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                                                               No. 00-703

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2001 MT 249



                                                     STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                         ROBERT BILANT,

                                                     Defendant and Appellant.

                        APPEAL FROM: District Court of the Fourteenth Judicial District,

                                             In and for the County of Musselshell,

                                      Honorable Roy C. Rodeghiero, Judge Presiding

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                              Robert W. Snively, Attorney at Law, Roundup, MT 59072

                                                           For Respondents:

                               Honorable Mike McGrath, Attorney General; Ilka Becker,

                                       Assistant Attorney General, Helena, Montana

                              Randal I. Spaulding, County Attorney, Roundup, Montana

                                              Submitted on Briefs: April 12, 2001
                                                 Decided: December 6, 2001


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                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Robert Dean Bilant appeals the denial by the Fourteenth Judicial District Court,
Musselshell County, Montana, of his motion to suppress medical record evidence obtained
by law enforcement from his health care provider by telephone inquiry and pursuant to an
investigative subpoena duces tecum. We affirm.

                                                Facts and Procedural History

¶2 In the early evening of January 3, 2000, Bilant was involved in a three-car accident on
Highway 87 south of Roundup, Montana. The first person to encounter the accident, a
registered nurse, noticed a strong smell of alcohol and shared her observations with
Montana Highway Patrol Officer Virginia Kinsey when she arrived at the scene minutes
later. Kinsey conferred separately with Bilant, confirmed the odor of alcohol on his breath
and noted his blood-shot eyes. Kinsey then asked Bilant to perform a variety of field
sobriety tests. She read Bilant the implied consent form for a preliminary breath test, but
Bilant refused to take the test and said, "I don't know if I'd pass or not." Kinsey brought
Bilant to the police station for processing, where she conducted additional sobriety tests
and Bilant again refused to take the breath test.

¶3 Bilant was charged with failure to wear a seatbelt, § 61-13-103, MCA (1999), and with
his fourth violation of driving under the influence of alcohol (DUI), § 61-8-401(d), MCA.
He received verbal Miranda warnings and requested to see an attorney before proceeding
with an interview. Minutes later, however, Bilant decided to talk with Officer Kinsey
without an attorney present. Kinsey proceeded to pose the standard DUI in-take questions.
When asked if he was taking any medications, Bilant informed Kinsey he had taken a pain
reliever called "propoxy" at about 3:30 p.m. that afternoon. Bilant stated he was not
certain of the name of the medication, but it had been prescribed by a Dr. Teal in Billings,
Montana.

¶4 Officer Kinsey called Dr. Teal's office the next day to confirm the information provided


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by Bilant. Although Dr. Teal had retired some years earlier, his Billings practice had been
subsumed by Orthopedic Surgeons, P.F.C. The person who answered the office telephone
checked Bilant's medical records and told Kinsey that Bilant's only prescription from Dr.
Teal was for propoxyphene napsylate acetaminophen, also known as Darvocet N100.
Kinsey then called a pharmacist in Roundup to check on the medication's side effects and
learned that Darvocet N100 can cause drowsiness and decreased reaction times,
particularly when consumed in conjunction with alcohol.

¶5 On January 9, 2000, Officer Kinsey again interviewed Bilant. When asked about the
medication he had taken prior to the accident, Bilant denied his earlier statement about the
"propoxy." He stated he had taken only Tylenol for a headache in the morning on the day
of the accident.

¶6 The District Court issued an investigative subpoena duces tecum to Orthopedic
Surgeons, P.F.C., on May 10, 2000, that sought the following information:

        Certified copies of any and all documentation concerning medications prescribed for
        Robert D. Bilant a/k/a Robert Dean Bilant for the period commencing January 1,
        1996 to present, including, but not limited to, written and/or oral prescriptions,
        physicians notes, advisory warnings, etc. regarding any prescriptive medications.

The doctor's office responded to the subpoena by sending the County Attorney Bilant's
entire medical file dating from 1991.

¶7 Bilant first moved the District Court to suppress the medical information provided by
his doctor's office over the telephone to Officer Kinsey. Two weeks later, Bilant
supplemented the motion to include suppression of all medical record information
obtained by the County Attorney in response to the investigative subpoena. The District
Court denied the entire motion on the grounds that the physician-patient privilege
provided by § 26-1-805, MCA, is not available to a criminal defendant and the
exclusionary rule does not apply to information obtained by investigative subpoena.

¶8 Reserving his right to appeal, Bilant agreed to plead guilty to the lesser charge of
negligent endangerment, under § 45-5-208, MCA, in exchange for dismissal of the DUI
and seatbelt violations. On August 1, 2000, the court fined Bilant $500 and sentenced him
to a one-year term in the county jail with all but 48 hours suspended, followed by
probation and a chemical dependency evaluation.


