         [Cite as State v. Eads, 2020-Ohio-2805.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NOS. C-190213
                                                                    C-190214
        Plaintiff-Appellee,                         :                C-190215
                                                        TRIAL NOS. C-17TRC-39192A
  vs.                                               :             C-17TRC-39192B
                                                                   C-17TRC-39192C
KYLE EADS,                                          :

    Defendant-Appellant.                            :          O P I N I O N.



Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in C-190213; Appeals Dismissed in
                             C-190214 and C-190215

Date of Judgment Entry on Appeal: May 6, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




WINKLER, Judge.

       {¶1}   This appeal of a driving-under-the-influence conviction involves the

trial court’s denial of a motion to suppress medical records containing tests for

intoxicants that hospital staff administered for medical purposes when treating the

defendant-appellant Kyle Eads after he was seriously injured in a car accident. A law

enforcement officer obtained those medical records from the hospital without a

warrant, relying on state statutes that direct a “health care provider” to supply

patient alcohol- and drug-test results to law enforcement when the requesting officer

indicates that the individual is the subject of an “official criminal investigation * * *

or proceeding.” R.C. 2317.02(B)(2)(a) and 2317.022.

       {¶2}   We hold that the officer’s warrantless acquisition of Eads’s medical

records was in violation of his Fourth Amendment rights.              Eads retained a

reasonable expectation of privacy in the alcohol- and drug-test results created during

his emergency treatment, even though R.C. 2317.02(B)(2)(a) and 2317.022

ostensibly required the hospital to comply with the officer’s request for the

information and the information is exempt from Ohio’s physician-patient privilege.

We further determine the officer’s reliance on the statutes to obtain the records was

in good faith, as more fully discussed below.        Consequently, we hold that the

exclusionary rule does not require the suppression of those unlawfully obtained test

results. For this reason, we conclude that the trial court did not err by denying the

motion to suppress. Accordingly, we affirm Eads’s conviction.

                      Background Facts and Procedure

       {¶3}   The undisputed facts show that Eads was involved in a single-car accident

on 1-275 in Hamilton County in the early morning hours of April 8, 2017. Paramedics



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                        OHIO FIRST DISTRICT COURT OF APPEALS



found him unconscious and transported him to University Hospital for medical treatment.

As part of his medical treatment, hospital staff tested Eads’s blood and urine for alcohol

and drugs. Law enforcement officers from the Ohio State Highway Patrol (“OSHP”)

assigned to investigate the accident were unable to interview Eads at the scene or the

hospital. Based on accident scene observations that gave them probable cause, they

cited Eads for operating a vehicle while impaired (“OVI”), in violation of R.C.

4511.19(A)(1)(a), and two other offenses.

       {¶4}   Several months later, in furtherance of the investigation and pursuant

to a written OSHP policy that has since been revised, an officer submitted to the

treating   hospital’s    medical   records       department   a   request   under    R.C.

2317.02(B)(2)(a) and 2317.022(B). These statutes provide a mechanism for a law

enforcement officer to obtain certain alcohol- and drug-test-result records from a

health care provider.      The officer’s written records request must identify an

individual, indicate that the individual is the subject of “an official criminal

investigation * * * action or proceeding,” and further state that the officer

       believe[s] that one or more tests has been administered to that 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 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.

R.C. 2317.022.

       {¶5}   These statues further direct that the health care provider “shall”

provide the alcohol- and drug-test results, “except to the extent specifically




                                             3
                        OHIO FIRST DISTRICT COURT OF APPEALS



prohibited” by any state or federal law. R.C. 2317.02(B)(2)(a). The alcohol- and

drug-test results, if any, are exempt from Ohio’s physician-patient privilege in

criminal actions. R.C. 2317.02(B)(1)(c). Ohio law further provides that the trial

court may consider the results of blood and urine testing as evidence of guilt in an

OVI prosecution for driving while under the influence of “alcohol, a drug of abuse, or

a combination of them,” in violation of R.C. 4511.19(A)(1)(a) or “an equivalent

offense that is vehicle-related,” if the records are supported by “expert testimony.”

R.C. 4511.19(D)(1)(a).

