[Cite as State v. Little, 2014-Ohio-4871.]




                        IN THE COURT OF APPEALS OF OHIO
                            THIRD APPELLATE DISTRICT
                                AUGLAIZE COUNTY




STATE OF OHIO,

         PLAINTIFF-APPELLEE,                            CASE NO. 2-13-28

         v.

MICHAEL R. LITTLE,                                      OPINION

         DEFENDANT-APPELLANT.




                     Appeal from Auglaize County Municipal Court
                             Trial Court No. 13 TRC 06117

                             Judgment Reversed and Remanded

                            Date of Decision: November 3, 2014




APPEARANCES:

         Kenneth J. Rexford for Appellant

         Alexander N. Fowler for Appellee
Case No. 2-13-28


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant, Michael Little (“Little”), appeals the November

5, 2013 judgment of the Auglaize County Municipal Court finding Little guilty of

OVI (operation of a vehicle while under the influence of alcohol) in violation of

R.C. 4511.19(A)(1)(a), a first degree misdemeanor, and sentencing him to serve

ten days in jail after Little pled “no contest” to the OVI charge. On appeal, Little

challenges the trial court’s entry overruling his suppression motion.

       {¶2} The facts relevant to this appeal are as follows. On July 31, 2013,

Little was involved in a single car crash in Auglaize County, Ohio. Trooper

Joseph Nartker of the Ohio State Highway Patrol was dispatched to the crash

scene at approximately 1:30 a.m., where he found Little lying in the center of the

roadway, bleeding heavily from the back of his head. Waynesfield EMS was

already at the scene when Trooper Nartker arrived. Waynesfield EMS advised

Trooper Nartker that Little was “verbally combative” and that there was a “strong”

odor of an alcoholic beverage emitting from his person. Little was taken by

Waynesfield EMS to Lima Memorial Hospital.

       {¶3} Trooper Nartker went to Lima Memorial Hospital, where according to

the State, Little admitted to consuming four Budweiser beers prior to driving.

Trooper Nartker obtained a sample of Little’s blood, which was sent to the State

Highway Patrol lab for testing. Separately from law enforcement involvement,


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Lima Memorial Hospital also took a sample of Little’s blood for diagnostic

purposes.    Subsequently, Little was charged with OVI in violation of R.C.

4511.19(A)(1)(a), a first degree misdemeanor, and “Failure to Control” in

violation of R.C. 4511.202, a minor misdemeanor. (R. at 1.) On August 7, 2013,

Little was arraigned and pled not guilty to the charges. (R. at 9.)

       {¶4} On August 20, 2013, Little filed a “Motion to Suppress,” arguing that

Trooper Nartker’s action of obtaining his blood sample without a warrant

constituted unreasonable search and seizure. (R. at 16.) The motion was set for a

hearing on September 20, 2013, but prior to that, Little filed another motion to

suppress, titled “Motion to Suppress II.”      (R. at 25.)    In this motion, Little

contended that the State had agreed not to use the blood test results that were the

subject of the first suppression motion, but Trooper Nartker had since issued a

request for hospital records of the blood test results done by hospital staff for

medical reasons.     (Id.)   Trooper Nartker did not obtain a warrant prior to

requesting Little’s medical records. Instead, he utilized R.C. 2317.02(B)(2)(a),

which states, in relevant part:

       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

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      controlled substance, or a metabolite of a 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.

R.C. 2317.02(B)(2)(a).

      {¶5} Revised       Code    2317.022,      which     is    referenced     in     R.C.

2317.02(B)(2)(a), contains the following language detailing how the request for

medical records should be made.

      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 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:

      “WRITTEN STATEMENT REQUESTING THE RELEASE OF
      RECORDS
      To: .................... (insert name of the health care provider in
      question).
      I hereby state that an official criminal investigation has begun
      regarding, or a criminal action or proceeding has been commenced
      against .................... (insert the name of the person in question), and
      that I believe that one or more tests has been administered to that
      person by this health care provider to determine the presence or
      concentration of alcohol, a drug of abuse, a combination of them, a

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Case No. 2-13-28


           controlled substance, or a metabolite of a controlled substance in that
           person’s whole blood, blood serum or plasma, breath, or urine at a
           time relevant to the criminal offense in question. Therefore, I hereby
           request that, pursuant to division (B)(2) of section 2317.02 of the
           Revised Code, this health care provider supply me with copies of
           any records the provider possesses that pertain to any test or the
           results of any test administered to the person specified above to
           determine the presence or concentration of alcohol, a drug of abuse,
           a combination of them, a controlled substance, or a metabolite of a
           controlled substance in that person’s whole blood, blood serum or
           plasma, breath, or urine at any time relevant to the criminal offense
           in question.[”]1

R.C. 2317.022(B).

           {¶6} In his second suppression motion, Little argued that R.C. 2317.02 was

unconstitutional. (R. at 25.) In the alternative, he asked for a finding that the

statute did not allow a warrantless search in his case. (Id.)

