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IN THE SUPREME COURT OF OHIO STATE OF OHIO,

Appellee, vs. MELISSA C. MYERS,

Appellant.

: : : : : :

Case No. On Appeal from the Clinton County Court of Appeals, Twelfth Appellate District Court of Appeals Case Nos. CA2014-02-002 CA2014-02-004

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MELISSA C. MYERS

______________________________________________________________________________ John D. Smith (0018138) (COUNSEL OF RECORD) Andrew P. Meier (0083343) JOHN D. SMITH CO., L.P.A. 140 North Main Street, Suite B Springboro, Ohio 45066 937.748.2522 (T) 937.748.2712 (F) jsmith@johndsmith.com ameier@johndsmith.com Counsel for Appellant, Melissa C. Myers Michael DeWine, Ohio Attorney General Christopher L. Kinsler (0074289) (COUNSEL OF RECORD) 150 East Gay Street, 16th Floor Columbus, Ohio 43215 614.466.2226 (T) 855.326.1699 (F) Christopher.Kinsler@ohioattorneygeneral.gov Counsel for Appellee, State of Ohio

Supreme Court of Ohio Clerk of Court - Filed March 06, 2015 - Case No. 2015-0383

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TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ….. 3 STATEMENT OF THE CASE AND FACTS ……………………………………………….. 5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ……………………………... 8

Proposition of Law No. I: A person maintains a reasonable expectation of privacy in the names of their physicians, names of their prescriptions, and other similar information stored on OARRS…......................................................................................................... 8 Proposition of Law No. II: A law enforcement officer engaged in a targeted criminal investigation of a specific person must obtain a warrant before accessing the person’s prescription records stored on OARRS …........................................................................ 8 Proposition of Law No. III: The protections of the Fourth Amendment and Article 10, Section I of the Ohio Constitution are implicated when a law enforcement officer accesses the private healthcare information in OARRS and disseminates it in violation of the privacy protections in the statutory scheme. ………………….……………..…….. 8

Overview ....................................................................................................................................... 8 OARRS ……………..…..………………………………………………………………….… 10 A Reasonable Expectation of Privacy and the Fourth Amendment ……………………...….…11 Whalen v. Roe ………………………………………………………………………...…….…. 13

Stone v. Stow ………………………………………………………………………..…………. 14

This Court Must Step In to Protect Citizens from Intrusive Government Invasions into Private Information ………………………………………………………………………………….… 15 CONCLUSION …………………………………………………………………..…..………. 17 CERTIFICATE OF SERVICE ……………………………………………………..………. 17 APPENDICES ………………………………………………………………..……… A, B, C, D

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A

SUBSTANTIAL CONSTITUTIONAL QUESTION This case presents critical issues related to use of the Ohio Automated Rx Reporting

System (“OARRS”) by law enforcement officers: (1) whether patients have any reasonable

expectation of privacy in the confidential healthcare information stored on OARRS; (2) whether

a law enforcement officer engaged in a targeted criminal investigation must secure a warrant

before accessing OARRS; and (3) whether constitutional protections are implicated when a

patient’s confidential information stored on OARRS is disseminated to people who do not have

access to OARRS.

The court of appeals held that Appellant, Melissa C. Myers (“Myers”), did not have any

reasonable expectation of privacy in her prescription records stored on OARRS: “[b]ased on the

guidance from the United States Supreme Court in Whalen and the Ohio Supreme Court in

Stone, Myers did not have a reasonable expectation of privacy that her prescription records

stored on OARRS would not be disclosed to Detective Luken in his request for Myers’

prescription drug information[.]” (Appendix A, p. 11) As a result, the court of appeals concluded

the protections of the Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the

Ohio Constitution do not apply to a law enforcement officer’s search of OARRS under any

circumstances.

In this case, law enforcement, without probable cause or a reasonable articulable

suspicion, initiated a criminal investigation against Myers. The first step was collecting her

confidential information stored on OARRS. This limited intrusion is permitted by the statutory

framework. Next, having secured the confidential information, including the names and

addresses of her physicians, law enforcement disseminated the information to people without

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access to the database to further its investigation. The statutory framework expressly prohibits

this type of dissemination.

