Opinion
NO. 2018-CA-001148-MR
06-14-2019
TAMMY L. DOWDY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert L. Prince Benton, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE JAMES T. JAMESON, JUDGE
ACTION NO. 17-CR-00147 OPINION
AFFIRMING
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BEFORE: DIXON, SPALDING, AND TAYLOR, JUDGES. DIXON, JUDGE: Tammy Dowdy appeals from the Calloway Circuit Court's judgment and sentence following her conditional guilty plea. After a careful review of the record, we affirm.
On March 5, 2017, Deputy Adam Doss responded to a two-car collision, encountering two injured motorists, as well as a witness to the accident. The driver of the first vehicle, Dowdy, was singing while lying on a spine board with a large hematoma protruding from her forehead. Dowdy appeared to be under the influence of alcohol or another substance and had extremely slurred speech, glassy eyes, and no recollection of the collision. The driver of the second vehicle, Claudia Brock, was very alert and knowledgeable of the collision, despite having what appeared to be an open fracture of her leg. Dowdy and Brock were transported via ambulance to a local hospital for treatment of their injuries. Officer Doss interviewed the witness to the accident who had observed Dowdy driving erratically and operating her vehicle into oncoming traffic prior to the collision.
Officer Doss filed an affidavit for search warrant to obtain "Certified Records of any and all Medical Records and Test Performed, Waiver of Rights, Forms, or Consent Forms starting from March 5th, 2017 on Tammy L. Dowdy" from the hospital to which she was transported following the accident. The affidavit recounted the details above and stated that Deputy Doss deemed there to be probable and reasonable cause to believe that Dowdy's medical records contained evidence that a crime had been committed. Certified medical records revealed a blood alcohol content ("BAC") of 0.206 after Dowdy was admitted to the hospital following the accident. Officer Doss filed a criminal complaint against Dowdy in district court requesting an arrest warrant for the charges of first-degree wanton endangerment and operating a motor vehicle under the influence of alcohol, with aggravating circumstances, first offense, which was later amended to reflect it was a second offense. A corresponding citation was issued.
Kentucky Revised Statutes (KRS) 508.060, a Class D felony.
The case was transferred to circuit court after the Commonwealth filed its information pursuant to RCr 6.02. The Commonwealth charged Dowdy with second degree assault and operating a motor vehicle under the influence of alcohol, with aggravating circumstances, second offense.
Kentucky Rules of Criminal Procedure.
KRS 508.020, a Class C felony.
Dowdy moved to suppress her medical records obtained via search warrant. She did not dispute the facts contained within the search warrant affidavit or the authenticity of the medical records produced; rather, she asserted that the warrant was neither based on probable cause nor sufficiently particular, and that it was also an improper means by which to obtain certified medical records. After hearing the parties' legal arguments, the circuit court denied Dowdy's suppression motion.
Dowdy ultimately moved the circuit court to enter her conditional guilty plea, reserving her right to appeal the denial of her suppression motion. The circuit court entered its order of judgment and sentence on Dowdy's conditional guilty plea. This appeal followed.
On appeal, Dowdy raises two issues concerning the search warrant: (1) it failed to specify with particularity a specific offense or the specific matters sought in the medical records, and (2) it sought certified medical records. We will address each issue, in turn.
The standard of review of a trial court's denial of a motion to suppress is twofold: "First, the trial court's findings of facts are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citing Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr 9.78)). The parties stipulated to the findings of fact; therefore, our review is solely of the legal conclusions and is de novo.
The Fourth Amendment of the U.S. Constitution and Section 10 of the Kentucky Constitution mandate that no warrant shall be issued without probable cause. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The law is clear: "the Fourth Amendment's requirement of probable cause for the issuance of a search warrant is to be applied, not according to a fixed and rigid formula, but rather in light of the 'totality of the circumstances' made known to the magistrate." Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). That is the only standard for reviewing the issuance of a search warrant. See Commonwealth v. Pride, 302 S.W.3d 43, 47 (Ky. 2010) (stating that "the standard for reviewing the issuance of a search warrant is provided by Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).]").Abney v. Commonwealth, 483 S.W.3d 364, 369 (Ky. 2016).
Our review of a search warrant must give great deference to the warrant-issuing judge's findings of probable cause and should not be reversed unless arbitrarily exercised. Courts should review the sufficiency of an affidavit underlying a search warrant in a commonsense, rather than hypertechnical, manner. The traditional standard for reviewing an issuing judge's finding of probable cause has been that so long as the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of wrongdoing, the Fourth Amendment requires no more.Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005) (internal citations omitted).
Whether probable cause exists is determined by examining the totality of the circumstances. Furthermore, the test for probable cause is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Probable cause does not require certainty that a crime has been committed or that evidence will be present in the place to be searched.
In the instant case, the search warrant affidavit clearly contains sufficient facts to support a finding of probable cause. There is an evident substantial basis, under the totality of the circumstances, to believe that the search of Dowdy's medical records would produce evidence of her wrongdoing.
Nonetheless, Dowdy asserts a valid search warrant must state with particularity a specific crime as well as the specific evidence sought in relation to that crime. However, it is well-established:
the object of an affidavit for a search warrant is not to charge all of the elements or prerequisites of a given offense. It is intended merely to supply written evidence of facts which are such that a reasonably discreet and prudent person would have probable cause for believing that an offense has been committed and evidence material to a prosecution of the offense might be obtained under the search[.]Commonwealth, for Use and Benefit of City of Paintsville v. Melvin, 256 S.W.2d 513 (Ky. 1953) (citing Prater v. Commonwealth, 216 Ky. 451, 287 S.W. 951 (Ky. 1926)). The search warrant and its affidavit in the case at hand set forth the source of Deputy Doss's "belief as to the essential facts that an offense had been committed and that evidence material to a prosecution of the offense might be obtained under the search. It was not necessary that the affidavit set forth every element of the offense." Jones v. Commonwealth, 416 S.W.2d 342, 343-44 (Ky. 1967) (citations omitted). Given the totality of the circumstances, a reasonable person reading the warrant and its affidavit could conclude that Dowdy was driving under the influence and that her medical records would reveal the cause of her impairment.