           {¶7} On September 16, 2013, the State filed a response to Little’s first and

second suppression motions. (R. at 26.) In its response, the State cited this

Court’s previous case of State v. Meyers, 146 Ohio App.3d 563, 767 N.E.2d 739

(3d Dist.2001), contending that the blood testing by the hospital “in the course of

independent medical treatment and diagnostic care is not a traditionally exclusive

state function that has been delegated to health care providers” and thus, the blood

test that was the subject of the second suppression motion was not a government

action. (Id.) Little filed a reply and provided supplemental authority for his




1
    The segment concludes with various lines for the Officer’s contact information.

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Case No. 2-13-28


second suppression motion. (R. at 28, 29.) On October 2, 2013, the trial court

filed a journal entry overruling Little’s suppression motion.2 (R. at 30.)

         {¶8} On November 5, 2013, Little withdrew his previously tendered plea of

not guilty and entered a plea of “No Contest” to OVI, his second in six years, in

violation of R.C. 4511.19(A)(1)(a). In exchange, the State agreed to dismiss the

Failure to Control charge. Ultimately the court found Little guilty of OVI and

sentenced him to ten days in jail, fine, and license suspension. Additionally, the

trial court imposed community control sanctions. A judgment entry reflecting this

was filed on November 5, 2013. (R. at 34.) The execution of the sentence has

been stayed pending this appeal.

         {¶9} Little now appeals, asserting the following assignments of error for

our review.

                     ASSIGNMENT OF ERROR 1
         THE TRIAL COURT ERRED BY DENYING MR. LITTLE’S
         MOTION TO SUPPRESS, IN VIOLATION OF HIS RIGHT
         TO PRIVACY AND OF THE PRINCIPLE OF SEPARATION
         OF POWERS

                        ASSIGNMENT OF ERROR 2
         THE TRIAL COURT ERRED BY RULING THE R.C. §2317.02
         AND §2317.022 ARE CONSTITUTIONAL.

         {¶10} Before addressing the assignments of error, we note that Little chose

to disregard the rules of appellate procedure, which require him to argue each


2
 It is not clear from the record whether an oral suppression hearing was actually held. If there was an oral
suppression hearing, no transcript was filed.

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assignment of error separately in his brief (see App.R. 16(A); App.R. 12(A)(2)),

and combined the arguments related to his first two assignments of error under one

section of his brief. We discourage this practice as contrary to the rules and

disorderly.     If Little felt that one argument supported his contentions, one

assignment of error should have been sufficient. He expects the State and this

court to pick and choose which of the statements in his discussion support the first

assignment of error and which ones support the second assignment of error.

Instead of doing so, this court may simply “disregard an assignment of error

presented for review if the party raising it * * * fails to argue the assignment

separately in the brief, as required under App.R. 16(A).” App.R. 12(A)(2). In the

interest of justice, we nonetheless elect to consider Little’s arguments at this time.

                      First and Second Assignments of Error—
              Warrantless Search of Little’s Medical Records Pursuant to
                         R.C. 2317.02(B)(2)(a) and 2317.022

       {¶11} Little challenges the use of R.C. 2317.02(B)(2)(a) and 2317.022 to

obtain his medical records as unconstitutional.        He claims that the statutory

scheme allows the government to access an individual’s private medical records

without a warrant, probable cause, or even a reasonable and articulable suspicion

and without any “procedural safeguards,” where no exigent circumstances exist to

justify such actions. (App’t Br. at 6, 8, 11.) He further contends that the statute

“has absolutely no substantial procedural safeguards to ensure against abuse by the


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government agents taking advantage of that statute,” does not prohibit

dissemination of the medical records, and does not provide for a notification to the

citizen that the intrusion occurred. (Id. at 11-12.)

       {¶12} Although Little discusses multiple legal concepts in his brief, mixing

them together, he cites two United States Supreme Court cases, Whalen v. Roe,

429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Ferguson v. City of

Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), which focus on

the right to privacy and the Fourth Amendment protection against unreasonable

search and seizure, and which seem to be relevant to the constitutional challenges

brought herein. We discuss these two cases and address the legal concepts that

stem from them in detail. The other concepts that are mentioned, but not briefed

by Little, are not addressed in this opinion because of Little’s failure to support his

other contentions with “reasons,” “citations to the authorities,” and “statutes,” as

required by App.R. 16(A)(7).

                                A.     Whalen v. Roe

       {¶13} Among his other arguments, Little cites Whalen for the proposition

that the government must “establish administrative procedures—procedural

safeguards—to protect [the privacy right] whenever government legitimately has a

need for medical records.” (App’t Br. at 7.) As explained by the Ohio Supreme

Court, the concerns addressed in Whalen “related to the disclosure of information


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to the general public.” (Emphasis sic.) Stone v. City of Stow, 64 Ohio St.3d 156,

160-161, 162, 593 N.E.2d 294 (1992) (explaining and following Whalen). Both

the United States Supreme Court and the Ohio Supreme Court held that a mere

“threat of unauthorized disclosure” is not sufficient to declare a statute

unconstitutional. Id. at 162-163, citing Whalen 429 U.S. 589. The threat of

unauthorized disclosure must be “significant” and inevitable in order “to cause [a

statute] to be declared unconstitutional.” Id.; see also Whalen, 429 U.S. at 600,

603-604 (holding that the challenged government program did not, “on its face,

pose a sufficiently grievous threat” to amount to a constitutional violation)

(emphasis added). Therefore, Whalen does not prohibit disclosure of medical

records per se, but merely limits disclosure of the information to the general public

to ensure no “significant” threat of unauthorized disclosure to the public.

       {¶14} Little seems to argue that the statutory provisions at issue in this case

infringe upon his interest in avoiding disclosure of personal matters. (App’t Br. at

5, 12.) 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 Little’s concern that his protected personal

information will be disclosed by the hospital to the general public.             R.C.

2317.02(B)(2)(a).    As discussed above, the concern addressed by procedural


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safeguards in Whalen was the disclosure of the patients’ information to the general

public and not disclosure to the law enforcement officers in a criminal

investigation.3

        {¶15} 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 Little has satisfied his burden of proving that this

statutory scheme is unconstitutional under Whalen.

                             B. Ferguson v. City of Charleston

        {¶16} Relying on Ferguson, Little asserts that the statutory scheme at issue,

which allows the police officer to request and review Little’s medical records

without a warrant, violates his Fourth Amendment interest in privacy, i.e., the

protection against unreasonable searches and seizures.

        The Fourth Amendment protects persons from “unreasonable
        searches and seizures” by the government. Section 14, Article I of
        the Ohio Constitution is interpreted to provide the same protections
        as the Fourth Amendment. Evidence seized in violation of the Fourth
        Amendment will be suppressed pursuant to the exclusionary rule.
        However, the defendant must have a reasonable expectation of
        privacy in the evidence seized for standing to challenge the search or
        seizure.




3
  The parties in Whalen did not request suppression of the evidence. There were no “suspects,” because
that case did not involve prosecution of the patients who used Schedule II drugs, and the records were
disclosed to the state health department rather than to the prosecution.

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City of Marion v. Brewer, 3d Dist. Marion No. 9-08-12, 2008-Ohio-5401, ¶ 7,

citing State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 8,

and State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997). Little

cites Ferguson in support of the federally recognized reasonable expectation of

privacy in medical records.4

        {¶17} Ferguson is relevant to the issue before us in that it concerned the

criminal prosecution of patients whose medical records were obtained by law

enforcement without a warrant. In Ferguson, a state hospital performed drug

screens on maternity patients who were suspected of using cocaine. Ferguson,

532 U.S. at 71-72. That policy was implemented in conjunction with the police

and local officials, and relied on a “threat of law enforcement intervention that

‘provided the necessary “leverage” to make the policy effective.’ ” Id. The

United States Supreme Court, reviewing the hospital’s action under the Fourth

Amendment challenge, held that

        [t]he reasonable expectation of privacy enjoyed by the typical patient
        undergoing diagnostic tests in a hospital is that the results of those
        tests will not be shared with nonmedical personnel without her
        consent.

Id. at 78.

4
  Although Little attempts to use Whalen in support of his argument that the statutory scheme at issue
violates the Fourth Amendment’s protection against unreasonable search and seizure, it is important to note
that the Whalen decision did not concern a Fourth Amendment right. Rather, the patients and physicians in
Whalen were concerned with the possibility of public disclosure of their medical records and the stigma
that would attach from it. There was no discussion of arrest or prosecution that would trigger the Fourth
Amendment challenge, and the Whalen court expressly declined to resolve that case within the scope of the
Fourth Amendment’s interest in privacy. Whalen, 429 U.S. at 604, fn. 32.

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       {¶18} The highest court noted that the policy implemented by the state

hospital, which was a state actor, allowed for a search without a warrant, or even

probable cause or any reasonable suspicion. Id. at 76-77. The Supreme Court

disagreed with the “majority of the appellate panel, [which] held that the searches

were reasonable as a matter of law under [a] line of cases recognizing that ‘special

needs’ may, in certain exceptional circumstances, justify a search policy designed

to serve non-law-enforcement ends.” Id. at 74. Finding that no special needs that

were unrelated to law enforcement were advanced by the hospital’s policy, the

Ferguson court invalidated the policy as unconstitutional, notwithstanding the fact

that the hospital’s “motive was benign rather than punitive.” Id. at 79, 85.

       {¶19} Little points to Ferguson’s recognition of “an individual’s federally

protected expectation of privacy in his medical records” and urges us to invalidate

the Ohio statutory scheme that seemingly allows search and seizure of an

individual’s medical records without a warrant, in contravention of this

expectation of privacy. (App’t Br. at 13.)

       {¶20} Little recognizes that “the constitutional proscriptions of the Fourth

Amendment and the exclusionary rule apply only to government action and not to

the actions of private persons.” State v. Meyers, 146 Ohio App.3d 563, 575, 767

N.E.2d 739 (3d Dist.2001). Therefore, he does not challenge the hospital’s action

of drawing his blood and performing the medical tests. As such, Meyers, where


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we reviewed the issue of “whether the conduct of the hospital constituted state

action” and held that “the hospital’s blood test did not constitute state action

necessary to implicate Fourth Amendment protections,” does not apply to our

analysis herein. See id. at 575-578.