The decision of the court of appeals inappropriately applies to both the use of OARRS

within the statutory framework, and the use of OARRS and the private information contained

therein in violation of the statutory framework. Ohio citizens are entitled to a reasonable

expectation of privacy in their confidential information stored on OARRS, and to be free from

intrusion by unchecked law enforcement. Further, Ohio citizens have a reasonable expectation of

privacy that law enforcement not disseminate their private health information in violation of the

statutory framework. These propositions are entirely severable. It is shocking that law

enforcement, with unbridled discretion, without judicial oversight, and without any cause

whatsoever, can access the confidential information of Ohio citizens for the purpose of initiating

an investigation when one is not warranted under any standard. What’s worse, law enforcement

can then disseminate the information in violation of the statutory framework without implicating

a citizen’s expectation of privacy under the Constitution.

Myers does not contend that OARRS is unconstitutional, or that proper officials are not

entitled to utilize the data in OARRS to administratively search from the top down (analyze

statistical data to see if geographical regions have prescription abuse problems that warrant

further investigation). Myers instead contends it is unconstitutional for law enforcement to begin

a fishing expedition, with no cause, into a targeted individual by accessing OARRS to see what

they find and then use the information in violation of the statutory framework to further “fish”

for evidence of a crime. Recognition by this Court that a limited expectation of privacy exists

will not frustrate the original purposes of OARRS. Instead, this recognition will protect the

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integrity of OARRS and the integrity of every Ohio citizen to be free from unwarranted

governmental intrusion into the most private aspects of their lives. 1

The fundamental purpose of the Fourth Amendment is to protect a citizen from

unreasonable searches and seizures, and to provide a mechanism by which law enforcement must

first seek approval from the judicial branch before snooping around in a citizen’s private

information. Allowing a law enforcement officer to access all of a citizen’s prescription

information in a targeted criminal investigation without any judicial oversight destroys the

purpose of the Fourth Amendment and erodes confidence in the operation of our government.

More troubling is the law enforcement officer’s unauthorized disclosure of the information to

people who do not have access to OARRS, that results in a violation of the physician-patient

privilege. This Court must step in.

STATEMENT OF THE CASE AND FACTS

On April 4, 2013, Detective Dennis M. Luken (“Luken”) of the Greater Warren County

Drug Task Force received a complaint from the chief of the Wilmington Police Department that

Myers, (an officer in the Wilmington Police Department) made a statement to an unidentified

person that her physician accused her of alleged doctor-shopping, an accusation she vehemently

denied. Luken did not receive any other information, and did not identify the person with whom

Myers spoke. Instead, Luken initiated a criminal investigation.

1 By way of example, under the court of appeals holding, it is entirely permissible for a political opponent of a judicial candidate to request a friendly law enforcement officer to access OARRS to extract the identity of that person’s psychiatrist or psychologist, oncologist, etc., and use that information under the color of their authority as a law enforcement officer to question the person’s healthcare providers for information in hopes the intimidation of questioning will cause the healthcare provider to disclose information in violation of the physician-patient privilege, a privilege that does not belong to the provider, only to the patient, and only the patient can waive same.

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With no evidence of any criminal wrongdoing, Luken accessed OARRS to obtain

Myers’s prescription data, a list of her physicians, and all other related, confidential information.

Luken thought his ability to access OARRS without a warrant fell under O.A.C. 4729-5-

29(A)(4), providing access to “[r]ecords relating to the practice of pharmacy” to:

A member, inspector, agent, or investigator of the state board of pharmacy or any federal, state, county, or municipal officer whose duty is to enforce the laws of this state or the United States relating to drugs and who is engaged in a specific investigation involving a designated person or drug.

Luken acknowledged this statutory scheme eliminates all judicial oversight, and agreed

there is no “check” on his decision to access OARRS for any purpose he deems appropriate.

Luken cannot provide the OARRS report to the prescriber or the physician. (Appendix C) Luken

circumvented this requirement by transferring the data in the OARRS report to a spreadsheet.

Luken conceded the data in the OARRS report is the same data in the spreadsheet. Luken then

contacted Myers’s pharmacies to verify the information in the OARRS report. He sent fax

coversheets to the pharmacies. Luken obtained additional, private information from the

pharmacies that is not stored in OARRS, such as insurance information.

Luken next sent his spreadsheet to Myers’s physicians along with a “Doctor’s Statement”

that he created. He asked whether the doctor would or would not have prescribed certain

medication if the doctor had known another doctor also prescribed similar medications. Myers

did not obtain the same prescription from different doctors.

