[Cite as State v. Saunders, 2017-Ohio-7348.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Patricia A. Delaney, P.J.
                                               :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellant    :       Hon. Earle E. Wise, Jr. J.
                                               :
-vs-                                           :
                                               :       Case No. 17CA0001
TONY L. SAUNDERS                               :
                                               :
                     Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Morrow County Municipal
                                                   Court, Case No. 2016-TRC-331, 332

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            August 23, 2017



APPEARANCES:

For Plaintiff-Appellant                            For Defendant-Appellee

THOMAS SMITH                                       STUART BENIS
60 East High Street                                286 South Liberty Street
Mount Gilead, Ohio 43338                           Powell, Ohio 43065
Morrow County, Case No. 17CA0001                                                            2

Hoffman, J.,




      {¶1}     Plaintiff-appellant state of Ohio appeals the January 3, 2017 Judgment

Entry entered by the Morrow County Municipal Court granting a motion to suppress

evidence in favor of Defendant-appellee Tony Saunders.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}     On January 17, 2016, Appellee Tony Saunders was involved in a one-

vehicle accident on Interstate 71 in Morrow County, Ohio. As a result of the accident,

Saunders was trapped inside the vehicle. A witness on the scene smelled a strong smell

of an alcoholic beverage emanating from Saunders’ person, and the witness reported

observing Saunders leaving the VFW in Sunbury around 2:00 a.m.

      {¶3}     Emergency medical personnel transported Saunders to Morrow County

Hospital. Ohio State Highway Patrol Trooper Sutterluety spoke with Saunders in route to

the hospital, and reported smelling a strong smell of alcoholic beverage on his person.

He also observed Saunders had red, bloodshot, glassy eyes.

      {¶4}     At the hospital, Saunders was treated by Dr. Larry Elliott. Dr. Elliott ordered

blood work to determine Saunders blood alcohol level.

      {¶5}     On January 18, 2016, Trooper Sutterluety completed a Request for Release

of Health Care Provider Records to obtain the results of Saunders’ lab tests, pursuant to

R.C. 2317.02(B)(2). The lab results indicated the presence of alcohol in Saunders’ blood

at the time of draw. As a result, Saunders was charged with violations of R.C.

4911.19(A)(1)(a) and 4511.02.
Morrow County, Case No. 17CA0001                                                          3


       {¶6}   On February 23, 2016, Saunders filed a motion to suppress evidence. On

April 29, 2016, Saunders filed a supplement to his motion to suppress. On December 1,

2016, the State filed a response, including an affidavit of Dr. Larry Elliott. The affidavit

averred the lab tests, specifically the test of Saunders’ blood alcohol level, were done for

medical purposes, not for forensic or law enforcement purposes. The blood sample was

drawn and analyzed only by employees of Morrow County Hospital.

       {¶7}   Via Judgment Entry of January 3, 2017, the trial court granted Saunders’

motion to suppress the evidence.

       {¶8}   The state of Ohio appeals, assigning as error:

       {¶9}   I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S

MOTION TO SUPPRESS.

       {¶10} The state maintains the trial court erred in granting Saunders’ motion to

suppress the lab results requested pursuant to R.C. 2317.02 and R.C. 2317.022.

       {¶11} R.C. 2317.02 provides, in pertinent part,



              (2)(a) If any law enforcement officer submits a written statement to a

       health care provider that states that an official criminal investigation has

       begun regarding a specified person or that a criminal action or proceeding

       has been commenced against a specified person, that requests the provider

       to supply to the officer copies of any records the provider possesses that

       pertain to any test or the results of any test administered to the specified

       person to determine the presence or concentration of alcohol, a drug of

       abuse, a combination of them, a controlled substance, or a metabolite of a
Morrow County, Case No. 17CA0001                                                       4


     controlled substance in the person's whole blood, blood serum or plasma,

     breath, or urine at any time relevant to the criminal offense in question, and

     that conforms to section 2317.022 of the Revised Code, the provider, except

     to the extent specifically prohibited by any law of this state or of the United

     States, shall supply to the officer a copy of any of the requested records the

     provider possesses. If the health care provider does not possess any of the

     requested records, the provider shall give the officer a written statement that

     indicates that the provider does not possess any of the requested records.