           {¶21} Similarly, the Ferguson dicta about the hospital’s ability to draw

blood from its patient and independently report it to the law enforcement “under

rules of law or ethics”5 does not apply here. See Ferguson, 532 U.S. at 80-81

(distinguishing the case “from circumstances in which physicians or psychologists,

in the course of ordinary medical procedures aimed at helping the patient herself,

come across information that under rules of law or ethics is subject to reporting

requirements, which no one has challenged here”).

           {¶22} Here, at issue is not the hospital’s action of testing Little’s blood or

of independently forwarding his medical records to the police “under rules of law

or ethics.” See id. Rather, the focus is on the action of the police—a state actor,

searching and seizing Little’s medical records without a warrant. (See App’t Br. at

18, 20.) This distinction is very important because the Supreme Court recognized

5
    The United States Supreme Court recognized,

           There are some circumstances in which state hospital employees, like other citizens, may
           have a duty to provide law enforcement officials with evidence of criminal conduct
           acquired in the course of routine treatment, see, e.g., S.C.Code Ann. § 20–7–510 (2000)
           (physicians and nurses required to report to child welfare agency or law enforcement
           authority “when in the person’s professional capacity the person” receives information
           that a child has been abused or neglected).

Ferguson, 532 U.S. at 78, fn. 13. “We do not address a case in which doctors independently complied with
reporting requirements.” Id at 85, fn. 24.

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that the existence of laws requiring the hospital to independently report evidence

of criminal conduct to law enforcement, “might lead a patient to expect that

members of the hospital staff might turn over evidence acquired in the course of

treatment to which the patient had consented,” thus possibly lowering the patient’s

expectation of privacy. (Emphasis added.) Ferguson, 532 U.S. at 78, fn. 13. Yet,

the Supreme Court has not held that a patient would have a lowered expectation of

privacy and subject himself or herself to a warrantless search by the police in

absence of such laws.

      {¶23} 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.

          C. OVI Suspect’s Expectation of Privacy in Medical Records

      {¶24} Although the United States Supreme Court in Ferguson held that a

citizen has a reasonable expectation of privacy in medical records, some state

courts have since held that the society does not recognize a suspect’s expectation

of privacy in medical records as reasonable in situations involving an investigation

for operating a vehicle under the influence of alcohol or drugs of abuse. For

example, the New Hampshire Supreme Court, reviewing the constitutionality of a


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New Hampshire statute that was similar to the Ohio statutory scheme at issue,

held,

        To the extent that the defendant may have a reasonable expectation
        of privacy in his medical records generally * * *, we conclude that
        society does not recognize a reasonable expectation of privacy in
        blood alcohol test results obtained and recorded by a hospital as part
        of its consensual treatment of a patient, where those results are
        requested by law enforcement for law enforcement purposes in
        connection with an incident giving rise to an investigation for
        driving while under the influence of intoxicating liquors or
        controlled drugs. See RSA 329:26.

State v. Davis, 161 N.H. 292, 298, 12 A.3d 1271 (2010).

        {¶25} The New Hampshire Court arrived at this conclusion after reviewing

decisions of courts in other jurisdictions:

        Courts in other jurisdictions addressing whether a reasonable
        expectation of privacy exists in blood test results in the DWI context
        have reached different conclusions. Several courts have found that
        society does not recognize a reasonable expectation of privacy under
        the Fourth Amendment in “blood alcohol test results obtained and
        recorded by a hospital as part of its consensual treatment of a patient,
        where those results are requested by law enforcement for law
        enforcement purposes only in the investigation of an automobile
        accident.” Hannoy v. State, 789 N.E.2d 977, 991 (Ind.Ct.App.2003);
        see also Tims v. State, 711 So.2d 1118, 1122–24
        (Ala.Crim.App.1997); People v. Perlos, 436 Mich. 305, 462 N.W.2d
        310, 319–21 (1990); State v. Guido, 698 A.2d 729, 733–34
        (R.I.1997); State v. Hardy, 963 S.W.2d 516, 523–27
        (Tex.Crim.App.1997); State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d
        109, 113 (1977). Others have held that the government’s acquisition
        of medical records under circumstances similar to those in this case
        violates the defendant’s rights under state constitutional provisions
        prohibiting unreasonable searches and seizures, see, e.g., Com. v.
        Shaw, 564 Pa. 617, 770 A.2d 295, 299 (2001), or state constitutional
        provisions that guarantee a right to privacy, see, e.g., King v. State,

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       272 Ga. 788, 535 S.E.2d 492, 494–97 (2000); State v. Nelson, 283
       Mont. 231, 941 P.2d 441, 446–50 (1997).

       While the decisions of courts in other jurisdictions are not binding
       upon us, we find persuasive the reasoning of those cases that focused
       upon the unique circumstances presented when the government
       requests and acquires the results of blood tests administered for the
       purpose of diagnosis and treatment of injuries sustained in an
       automobile accident. See Tims, 711 So.2d at 1122–24; Hannoy, 789
       N.E.2d at 990–92; Perlos, 462 N.W.2d at 315–21; Hardy, 963
       S.W.2d at 523–27. We also agree that, “although not determinative,
       one source in analyzing the reasonableness of an expectation is to
       look to the Legislature,” Perlos, 462 N.W.2d at 319, and that
       whether a privilege exists may be some evidence of societal
       expectations, Hardy, 963 S.W.2d at 524.

