       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                             AVERY TOPPS,
                               Appellee.

                             No. 4D13-3256

                             [July 30, 2014]

   Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael Rothschild, Judge; L.T. Case
No. 08-15331CF10A.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellant.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellee.

KLINGENSMITH, J.

   The State appeals an order excluding Defendant’s statement to a doctor
in a hospital emergency room from being introduced at trial. The
statement was made to the doctor during an examination while a law
enforcement officer was present in the room. The facts herein present an
issue of first impression in Florida: may a law enforcement officer testify
about a conversation overheard between an arrestee he is guarding and
the psychotherapist treating that person? We find that the officer’s
presence at Defendant’s emergency psychiatric evaluation did not
compromise the confidentiality of any psychotherapist-patient
communications, and did not waive the privilege attached to those
statements made during the course of the examination. For the reasons
set forth below, we affirm the trial court’s order.

    Avery Topps (“Defendant”), was charged with felony cruelty to animals
for stabbing a dog to death. After Defendant allegedly stabbed the dog, he
attempted to admit himself into the hospital. A sheriff’s deputy responded
to the hospital in order to arrest Defendant and take him into custody.
While at the hospital, Defendant was examined by an emergency room
doctor acting in the capacity of a psychotherapist in preparation for either
a psychiatric commitment of Defendant or for providing him medical
clearance prior to incarceration. The deputy remained present in the room
while Defendant was being examined because there was a need to provide
safety for the medical staff while Defendant was in custody. A customary
part of the evaluation requires the physician to ask a patient what brought
them to the hospital. It was in response to this question that Defendant
told the physician he stabbed his dog.

   Prior to trial, Defendant moved to exclude his statement from being
used as evidence, and the court conducted an evidentiary hearing on the
issue. Defendant argued, among other things, that the statement was
privileged because it was made while Defendant was seeking psychiatric
care. The State, however, argued that Defendant waived any
psychotherapist-patient privilege when his statement was uttered in the
presence of a third party, the deputy.

    The trial court found that the deputy was present during the
examination not only to maintain custody of Defendant, but to ensure that
he was receiving the required medical attention, and to guarantee the
safety of the medical personnel. Because Defendant himself sought the
examination, the deputy’s presence furthered the interests of the patient
by allowing the examination to take place even though he was in custody
as an arrestee. The court also found that the statement made by
Defendant to the psychotherapist was a confidential communication
within the definition of section 90.503 of the Florida Statutes, and that the
statement was not intended to be disclosed to anyone beyond the doctor
or the deputy, whose presence helped facilitate the examination. After the
hearing, the trial court granted Defendant’s motion to exclude the
statement, finding it was privileged under section 90.503, not waived by
the deputy’s presence, and not the product of a custodial interrogation.
This appeal followed.1

1 Florida Rule of Appellate Procedure 9.140(c)(1)(B) permits a State appeal from
an order “suppressing before trial confessions, admissions, or evidence obtained
by search and seizure.” In this case, the State has challenged an evidentiary
ruling after Defendant moved to suppress the statement as privileged under
section 90.503, Florida Statutes. Although this was not a “suppression order”
for consideration under the law regarding searches and seizures, rule
9.140(c)(1)(B) has been broadly interpreted as authorizing a State appeal from a
pretrial order “excluding” an admission under the evidence code. See State v.
Brea, 530 So. 2d 924 (Fla. 1988) (State appeal from a pretrial order excluding a
co-conspirator statement was authorized because it was a type of “admission”);
State v. Gad, 27 So. 3d 768 (Fla. 2d DCA 2010) (State appeal from an order
excluding the defendant’s apology as irrelevant and unduly prejudicial was
authorized).
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    Although the general rule is that testimony of a third party who
overhears a confidential communication is admissible, Proffitt v. State, 315
So. 2d 461, 464 (Fla. 1975), the presence of a third party witness to a
statement made by a patient to a psychotherapist does not automatically
waive the privilege. In fact, the plain wording of the statute clearly
anticipates that the presence of third parties may be necessary to
effectuate communication in the context of a therapeutic encounter, or to
otherwise further the patient’s interests.2 Section 90.503(1)(c)1.-3.,
Florida Statutes (2012), provides:

          (1)(c) A communication between psychotherapist and
       patient is “confidential” if it is not intended to be disclosed to
       third persons other than:
          1. Those persons present to further the interest of the
       patient in the consultation, examination, or interview.
          2. Those persons necessary for the transmission of the
       communication.
          3. Those persons who are participating in the diagnosis
       and treatment under the direction of the psychotherapist.

(Emphasis added). Subsection one of the comments to section 90.503
states:

       A communication is “confidential” if made in the interest of
       treatment by the psychotherapist and not intended for general
       dissemination.      The same considerations affecting
       confidentiality in the lawyer-client privilege apply. This
       subsection allows the psychotherapist to enlist the assistance
       of persons necessary for adequate treatment without
       destroying the concept of confidentiality.[3]

2
  Similar language regarding the confidentiality of communications made in the
presence of certain third parties can be found in many of the Florida privileges,
i.e., lawyer-client privilege (§ 90.502(1)(c)1., 2.), sexual assault counselor-victim
(§ 90.5035(1)(e)1., 2., 3.), domestic violence advocate-victim (§ 90.5036(1)(d)1.,
2.), clergy (§ 90.505(1)(b)), and accountant-client (§ 90.5055(1)(c)1., 2.). Such
language is missing from the provisions of both the journalist’s privilege
(§ 90.5015) and the spousal privilege (§ 90.504).

3
 In analyzing the breadth of the privilege and scope of the waiver, courts have
often analogized the psychotherapist-patient privilege to the attorney-client
privilege. The Supreme Court, in Jaffee v. Redmond, 518 U.S. 1, 10 (1996),
justified the psychotherapist-patient privilege in terms parallel to those used for
the attorney-client privilege noting that, “[l]ike the spousal and attorney-client
privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need
for confidence and trust.’” “Effective psychotherapy,” the court explained,
“depends upon an atmosphere of confidence and trust in which the patient is
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   To determine whether the presence of a third party destroys the
privilege, a court must consider whether, in light of all the surrounding
circumstances and particularly the occasion for the presence of the third
person, the communication was intended to be confidential and complied
with the other provisions of the statute. For the privilege to have meaning,
it must necessarily extend to such individuals whose physical presence,
along with the therapist and patient, are required for providing mental
health treatment. Under the circumstances presented here, the deputy’s
presence during the examination was necessary “for the transmission of
the communication” under section 90.503(1)(c)2. See, e.g., Gerheiser v.
Stephens, 712 So. 2d 1252, 1254 (Fla. 4th DCA 1998). Defendant’s
statements were required for diagnosis and treatment because the
examination was psychiatric in nature and sought to ascertain
Defendant’s psychological condition.        As such, Defendant had a
reasonable expectation of confidentiality in the communication. Because
the communication between Defendant and the psychotherapist could not
have reasonably occurred without the officer’s involvement and physical
proximity, the deputy was a necessary intermediary in Defendant’s mental
health care.

    This court has found in other cases that the presence of third parties
does not automatically waive the privilege in the context of attorney-client
discussions, even where the involvement of third parties was by the choice
of a party and not through some form of coercion. See Witte v. Witte, 126
So. 3d 1076, 1078 (Fla. 4th DCA 2012) (the “presence of a close family
member does not, in and of itself, waive the attorney-client privilege,” and
“cannot be determined as a matter of law based on the percentage of time
a third party was present.”); see also RC/PB, Inc. v. Ritz-Carlton Hotel Co.,