In its order denying Dowdy's suppression motion, the trial court:
concludes the warrant sufficiently described the place to be searched and the things to be seized in compliance with the Rawls [v. Commonwealth, 434 S.W.3d 48 (Ky. 2014)] case. The search warrant asked for certified medical records from the Murray-Calloway County Hospital dated March 5, 2017, which is the same date Defendant was admitted to the hospital relating to the matter sub judice. Furthermore, under the aforementioned standard, it is unnecessary to name the charged offense or what the officers were seeking within the medical records so long as the certified medical records were named in the search warrant. In this search warrant, the certified medical records were properly named/identified.We find no error in the trial court's findings of facts or conclusions of law.
Lastly, the Court concludes the search warrant is supported by probable cause under a totality of the circumstances as cited above in [Minks v. Commonwealth, 427 S.W.3d 802 (Ky. 2014)]. The Court finds support for this conclusion within the four-corners of the search warrant affidavit, which states: (1) on March 5, 2017, Deputy Doss arrived at a two-vehicle collision in which the Defendant operated one of the vehicles, (2) the Defendant was transported to the Murray-Calloway County Hospital, (3) Defendant had slurred speech, glassy eyes, and no recollection of the collision, and (4) a witness saw Defendant's vehicle driving in the oncoming lane of traffic prior to the vehicle collision.
The second issue Dowdy raises concerns disclosure of her medical records, which she contends are protected under the privacy rules of the Health Insurance Portability and Accountability Act ("HIPAA"). However, 45 C.F.R. 164.512 allows for disclosure of medical records in certain situations, stating, in pertinent part:
Code of Federal Regulations.
(f) Standard: Disclosures for law enforcement purposes. A covered entity may disclose protected health information for a law enforcement purpose to a law enforcement official if the conditions in paragraphs (f)(1) through (f)(6) of this section are met, as applicable.
(1) Permitted disclosures: Pursuant to process and as otherwise required by law. A covered entity may disclose protected health information:
(i) As required by law including laws that require the reporting of certain types of wounds or other physical injuries, except for laws subject to paragraph (b)(1)(ii) or (c)(1)(i) of this section; or
(ii) In compliance with and as limited by the relevant requirements of:
Moreover, "where access to protected health information is granted after review by an independent judicial officer (such as a court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer), no further requirements are necessary." 65 Fed. Reg. 82462, 82680 (2000). Thus, the production of Dowdy's medical records pursuant to the valid warrant was undoubtedly permissible.(A) A court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer[.]
Furthermore, another panel of our court supports this conclusion. Therein, the court held that the Commonwealth has the "right to obtain evidence in the form of medical records that are in the possession of a hospital after a defendant's blood sample has been taken voluntarily in the course of medical treatment." Armstrong v. Commonwealth, 205 S.W.3d 230, 234 (Ky. App. 2006). In Armstrong, a driver was found passed out in his vehicle but refused to give a blood sample to law enforcement; however, he was later treated at a hospital where he consented to giving a blood sample. The Commonwealth sought to obtain the driver's medical records, which revealed his elevated BAC on admission shortly after being found in his car. While the panel declined "to hold that courts should order the discovery of medical records in all cases and under all circumstances, it is clear that in this case the circumstances entitle[d] the Commonwealth to obtain the records." Id. The case before us, which is similar in many respects to Armstrong, is also one where the Commonwealth is clearly entitled to the records sought via warrant.
Dowdy nonetheless contends that the warrant should not have commanded production of her certified medical records because KRS 422.305 requires certification pursuant to subpoena. In her brief, Dowdy states, "[t]here is no other provision in the law which permits a party to obtain certified hospital records." This statement discounts KRS 422.300 through KRS 422.320 taken together in their whole context. KRS 422.300 provides, in pertinent part:
[m]edical charts or records of any hospital licensed under either KRS 216B.105 or a similar law of another state or the United States that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony, by use of legible and durable copies, certified in the manner provided herein by the employee of the hospital charged with the responsibility of being custodian of the originals thereof.(Emphasis added). KRS 422.305 discusses the procedure for certification of records. While its instruction is stated in the context of how the records custodian should certify records after receiving a subpoena, nowhere does it state that certification may only be provided pursuant to a subpoena. KRS 422.325, titled "Proper procedure for obtaining records required," provides, in part, "[n]o sanction or remedy for contempt shall be applied against any such person or institution unless a subpoena or order expressly commanding the person's presence has been issued by authority of the court or other body." We, here, note that the process for obtaining a warrant has more built-in procedural safeguards—requiring probable cause to be issued—than a subpoena. Thus, we cannot say commanding production of Dowdy's certified medical records via warrant rather than subpoena was error. Nevertheless, even if it was error, RCr 9.24 provides:
[n]o error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.Dowdy failed to show that the warrant violated her constitutional or HIPAA right to privacy; therefore, any error in obtaining her certified medical records via warrant, as opposed to subpoena, was harmless.
For the foregoing reasons, the judgment of the Calloway Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Robert L. Prince
Benton, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky