State v. Carter, 23 So. 3d 798 (Fla. 1st DCA 2009). · Go Syfert
State v. Carter, 23 So. 3d 798 (Fla. 1st DCA 2009). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 2 distinct courts.
Strongest positive: Commonwealth v. Williams (pasuperct, 2017-12-08)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
cited Cited as authority (rule) Commonwealth v. Williams
Pa. Super. Ct. · 2017 · confidence medium
Tex. 2006); State v. Carter, 23 So.3d 798, 800-801 (Fla. Ct App. 2009); State v. Yenzer, 40 Kan.
discussed Cited as authority (rule) State of Florida v. Strickling
Fla. Dist. Ct. App. · 2015 · confidence medium
In State v. Carter, 23 So.3d 798, 801 (Fla. 1st DCA 2009), the court observed: Even where evidence is disclosed by a covered entity in violation of HIPAA standards, suppression of the records is not provided for by HIPAA and is thus not a proper remedy.
discussed Cited as authority (rule) Gore v. State (2×)
Fla. Dist. Ct. App. · 2011 · confidence medium
The First and Second District Courts of Appeal, in State v. Carter, 23 So.3d 798, 800 (Fla. 1st DCA 2009), and Gettel v. State, 449 So.2d 413, 414 (Fla. 2d DCA 1984), both have held that Section 893.07(4), Florida Statutes (2008) authorizes police to search pharmacy records without a warrant.
discussed Cited as authority (rule) State v. Thompson
Fla. Dist. Ct. App. · 2011 · confidence medium
In Tamulonis , this court adopted the First District’s conclusion in State v. Carter, 23 So.3d 798, 800 (Fla. 1st DCA 2009), that section 893.07 “ ‘does not require a subpoena, warrant, or prior notice to the patient.’ ” 39 So.2d at 527.
cited Cited as authority (rule) State v. Albritton
Fla. Dist. Ct. App. · 2011 · confidence medium
Tamulonis, 39 So.3d at 527-28 ; 1 see State v. Carter, 23 So.3d 798, 799 (Fla. 1st DCA 2009).
discussed Cited as authority (rule) State v. Herc
Fla. Dist. Ct. App. · 2011 · confidence medium
On appeal, the Hercs concede that the trial court did not have the benefit of several recent cases directly on point including State v. Tamulonis, 89 So.3d 524, 528 (Fla. 2d DCA 2010), and State v. Carter, 23 So.3d 798, 799 (Fla. 1st DCA 2009), which held that pursuant to section 893.07(4), Florida Statutes, law enforcement officers may obtain controlled substance records of pharmacies without notifying the patient or obtaining a warrant.
discussed Cited as authority (rule) State v. Shukitis
Fla. Dist. Ct. App. · 2010 · confidence medium
In so concluding, this court adopted the following reasoning of the First District in State v. Carter, 23 So.3d 798, 800 (Fla. 1st DCA 2009): The statute does not require a subpoena, warrant, or prior notice to the patient. ... ...
cited Cited "see" Biggs v. State
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009).
cited Cited "see" Biggs v. State
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009).
discussed Cited "see" State v. Wright
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009); State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010); State v. Yutzy, 43 So.3d 910 (Fla. 2d DCA 2010); Hendley v. State, 58 So.3d 296 (Fla. 2d DCA 2011).
cited Cited "see" State v. Fernandez
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009).
Retrieving the full opinion text from the archive…
STATE of Florida, Appellant,
v.
Cathy L. CARTER, Appellee
1D09-702.
District Court of Appeal of Florida, First District.
Nov 30, 2009.
23 So. 3d 798
Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellant., Jeremy Keich, Ramey & Bytel Attorneys, LLC, DeFuniak Springs, for Appel-lee.
Clark, Wolf, Webster.
Cited by 18 opinions  |  Published
CLARK, J.

The State appeals the suppression of evidence obtained from a pharmacy by an investigating law enforcement officer. Because section 893.07(4), Florida Statutes, requires pharmacies to make controlled substance records available to law enforcement officers, and does not require pharmacies to notify the patient or withhold such records until a warrant is presented, the order granting the motion to suppress is reversed.

[*800] The police investigator obtained the records at issue while investigating a suspected “doctor shopping” violation. See § 893.13(7)(a)8., Fla. Stat. The pharmacy provided the records to the investigator pursuant to section 893.07(4), Florida Statutes. In both her motion to suppress and this appeal, Appellee asserted that the warrantless seizure of her prescription records violated her constitutional rights to privacy and to due process. She further argued that her pharmacy records could not legally be transmitted to law enforcement officers unless she was provided prior notice and the opportunity to consent or be heard. The trial court granted Appellee’s motion to suppress.

While a trial court’s ruling on a motion to suppress is accorded great deference on appeal, the suppression order on review is an erroneous application of the law. The facts surrounding the pharmacy records are not at issue. The application of the law to the facts is subject to this court’s de novo review. See Brye v. State, 927 So.2d 78 (Fla. 1st DCA 2006).

Florida legislative enactments do not supply a legal basis upon which to suppress the records at issue. To the contrary, section 893.07(4), Florida Statutes, requires pharmacies to maintain the records at issue here for a period of 2 years “for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” The statute does not require a subpoena, warrant, or prior notice to the patient. The enactment of section 893.07 was an extension of war-rantless search and seizure power by the Legislature “as part of a major legislative revision of the Florida drug abuse laws.” Gettel v. State, 449 So.2d 413, 414 (Fla. 2d DCA 1984).