        {¶6}    In this case, after receiving the records request form, hospital

personnel gave the requesting OSHP officer a copy of Eads’s blood-and-urine-test

results. Later, in response to the criminal charges, Eads moved to suppress evidence

of the blood-alcohol-test results on the ground that the officer’s collection of his

hospital medical records was a warrantless search in violation of his privacy rights

protected by the Fourth Amendment to the United States Constitution.1

        {¶7}    In response, the state argued that law enforcement’s collection of

Eads’s medical records from the hospital pursuant to the statutes was not a “search”

that triggered Fourth Amendment protection. According to the state, Eads lacked a

reasonable expectation of privacy in the test results because the state laws required

the hospital to provide the information to the police and exempted the information

from the physician-patient privilege. Alternatively, the state argued that if the officer

had violated Eads’s constitutional rights, the exclusionary rule did not apply because




1 Eads argued that the search also violated the protection against unreasonable searches and
seizures under Article I, Section 14, of the Ohio Constitution. He has never, argued, however that
the state constitution affords him greater protection than the Fourth Amendment to the federal
Constitution. As a result, we use the term “Fourth Amendment” to collectively refer to both the
Fourth Amendment and Article I, Section 14, Ohio Constitution.


                                                4
                      OHIO FIRST DISTRICT COURT OF APPEALS



the officer had relied in good faith upon a departmental policy that was based upon

state statutes that have never been declared unconstitutional.

       {¶8}    The trial court denied the motion to suppress and, following Eads’s no-

contest pleas, convicted Eads of the offenses charged, including OVI. Eads now

appeals that OVI conviction in the appeal numbered C-190213, contending in one

assignment of error that the trial court erred by failing to grant his motion to

suppress.

                                       Analysis

       {¶9}    Usually, 0ur review of a motion to suppress presents a mixed question

of fact and law. See State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. Eads does not challenge the trial court’s findings, only its legal

conclusions. Thus, we accept the trial court’s factual findings and review de novo the

court’s application of the law to those facts. See id.

       {¶10} The Fourth Amendment to the United States Constitution provides

that “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated.”      The

essential purpose of the Fourth Amendment proscription “is to safeguard the privacy

and security of individuals against arbitrary invasions by governmental officials.”

Camera v. Mun. Court of City and Cty. of San Francisco, 387 U.S. 523, 528, 87 S.Ct.

1727, 18 L.Ed.2d 930 (1967), quoted in Carpenter v. United States, __ U.S. __, 138

S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018); Schmerber v. California, 384 U.S. 757,

767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

       {¶11} Generally, a warrant must be secured for a “search” to comply with the

Fourth Amendment, subject to certain exceptions that the state has not relied upon




                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS



in this case. See Carpenter at 2221; Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct.

1849, 179 L.Ed.2d 865 (2011); Stone v. City of Stow, 64 Ohio St.3d 156, 164, 593

N.E.2d 292 (1992), fn. 4.

       {¶12} Whether a search has occurred for Fourth Amendment purposes

depends upon whether the person invoking the Fourth Amendment’s protections can

claim a “ ‘legitimate expectation of privacy’ ” that has been infringed by government

action. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

This inquiry turns on whether an individual has a subjective expectation of privacy

and whether that expectation is one that society recognizes as reasonable. See Katz

v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

       {¶13} In this case, the trial court determined that Eads lacked a reasonable

expectation of privacy in the medical records containing the alcohol- and drug-test

results. The United States Supreme Court has not addressed whether a defendant

similarly situated to Eads has a reasonable expectation of privacy in medical records

containing the results of blood and urine tests for alcohol and drugs, created by a

hospital for medical treatment, that are not privileged under state law and that are

the subject of a state statute providing law enforcement with access to the records for

criminal investigations without requiring a warrant.       This question touches on

several areas of Fourth Amendment law that the United States Supreme Court has

addressed, some of which we now review.