willing to make a frank and complete disclosure of facts, emotions, memories,
and fears.” Id.; see also Segarra v. Segarra, 932 So. 2d 1159, 1160 (Fla. 3d DCA
2006) (citing Redding v. Va. Mason Med. Ctr., 75 Wash. App. 424, 878 P.2d 483
(1994), and Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (1981)); Koch v.
Cox, 489 F.3d 384, 390 (D.C. Cir. 2007) (recognizing that the Jaffee Court closely
analogized the attorney-client privilege to the psychotherapist-patient privilege
and held them to be substantially similar); In re Grand Jury Proceedings (Gregory
P. Violette), 183 F.3d 71, 76 (1st Cir. 1999) (“The Jaffee Court justified the
psychotherapist-patient privilege in terms parallel to those used for the attorney-
client privilege.”); Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal. 2003) (“In
Jaffee, the Supreme Court repeatedly analogized the psychotherapist-patient
privilege to the attorney-client privilege. There is good reason, therefore, to treat
the two privileges similarly”); Santelli v. Electro–Motive, 188 F.R.D. 306, 309 (N.D.
Ill.1999) (citing Jaffee, 518 U.S. at 10) (noting that the Supreme Court in Jaffee
found the attorney-client privilege “to be analogous to the psychotherapist-
patient privilege”); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D. Mass.
1997) (recognizing the close analogy the Jaffee Court made between the attorney-
client privilege and the psychotherapist-patient privilege).
                                         4
132 So. 3d 325, 326-27 (Fla. 4th DCA 2014) (addressing the role of third
persons in attorney-client communications where the client is a
corporation); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence § 504.08[3] (Joseph M. McLaughlin, 2d ed. 2006)
(presence of a parent during communications between a psychotherapist
and a minor child will not ordinarily prevent the privilege from attaching).

   While the psychotherapist-patient privilege, like any privilege, can be
expressly waived, McKinlay v. McKinlay, 648 So. 2d 806, 810 (Fla. 1st DCA
1995), such a waiver can be implied from any conduct or disclosure that
is inconsistent with the maintenance of the privilege. Generally,
communications made in the presence of third parties, whose presence is
known to the defendant, are not privileged from disclosure. For example,
the voluntary, known presence of an unnecessary third party who can
overhear a conversation has been found to be a manifestation of intent to
make a non-confidential communication. See Proffitt, 315 So. 2d at 464-
65 (spousal privilege waived where husband and wife knew or should have
known their loud conversation would be overheard by a nearby third
party). Therefore, in considering whether a patient’s communication with
his or her therapist in the presence of a third party is privileged, the critical
factor to be considered is whether the communication was made by the
patient to a psychotherapist, or his or her agent, for the purpose of
obtaining either diagnosis or treatment from the therapist, and with the
reasonable expectation by the patient that the statement is being made in
confidence. § 90.507, Fla. Stat. (2012).

    Here, the presence of the deputy during the mental health examination
was not voluntary. By all accounts his presence in the room was
mandatory, and was neither optional nor subject to being declined by
Defendant. Defendant’s ability to be examined and treated by the
psychotherapist at the hospital was conditioned on the fact that law
enforcement remain within the room at all times. Defendant did not have
the option or ability to request a private session with the doctor. Where
the presence of a third party who overheard the statements is required and
involuntary, the privilege cannot be said to have been waived by the
officer’s presence.     To find a waiver of the privilege under these
circumstances would contradict the underlying purpose of privileged
communications: “to protect confidential communications between the
parties and to encourage people seeking treatment or advice to speak freely
on all matters.” Segarra, 932 So. 2d at 1160. Such “confidentiality is
essential to the conduct of successful psychiatric care.” Attorney ad Litem
for D.K. v. Parents of D.K., 780 So. 2d 301, 306 (Fla. 4th DCA 2001)(citation
omitted).

   Admitting this statement into evidence over objection would effectively

                                       5
mean that an individual in custody must forego his right against self-
incrimination to obtain necessary medical diagnosis and treatment.
Requiring the relinquishment of this constitutional right as a condition of
medical diagnosis and treatment for persons placed under arrest or
otherwise in custody would be unconscionable. If the privilege were to be
nullified by the mere presence of a law enforcement officer, confidential
conversations between psychotherapists and their patients would surely
be chilled, particularly when it is obvious that the circumstances giving
rise to the need for treatment will probably result in prosecution or
litigation. Given these facts, a person in Defendant’s position might not
receive appropriate treatment, knowing they risked losing their
confidentiality by answering questions posed to them by their
psychotherapist. The result of adopting the State’s argument would be an
increased risk that troubled individuals might avoid treatment that would
otherwise help them better manage their behavior. This court rejects that
position.

   Therefore, the trial court’s order excluding Defendant’s statements to
his psychotherapist is affirmed.

   Affirmed.

TAYLOR and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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