Most physicians completed the “Doctor’s Statement” and returned it to Luken. But one

of Myers’s physicians would not initially provide the information because of “federal privacy

laws”. So Luken sent the physician a letter. Luken quoted language from the Health Insurance

Portability and Accountability Act, falsely insinuating the physician was required to turn over the

information. Luken’s HIPAA quote only related to the physician’s voluntary decision to turn

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over information; it does not require the physician to turn over information or state that law

enforcement is entitled to the information. Luken claimed the purpose of the “Doctor’s

Statement” is to keep physicians from being subpoenaed into court, which is also false because

the physician would eventually be required to testify in court if charges were filed.

When the physician did not respond, Luken went to the physician’s office and sent

another letter threatening criminal prosecution for failure to report a crime. Ultimately, the

physician responded, but indicated he would have still prescribed medication to Myers with full

knowledge of the other prescriptions.

Luken did not receive any information during his investigation that Myers affirmatively

lied to any of her physicians. Instead, with no evidence of deception, Luken theorized there was

an omission. But Luken acknowledged the only way to obtain information about an omission is

to dig into privileged communications between Myers and her physicians.

On June 6, 2013, Myers was indicted on seven counts of deception to obtain a dangerous

drug in violation of R.C. 2925.22(A). (Appendix D) On October 25, 2013, Myers filed a Motion

to Dismiss, a Motion to Inspect Grand Jury Testimony, a Motion to Suppress, and a Motion in

Limine. On January 3, 2014 the trial court denied Myers’s motion to dismiss and motion to

inspect grand jury testimony, but granted her motion to suppress. The trial court concluded the

Fourth Amendment applied to Luken’s search, and “the remedy to the [drug abuse] epidemic is

not to provide law enforcement officials the unchecked right to invade citizen’s reasonable

expectation of privacy absent some recognized exception to the warrant requirement being

demonstrated.” The State appealed.

The court of appeals reversed the trial court’s decision granting the motion to suppress

and found Myers did not have any reasonable expectation of privacy in prescription records

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stored on OARRS. The court of appeals erred in ruling that Myers did not have a reasonable

expectation of privacy in her confidential information stored on OARRS and, as a result, erred in

concluding that the Fourth Amendment was not applicable to a law enforcement officer’s search

of OARRS to initiate a targeted criminal investigation, or applicable when the law enforcement

officer violates the privacy protections of the statutory scheme.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: A person maintains a reasonable expectation of privacy in the names of their physicians, names of their prescriptions, and other similar information stored on OARRS. Proposition of Law No. II: A law enforcement officer engaged in a targeted criminal investigation of a specific person must obtain a warrant before accessing the person’s prescription records stored on OARRS. Proposition of Law No. III: The protections of the Fourth Amendment and Article 10, Section I of the Ohio Constitution are implicated when a law enforcement officer accesses the private healthcare information in OARRS and disseminates it in violation of the privacy protections in the statutory scheme.

Overview

The court of appeals relied upon Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d

64 (1977), and Stone v. Stow, 64 Ohio St.3d 156, 593 N.E.2d 294 (1992), in determining Myers

did not have a reasonable expectation of privacy. In Stone, this Court relied upon Whalen and

concluded that, “[b]ecause the patients and physicians have no reasonable expectation of privacy

in prescription records, as raised in the circumstances of this case . . ., their Fourth Amendment

challenge cannot succeed.” Id. at 166. However, Whalen did not address a patient’s reasonable

expectation of privacy in the context of a Fourth Amendment challenge. Rather, in Whalen,

“[t]he constitutional question presented [was] whether the State of New York may record, in a

centralized computer file, the names and addresses of all persons who have obtained, pursuant to

a doctor’s prescription, certain drugs for which there is both a lawful and an unlawful market.”

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Id. at 591. The Whalen court concluded mass collection of data did not violate a patient’s right

of privacy.

The Whalen court did not “decide any question which might be presented by the

unwarranted disclosure of accumulated private data whether intentional or unintentional or by a

system that did not contain comparable security provisions.” Id. at 605. The Whalen court

simply held “that this record does not establish an invasion of any right or liberty protected by

the Fourteenth Amendment.” Id. at 605-606.

Importantly, the Whalen court labeled the data being collected as “private”. Moreover,

there were concerns in Whalen and Stone about unauthorized disclosure of prescription data.