       {¶14}      The Supreme Court has addressed whether privacy interests are

implicated in impaired driving criminal investigations when there is state

involvement in extracting and testing of bodily fluids for intoxicants. See, e.g.,

Mitchell v. Wisconsin, ___ U.S. ___, 139 S.Ct. 2525, 204 L.Ed.2d 1040 (2019);




                                          6
                     OHIO FIRST DISTRICT COURT OF APPEALS



Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 2175-2176, 195 L.Ed.2d

560 (2016); Missouri v McNeely, 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696

(2013); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Motorist have a diminished expectation of privacy “ ‘because of th[e] compelling

governmental need for regulation.’ ” McNeely at 159, quoting California v. Carney,

471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

       {¶15} Even though the Court has recognized that motorist have a diminished

expectation of privacy, this state-action category of intoxicant testing is considered a

search that triggers the Fourth Amendment’s warrant requirement, subject to several

well-defined exceptions that obviate the warrant requirement. See Mitchell at 2533-

2539; Schmerber, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

       {¶16} The intrusion on privacy varies depending upon the circumstances,

including the extent of any physical intrusion into the body, whether the defendant is

under arrest, any compelling need for the testing, and, importantly, the information

exposed. See, e.g., Mitchell at 2533-2539; Birchfield at 2176-2177. Therefore, once a

person is lawfully under arrest for drunk driving, a breath test that leaves no sample

with the police, and that reveals nothing more than the amount of alcohol in the

suspect’s breath, “does not ‘implicate significant privacy concerns’ ” and is lawful

without a warrant even without a showing of exigent circumstances. Birchfield, ___

U.S. ___, 136 S.Ct. at 2177-2178, 195 L.Ed.2d 560, quoting Skinner v. Ry. Labor

Executives’ Assn., 489 U.S. 602, 626, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

       {¶17} Relatedly, the United States Supreme Court has spoken on the extent

to which privacy interests are implicated in general with respect to the detection of

contraband. “The legitimate expectation that information about perfectly lawful




                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



activity will remain private is categorically distinguishable from [one’s] hopes or

expectations concerning the nondetection of contraband.” Illinois v. Caballes, 543

U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005.) Accordingly, “[a] dog sniff

conducted during a concededly lawful traffic stop that reveals no information other

than the location of a substance that no individual has any right to possess does not”

compromise any legitimate interest in privacy and “violate the Fourth Amendment.”

Id. The same is true of police field testing that merely discloses whether or not a

particular substance is cocaine and “no other arguably ‘private’ fact.” United States v.

Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

       {¶18} Notably, the United States Supreme Court has recognized a patient’s

general privacy interest in hospital diagnostic test results created by state action to

obtain evidence of a crime. See Ferguson v. City of Charleston, 532 U.S. 67, 78, 121

S.Ct. 1281, 149 L.Ed.2d 205 (2001). Ferguson involved a state hospital’s program

developed with law enforcement to test maternity patients’ urine for cocaine, with

the understanding that the results would be shared with law enforcement. The

government conceded the testing and test-result reporting resulted in a search that

implicated the Fourth Amendment, but argued the search fell under the “special

needs doctrine” exception to the warrant requirement. Id. at 73 and 76. The special

needs doctrine weighs “the intrusion on the individual’s interest in privacy against

the ‘special needs’ that support[] the program.” Id. at 78.

       {¶19} The Supreme Court rejected the special needs argument because the

“immediate” goal of the search was “to generate evidence for law enforcement

purposes,” id. at 83, and found the testing and reporting were unreasonable searches

absent patients’ consent. Id. at 76, 86. In reaching this conclusion, the court stated




                                           8
                     OHIO FIRST DISTRICT COURT OF APPEALS



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.           The Court,

however, qualified that statement in a footnote:

       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). While the existence of such laws 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, they surely would not lead a patient to anticipate that

       hospital staff would intentionally set out to obtain incriminating

       evidence from their patients for law enforcement purposes.

Id. at 78, fn. 13. Moreover, the Ferguson court did not decide whether “disclosure”

of preexisting test results would also be a search implicating the Fourth Amendment.

(Emphasis added.) Kerns v. Bader, 663 F.3d 1173, 1185 (10th Cir.2011).

       {¶20} Privacy rights have also been addressed under the third-party

disclosure doctrine rooted in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48

L.Ed.2d 71 (1976), and Smith v. Maryland, 442 U.S. 739, 99 S.Ct. 2577, 61 L.Ed.2d

220 (1979), and referenced by the dissent in Ferguson, 532 U.S. 67, 94-95, 121 S.Ct.




