

Endnotes
    1. Limbaugh v. Florida, 887 So 2d 387, 400 n.14 (4th Dist. 2004) (dissent opinion by The Honorable Justice May) (citing Griswold v. Connecticut, 381 U.S. 479, 494 (1965) (Goldberg, J., concurring, quoting Poe v. Ullman, 367 U.S. 497 (1961)).
    2. Same with Ms. Martha Stewart, prosecuted so publicly for a microscopic violation of securities law. In Limbaugh’s case, the State used a statute which is rarely used. See, John Pacenti, Charge In Limbaugh Drug Case Rarely Used, Court Records Show, PALM BEACH POST 1 (January 3, 2004); at http://www.palmbeachpost.com/localnews/content/news/limbaugh/010304_limbaugh.html.
    3. See, Elliott B. Oppenheim , May the Police Practice Medicine?, 8(1&2) J. MED. & LAW 35 (Fall 2003-Spring 2004) where the author examines another instance of police meddling in obstetric care where there are mothers who have used cocaine during pregnancy. The United States Supreme Court limited police meddling in medical care, in Ferguson v. City of Charleston, 532 U.S. 67 (2001).
    4. Mr. Black is a consultant with the NBC network and viewers see his commentaries on prominent cases.
    5. Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (amending, Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001-1461 (1994) (hereinafter cited by ERISA, rather than U.S.C. section), Public Health Service Act, 42 U.S.C. 201-299 (1994) (hereinafter cited by PHS, rather than U.S.C. section), and Internal Revenue Code of 1986, 26 U.S.C. 1-9806 (1994 & Supp. 1996) (hereinafter cited by I.R.C., rather than U.S.C. section)) [hereinafter "HIPAA"]. This act created an affirmative duty for health care providers to notify a patient where there may be releases of protected health care information.
    6. Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (amending, Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001-1461 (1994) (hereinafter cited by ERISA, rather than U.S.C. section), Public Health Service Act, 42 U.S.C. 201-299 (1994) (hereinafter cited by PHS, rather than U.S.C. section), and Internal Revenue Code of 1986, 26 U.S.C. 1-9806 (1994 & Supp. 1996) (hereinafter cited by I.R.C., rather than U.S.C. section)) [hereinafter "HIPAA"].
    7. See, e.g., Law v. Zuckerman, 307 F. Supp. 2d 705 (D.Md. 2004) where the Court examined the physician’s duty to the patient in responding to subpoena. Limbaugh’s physicians probably violated HIPAA’s notification provisions.
    8. A powerful and very addicting narcotic which appears in various preparations such as Percodan®.
    9. This is chemically nearly identical to hydrocodonone but is even more addicting.
    10. Allegedly, Limbaugh’s housekeeper notified police that she was supplying him with narcotics. At http://www.nydailynews.com/10-02-2003/front/story/122839p-110349c.html. “Wilma Cline, 42, says Limbaugh was hooked on the potent prescription drugs OxyContin, Lorcet and hydrocodone - and went through detox twice.”
    11. “In the first indication that Rush Limbaugh could face criminal charges, search warrants released Thursday allege that the conservative talk radio star engaged in illegal "doctor shopping" to obtain hundreds of prescription pills. Investigators searched medical offices in West Palm Beach and Jupiter on Nov. 25 [2003] for records, cash receipts and prescription forms related to Limbaugh's treatment from four doctors.” At http://www.palmbeachpost.com/localnews/content/news/limbaugh/120503_limbaugh.html, John Pacenti, Limbaugh Allegedly 'Doctor Shopped' for Pills, PALM BEACH POST 1 (December 5, 2003). In this author’s experience over thirty years seeing such cases, this is “no big deal.” Often “real” doctor shoppers see many more providers than four and the number of pills often exceeds thousands.
    12. 887 So 2d at 389.
    13. Fla. Stat. § 893.13(7)(a)8, (2003). Limbaugh, 887 So 2d at 389 n. 1. This statute creates a legal duty, then, for patients seeking health care? One wonders how many patients would be aware of such a legal duty? Typically, “the law” does not create affirmative requirements for a patient seeking medical care to iterate any particular history. Why not also require patients to disclose sexual history, psychiatric history, confinement history?
    14. Limbaugh, 887 So 2d at 390 (complying with Fla. Stat. § 933.07(1) (2003).
    15. Limbaugh, at 390.
    16. Id.
    17. Id. In this practitioner’s experience as a physician and as a medical-legal consultant over thirty years, most physicians, when confronted with any sort of medical record request simply ask “someone” to copy the records and make no attempt to meet a very specific request, as the warrant requested. Most physicians would not retain counsel to meet a medical record request nor would most physicians have any sense that this “warrant” was any different than the flotsam and jetsam doctors’ experience in day-to-day medical practice. There is an high likelihood that the affected practitioners never actually saw the warrant since clerks typically react to these requests and the clerks would not ordinarily involve the doctor in such mundane medical administrative matters … although this case did involve one of the most high profile personalities in America.
    18. Presumably, Mr. Limbaugh, aware of the investigation, retained counsel.
    19. Id.
    20. Id.
    21. Id.
    22. Typically, when there are law enforcement investigations, the police proceed as secretly as possible with no pre-search and seizure notice. Consider electronic surveillance, stakeouts, etc. Sometimes, when the police seek protected materials such as telephone records or bank accounts, the entity in possession may notify a subject after the warrant is perfected. While there may be other instances where there is a pre-deprivation right to notice or a right to an hearing in law enforcement investigations, it is rare, in this author’s experience.