The dissent in Stone highlighted this concern: the statutory scheme in Whalen “contained

significantly greater restrictions on the government’s right of access to pharmaceutical records,

which in turn provided a far greater protection of the individual patient’s privacy interest.” Id. at

167. The Stone dissent was concerned about the exact situation that exists in this case:

unfettered and unchecked access to confidential information by law enforcement during a

targeted criminal investigation that is then disseminated in violation of the statutory framework.

Neither Whalen nor Stone addressed a situation involving a targeted criminal

investigation, or a “bottom-up” search; rather mass collection of data was under attack. It is time

for this Court to revisit its holding in Stone; find that a patient has a reasonable expectation of

privacy in the confidential information stored on OARRS; find that the circumstances of this

case required Luken to obtain a warrant before accessing Myers’s confidential information; or

find that Luken’s dissemination of the information in violation of the statutory framework was a

constitutional violation; and reverse the decision of the court of appeals.

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OARRS

In 2005, the General Assembly enacted R.C. 4729.75, which allows the “state board of

pharmacy” to “establish and maintain a drug database.” The purpose of the database is to

“monitor the misuse and diversion of controlled substances[.]” Id. R.C. 4729.80(A) provides

situations when the state board of pharmacy is authorized or required to provide information

from the database. Law enforcement offices agree they will not provide the OARRS Report or a

copy of the OARRS Report to anyone outside of the investigation. (Appendix C) Both R.C.

4729.80 and O.A.C. 4729-5-29 provide that the information stored on OARRS is not a public

record, meaning it is confidential.

Sections 4729.77-79 of the Revised Code list the information included in the database:

pharmacist identification, patient identification, prescriber identification, the date the prescription

was issued by the prescriber, the date the drug was dispensed, whether the drug dispensed is new

or a refill, prescription identification, the quantity of the drug dispensed, the number of days’

supply of the drug dispensed, the prescription number assigned by the pharmacist, and source of

payment for the drug dispensed.

Myers is not suggesting that prescription records stored on OARRS should be immune

from search. For example, Myers does not contest the government’s ability to search the data for

statistical purposes in an effort to determine whether certain trends exist. She is instead

contending that law enforcement should be required to secure a warrant before traipsing around

in a specific person’s confidential information. Myers believes this is especially true when law

enforcement is engaged in a targeted criminal investigation of a specific person and there is no

regulatory purpose associated with the search.

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A Reasonable Expectation of Privacy and the Fourth Amendment

“[T]he principal object of the Fourth Amendment is the protection of privacy rather than

property.” Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). To

receive Fourth Amendment protection against unreasonable searches and seizures, a defendant

must have a legitimate expectation of privacy in the invaded area. Katz v. U.S., 389 U.S. 347,

361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). Thus, “a Fourth Amendment

violation occurs when the government invades a person’s reasonable expectation of privacy.”

State v. Johnson, 141 Ohio St.3d 136, 141, 22 N.E.2d 1061, 2014-Ohio-5021, ¶ 28, citing

California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). This Court has

held, “[i]n order for a party to succeed in challenging a search on Fourth Amendment grounds:

(1) that party must have a subjective expectation of privacy in the object of the search, and (2)

society must be prepared to recognize that expectation as reasonable.” Stone, supra, at 163-164.

A court “generally determines whether to exempt a given type of search from the warrant

requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s

privacy and, on the other, the degree to which it is needed or the promotion of legitimate

governmental interests.’” Riley v. California, --- U.S. ---, 134 S.Ct. 2473, 2478, 189 L.Ed.2d 430

(2014), quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408

(1999). The Riley court determined “a search of digital information on a cell phone does not

further the government interests identified in [Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034,

23 L.Ed.2d 685 (1969)], and implicates substantially greater individual privacy interests than a

brief physical search.” Id. In so holding, the Riley court recognized the personal and private

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nature of information contained in a cell phone. Surely, the data stored on OARRS contains

information much more private and personal than information contained in a cell phone.

The United States Supreme Court also determined “[w]here a search is undertaken by law

enforcement officials to discover evidence of criminal wrongdoing . . . reasonableness generally

requires the obtaining of a judicial warrant.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646,

653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). “Such a warrant ensures the inferences to support

a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer

engaged in the often competitive enterprise of ferreting out crime.’” Riley at 2482, quoting

Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). In fact, Unite d

States Supreme Court precedent recognizes the warrant requirement is “an important working

part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’

against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971).