                                           9
                        OHIO FIRST DISTRICT COURT OF APPEALS



1281, 149 L.Ed.2d 205 (Scalia, J., dissenting). Under this doctrine, a person lacks a

reasonable expectation of privacy in information he or she “ ‘voluntarily turns over to

third parties.’ ” Carpenter, ___ U.S. ___, 138 S.Ct. at 2216, 201 L.Ed.2d 507,

quoting Smith at 743-744, notwithstanding a belief that the information will stay

private. Carpenter at 2216, citing Miller at 443. This includes financial information

a bank depositor “voluntarily conveyed to * * * banks and exposed to their employees

in the ordinary course of business,” Miller at 442, and telephone numbers that a

suspect dialed from his home but were processed by his telephone company. Smith

at 744.

          {¶21} The Miller Court explained:

          [T]he Fourth Amendment does not prohibit the obtaining of

          information revealed to a third party and conveyed by him to

          Government authorities, even if the information is revealed on the

          assumption that it will be used only for a limited purpose and the

          confidence placed in the third party will not be betrayed.

Miller at 443.

          {¶22} The Supreme Court recently distinguished Smith and Miller in a case

involving cell-site location information that the government was able to obtain from

a suspect’s cell phone service providers without a warrant. Carpenter, ___ U.S.

___, 138 S.Ct. 2206, 201 L.Ed.2d 507.             The Carpenter Court clarified that an

individual’s reasonable expectation of privacy under the Fourth Amendment is not

eliminated simply because records are held by a third party. Id. at 2217.




                                             10
                    OHIO FIRST DISTRICT COURT OF APPEALS



                                  Ohio Courts

       {¶23} Ohio appellate courts are in conflict as to whether the Fourth

Amendment is violated by a law enforcement officer’s use of R.C. 2317.02 and

2317.022 to obtain, without a warrant or patient consent, medical records containing

toxicology test results from a hospital that performed the tests for the purpose of

medical treatment after a suspicious accident. State v. Smith, 2d Dist. Greene No.

2019-CA-16, 2019-Ohio-4706, ¶ 9, fn. 3. The Third and Fifth Appellate Districts have

held that without a warrant or an exception, the defendant’s Fourth Amendment

rights are violated. See State v. Clark, 2014-Ohio-4873, 23 N.E.3d 218, ¶ 42 (3d

Dist.); State v. Little, 2014-Ohio-4871, 23 N.E.3d 237, ¶ 40 (3d Dist.); State v.

Saunders, 5th Dist. Morrow No. 17CA0001, 2017-Ohio-7348, ¶ 32. The Eighth

District has held that law enforcement may obtain intoxicant testing results from a

treating hospital without a warrant by following the procedures in R.C.

2317.02(B)(2)(a) and 2317.022. See City of Cleveland v. Dames, 8th Dist. Cuyahoga

No. 82980, 2003-Ohio-6054, ¶ 6.

       {¶24} Neither the Ohio Supreme Court nor this court has reviewed the police

procedure at issue in the context of a Fourth Amendment challenge. But this court

has upheld the constitutionality of R.C. 2317.02(B)(2) and 2317.022 against a

criminal defendant’s due-process based challenge. See State v. Slageter, 1st Dist.

Hamilton No. C-990584, 2000 WL 331633 (Mar. 31, 2000). Although the facts of

the Slageter case suggest that a law enforcement officer had obtained Slageter’s

medical records during a drunk driving investigation without a getting a warrant,

Slageter did not raise a Fourth Amendment challenge.




                                         11
                     OHIO FIRST DISTRICT COURT OF APPEALS



                     Reasonable Expectation of Privacy

       {¶25} The trial court found that the enactment of R.C. 2317.02(B)(2) and

2317.022 left Eads without any reasonable expectation of privacy in the medical

records containing the alcohol- and drug-testing reports. This analysis relates to the

Ferguson court’s suggestion that a state’s mandatory reporting statute could

eliminate any reasonable expectation of privacy in hospital records. Ferguson, 532

U.S. at 78, 121 S.Ct. 1281, 149 L.Ed.2d 205, fn. 13. The Ohio statutes at issue,

however, are not the type of mandatory reporting statutes referenced in Ferguson.