     {¶12} R.C. 2317.022 provides, in pertinent part,



            (B) If an official criminal investigation has begun regarding a person

     or if a criminal action or proceeding is commenced against a person, any

     law enforcement officer who wishes to obtain from any health care provider

     a copy of any records the provider possesses that pertain to any test or the

     result [footnoted omitted] of any test administered to the person to

     determine the presence or concentration of alcohol, a drug of abuse, or

     alcohol and a drug of abuse in the person's blood, breath, or urine at any

     time relevant to the criminal offense in question shall submit to the health

     care facility a written statement in the following form: * * *

            ***
Morrow County, Case No. 17CA0001                                                           5


              (C) A health care provider that receives a written statement of the

       type described in division (B) of this section shall comply with division (B)(2)

       of section 2317.02 of the Revised Code relative to the written statement.



       {¶13} Appellee Saunders argues R.C. 2317.02 and 2317.022 are constitutionally

deficient as the statutes do not provide notice to the patient of the request, nor a factual

basis upon which the request is made to support a finding of reasonable and articulable

suspicion. Saunders moved the trial court to suppress the records as they were obtained

pursuant to a warrantless search.

       {¶14} The Third District addressed the constitutionality concerns raised by

Saunders in State v. Clark, 3rd App. No. 5-13-34, 2014-Ohio-4873 and State v. Little, 3rd

Dist. App. No. 2-13-28, 2014-Ohio-4871.



              Clark seems to argue that the statutory provisions at issue in this

       case infringe upon his interest in avoiding disclosure of personal matters.

       [Citation omitted.] But he fails to establish a significant and inevitable threat

       of unauthorized disclosure of protected personal information to the general

       public. The statutes restrict the individuals who can make a request for

       medical records to “law enforcement officers,” alleviating Clark's concern

       that his protected personal information will be disclosed by the hospital

       directly to the general public. R.C. 2317.02(B)(2)(a). As discussed above,

       the concern addressed by procedural safeguards in Whalen [Whalen v.

       Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)] was the disclosure
Morrow County, Case No. 17CA0001                                                       6

       of the patients' information to the general public and not disclosure to the

       law enforcement officers in a criminal investigation. [Footnote omitted.]

              Relying on the United States Supreme Court and the Ohio Supreme

       Court's holdings that a mere threat of disclosure to the general public does

       not make a statute unconstitutional, but that the threat must be significant

       and inevitable, we do not find that Clark has satisfied his burden of proving

       that this statutory scheme is unconstitutional under Whalen.



       {¶15} The constitutional proscriptions of the Fourth Amendment and the

exclusionary rule apply only to government action, not the actions of private persons.

Clark, supra. It is undisputed the blood draw herein was conducted for medical purposes

by a private entity. Saunders does not challenge the constitutionality of the blood draw;

rather, the police action in requesting a copy of the lab results in his medical records

without first securing a search warrant.

       {¶16} As stated in Clark, supra,



              Therefore, this case is about the power of the police to perform a

       warrantless search of a patient’s medical records; in particular, the results

       of medical tests that have been previously properly performed by the

       hospital and that show a concentration of alcohol or drugs of abuse at the

       time of a suspected criminal offense.
Morrow County, Case No. 17CA0001                                                       7


      {¶17} The Fourth Amendment protects persons from unreasonable searches and

seizures by the government. Section 14, Article I of the Ohio Constitution provides the

same protections as the Fourth Amendment. Evidence seized in violation of the Fourth

Amendment will be suppressed pursuant to the exclusionary rule. The defendant must

have a reasonable expectation of privacy in the evidence seized for standing to challenge

the search or seizure. City of Marion v. Brewer, 3rd Dist. No. 9-08-12, 2008-Ohio-5401,

citing State v. Jackson, 102 Ohio St.3d 380, 811 N.E.2d 68, 2004-Ohio-3206. A citizen

has a reasonable expectation of privacy in his or her medical records. Ferguson v. City

of Charleston, 532 U.S. 67, 121 S.Ct.281, 149 L.Ed.2d 205 (2001).

      {¶18} In both Clark and Little, the Third District opined the fact the statutory

scheme at issue waives the physician-patient privilege for purpose of testifying at trial

does not circumvent the Fourth Amendment protections against unreasonable searches

and seizures.

