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Gore v. State

Florida Court of Appeal, Fourth District

November 16, 2011

Evan S. GORE, Appellant,
v.
STATE of Florida, Appellee.

Page 1120

Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

EHRLICH, MERRILEE, Associate Judge.

The issues in this appeal are: (1) whether the court erred by not suppressing Defendant's pharmacy records, which police obtained without a warrant or subpoena; and (2) whether the court erred by denying Defendant's motion to suppress his medical records and physician statements, which police obtained without a subpoena or Defendant's authorization. We affirm as to the first issue and reverse as to the second issue.

In 2008, Defendant pled guilty to possession of a schedule II substance. The court withheld adjudication and sentenced him to eighteen months probation. In 2009, the State charged Defendant with withholding information from a practitioner and trafficking in hydrocodone. As a result of these new law violations, the State also sought to violate his probation on the 2008 case.

Defendant filed a motion to suppress his pharmacy profile (including prescribing physicians' names), physicians' statements, and medical records. At the suppression hearing, the parties stipulated to the following facts:

The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received

Page 1121

would have been fraudulent because of the withholding information.
The officer goes to various pharmacies, pulls patient's profiles. From those patients' profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, Dr. Gulati and Dr. Ortega, and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.

In the court's order denying the motion to suppress, it stated that the officer legally obtained information from the pharmacy, and therefore, it follows that once the officer legally obtained the identity of Defendant's prescribing doctors, the officer could legally interview and gather information from Defendant's prescribing doctors.

As a result of the court's ruling on Defendant's motion to suppress, Defendant admitted the violation of probation in the 2008 case, pled nolo contendere to counts 1 and 5 in the 2009 case (the State nolle prossed counts 2, 3 and 4), and reserved his right to appeal the denial of the dispositive motion to suppress in both cases. Defendant filed a timely notice of appeal.

Issue 1— Pharmacy Records

Because the facts are uncontroverted, this Court reviews de novo the lower court's legal conclusions on the motion to suppress. Ray v. State,40 So.3d 95, 97 (Fla. 4th DCA 2010). The First and Second District Courts of Appeal, in State v. Carter,23 So.3d 798, 800 (Fla. 1st DCA 2009), and Gettel v. State,449 So.2d 413, 414 (Fla. 2d DCA 1984), both have held that Section 893.07(4), Florida Statutes (2008) authorizes police to search pharmacy records without a warrant. The court in State v. Tamulonis,39 So.3d 524 (Fla. 2d DCA 2010), stated that the right to privacy protected by Article I, Section 23, of the Florida ...


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