Health care providers do not have a duty to report the sought after information,

although they must comply with a law enforcement officer’s request made under the

statutes. Further, one could read R.C. 2317.02(B)(2)(a) and 2317.022 as a reflection

of the General Assembly’s understanding that those records were not protected by

the Fourth Amendment and its intent that law enforcement should be restricted in

accessing medical records due to their sensitive nature unless the statutory

prerequisites are met.

       {¶26} In any event, notwithstanding the footnote in Ferguson, the United

States Supreme Court has rejected the argument that “concepts of privacy under the

laws of each State are to determine the reach of the Fourth Amendment.” California

v. Greenwood, 486 U.S. 35, 44, 108 S.Ct. 1625 100 L.Ed.2d 30 (1988). Thus, Ohio’s

passage of these statutes cannot strip away the protections of the Fourth

Amendment. See Little, 2014-Ohio-4871, 23 N.E.3d 237, at ¶ 27.

       {¶27} The trial court also cited in support of its conclusion cases from other

states that apply the third-party doctrine to hospital medical records containing

blood-alcohol reports created for medical purposes during treatment after a vehicle




                                         12
                     OHIO FIRST DISTRICT COURT OF APPEALS



accident. See People v. Perlos, 436 Mich. 305, 329, 462 N.W.2d 310 (1990); State v.

Hardy, 963 S.W.2d 516, 526 (Tex.Crim.App.1997). In the view of these courts, the

patient’s privacy interests were frustrated in the first instance by the third-party

caregiver. This conclusion may be compatible with the privacy rights analysis in

Ferguson. See 1 Wayne R. LaFave, Search and Seizure, Section 2.7(d) (5th Ed.2019).

This conclusion, however, predates the United States Supreme Court’s Carpenter

decision, which applied a modern and more nuanced approach to the third-party

doctrine.

       {¶28} At issue in Carpenter was whether law enforcement needed a warrant

to obtain a robbery suspect’s “cell-site location information (CSLI)” from the

suspect’s wireless carriers. Carpenter, ___ U.S. ___, 138 S.Ct. 2206, 201 L.Ed.2d

507. The FBI obtained Carpenter’s records from his wireless carriers by complying

with a provision of the Stored Communications Act, a federal law that allows law

enforcement to obtain a court order for certain telecommunication records

by “ ‘offer[ing] specific and articulable facts showing that there are reasonable

grounds to believe’ that the records sought ‘are relevant and material to an ongoing

criminal investigation.’ ” Carpenter at 2212, quoting 18 U.S.C. 2703(d). The statute,

like the Ohio statutes at issue in this case, does not require law enforcement to secure

a warrant before obtaining the records.

       {¶29} Carpenter, who was later convicted of several offenses based in part on

the CSLI evidence, was unsuccessful in the district court and the Sixth Circuit Court

of Appeals on his claim that the government’s collection of his CSLI was a

warrantless search in violation of the Fourth Amendment. Carpenter at 2212-2213.

The Supreme Court reversed, holding that the government’s acquisition of




                                          13
                     OHIO FIRST DISTRICT COURT OF APPEALS



Carpenter’s CSLI was a search under the Fourth Amendment. This was true even

though Carpenter had shared the information with the third-party wireless carriers,

because Carpenter retained a legitimate privacy interest in the records, which

captured his physical movements and revealed an “intimate window” into his life.

Id. at 2217.

       {¶30} The Carpenter Court emphasized the “narrow[ness]” of the decision.

Id. at 2220. But the decision discloses a two-part analysis for determining when an

individual has a reasonable expectation of privacy in information shared with

another. This involves an inquiry into the “nature of the particular documents

sought” and whether they were “volunar[ily] expos[ed.]” Id. at 2219-2220. Applying

this test in context, we conclude that Eads had a reasonable expectation of privacy in

the blood and urine tests for alcohol and drugs, which contained sensitive

information about his personal choices and health, and that the information was not

in any real sense voluntarily exposed to the hospital personnel who provided him

emergency treatment.

                       Nature of the Documents Sought

       {¶31} The state claims the law enforcement officer, in compliance with the

statutory procedures, only sought medical records containing the level of alcohol in

Eads’s blood at the time of the accident. This is not factually accurate. The officer

sought records involving the testing of Eads’s “blood,” “breath,” and “urine” for

“alcohol,” “a drug of abuse,” “a controlled substance,” or “a metabolite of a controlled

substance.”