In this case, Luken’s sole objective when he accessed OARRS was to discover evidence

of criminal wrongdoing. There was no judicial oversight to serve as a check on Luken’s basis

for the search. The foregoing United States Supreme Court precedent requires a warrant be

secured before initiating the search. “[W]hen ‘privacy-related concerns are weighty enough’ a

‘search may require a warrant, notwithstanding the diminished expectations of privacy of the

[accused].’” Riley at 2488, quoting Maryland v. King, --- U.S. ---, 133 S.Ct. 1958, 1979, 186

L.Ed.2d 1 (2013).

Despite these basic tenets of Fourth Amendment jurisprudence, this Court, relying upon

Whalen, concluded over 20 years ago that a patient does not have a reasonable expectation of

privacy in prescription data in a case where patients complained about mass collection of data.

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This Court has not addressed the specific situation where a law enforcement officer goes from

the bottom up and accesses OARRS in a targeted criminal investigation of a specific person.

Whalen v. Roe In Whalen, the statutory scheme required the transmission of the following information:

the prescribing physician; the dispensing pharmacy; the drug and dosage; and the name, address,

and age of the patient. Id. at 593. Law enforcement officers did not have access to this database.

A group of patients, doctors, and two associations of physicians attacked the validity of the

patient-identification provisions of the statutory scheme. Id. at 595.

The Whalen court found “the legislature’s enactment of the patient-identification

requirement was a reasonable exercise of New York’s broad police powers.” Id. at 598. The

Whalen court recognized two kinds of privacy interests: an individual interest in avoiding

disclosure of personal matters, and an interest in independence in making certain kinds of

important decisions. Id. at 599. In part, the court concluded these interests were not violated

because there was nothing in the record to indicate that the security provisions in the statutory

scheme would be administered improperly. Id. at 601. The Whalen court noted “[t]he right to

collect and use such data for public purposes is typically accompanied by a concomitant statutory

or regulatory duty to avoid unwarranted disclosures.” Id. at 605.

The Whalen court did not “decide any question which might be presented by the

unwarranted disclosure of accumulated private data whether intentional or unintentional or by a

system that did not contain comparable security provisions.” Id. at 605-606. “Broad

dissemination by state officials of such information, however, would clearly implicate

constitutionally protected privacy rights, and would presumably be justified only by compelling

state interests.” Id. at 606 (Brennan, J., concurring).

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Stone v. Stow

In Stone, a group of patients, doctors, and a pharmacist attacked the validity of R.C.

3719.13, 3719.27, and O.A.C. 4729-5-17, which “[t]aken together, . . . provide for the inspection

of pharmacy prescription records, without warrant, by state and local law enforcement officers

and by employees of the State Board of Pharmacy.” Id. at 159-160. This Court found “the

statutory and regulatory program allowing officers and pharmacy board agents to inspect

prescription records withstands constitutional scrutiny, based on the record before” it. Id. at 159.

The dissent recognized the defect in the statutory scheme complained of in this case.

Even the majority was “somewhat troubled by police initiation of administrative searches.

However, [this Court did] not believe that the fact of police initiation, alone, requires a finding

that appellants’ privacy rights have been violated.” Id. at 162, citing New York v. Burger, 482

U.S. 691, 717, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). This Court emphasized provisions

prohibiting disclosure and concluded, “[o]n the state of the record before us, we cannot speculate

that such unauthorized disclosure will inevitably occur.” Id.

Regarding the patients’ Fourth Amendment challenge, this Court concluded that

“[b]ecause the patients and physicians have no reasonable expectation of privacy in prescription

records, as raised in the circumstances of this case . . ., their Fourth Amendment challenge

cannot succeed.” Id. at 166 (emphasis added). This Court relied upon Whalen, and reasoned that

[w]hatever privacy interest the patients and physicians possess in these prescription records is

limited to the right not to have the information disclosed to the general public.” Id.

Stone was decided 4 to 3. The dissent was concerned about a situation like Myers’s case,

in which there is evidence Luken violated the statutory framework and Acceptable Use Policy by

sending Myers’ prescription data to people outside his investigation. The dissent was concerned

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about fishing expeditions by police officers: “the initial scrutiny should not involve the police.”