Section 465.017(2)(a), Florida Statutes, specifically addresses the release of controlled substance records maintained by a pharmacy. Release of such records to persons other than the patient is prohibited, “[ejxcept as permitted by” chapter 893, Florida Statutes. § 465.017(2)(a), Fla. Stat. The records at issue were obtained pursuant to chapter 893, Florida Statutes. If the Legislature intended to require pharmacies to notify patients in connection with section 893.07, the Legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities. See § 395.3025, Fla. Stat. (hospitals); §§ 400.0077 & 400.022(l)(m), Fla. Stat. (nursing homes); and § 456.057(7), Fla. Stat. (physicians). The cases advanced by Appellee, pertaining to the procedures for a hospital’s disclosure of medical records governed by section 395.3025, Florida Statutes, do not apply to the pharmacy records at issue in this appeal.

The federal Health Insurance Portability and Accountability Act (“HIPAA”) does not constitute a legal basis for suppression of the records at issue. HIPAA addresses privacy in “protected health information” by regulating the release of such information by specified “covered entities:” health plans, health care clearinghouses, and certain health care providers. 45 C.F.R. § 160.103; see also 42 U.S.C. § 1320d. “Covered entities” do not include law enforcement officers or prosecutors, and the conduct of these officials is not governed by HIPAA. See 45 C.F.R. §§ 160.102(a), 160.104(a); State v. Straehler, 307 Wis.2d 360, 745 N.W.2d 431 (2007) (HIPAA standards not applicable to police officers); State v. Downs, 923 So.2d 726 (La.App. 1st Cir.2005) (HIPAA standards not applicable to district attorney).

Even if HIPAA applied to determine whether the “property was illegally seized without a warrant,” pursuant to rule[*801] 3.190, Florida Rules of Criminal Procedure, no violation of HIPAA appears in the record on appeal. Among the permitted disclosures are “as otherwise required by law” or “[i]n compliance with ... an authorized investigative demand.” 45 C.F.R. § 164.512(f)(1) & (f)(l)(ii)(C). “Required by law” is defined as “a mandate contained in law that compels an entity to make a use or disclosure of protected health information and that is enforceable in a court of law.” 45 C.F.R. § 164.103. Statutes requiring the production of information are included in the definition of “required by law.” Id. Section 893.07, Florida Statutes, is Florida’s statute that requires pharmacies to produce, for inspection and copying by law enforcement officers, records of controlled substances sold and dispensed. Thus, a pharmacy’s provision of records to investigating police officers in compliance with section 893.07, Florida Statutes, also comports with HIPAA.

Even where evidence is disclosed by a covered entity in violation of HIPAA standards, suppression of the records is not provided for by HIPAA and is thus not a proper remedy. State v. Mubita, 145 Idaho 925, 188 P.3d 867, 878 (2008); State v. Straehler, 307 Wis.2d 360, 745 N.W.2d 431 (2007). Fines and imprisonment, not suppression of evidence, are the remedies expressed in the Act for violations of the disclosure standards by a covered entity. 42 U.S.C. §§ 1320d-5, 1320d-6. Exclusion of evidence is proper only where the statute violated provides for such exclusion, or where a constitutional violation has occurred. See generally Jenkins v. State, 978 So.2d 116 (Fla.2008). As stated in U.S. v. Zamora, 408 F.Supp.2d 295, 298 (S.D.Tex.2006), “HIPAA was passed to ensure an individual’s right to privacy over medical records, it was not intended to be a means for evading prosecution in criminal proceedings.” See also State v. Eich-horst, 879 N.E.2d 1144 (Ind.Ct.App.2008); State v. Yenzer, 40 Kan.App.2d 710, 195 P.3d 271 (2008).

Finally, article I, section 23 of the Florida Constitution does not support the suppression order on appeal. Patients’ right to privacy in their medical records is not absolute. Such privacy rights “will yield to compelling government interests” and “the control and prosecution of criminal activity is a compelling state interest.” State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Regulation of the sale and distribution of dangerous drugs has been -recognized as a “vital interest” of the state. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Other jurisdictions with statutes similar to section 893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have “a limited expectation of privacy in pharmacy records.” Murphy v. State, 115 Wash.App. 297, 62 P.3d 533, 539 (2003); see also State v. Russo, 259 Conn. 436, 790 A.2d 1132 (2002) (warrantless seizure of pharmacy records valid due to statutory provision for same); State v. Welch, 160 Vt. 70, 624 A.2d 1105 (1992) (warrantless survey of pharmacy records authorized by statute). In an appeal of administrative proceedings against a licensed oral surgeon for improperly prescribing controlled substances, Florida’s Third District Court of Appeal held that the surgeon “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy” and was thus precluded from challenging the warrantless search of the pharmacy’s records. Cushing v. Dep’t of Prof'l Regulation, 416 So.2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to § 893.07(4), Fla. Stat.). In Cushing, the Court concluded: “we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary[*802] issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980).” Id.

Accordingly, the trial court’s ruling that the warrantless seizure of Appellee’s pharmacy records without prior notice to Ap-pellee was unlawful was erroneous. The order suppressing the prescription records is REVERSED and this case REMANDED.

WOLF and WEBSTER, JJ., concur.