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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #025 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 5th day of May, 2009, are as follows:

BY KNOLL, J.:

2008-KK-2522

STATE OF LOUISIANA v. MIA W. SKINNER (Parish of Natchitoches) (L.R.S. 40:971B(1)(i) - "Doctor Shopping") The judgment of the lower courts are reversed. This case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. REVERSED AND REMANDED.

05/05/09 SUPREME COURT OF LOUISIANA NO. 08-KK-2522

STATE OF LOUISIANA VERSUS MIA W. SKINNER ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF NATCHITOCHES KNOLL, Justice. This criminal case comes to us in a pretrial posture after the lower courts denied the defendant's motion to suppress evidence the State seized purportedly pursuant to a subpoena duces tecum as provided in La. Code Crim. Proc. art. 66. Defendant is charged with violating La. Rev. Stat. 40:971B(1)(i), obtaining a prescription for a controlled dangerous substance from a health care practitioner without disclosing the fact of an existing prescription for a controlled dangerous substance from another health care practitioner, i.e., "doctor shopping". Upon receiving information from law enforcement that the defendant was suspected of obtaining prescriptions for the same drug from numerous doctors, the District Attorney filed a motion and proposed order for production of prescription records and a motion and proposed order for production of medical records, both purportedly under the authority of La. Code Crim. Proc. art. 66. The trial court granted both motions and signed the orders. The defendant sought the suppression of these records for, inter alia, being obtained without a warrant. For the following reasons we reverse the lower courts, finding the defendant had a reasonable expectation of privacy in her medical and prescription records such that a warrant was required for a search and seizure of these records for criminal investigative purposes.

FACTS AND PROCEDURAL HISTORY Detective Jesse Taitano is employed by the Natchitoches City Police Department and is assigned to the Natchitoches Multi-Jurisdictional Drug Task Force (NMJDTF). On November 5, 2007, Det. Taitano was contacted by a pharmacist from Causey's Pharmacy, who informed Det. Taitano that several doctors were giving defendant prescriptions for the same controlled dangerous substance (CDS), namely Alprazalom.1 On November 7, 2007, the pharmacist at Rite-Aid informed Det. Taitano that the defendant was attempting to fill her prescription for Alprazalom twelve days early and that she was receiving prescriptions for this drug from multiple doctors at the hospital emergency room. Based upon this information, on November 8, 2007, the District Attorney, acting under the authority of La. Code Crim. Proc. art. 66 and representing that the NMJDTF was conducting an investigation involving forged prescriptions, moved for an order for eight local pharmacies to deliver to Det. Taitano "all original prescription records in the name of Mia Skinner" from April 1, 2007 through November 8, 2007. The district court issued an order to the eight pharmacies to deliver to Det. Taitano "all original prescription records" of the defendant for the dates requested.2 On November 27, 2007, again acting under the authority of La. Code Crim. Proc. art. 66 and representing that the NMJDTF was conducting a narcotics investigation, the District Attorney sought "any and all medical records" regarding defendant from April 1, 2007 through November 27, 2007 from Natchitoches Regional Medical

Alprazalom is a Schedule IV CDS, pursuant to La. Rev. Stat. 40:964. Alprazalom is the generic form of Xanax. Drug Facts and Comparisons 2009, p. 1306 (2009). The eight pharmacies were Brookshire's Pharmacy, Cade's Pharmacy, Causey's Pharmacy, Gardiner's Pharmacy, Rite-Aid Pharmacy, University Pharmacy, Walgreen's Pharmacy and Wal-Mart Pharmacy. 2
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Center (NRMC). The district court issued an order3 to NRMC to deliver to the District Attorney's office "any and all medical records" regarding the defendant for the dates requested. The District Attorney then filed a Bill of Information charging the defendant with two counts of obtaining a prescription for a CDS classified in Schedule IV (Alprazolam) in violation of "40:971(B)(1)(b)(i)".4 Det. Taitano testified at the preliminary hearing that although the court had issued an order for NRMC to release the defendant's medical records, there were no such records. Det. Taitano apparently did receive the defendant's prescription records in response to the court order. Averring the information was obtained without a medical release pursuant to La. Rev. Stat. 13:3715.1 and without a search warrant, defendant moved to suppress the evidence. The trial court denied the motion. In written reasons, the trial court noted that in response to the District Attorney's motion pursuant to La. Code Crim. Proc. art. 66, the court issued an order, not a subpoena, and that service was not made by the Sheriff or in compliance with La. Code Crim. Proc. art. 734. The court