       ***

       By its plain language, the statute now exempts from the physician-
       patient privilege blood alcohol test results of a person being
       investigated for driving under the influence of intoxicating liquor or
       controlled drugs where the blood alcohol tests were administered for
       the purpose of diagnosis and treatment. See State v. Nickerson, 147
       N.H. 12, 13, 780 A.2d 1257 (2001).

       By carving out an exception to the physician-patient privilege under
       this narrow set of circumstances, the legislature has reflected the
       societal “belief that when people drive, they encounter a diminished
       expectation of privacy.” Perlos, 462 N.W.2d at 320. The existence
       of the Implied Consent law further supports this conclusion.

       ***

       Indeed, if a person refuses the request of a law enforcement officer
       to submit to physical tests or to a test of blood, urine or breath, the
       person’s license to drive will be suspended. See RSA 265–A:14
       (Supp.2010).

Id. at 296-298.


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       {¶26} We disagree with the line of reasoning adopted by the Supreme

Court of New Hampshire in Davis, which would require us to strip from an OVI

suspect the reasonable expectation of privacy in medical records, as recognized in

Ferguson. First, we note that many of the cases on which the New Hampshire

Court relied were decided prior to Ferguson. The New Hampshire Court in Davis

distinguished Ferguson “because the testing [in Ferguson] was done for, and in

conjunction with, law enforcement,” while “there was no law enforcement

involvement in the taking or testing of the defendant’s blood sample in this case.”

Id. at 298-299. Nevertheless, as we explained above, it is not “the taking or

testing of the defendant’s blood sample” that we are reviewing in cases concerning

search of a patient’s medical records by the law enforcement. Therefore, the

distinction noted in Davis is not relevant to the case at hand.

       {¶27} Second, the New Hampshire Supreme Court’s reliance on an

exception to the physician-patient privilege to find a lack of reasonable

expectation of privacy is misplaced because this testimonial privilege applies to

testimony at trial and does not apply to search warrants. See State v. Fairfield, 8th

Dist. Cuyahoga No. 97466, 2012-Ohio-5060, ¶ 16, appeal not accepted, 134 Ohio

St.3d 1486, 2013-Ohio-902, 984 N.E.2d 30 (holding that a prohibition against

“testifying” applied “to trials and not search warrants because warrants are used to

aid in the investigation process and are ancillary to the criminal proceedings”).


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“Proceedings for a search warrant differ from a trial in that the rules of evidence

do not apply.” State v. Jaschik, 85 Ohio App.3d 589, 598, 620 N.E.2d 883 (11th

Dist.1993). Therefore, the fact that the statutory scheme at issue waives the

physician-patient privilege for the purpose of testifying at trial cannot be used to

circumvent the Fourth Amendment protections against unreasonable searches and

seizures.

       {¶28} Furthermore, it cannot be argued that the existence of a physician-

patient privilege waiver, “might lead a patient to expect that members of the

hospital staff might turn over evidence acquired in the course of treatment to

which the patient had consented,” thus lowering the patient’s expectation of

privacy.    (Emphasis added.)      See Hannoy v. State, 789 N.E.2d 977, 991

(Ind.App.2003), quoting Ferguson, 532 U.S. at 78, fn. 13. As explained above,

the dicta in Ferguson referred to the requirement of independently reporting

evidence of criminal conduct to law enforcement “under rules of law or ethics.”

Ferguson, 532 U.S. at 80-81. The statutory scheme at issue does not mandate

independent reporting of evidence of the crime. Rather, it mandates responding to

a law enforcement request to provide any evidence “of any test administered” to

the suspect, regardless of whether it shows criminal conduct or not. See R.C.

2317.02(B)(2)(a). Here, at issue is not the independent reporting requirement but

rather, the police action of searching and seizing a patient’s medical records.


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        {¶29} Third, the use by the New Hampshire Supreme Court of the implied

consent statute to support obtaining medical records without a warrant overlooks

several important distinctions between the implied consent statute and the

situations covered by Davis and by the Ohio statutory scheme at issue. The

implied consent statute operates only after the driver has been arrested for OVI.

State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 14, 23-

24; R.C. 4511.191(A)(2). Conversely, the method adopted by New Hampshire

and advanced by the State in this case would allow for a warrantless search of the

medical records without the requirement that the person is first arrested. As such,

unlike in the implied consent cases, these situations would not even require

probable cause prior to performing the search. See id. at ¶ 19, 23-24. Such a low

threshold for a warrantless search goes beyond the recognized exceptions to the

warrant requirement.6 Furthermore, the warrantless search of a driver’s body for

evidence of intoxication in situations where the driver is arrested for OVI has been

justified by an exigency, which is a risk of losing evidence because of the

diminishing alcohol concentration level in the driver’s blood. See id. at ¶ 19,

citing Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 16 L.Ed.2d

908 (1966).7 No such exigency exists in circumstances where, as here, the tests


6
 See list of recognized exceptions to the warrant requirement in part D. below.
7
 But see Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (limiting Schmerber and mandating
a case-by-case approach to the OVI cases to determine whether sufficient exigency exists to allow a
warrantless search).

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Case No. 2-13-28


have already been performed and their results are safely stored by the hospital.

Finally, the implied consent statutes provide the driver with an opportunity to limit

or withdraw the consent, thus avoiding the warrantless search, although the refusal

to consent results in certain consequences. Id., at ¶ 20; State v. Brown, 158 Ohio

App.3d 21, 2004-Ohio-3364, 813 N.E.2d 956, ¶ 13 (7th Dist.). Conversely, the

statutory scheme at issue here does not provide for any possibility for the

defendant to prevent the disclosure of his medical records to the law enforcement

officials. In fact, it does not even include any notification to the defendant that his

or her medical records are being searched. Thus, the situations addressed by the

New Hampshire Supreme Court in Davis, as well as the situations covered by R.C.

2317.02(B)(2)(a) and 2317.022, are entirely distinct from the situations involving

implied consent to a test for alcohol concentration level of a drunk driver arrested

for OVI.

       {¶30} In addition, we note that even under the reasoning of the New

Hampshire Supreme Court in Davis, the Ohio statutory scheme could not function

to authorize warrantless searches of a driver’s medical records because of an

important distinction between the Ohio statutory scheme and the statute upheld in

Davis. The New Hampshire law permitted law enforcement to obtain medical

records without a warrant only in connection with “the incident giving rise to the

investigation for driving a motor vehicle while such person was under the


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Case No. 2-13-28


influence of intoxicating liquors or controlled drugs.” Davis, 161 N.H. at 297.

The Ohio statutes would allow obtaining test results whenever there is any

“criminal investigation,” not limited to only OVI investigations.                R.C.

2317.02(B)(2)(a); R.C. 2317.022(B). In an Indiana case on which the Davis court

relied, the Indiana court excluded “fishing expeditions” related to “any criminal

investigation” from the scope of its statute. Hannoy, 789 N.E.2d at 992. The

Indiana court held:

      We do not want to be misunderstood as holding that Indiana Code
      Section 9–30–6–6(a) authorizes the release of toxicological test
      results or bodily fluid samples to law enforcement anytime it is
      requested in relation to any criminal investigation. We do not
      believe Section 9–30–6–6 authorizes broad “fishing expeditions” by
      law enforcement searching for evidence that some person has
      committed some crime. First, the placement of Section 9–30–6–6 in
      the Traffic Code clearly indicates that it applies only to criminal
      investigations concerning operating while intoxicated and its related
      crimes. Second, Hannoy was one of two drivers involved in a fatal
      motor vehicle accident, and we assume that law enforcement officers
      will limit their requests for toxicological test results specifically to
      drivers who have been hospitalized following an accident rather than
      requesting test results from patients at random for no reason
      whatsoever. This makes the request reasonable under the Fourth
      Amendment.

(Emphasis added.) Id.

      {¶31} Unlike the statute in Hannoy, R.C. 2317.02(B)(2)(a) and R.C.

2317.022 are not included in Chapter 4511—“Traffic laws,” in contrast to the

implied consent statute, R.C. 4511.191, which appears immediately after R.C.

4511.19—“Driving while under the influence of alcohol or drugs; tests;

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Case No. 2-13-28


presumptions; penalties; immunity for those withdrawing blood.” These sections

are contained within the Revised Code sections for competency of witnesses, and

Section R.C. 2317.02 is entitled “Privileged communications and acts.”            As

already discussed above, the physician-patient privilege does not apply to the

search proceedings, and the fact that the statutory scheme at issue waives the

physician-patient privilege for the purpose of testifying at trial, cannot be used to

circumvent the Fourth Amendment protections against unreasonable searches and

seizures.

       {¶32} Neither the Ohio Supreme Court nor the United States Supreme

Court have thus far held that an OVI suspect does not enjoy a reasonable

expectation of privacy in his or her medical records that show an alcohol or drug

concentration level in the suspect’s blood or urine. But the Ohio Fourth District

Court of Appeals has recognized that an OVI suspect had a reasonable expectation

of privacy in a urine sample obtained by a hospital as part of its routine treatment

and later requested by a law enforcement officer. State v. Funk, 177 Ohio App.3d

814, 2008-Ohio-4086, 896 N.E.2d 203, ¶ 13 (4th Dist.).

       {¶33} The recent decision of the United States Supreme Court in Missouri

v. McNeely, 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


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Case No. 2-13-28


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 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.

       {¶34} Although the McNeely decision focused on the exception to the

warrant requirement rather than on the expectation of privacy, we find it relevant

to the case at issue that the Supreme Court refused to allow warrantless searches

even though “the privacy interest implicated by blood draws of drunk-driving

suspects is relatively minimal” and the “governmental interest in combating drunk

driving” compelling. Id. at 1564-1565. In spite of the recognized importance of

preventing “drunk driving,” the Supreme Court declined to depart from the

warrant requirement absent exigent circumstances:


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Case No. 2-13-28


       “No one can seriously dispute the magnitude of the drunken driving
       problem or the States’ interest in eradicating it.” Michigan Dept. of
       State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d
       412 (1990). Certainly we do not. While some progress has been
       made, drunk driving continues to exact a terrible toll on our society.
       See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec.
       2012) (reporting that 9,878 people were killed in alcohol-impaired
       driving crashes in 2011, an average of one fatality every 53
       minutes).