Id. at 167. The dissent distinguishes Whalen on the basis the statutory scheme in Whalen

“contained significantly greater restrictions on the government’s right of access to

pharmaceutical records, which in turn provided a far greater protection of the individual patient’s

privacy interest.” Id. at 167. In addressing Fourth Amendment concerns, the dissent stated that,

“to pass constitutional muster, the regulatory scheme must require the same kind of information

from the regulatory agency that would be required if a search warrant had been sought by the

police.” Id. at 168, citing State v. VFW Post 3562, 37 Ohio St.3d 310, 525 N.E.2d 773 (1988).

The dissent then pointed out that Ohio’s statutory scheme does not provide such search warrant

safeguards.

This Court Must Step In to Protect Citizens from Intrusive Government Invasions into Private Information

Until now, this Court’s decision in Stone has gone unchallenged. Over twenty years have

passed since Stone was decided and much has changed in the privacy arena. Individuals expect

their prescription data will be private, secure, and free from unreasonable searches (or outright

fishing) by law enforcement officers who do not obtain a warrant, especially when law

enforcement officers disclose the data to people outside the investigation.

The decision of the court of appeals erroneously gives “police officers unbridled

discretion to rummage around at will among a person’s private [information].” Arizona v. Gant,

556 U.S. 332, 345, 129 S.Ct. 1710 (2009). It is not the mass collection of prescription data this

Court will review, but rather police access and use of a specific individual’s private data without

probable cause or a reasonable articulable suspicion. The type of search at issue in this case, and

the statutes authorizing such a search, do not provide for any possibility for the defendant to

prevent disclosure, and there is no notification to an individual when their prescription records

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are searched. There is an important distinction between (1) collecting data to develop statistics

and the need for an administrative investigation, and (2) an unfettered, targeted criminal

investigation to fish for evidence of an alleged crime. The latter undoubtedly requires protections

afforded by the Fourth Amendment.

As the trial court commented, “the remedy to the [drug abuse] epidemic is not to provide

law enforcement officials the unchecked right to invade [a] citizen’s reasonable expectation of

privacy absent some recognized exception to the warrant requirement being demonstrated.”

(Appendix B, p. 8) Neither Whalen nor Stone addressed a situation involving a targeted criminal

investigation. “In both Whalen and Stone, the purpose of the administrative search was to

monitor controlled substances, not primarily for law enforcement purposes.” State v. Desper, 151

Ohio App.3d 208, 2002-Ohio-7176, ¶ 22. In Desper, the Seventh District emphasized:

At the point that the State Board of Pharmacy narrowed the search to ten patients, the discovery of criminal violations was no longer incidental to the administrative search but rather was the objective. Therefore, at that point the search stopped being an administrative search and a criminal investigation commenced. Any evidence sought after that point would require a search warrant. Id. at 217.

There is a conflict between appellate districts in Ohio. While the Seventh District has

determined a warrant is required if discovery of penal violations is the purpose of the search, the

Twelfth District has eliminated the warrant requirement altogether. The Seventh District’s

approach is the more appropriate approach to protect a patient’s reasonable expectation of

privacy. This Court must step in to clear up this inconsistency.

“The warrant requirement is an important component of the [United States Supreme]

Court’s Fourth Amendment jurisprudence, and warrants may be obtained with increasing

efficiency.” Riley, supra, at 2479. Allowing law enforcement to access a specific patient’s

prescription data on nothing more than their word, and without any judicial oversight

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whatsoever, is contrary to the most fundamental reasons for Fourth Amendment protections.

This Court must correct the Twelfth District’s error.

CONCLUSION For the reasons discussed above, this case involves matters of public and great general

interest and a substantial constitutional question. Myers requests that this Court accept

jurisdiction so that the important issues presented will be reviewed on the merits.

Respectfully submitted,

/s/ Andrew P. Meier JOHN D. SMITH (0018138) ANDREW P. MEIER (0083343)

JOHN D. SMITH CO., L.P.A. 140 North Main Street, Suite B Springboro, Ohio 45066 937.748.2522 (T) 937.748.2712 (F) jsmith@johndsmith.com ameier@johndsmith.com Counsel for Appellant

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was served upon Christopher L. Kinsler, Assistant Attorney General, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215, and Richard W. Moyer, Clinton County Prosecutor, 103 East Main Street, Wilmington, Ohio 45177, by ordinary U.S. mail on March 6, 2015.

/s/ Andrew P. Meier JOHN D. SMITH (0018138) ANDREW P. MEIER (0083343)

Counsel for Appellant