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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) [email protected] [email protected] 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) [email protected] 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) [email protected] [email protected] 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