       But the general importance of the government’s interest in this area
       does not justify departing from the warrant requirement without
       showing exigent circumstances that make securing a warrant
       impractical in a particular case.

Id. at 1565-1566. The Supreme Court added that “the Fourth Amendment will not

tolerate adoption of an overly broad categorical approach that would dilute the

warrant requirement in a context where significant privacy interests are at stake.”

Id. at 1564.

       {¶35} This holding is very instructive in the case at issue. It directs us to

prevent the dilution of the warrant requirement in cases where a patient’s federally

recognized privacy interest in his or her medical records is at stake and no reasons

exist to diminish that privacy interest. While we recognize the threat that drunk

drivers pose on Ohio roads and the important interest of preventing drunk driving,

we must also acknowledge that “the requirements of the Fourth Amendment

cannot be lowered based upon the heinousness of the particular crime police are

investigating.” Hannoy, 789 N.E.2d at 988. Here, the State failed to point to any



                                       -24-
Case No. 2-13-28


reason that would justify diminishing a patient’s privacy interest, so firmly

protected by the United States Supreme Court, in securely-stored medical records.

       {¶36} We are mindful of Ohio cases that have previously addressed

obtaining medical records pursuant to R.C. 2317.02(B)(2)(a) and R.C. 2317.022,

and found no constitutional violations. For example, in State v. Tomkalski, 11th

Dist. Lake No. 2003-L-097, 2004-Ohio-5624, the defendant alleged that his

“constitutional right of privacy” was violated. Id. at ¶ 27. The Eleventh District

Court of Appeals rejected the defendant’s challenge, without discussing Ferguson

or the expectation of privacy. The court only noted that the medical records in

Ohio were not protected by the constitutional right of privacy, but by the

physician-patient privilege, which did not apply “ ‘[i]n any criminal action

concerning * * * the results of any test that determines the presence or

concentration of alcohol * * * in the patient’s blood.’ ” Id. at ¶ 26-27, quoting R.C.

2317.02(B)(1)(c). In so far as the physician-patient privilege protects the medical

records from unauthorized disclosure, the issues relevant here do not concern the

Whalen right to privacy, which protects the medical records from unauthorized

disclosure, as we noted in our discussion in section A. above. Instead, we are

focusing on the Ferguson-recognized expectation of privacy in medical records as

it relates to the warrantless search and seizure, and criminal prosecution that stems

from it. The Eleventh District Court of Appeals did not address this issue.


                                        -25-
Case No. 2-13-28


       {¶37} In City of Cleveland v. Rollins, 8th Dist. Cuyahoga No. 79614, 2002

WL 490040 (Mar. 14, 2002), the defendant raised the issue of expectation of

privacy in medical records. The Eighth District Court of Appeals recognized that

R.C. 2317.02(B)(2)(a) serves “merely” to “protect the health care provider from

potential civil liability arising out of the release of arguably privileged

information,” rather than to control admissibility of evidence. Id. at *2. Yet, in

spite of this recognition of the statute’s limited purpose, the Eighth District Court

of Appeals did not address the defendant’s concerns regarding a violation of his

expectation of privacy in his medical records. Instead, the court implied that R.C.

2317.02(B)(2)(a) waives the “due process protections” of criminal defendants

“who are suspected of drunk driving or other criminal activity.” Id. The court

thus held that a constitutional violation did not occur where the defendant’s

medical records were obtained pursuant to the statute because “any physician-

patient privilege had already been waived per the terms of R.C. 2317.02(B)(1)(c),”

and “the health care provider in question may have chosen to relinquish the test

results without first receiving a written statement from the investigating officer.”

Id.   Relying on the physician-patient privilege, the Eighth District Court of

Appeals ignored the defendant’s concerns over his expectation of privacy in

medical records. The Ferguson opinion was not mentioned either.




                                        -26-
Case No. 2-13-28


       {¶38} We find it necessary to re-emphasize the difference between

physician-patient privilege, which applies to admissibility of (properly obtained)

evidence at trial, and the Fourth Amendment protection against the government’s

unauthorized invasion into the patient’s medical records, which applies to the

government’s ability to obtain the evidence. See State v. Fairfield, 8th Dist.

Cuyahoga No. 97466, 2012-Ohio-5060, ¶ 16, appeal not accepted, 134 Ohio St.3d

1486, 2013-Ohio-902, 984 N.E.2d 30; State v. Jaschik, 85 Ohio App.3d 589, 598,

620 N.E.2d 883 (11th Dist.1993).          While R.C. 2317.02(B)(2)(a) and R.C.

2317.022 waive the physician-patient privilege, they do not strip an OVI

defendant of his or her expectation of privacy in his medical records.