       {¶32} Thus, the officer sought records containing information about Eads’s

use of alcohol, which itself is legal, drugs of abuse as defined under Ohio law, some of




                                          14
                         OHIO FIRST DISTRICT COURT OF APPEALS



which are now legal to consume under Ohio law, and controlled substances, which

are legally prescribed for potentially stigmatizing conditions diagnosed by a

physician. This information exposed too much about Eads’s private life, even though

it could also provide evidence of a crime.

           {¶33} Similar to the cell phone location data at issue in Carpenter, the

medical records containing the reports revealing Eads’s use of alcohol, drugs of

abuse, and controlled substances are equally deserving of protection because of their

“deeply revealing nature,” see Carpenter at 2223, and “provi[sion] [of] an intimate

window into [Eads’s] life.” See id. at 2217.

           {¶34} The officer’s acquisition of Eads’s blood-alcohol level did not involve a

physical intrusion into Eads’s body, but it did reveal much more than the amount of

alcohol in his blood, and the entirety of that written information was turned over the

officer.

                    Was the Information Voluntarily Exposed?

           {¶35} The second part of the Carpenter analysis relates to whether the

information was “voluntar[ily] expos[ed.]” Carpenter at 2220. The Carpenter court

compared the facts involved with those of the important cases in the growth of the

third-party doctrine. After doing so, it concluded that unlike the cancelled checks,

deposit slips, and monthly statements collected by the government from banks in

Miller, 425 U.S. 436, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71, and the dialed phone

numbers the government recorded in Smith, 442 U.S. 735, 740, 99 S.Ct. 2577, 61

L.Ed.2d 220, a cell phone subscriber has not in any meaningful sense voluntarily

assumed the risk of turning over a compressive “dossier” of his physical movements.

Carpenter at 2220. The Court focused on the indispensable requirement of carrying




                                             15
                         OHIO FIRST DISTRICT COURT OF APPEALS



a cell phone “to participat[e] in modern society,” id. at 2220, and the “inescapable

and automatic nature of [the wireless carrier’s] collection” of the locator information.

Id. at 2223.

        {¶36} Eads’s conveyance of the information in his blood and urine to the

hospital is less voluntary than the cell phone subscriber’s conveyance of cell phone

location data to the wireless carrier. Although we assume that Eads wanted the

emergency treatment and that motorists consent to emergency treatment, the record

suggests only that it was the hospital’s protocol to collect the information so that it

could provide the appropriate medical treatment to an unconscious Eads.                         The

Supreme Court has never equated the decision to drive with an actual waiver of

Fourth Amendment rights. See Mitchell, ___ U.S. ___, 139 S.Ct. at 2532-2533, 204

L.Ed.2d 1040. Further, there is no evidence that Eads actually consented to the

sharing of the results.

        {¶37} Thus, under the facts of this case, we conclude that Eads had a

reasonable expectation of privacy in the hospital records containing the alcohol- and

drug-test results. Ultimately, the investigating officer was able to see too far into

Eads’s private life without the protections provided by a warrant, a right guaranteed

by the Fourth Amendment.2 Consequently, we conclude that the evidence the officer

obtained from Eads’s treating hospital was the product of a search and that the




2 For the first time, the state argues that the officer’s record request did not implicate the Fourth
Amendment because it did not involve a “show of force” to obtain the records. The state focuses
on the requirements for a “seizure” of a person during an encounter with law enforcement, see In
re J.C., 1st Dist. Hamilton Nos. C-180478 and C-180479, 2019-Ohi0-4815, ¶ 12, and the absence
of a penalty in R.C. 2317.02(B)(2)(a) for the hospital’s failure to comply with the statute’s
mandate that it “shall supply” the requested records. We decline to address this argument
because it was not raised in the trial court and it is not supported by citation to any relevant case
law.


                                                 16
                     OHIO FIRST DISTRICT COURT OF APPEALS



officer was required to obtain a warrant, issued from a neutral and detached

magistrate upon a showing of probable cause.

