IN THE SUPREME COURT OF FLORIDA BENNY ALBRITTON, Petitioner, vs. STATE OF FLORIDA, Respondent. : : : Case No. : : : SC11-675 DISCRETIONARY REVIEW OF DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT AMENDED BRIEF OF PETITIONER ON JURISDICTION JAMES MARION MOORMAN PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT CLARK E. GREEN Assistant Public Defender FLORIDA BAR NUMBER O152978 Public Defender's Office Polk County Courthouse P. O. Box 9000--Drawer PD Bartow, FL 33831 (863) 534-4200 ATTORNEYS FOR PETITIONER
TOPICAL INDEX TO BRIEF PAGE NO. STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 ISSUE I THIS COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION TO DECIDE THIS APPEAL BECAUSE THE SECOND DISTRICT COURT OF APPEAL S OPINION EXPRESSLY CONSTRUES A PROVISION OF THE FLORIDA CONSTITUTION AND THE OPINION ALSO EXPRESSLY DECLARES VALID A STATE STATUTE....3 CONCLUSION...10 CERTIFICATE OF SERVICE...11 APPENDIX...12 i
TABLE OF CITATIONS CASES PAGE NO. Campbell v. State, 679 So. 2d 1168 (Fla. 1996) 7 Patty v. State, 768 So. 2d 1125 (Fla. 2d DCA 2000) 7 State v. Skinner, 10 So. 3d 1212 (La. 2009) 8, 9 State v. Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010) 7 Terry v. Ohio, 392 U. S. 1 (1968) 7 Whalen v. Roe, 429 U. S. 589 (1977) 8, 9 Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 547 (Fla. 1985) 6 State Rules Florida Rule of Appellate Procedure 9.030 4 ii
STATEMENT OF THE CASE AND FACTS The State Attorney for the Thirteenth Judicial Circuit in and for Hillsborough County filed an information charging Petitioner, BENNY ALBRITTON, with one count of trafficking in illegal drugs (twenty-eight grams to thirty kilograms), in violation of Section 893.135(1)(c)(1)(c), Florida Statutes (2008) and with twelve counts of obtaining drugs from a physician by withholding information, in violation of Section 893.13(7)(a)(8), Florida Statutes (2008). Mr. Albritton filed a motion to suppress evidence obtained as the result of an illegal search and seizure. A suppression hearing was held and the trial court granted the motion to suppress. On October 23, 2009, the State filed a timely Notice of Appeal of the trial court ruling. On March 2, 2011, the Second District Court of Appeal reversed the granting of the motion to suppress and remanding for further proceedings because Section 893.07(4) granted law enforcement the power to inspect and seize prescription records from a pharmacy without a warrant or subpoena. In dissent, Judge Altenbernd objected to such a broad interpretation and suggested it violated the Fourth Amendment and Florida s right to privacy. 1
SUMMARY OF THE ARGUMENT The Second District s opinion expressly construes a provision of the Florida Constitution the right to privacy found in Article I, Section 23 and it declared valid a state statute Section 893.07(4) by holding the statute gives law enforcement the right to seize an individual s prescription records without a warrant or subpoena. In addition, the opinion expressly construes the Fourth Amendment and other state Supreme Court opinions have held that prescription records should be given heightened privacy protection. Therefore, this Court should exercise its jurisdiction and hear this appeal. 2
ARGUMENT ISSUE I THIS COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION TO DECIDE THIS APPEAL BECAUSE THE SECOND DISTRICT COURT OF APPEAL S OPINION EXPRESSLY CONSTRUES A PROVISION OF THE FLORIDA CONSTITUTION AND THE OPINION ALSO EXPRESSLY DECLARES VALID A STATE STATUTE. This Court has jurisdiction to hear this appeal from the Second District Court of Appeal s opinion in State v. Albritton, 36 Fla. L. Weekly D487 (Fla. 2d DCA Mar. 2, 2011), on two bases listed in Florida Rule of Appellate Procedure 9.030: (1) the opinion expressly construes a provision of the Florida Constitution and (2) the opinion expressly declares valid a state statute. I. The opinion expressly construes a provision of the Florida Constitution. The Second District held that Section 893.07 does not violate the constitutional right to privacy in Article I, Section 23 of the Florida Constitution. The court determined the statute was narrowly tailored to achieve the State s compelling interest in regulating controlled substances. Contrary to the court s conclusion, the statute s purported granting law enforcement with the unfettered power to inspect and seize an individual s 3