       {¶39} The Ohio Supreme Court noted that “R.C. 2317.02(B)(2) simply

waives patient-physician privilege when law enforcement seeks to obtain certain

test results.” (Emphasis added.) State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-

4629, 833 N.E.2d 1216, ¶ 55. We have recognized in Meyers, 146 Ohio App.3d at

575, 767 N.E.2d 739, that “R.C. 2317.02(B)(2)(a) excluded related records from

the privilege.” “The clear intent of the legislature was to abrogate the physician-

patient privilege and provide the state access to blood-alcohol tests in criminal

cases,” “ ‘except to the extent specifically prohibited by any law of this state or of

the United States.’ ” Id. at 577, quoting R.C. 2317.02(B)(2)(a). We went even

further to call R.C. 2317.02(B)(2)(a) a “mere[] * * * discovery tool through which


                                        -27-
Case No. 2-13-28


the state may request and receive the medical records described herein.” Id. at

578. We did not, however, exclude R.C. 2317.02(B)(2)(a) from the scope of the

Fourth Amendment and we did not hold that an OVI suspect does not have a

reasonable expectation of privacy in medical records. Rather, in response to the

defendant’s arguments that the hospital was a state actor (id. at 576), we reviewed

the case under the search and seizure principles, holding that “the hospital’s blood

test did not constitute state action necessary to implicate Fourth Amendment

protections.” Id. at 575-578. Other Ohio courts similarly recognize the statute’s

purpose as a waiver of a physician-patient privilege. See, e.g., Rollins, 2002 WL

490040, at *2.

       {¶40} 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.




                                        -28-
Case No. 2-13-28


              D. The State’s Practice of Obtaining Medical Records
              Pursuant to R.C. 2317.02(B)(2)(a) and R.C. 2317.022

       {¶41} Here, the law enforcement officer did not obtain a warrant prior to

searching and seizing Little’s 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 that 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).

       {¶42} The Ohio Supreme Court has explicitly recognized the following

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

       (a) a search incident to a lawful arrest;

       (b) consent signifying waiver of constitutional rights;

       (c) the stop-and-frisk doctrine;

       (d) hot pursuit;

       (e) probable cause to search, and the presence of exigent
       circumstances;

       (f)   the plain view doctrine; and

       (g) administrative search.

Stone v. City of Stow, 64 Ohio St.3d 156, 165, 593 N.E.2d 294 (1992). The parties

do not argue that any of these enumerated exceptions applied in this case.


                                          -29-
Case No. 2-13-28


Therefore, we will not attempt to determine at this point whether Little’s particular

situation would fit within one of those exceptions. Focusing on the statutory

scheme at issue, we recognize that the seven exceptions above 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.

        {¶43} This conclusion does not, however, mean that 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

Little’s medical records violated his constitutional protection against unreasonable

search and seizure. This conclusion means that on the basis presented to us,

Little’s motion to suppress was not properly denied8 by the trial court and that

Little’s first assignment of error is sustained.

        {¶44} But because statutes enjoy a strong presumption of constitutionality

and Little failed to sustain his burden of establishing beyond a reasonable doubt

that R.C. 2317.02 and R.C. 2317.022 are unconstitutional, we overrule the second




8
 We do not determine whether the exclusion of evidence is necessary herein, or if a good faith exception
applies in this case.

                                                 -30-
Case No. 2-13-28


assignment of error. See Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916

N.E.2d 1056, at ¶ 8.

       {¶45} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellant in the particulars assigned and argued.

The November 5, 2013 judgment of the Auglaize County Municipal Court is

therefore reversed and we remand this matter for further proceedings consistent

with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded

ROGERS, J., concurs.



SHAW, J., dissents.

       {¶46} While I concur with the judgment of the majority that neither the

appellant’s arguments nor the cases analyzed are sufficient to demonstrate that the

statute at issue is unconstitutional, I dissent from the majority’s opinion because I

do not agree with their conclusion that the exclusionary rule might apply in this

instance without regard to the constitutionality of the statute.

       {¶47} The exclusionary rule was created as a judicial remedy for

governmental violations of the Fourth Amendment. Illinois v. Krull, 480 U.S.

340, 347, 107 S.Ct. 1160 (1987) citing Weeks v. United States, 232 U.S. 383, 34

S.Ct. 341 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). The “prime

                                         -31-
Case No. 2-13-28


purpose” of the exclusionary rule is to deter unlawful police conduct. United

States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974). “[T]he [United States]

Supreme Court has held suppression is not an available remedy when police

officers conducted a search in good faith reliance on some higher authority, such

as a warrant or a statute, even if the warrant or statute were later held invalid or

unconstitutional (the ‘good faith exception’).” (Emphasis added.) United States v.

Gonzalez, 598 F.3d 1095 (9th Cir.2010), citing Illinois v. Krull, 480 U.S. 340, 347,

107 S.Ct. 1160 (1987).

       {¶48} In Illinois v. Krull, the United States Supreme Court held that the

exclusionary rule does not apply where an officer is acting in a good-faith reliance

on the validity of a law, and that is exactly what happened in this case. Krull, 480

U.S. at 349. The police utilized a statute that this court has unanimously found is

not unconstitutional and there is no indication that the officer did not comply with

the statute in obtaining the evidence at issue. It is both contrary to law and an

abuse of judicial discretion for this court to remand this case to the trial court with

instructions to consider application of the exclusionary rule in this circumstance.

Accordingly, I would overrule the appellant’s assignments of error and I would

affirm the judgment of the trial court.

/jlr




                                          -32-