    23. Id.
    24. Id.
    25. Id.
    26. Id. at 391.
    27. Id. The Court framed the question: “… whether Florida law recognizes a right of privacy in medical records that would limit the State's use of search warrants in regard to medical records in a criminal investigation.” Id.
    28. Art. I, § 23, Fla. Const. (1980) (privacy amendment). 887 So 2d at 391.
    29. Id.
    30. Id.
    31. See Art. I, § 12, Fla. Const. (1982) (adding the following: "This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court."). 887 So 2d at 392 n. 5.
    32. 887 So 2d at 393. These two statutes, Fla. Stat. § 395.3025(4)(d), (2003) and Fla. Stat. § 456.057(5)(a)3, (2003) are identical in wording: § 395.3025(4)(d states: "Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent to ... in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative."); § 456.057(5)(a)3 states: "Except as otherwise provided in this section and in § 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization ... in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records."). [hereinafter referred to as subpoena statutes] 887 So 2d at 393 n.7.
    33. The statutes are not labeled “subpoena statutes” and this language is actually contained in medical privacy statutes. 887 So 2d at 393. The medical privacy statutes require “health care providers to recognize their patient's right of privacy in the records they create and maintain.” Id. The operative effect of the statutes, however, resides in the subdivisions limiting the use of subpoenas for medical records; not one word about criminal investigations. Id.
    34. The Florida appellate court observed that the word “warrant” or “search warrant” did not appear in these statutes and the purpose for the statutes was to “correct a practice in the use of subpoenas for medical records in both civil and criminal cases by private and governmental lawyers.” Id. at 394. Generally, a subpoena is a legal order which compels a person to come to court or commands a possessor to produce things. In distinction, though, a search warrant is a court order which permits the State to enter premises, to make a search for particularized items, which if found, are to then be seized and to be used as evidence. In this case, the State proceeded by search warrant. Often, no court intervention or supervision is required for a subpoena whereas only judicial officials may issue search warrants. Id.
    35. Id at 394-95. “Judges are not free to reconstruct statutes dealing only with subpoenas and extend them to cover search warrants as well,” the Court concluded. Id. at 395.
    36. Id. at 396-97 (discussing this issue in depth).
    37. Id. at 397-98.
    38. Id. 398.
    39. Id.
    40. (citing Health Insurance Portability and Accountability Act [HIPPA], 42 U.S.C.A. § 210 et seq. (1996).) 887 So 2d at 400.
    41. 887 So 2d at 400.
    42. Id. at 401.
    43. Id.
    44. Id.
    45. Id.
    46. Id.
    47. Id at 402 n. 16.
    48. See, above, Ferguson v. City of Charleston, 532 U.S. 67 (2001).
    49. See, generally, ELLIOTT B. OPPENHEIM,THE MEDICAL RECORD AS EVIDENCE, 900+ pages, (Lexis Law Pub. Co., Charlottesville, VA, 1998). (with current Supplement) (the definitive To order direct from Lexis Law Publishing: 800-542-0957 or 800-562-1197 Item # 66063 To order: Lexis Bookstore http://bookstore.lexis.com/bookstore/catalog?action=product&prod_id=7125.
    50. There are several protocols, each equally valid.
    51. Drug Enforcement Administration — the federal agency which oversees controlled substances. See, http://www.usdoj.gov/dea/agency/mission.htm.
    52. 307 F. Supp. 2d 705 (D.Md. 2004).
    53. The author provided a copy of this article prior to publication to Mr. Black for his comment. Mr. Black provided the author the motion for reconsideration to the appellate court. Mr. Roy Black, his attorney stated in an E.-mail: “You will see that we tell the court we were not relying on the privacy section of the Florida constitution cost, but rather on the statute. The search warrant powers given to the police are solely creatures of statute. By enacting the medical records privacy statute we claim this over rides the search warrant statute. The medical privacy statute is not one of subpoena as the court writes but rather a broad legislative created medical privacy and privilege statute giving patients far more privacy than HIPAA or the constitution. So that's where we get our claim to this particular right. The Florida cases say that under this statute the state must petition a court before the issuance of a subpoena and give notice to the patient allowing the patient to raise an objection prior to the subpoena issuing. It is our argument and the statute says that the records are privilege and can only be accessed using these procedures. While this seems radical to many this was the choice of the Florida legislature acting upon the right to privacy in the Florida constitution. Communication from Mr. Roy Black, 2:44:23, 12/1/2004. [edited for grammar and punctuation not present in the original e-mail].
    {Note: citations updated by this website.}

§ 39.19 n. 225.1.
    45 CFR § 164.501 et seq.

Chapter 40 Searches and seizures of documents

§ 40.10 n. 112
    See DOJ's Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (July 2002).

Chapter 41 Warrant requirement in general

Chapter 42 Applications for warrants

Chapter 43 Form, content, and construction of warrants

Chapter 44 Conduct of searches and execution of warrants

Chapter 45 Litigating the Motion to Suppress

Chapter 46 Appellate and Post Conviction Review

Chapter 47 Civil and Other Remedies to Illegal Searches