      {¶19} In Clark, the Third District held,



                The recent decision of the United States Supreme Court in Missouri

      v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013),

      supports a holding that an OVI suspect's expectation of privacy should not

      be diminished easily. In McNeely, the United States Supreme Court limited

      situations in which a police officer can request a blood test of an OVI

      suspect without a warrant to only those individual instances in which

      obtaining a warrant would be “impractical.” Id. at 1561. The Supreme Court

      mandated a case-by-case approach, rejecting the state's contention “that
Morrow County, Case No. 17CA0001                                                      8


     exigent circumstances necessarily exist when an officer has probable cause

     to believe a person has been driving under the influence of alcohol because

     BAC evidence is inherently evanescent.” Id. at 1554, 1561.

            In those drunk-driving investigations where police officers can

     reasonably obtain a warrant before a blood sample can be drawn without

     significantly undermining the efficacy of the search, the Fourth Amendment

     mandates that they do so. See McDonald v. United States, 335 U.S. 451,

     456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (“We cannot ... excuse the absence

     of a search warrant without a showing by those who seek exemption from

     the constitutional mandate that the exigencies of the situation made [the

     search] imperative”).

            Id. at 1561.

            ***

            Therefore, we hold that an OVI suspect in Ohio enjoys a reasonable

     expectation of privacy in his or her medical records “that pertain to any test

     or the result of any test administered to the person to determine the

     presence or concentration of alcohol, a drug of abuse, or alcohol and a drug

     of abuse in the person's blood, breath, or urine at any time relevant to the

     criminal offense in question,” which are stored securely in a hospital. R.C.

     2317.022(B). It follows that, prior to obtaining such medical records a law

     enforcement officer must comply with the warrant requirement of the Fourth

     Amendment.
Morrow County, Case No. 17CA0001                                                        9


      {¶20} It is undisputed law enforcement officers did not obtain a warrant prior to

obtaining Saunders’ medical records. Warrantless searches are per se unreasonable

unless one of the enumerated exceptions to the warrant requirement applies. McNeely,

133 S.Ct. at 1558; State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1252 (1978). The

burden is on the state to establish a warrantless search is valid under one of those

exceptions. City of Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).

      {¶21} The Ohio Supreme Court explicitly recognized the following seven

exceptions to the requirement a warrant be obtained prior to a search:

      {¶22} (a) a search incident to a lawful arrest;

      {¶23} (b) consent signifying waiver of constitutional rights;

      {¶24} (c) the stop-and-frisk doctrine;

      {¶25} (d) hot pursuit;

      {¶26} (e) probable cause to search, and the presence of exigent circumstances;

      {¶27} (f) the plain view doctrine; and

      {¶28} (g) administrative search.

      {¶29} Stone v. City of Stow, 64 Ohio St.3d 156, 165, 593 N.E.2d 294 (1992).



      {¶30} The state does not argue any of these enumerated exceptions apply in this

case. No exigency exists in circumstances where, as here, the tests have already been

performed and their results are safely stored by the hospital. In addition, the exceptions

do not include a police officer requesting and searching records of medical tests,

previously properly performed by the hospital, where no arrest, consent, hot pursuit, or

probable cause and exigent circumstances exist.
Morrow County, Case No. 17CA0001                                                        10

       {¶31} As set forth in Clark and Little, supra,



              This conclusion does not, however, mean the statutory scheme at

       issue is unconstitutional. We merely hold that R.C. 2317.02(B)(2)(a) and

       R.C. 2317.022 do not authorize a warrantless search and seizure of the

       patient's medical records where no recognized warrant exception exists.

       Accordingly, the use of R.C. 2317.02(B)(2)(a) and R.C. 2317.022 without a

       warrant to obtain Clark's medical records violated his constitutional

       protection against unreasonable search and seizure.



       {¶32} We adhere to the reasoning set forth in the Third District’s holdings in Clark

and Little, and find the use of R.C. 2317.02(B)(2)(a) and R.C. 2317.022, without a warrant

or exigent circumstances justifying a warrantless search, violates Saunders’ constitutional

protections against unreasonable searches and seizures.

       {¶33} There is no dispute the State did not obtain a warrant for Saunders’ medical

records, nor did circumstances exist creating an exception to the warrant requirement. A

warrant was not issued; therefore, the State cannot argue it executed the warrant in good

faith. The State’s sole assignment of error is overruled.
Morrow County, Case No. 17CA0001                                        11


      {¶34} The January 3, 2017 Judgment Entry entered by the Morrow County

Municipal Court is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