prescription records without a warrant or subpoena contravenes any reasonable notion of privacy. This case involved a Hillsborough County deputy who sent a blast-fax (an automated message by fax machine) to various pharmacies in Hillsborough County and surrounding counties. The fax ordered each pharmacy to provide a list of all prescriptions that had been filled for Benny Ray Albritton. Each pharmacy provided information regarding the type and quantity of the drugs prescribed and purchased as well as the pharmacy s name and location. The deputy visited the pharmacies without a subpoena and acquired additional records, including another list of the actual prescriptions that Mr. Albritton had received. The deputy next went to two doctors offices where he obtained narcotics agreements from the doctors without a subpoena. 1 The State subsequently charged Mr. Albritton with various offenses and sought to subpoena the records it had already obtained. The trial court suppressed the records, concluding that the items in the subpoena were the fruit of the poisonous tree. In reversing the trial court s order granting the motion to suppress, the Second District relied upon the following requirement in Section 893.07(4): [pharmacy] records shall be kept and made available for a period of at least 2 years 1 These agreements, which Mr. Albritton had signed and the doctor had kept in his records, stated that he was agreeing not to obtain another similar prescription without first getting the doctor s permission. 4
for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances. Judge Altenbernd concurred with the majority s holding because he agreed that the trial court had improperly granted the motion to suppress based upon Section 395.3025. However, in a lengthy and thoughtful dissent, he raised concerns about the implications of the State s interpretation of Section 893.07(4) and detailed several reasons why a proper analysis might support the trial court s order suppressing the records. First, the dissent noted that the State was interpreting the critical language of Section 893.07(4) to mean that a pharmacist must provide all records that are less than two years old and are maintained under this section to any law enforcement official (LEO) who requests to copy and inspect them. The LEO must not first acquire a subpoena to obtain the records; he is entitled to copy them merely upon displaying a badge and claiming to be an officer who is enforcing drug laws. 2 The dissent questioned whether Section 893.07(4) s simple language could result in such an expansive interpretation and also expressed incredulity that 2 In a footnote, Judge Altenbernd stated that the court in State v. Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010), found this statute to be narrowly drawn due to the phrase, for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances. The dissent properly rejected this rationale, noting that all law enforcement officers have a duty to enforce drug laws and there was no evidence in these cases that this duty was 5
this interpretation reflected the intent of the Legislature. Second, the dissent cautioned that Section 893.07(4) should be interpreted to avoid the risk that the statute is unconstitutional. Assuming that the statute grants such broad power to law enforcement, the court must analyze the statute under the strict scrutiny standard set forth in Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 547 (Fla. 1985). If an individual has a legitimate expectation of privacy in prescriptions, the State must then establish that the statute addresses a compelling state interest and accomplishes its goal through the least intrusive mean. Id., at 547. While acknowledging the State s interest in regulating controlled substances, the dissent noted that the regulation of licensed, professional pharmacists does not raise the heightened privacy concerns as the random search of an individual s prescriptions creates. To allow law enforcement to use pharmacy records obtained during administrative searches as evidence in a criminal prosecution against a random customer implicates very different privacy concerns. The inherent notion of privacy within the patient-physician relationship extends to the customerpharmacist relationship because a licensed pharmacist can only fill a prescription that is on file. As a result, prescriptions should retain a significant degree of privacy. A less intrusive manner to investigate the problem of doctor-shopping must exist (..continued) restricted to a fixed number of officers. 6
other than to allow law enforcement to request prescription information from a pharmacy arbitrarily. Further, the dissent noted that any person is free to call Crime Stoppers to make an anonymous report of criminal activity. This particular call, which resulted in the disclosure of Mr. Albritton s prescription records to law enforcement, would not have given a LEO the right to conduct a brief Terry 3 stop if Mr. Albritton were walking down a public sidewalk. Also, law enforcement must follow specified criteria to conduct an inventory search of a car, see Patty v. State, 768 So. 2d 1125 (Fla. 2d DCA 2000), and a greater degree of privacy is required to conduct a road block check for drunk drivers than this statute requires. See Campbell v. State, 679 So. 2d 1168 (Fla. 1996). These serious and intrusive encroachments upon the right to privacy insured by the Florida Constitution require this Court to exercise its jurisdiction to consider this case. II. The opinion expressly declares valid a state statute. The Second District also declared Section 893.07(4) valid by concluding that the statute authorized law enforcement to seize Mr. Albritton s pharmacy records without a warrant or subpoena. Citing State v. Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010), the court determined that Section 395.3025 did not apply to 7