La. Code Crim. Proc. art. 66 provides that upon written motion of the attorney general or district attorney, the court may order the clerk to issue subpoenas or subpoenas duces tecum, which are then to be served by any commissioned investigator from the attorney general's office or in conformity with La. Code Crim. Proc. art. 734. In this matter before us, no subpoenas duces tecum were issued by the clerk. Rather, the court merely issued an order for the pharmacies to deliver the records to Det. Taitano and an order for NRMC to deliver the records to the District Attorney's office. Although the correct procedure was not followed, this is of no moment for our disposition of this case, because we find merit in defendant's argument that it was error to search and seize the evidence without a warrant. We note that subparagraphs (B)(1)(b) and (B)(1)(i) constitute different offenses. Subparagraph (B)(1)(b) prohibits acquiring or obtaining possession of a CDS by misrepresentation, fraud, forgery, deception or subterfuge. Subparagraph (B)(1)(i) prohibits obtaining or seeking to obtain a CDS or a prescription for a CDS from a health care practitioner, while being supplied with any CDS or a prescription for any CDS by another health care practitioner, without disclosing the fact of the existing prescription to the practitioner from whom the subsequent prescription is sought, more commonly called "doctor shopping". It is unclear from this Bill of Information if defendant is charged with violating both of these subparagraphs; however, for purposes of this opinion that is not relevant. The affidavit filed for the arrest warrant, the transcript of the preliminary examination, and the State's brief filed with this Court all indicate the State was prosecuting the defendant for violating La. Rev. Stat. 40:971B(1)(i), i.e., "doctor shopping". 3
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additionally observed that the provisions of La. Rev. Stat. 13:3715.1 were not followed in that the pharmacies were not given affidavits that attested to why the subpoenas were issued, nor was seven days notice given to the defendant prior to obtaining the records.5 The trial court first found the remedy for the obtaining of evidence in violation of La. Rev. Stat. 13:3715.1 was not suppression of the evidence before trial, but that the evidence is inadmissible at trial. The trial court relied upon State v. Downs, 042402 (La. Ct. App. 1 Cir. 9/23/05), 923 So.2d 726, which cited with approval State v. Mullins, 537 So.2d 386 (La. Ct. App. 4 Cir. 1988), wherein that court held that the State could not introduce at trial medical records obtained without following the formalities of La. Rev. Stat. 13:3715.1. The trial court determined that the records obtained by the District Attorney were inadmissible at any trial of the defendant unless a second subpoena was issued that followed the requirements of La. Rev. Stat. 13:3715.1. Moreover, the trial court found the rule expressed in Downs and Mullins is equally applicable to subpoenas obtained not in conformity with La. Code Crim. Proc. art. 66. Although it was clear the clerk of court did not issue the subpoenas as
La. Rev. Stat. 13:3715.1 provides, in relevant part: *** B. The exclusive method by which medical, hospital, or other records relating to a person's medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner: (1) A health care provider shall disclose records of a patient who is a party to litigation pursuant to a subpoena issued in that litigation, whether for purposes of deposition or for trial and whether issued in a civil, criminal, workers' compensation, or other proceeding, but only if: the health care provider has received an affidavit of the party or the party's attorney at whose request the subpoena has been issued that attests to the fact that such subpoena is for the records of a party to the litigation and that notice of the subpoena has been mailed by registered or certified mail to the patient whose records are sought, or, if represented, to his counsel of record, at least seven days prior to the issuance of the subpoena; and the subpoena is served on the health care provider at least seven days prior to the date on which the records are to be disclosed, and the health care provider has not received a copy of a petition or motion indicating that the patient has taken legl action to restrain the release of the records. If the requesting party is the patient or, if represented, the attorney for the patient, the affidavit shall state that the patient authorizes the release of the records pursuant to the subpoena. No such subpoena shall be issued by ay clerk unless the required affidavit is included with the request. *** 4
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required by Article 66, the trial court held the remedy is not suppression, but that the evidence is inadmissible at trial unless a valid, conforming subpoena is issued. Finally, the trial court found that State v. Lee, 05-2098, p. 20 (La. 1/16/08), 976 So.2d 109, 125, cert denied, ___ U.S. ___, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008), which held the State could not circumvent the probable cause requirement for a DNA search of the accused by using an Article 66 subpoena, was distinguishable because Lee dealt with a search of the individual defendant while this case concerns a "subpoena [order] directed to third party business entities that were not accused of or under investigation for a crime." The trial court decided that only reasonable grounds for investigative purposes, as provided in Article 66, are required for a "D.A. subpoena", as opposed to the probable cause that is required for a warrant. A divided panel of the court of appeal denied the defendant's writ. However, Judge Roy, pro tempore, vigorously dissented, noting that the protections guaranteed by La. Const. Art. I,

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