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¶9 We frame the issues on appeal as:

¶10 1) Did the District Court err by denying a motion to suppress medical record
information acquired by an investigating officer from a health care provider by telephone
inquiry?

¶11 2) Did the District Court err in finding probable cause for an investigative subpoena
seeking medical record information?

¶12 3) Did the District Court issue the investigative subpoena for an overly broad time
period?

                                                        Standard of Review

¶13 We review a district court's denial of a motion to suppress to ascertain whether the
court's factual findings are clearly erroneous and whether the findings were correctly
applied as a matter of law. State v. Nelson (1997), 283 Mont. 231, 236, 941 P.2d 441, 445.
We review de novo to determine whether probable cause supported the issuance of an
investigative subpoena for constitutionally protected material. State v. Kuneff, 1998 MT
287, ¶ 19, 291 Mont. 474, ¶ 19, 970 P.2d 556, ¶19. We will affirm a district court's ruling
if the court reaches the correct result, even if it does so for the wrong reasons. State v.
Parker, 1998 MT 6, ¶ 20, 287 Mont. 151, ¶ 20, 953 P.2d 692, ¶ 20.

                                                               Discussion

¶14 The factual findings of the District Court are not in dispute on appeal. To briefly
reiterate, the court found Bilant had been apprised of his Miranda rights by Officer Kinsey
and waived those rights when he agreed to be interviewed at the police station without an
attorney present immediately after the accident on January 3, 2000. The court also found
that at about 3:30 p.m. on the day of the accident, Bilant knowingly, intelligently and
voluntarily disclosed he had taken a pain medication called something like "propoxy,"
which had been prescribed by a Dr. Teal in Billings, Montana.

¶15 Bilant argues the State violated both his constitutional right to privacy and statutory
protections of the Uniform Health Care Information Act, specifically § 50-16-535, MCA.
He seeks suppression of all medical record information obtained from his health care
provider. Bilant does not ask the court to suppress medical information he voluntarily

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disclosed to Officer Kinsey. Rather, he asserts that Officer Kinsey obtained privileged
medical information when she telephoned Orthopedic Surgeons, P.F.C., and inquired
about Bilant's drug prescriptions. Since this information was not lawfully available to be
used as evidence in support of an investigative subpoena, Bilant claims the subpoena was
improperly issued and must be dismissed in its entirety. In addition, Bilant asserts the
subpoena requested records for an overly broad time period and production was excessive
in scope.

¶16 The State counters that Bilant waived his right to claim confidentiality in the medical
information that he voluntarily disclosed to Officer Kinsey. Rather than offer new or
additional medical information, the State asserts Orthopedic Surgeons, P.F.C., only
confirmed Bilant's statement regarding his prescription and provided Kinsey with the
exact name of the medication Bilant admitted taking. The State claims the subpoena was
issued on the basis of probable cause, sought only health care information pertinent to the
accident investigation, and is not implicated adversely by the over-production of records
by Bilant's health care provider.

                                                                  Issue 1

  Did the District Court err by denying a motion to suppress medical record information
  acquired by an investigating officer from a health care provider by telephone inquiry?

¶17 The Montana Constitution guarantees "the right of individual privacy is essential to
the well being of a free society and shall not be infringed without the showing of
compelling state interest." Art. II, Sec.10, Mont. Const. The Legislature has recognized
that "health care information is personal and sensitive information that if improperly used
or released may do significant harm to a patient's interests in privacy and health care or
other interests." Section 50-16-502(1), MCA. This Court has held that medical records are
quintessentially private and deserve the utmost constitutional protection. Nelson, 283
Mont. at 242, 941 P.2d at 448.

¶18 In addition to his constitutional argument, Bilant invokes the statutory protections
against disclosure of private medical information afforded by the Uniform Health Care
Information Act, specifically § 50-16-535(1), MCA. Section 50-16-535(1), MCA, restricts
the circumstances under which a health care provider may legally disclose a patient's
confidential medical information. Bilant asserts his doctor's office disclosed information
from his medical records to Officer Kinsey without benefit of written consent, waiver,


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court order or subpoena.

¶19 We acknowledge Bilant's argument that none of the prerequisites for legal disclosure
of medical information under § 50-16-535(1), MCA, were met. However, as we noted in
Nelson, the restrictions imposed by the Uniform Health Care Information Act are directed
at health care providers, not law enforcement. Nelson, 283 Mont. at 237-38, 941 P.2d at
446. The question before us today is not whether Bilant's health care provider legally
disclosed medical information, but whether medical information was obtained by illegal
state action, thus triggering the exclusionary rule. See State v. Long (1985), 216 Mont. 65,
71, 700 P.2d 153, 157.

¶20 Although the Uniform Health Care Information Act is aimed at private health care
providers and cannot be grounds for suppression of illegally obtained evidence, the
guarantee of "informational privacy" provided by Article II, Section 10 of the Montana
Constitution can be the basis. See Nelson, 283 Mont. at 242-44, 941 P.2d at 448-49. We
reject the State's argument that Bilant waived his claim of confidentiality in his medical
information when he chose to waive his Fifth Amendment protection against self-
incrimination by telling Officer Kinsey that he had taken pain medication on the day of the
accident. In deciding to reveal limited medical information in a police interview, Bilant
did not forfeit his constitutional right to subsequently claim confidentiality in his medical
records. We hold that Officer Kinsey conducted an illegal search when she sought
constitutionally protected private medical information from Bilant's health care provider
without the benefit of an investigative subpoena under § 46-4-301(3), MCA, which
requires probable cause. The information obtained from Officer Kinsey's telephone
inquiry should have been suppressed by the District Court. However, as set forth below, in
the context of this case, that failure does not amount to reversible error.

                                                                  Issue 2

Did the District Court err in finding probable cause for an investigative subpoena seeking
medical record information?

¶21 We now examine the adequacy of the county prosecutor's application for the
investigative subpoena to compel production of Bilant's medical records. Bilant cites the
"fruit of the poisonous tree" doctrine to challenge the subpoena in its entirety, claiming the
information about his prescriptive medications gathered during the illegal search
established the probable cause required for the investigative subpoena. Bilant also points


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to § 46-4-303, MCA, which states the remedy for an improperly issued investigative
subpoena is either to dismiss the subpoena or to limit its scope.

¶22 The "fruit of the poisonous tree" doctrine forbids the use of evidence that comes to
light as the result of the exploitation of an initial illegal act. State v. New (1996), 276
Mont. 529, 540, 917 P.2d 919, 925 (citing Silverthorne Lumber Co. v. U.S. (1920), 251 U.
S. 385, 40 S.Ct. 182, 64 L.Ed. 319). In New, we discussed three exceptions to the doctrine,
stating that the "fruit" or derivative evidence is admissible if it is (1) attenuated from the
constitu-tional violation so as to remove its primary taint; (2) obtained from an
independent source; or (3) determined to be evidence which inevitably would have been
discovered apart from the constitutional violation. New, 276 Mont. at 536, 917 P.2d at 923
(citing State v. Pearson (1985), 217 Mont. 363, 366, 704 P.2d 1056, 1058-59). We have
supported the proposition that police should be placed in no worse position once tainted
evidence is excised from proceedings than they would have been had the illegal search not
occurred. Pearson, 217 Mont. at 366, 704 P.2d at 1059.

¶23 In this case, Bilant voluntarily admitted in an interview with Officer Kinsey that he
took a pain medication prescribed by a Dr. Teal in Billings called something like
"propoxy" at 3:30 p.m. in the afternoon prior to the accident. This volunteered medical
information derives from a source other than the illegal telephone inquiry and may legally
be used as evidence.

¶24 In Nelson, we likened an investigative subpoena seeking constitutionally protected
personal information to a search warrant, which must satisfy the strictures of the Fourth
Amendment to the United States Constitution and Article II, Section 11 of the Montana
Constitution. Nelson, 283 Mont. at 243, 941 P.2d at 449. We held a subpoena duces tecum
seeking medical records requires greater justification for state access than the standard
"administration of justice" rationale used to obtain non-private information under § 46-4-
301, MCA. Nelson, 283 Mont. at 244, 941 P.2d at 449.

¶25 The legislature codified these holdings as they affect state criminal investigations by
amending § 46-4-301, MCA, and incorporating the heightened requirement of compelling
state interest for law enforcement access to private medical records. Montana Session
Laws (1999), Ch. 318, Sec. 1. The pertinent part of the amended statute reads:

        (3) In the case of constitutionally protected material, such as but not limited to
        medical records or information, a subpoena may be issued only when it appears


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        upon the affidavit of the prosecutor that a compelling state interest requires it to be
        issued. In order to establish a compelling state interest for the issuance of such a
        subpoena, the prosecutor shall state facts and circumstances sufficient to support
        probable cause to believe that:

        (a) an offense has been committed; and

        (b) the information relative to the commission of that offense is in the possession of
        the person or institution to whom the subpoena is directed.

Section 46-4-301(3), MCA (1999).

¶26 When a search warrant is based, in part, on illegally obtained information, the
reviewing court shall excise the illegal evidence from the application and review the
remaining information de novo to determine whether probable cause supported the
issuance. Kuneff, ¶ 19. We will review the probable cause basis for an investigative
subpoena for constitutionally protected material by the same process. The application must
state sufficient facts to support a determination that there is a probability of criminal
activity. State v. Rinehart (1993), 262 Mont. 204, 209, 864 P.2d 1219, 1222. Probable
cause must be determined exclusively from the four corners of the application. Rinehart,
262 Mont. at 211, 864 P.2d at 1223.

¶27 The affidavit in support of the investigative subpoena to Bilant's medical provider
runs six-pages in length and presents considerable incriminating evidence in addition to
the information illegally obtained from Bilant's health care provider over the telephone.
The application details the smell of alcohol emanating from Bilant at the accident scene;
Bilant's blood shot eyes; his multiple refusals to take the breath test; the results of field
sobriety tests administered by Officer Kinsey; Bilant's apparent confusion and lack of
concentration after the accident; his admission that he drank beer earlier on the evening of
the accident; and, finally, Bilant's statement during the interview with Officer Kinsey that
he had a medical condition that precluded him from performing the sobriety tests. The
District Court found Bilant's admission during the interview that he had taken the
"propoxy" medication earlier on the day of the accident, in itself, constituted sufficient
probable cause for the issuance of the investigative subpoena.

¶28 Even when the medical information subject to suppression has been excised, the
remaining evidence presented in the affidavit establishes probable cause that the offense of


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driving under the influence of alcohol had been committed. Furthermore, the affidavit
underscores a compelling state interest in medical records related to prescriptive
medications in order to confirm Bilant's initial admissions to Officer Kinsey. We hold the
investigative subpoena was issued in accordance with the statutory requirements for
constitutionally protected medical records under § 46-4-301(3), MCA.

                                                                  Issue 3

Did the District Court issue the investigative subpoena for an overly broad time period?

¶29 Bilant attacks the investigative subpoena on the grounds that the delineated time
period was overly broad. The subpoena sought "any and all documentation concerning
medications prescribed for . . . the period commencing January 1, 1996 to present. . ." The
accident occurred on January 3, 2000, and the affidavit was filed on May 10, 2000. Bilant
argues that medical records after the accident are not relevant to the investigation. The
State claims that a legitimate nexus exists between prescriptions issued before January 3,
2000, and prescription refills issued during subsequent months. Since Dr. Teal had retired
some years earlier, the State reasoned there would be an increased likelihood that Bilant
was obtaining refill orders from Orthopedic Surgeons, P.F.C., for prior prescriptions. We
hold the inclusion of the time between January 3 and May 10, 2000, does not cause the
subpoena to be defective.

¶30 Bilant also asserts that delivery by Orthopedic Surgeons, P.F.C., of his medical
records dating back to 1991 when the subpoena only sought records back to 1996
implicates the State and makes the investigative subpoena process overly broad in its
reach. As we pointed out previously, our laws regarding disclosure of medical information
are directed not at law enforcement but at health care providers. Nelson, 283 Mont. at 237,
941 P.2d at 446; see also, § 50-16-501, MCA, et. seq. If a health care provider discloses
medical information beyond what the statute allows, the remedy lies with the health care
provider and not through a motion to suppress. Nelson, 283 Mont. at 238, 941 P.2d at 446.
The purpose of the exclusionary rule is to deter illegal police conduct and preserve judicial
integrity. Long, 216 Mont. at 71, 700 P.2d at 157. Suppression of all evidence derived
though the investigative subpoena process due to excessive production by a health care
provider would not serve this end. The County Attorney's receipt of medical files
containing information beyond the scope and time period requested does not justify
suppression of those portions of the medical record sought by and yielded pursuant to a
legally sufficient investigative subpoena.


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                                                               Conclusion

¶31 We hold that Officer Kinsey exceeded her investigatory authority when she
telephoned Bilant's health care provider to inquire about Bilant's medical history. The
information derived from Officer Kinsey's illegal search should have been suppressed.
However, the court's failure to suppress that information does not change the outcome.
When the suppressed evidence is excised from the application for an investigative
subpoena, sufficient facts and circumstances remain to justify a finding of probable cause
for the time period for which the records were sought. And, finally, whether the health
care provider produced medical records beyond those required by the subpoena duces
tecum is a matter beyond the scope of our review of the motion to suppress.

¶31 Affirmed.

                                                  /S/ W. WILLIAM LEAPHART

                                                                We concur:

                                                        /S/ KARLA M. GRAY

                                                           /S/ JIM REGNIER

                                                       /S/ JAMES C. NELSON

                                                               /S/ JIM RICE

                                                       /S/ PATRICIA COTTER

                                                   /S/ TERRY N. TRIEWEILER




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