                                Exclusionary Rule

       {¶38} Eads additionally argues the trial court erred by failing to apply the

exclusionary rule to the illegally obtained blood-alcohol test results.            The

exclusionary rule was created as a judicial remedy for governmental violations of the

Fourth Amendment. Davis v. United States, 564 U.S. 229, 236, 131 S.Ct. 2419, 180

L.Ed.2d 285 (2011); Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d

364 (1987); State v. Banks-Harvey, 152 Ohio St.3d 368, 2018-Ohio-201, 96 N.E.3d

262, ¶ 25; State v. Johnson, 141 Ohio St.3d 136, 2014-Ohio-5021, 22 N.E.3d 1061, ¶

50. The main purpose of the exclusionary rule is to deter unlawful police conduct in

the future. Davis at 236-237; Banks-Harvey at ¶ 25; Johnson at ¶ 50.

       {¶39} Courts have held that suppression is not an available remedy when a

law enforcement officer conducted a search in good-faith reliance on some higher

authority.   This includes a statute or binding precedent, even if the statute or

precedent were later held unconstitutional or overruled. Davis at 241; Illinois v.

Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987); Johnson at ¶ 4 and 42.

The issue of good-faith revolves around whether “it was objectively reasonable for

the officer[ ] to rely on the statute at the time of the search.” United States v.

Carpenter, 926 F.3d 313, 318 (6th Cir.2019). The trial court in this case found that it

was.

       {¶40} Eads argues it was not objectively reasonable for the officer to rely on

R.C. 2317.02(B)(2)(a) and 2317.022 to obtain the records without a warrant because

the Third and Fifth Appellate Districts had already held that the statutes did not




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authorize a warrantless search of a hospital’s medical records containing the

intoxicant test results of an OVI suspect. He bolsters his argument by noting that the

OSHP was the same law enforcement agency involved in the cases from the Third

and Fifth Appellate Districts.

       {¶41} Eads, however, fails to take into account the uncertainty of the law

concerning the Fourth Amendment and third-party records, including medical

records. See Kerns, 663 F.3d 1173, 1184-1185. The Third and Fifth Appellate District

cases cited by Eads conflict with an Eighth Appellate District case, as well as cases

from other states analyzing similar questions. See, e.g., Perlos, 436 Mich. 305, 462

N.W.2d 310; Hardy, 963 S.W.2d 516. Further, at the time of the challenged law

enforcement conduct, neither this court nor the Ohio Supreme Court had decided the

issue. Moreover, Eads does not cite any clearly dispositive federal case law predating

the conduct at issue, and binding case law from the Federal Circuit Court of Appeals

for the Sixth Circuit weakens his position. See Jarvis v. Wellman, 52 F.3d 125, 126

(6th Cir.1995) (the constitutional right to privacy does not apply to medical records).

Importantly, the conduct predated the United States Supreme Court’s 2018 decision

in Carpenter, a decision clarifying the third-party doctrine and privacy protection.

Finally, the OSHP no longer obtains these types of medical records without a

warrant.

       {¶42} We conclude, considering the state of the law in 2017, that it was

objectively reasonable for the law enforcement officer to rely on OSHP’s policy

implementing the statutory procedure for obtaining these records without a warrant.

Further, suppression of the evidence obtained as a result of the statutorily-based

records request would have no appreciable effect in deterring a violation of the




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Fourth Amendment. For these reasons, we hold that the good-faith exception to the

exclusionary rule applies.

       {¶43} Ultimately, the trial court did not err by denying Eads’s motion to

suppress.      According, we overrule Eads’s assignment of error in the appeal of his

OVI conviction, C-190213.

                             C-190214 and C-190215

       {¶44} Eads has also sought appellate review of two additional judgments.

The appeals numbered C-190214 and C-190215 relate to Eads’s convictions for the

other offenses arising out of his car accident—safety restraint and reasonable-

control violations. But Eads does not raise any assignment of error with respect to

those convictions and has abandoned them. See State v. Harris, 2017-Ohio-5594, 92

N.E.3d 1283, ¶ 42-43 (1st Dist.).

                                     Conclusion

       {¶45} In sum, having overruled the assignment of error, we affirm the trial

court’s judgment in the appeal numbered C-190213. Because Eads abandoned his

other appeals, we dismiss the appeals numbered C-190214 and C-190215.

                                                                Judgment accordingly.

MOCK, P.J., and BERGERON, J., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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