pharmacies. Rather, the court held that Section 893.07(4) s requirement that pharmacies maintain records relating to controlled substances for at least two years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances justified the seizure of the pharmacy records without getting a warrant or subpoena. The court s express finding that the statute is valid also gives this Court jurisdiction to consider this appeal. III. The Second District s opinion expressly construed the Fourth Amendment and other courts have considered this issue. Courts in other jurisdictions have considered the issue of the legality of law enforcement s seizure of prescription records without a warrant or subpoena. In State v. Skinner, 10 So. 3d 1212 (La. 2009), the Louisiana Supreme Court held that, absent narrowly-drawn exceptions permitting a warrantless search, a warrant is required to perform an investigatory search of medical and/or prescription records. The court examined federal court opinions to ascertain how the courts had addressed the right of privacy in medical and prescription records. In a leading case, Whalen v. Roe, 429 U. S. 589 (1977), the United States Supreme Court observed that the right to privacy implicates at least two different types of interests: (1) the individual s interest in avoiding disclosure of personal matters (..continued) 3 Terry v. Ohio, 392 U. S. 1 (1968). 8
and (2) independence in making certain types of personal decisions. Skinner, 10 So. 3d at 1216; citing Whalen, 429 U. S. at 599-600. The Court was asked to determine whether a New York statute requiring prescriptions for Schedule II drugs to be forwarded to the State Department of Health violated the constitutional right of privacy. 4 Id. The Court noted that one way in which such information could be disclosed was if a doctor or patient were subject to a criminal investigation. Id. While declining to consider that possibility to be an adequate reason to find the statute unconstitutional, the Court did hold that an individual has a limited right to privacy in medical records. Id. The Louisiana Supreme Court noted that, in Whalen, the U. S. Supreme Court upheld the constitutionality of the New York statute s regulatory scheme based explicitly upon the Fourteenth Amendment s concept of personal liberty and restrictions upon state action and drew a clear distinction between Fourth Amendment and Fourteenth Amendment privacy interests. Noting the Fourth Amendment s purpose was to give an individual freedom in private affairs from governmental surveillance and intrusion, the Court declined to extend this privacy interest in cases that did not pertain to affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal 4 The prescription form contained the following information: the prescribing physician, the dispensing pharmacy, the drug and 9
investigations. Skinner, at 1217; citing Whalen, at 604 n. 32. Although recognizing that the question of whether a warrant is required for an investigatory search of prescription records as opposed to a regulatory search had not been resolved, the Louisiana Supreme Court did not conclude that the U. S. Supreme Court s holding in Whalen with respect to regulatory searches 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. Skinner, at 1218. The Court concluded that a person s right to privacy in medical and prescription records is an expectation of privacy that it should recognize as reasonable and held that law enforcement must obtain a warrant prior to conducting an investigatory search of such records except for certain narrowly crafted exceptions. The fact that other state supreme courts have considered this issue and at least one has determined that the right to privacy applies to prescription records should further compel this Court to exercise its jurisdiction and hear this appeal. CONCLUSION In light of the foregoing reasons, arguments, and authorities, Mr. Albritton respectfully asks this Court to exercise its discretionary jurisdiction to hear this appeal. (..continued) dosage and the patient s age, name and address. 10
CERTIFICATE OF SERVICE I certify that a copy has been mailed to Marilyn Muir Beccue, Concourse Center #4, 3507 E. Frontage Rd. - Suite 200, Tampa, FL 33607, (813) 287-7900, on this day of April, 2011. STATEMENT OF TYPE USED I certify the size and style of type used in this brief is Courier 12 point, a font that is not proportionally spaced. CERTIFICATION OF FONT SIZE I hereby certify that this document was generated by computer using Microsoft Word with Courier New 12-point font in compliance with Fla. R. App. P. 9.210 (a)(2). Respectfully submitted, JAMES MARION MOORMAN CLARK E. GREEN Public Defender Assistant Public Defender Tenth Judicial Circuit Florida Bar Number O152978 (863) 534-4200 P. O. Box 9000 - Drawer PD Bartow, FL 33831 ceg 11
APPENDIX PAGE NO. 1. State v. Albritton, 36 Fla. L. Weekly D487 (Fla. 2d DCA Mar. 2, 2011) A1-A12 12