Doctor Shopping and Unlawful Police Investigation

Posted on August 13, 2011 by Ron Chapman

           The facts in the case of the State of Florida versus Jeffrey Singming Sun are as follows:

 

          "A deputy arrested Jeffrey Sun's brother for driving under the influence. In the car, the deputy found a notebook. Seeing that the notebook contained information on different pharmacies and dollar amounts, the deputy suspected doctor shopping. This suspicion led him to turn the notebook over to Detective Eric Keith. Detective Keith inspected the notebook and started an investigation that brought him to a CVS pharmacy in Juno Beach. There, Detective Keith sought the brother's prescription history. The pharmacist helpfully pointed out that the brother had a twin, Sun, and gave Detective Keith patient profiles for both men. Visiting several other area pharmacies, Detective Keith obtained Sun's patient profile from each, all without a [search] warrant or a subpoena.

 

          The investigation shifted into its next phase. Detective Keith compared all of Sun's patient profiles to determine whether Sun had gotten the same or similar medications from two or more physicians within a thirty-day period. Sun had. Detective Keith proceeded to contact the three prescribing physicians. He asked each if they had a patient in their care with Sun's name and birth date, and each said yes. When asked, each doctor denied knowing Sun had been seeing other doctors who had been giving him the same or similar prescriptions. They provided written statements to that effect and handed over Sun's signed patient contracts. In his [report], Detective Keith noted '[the doctors] did not disclose the nature of any of Sun's underlying health condition(s) that [necessitated] issuance of the prescriptions.'  As with the pharmacy records, Detective Keith had neither a warrant nor a subpoena for these items."

 

          As a result of the detective's investigation, the Office of the State Attorney charged Mr. Sun with trafficking in oxycodone and withholding information from a doctor in order to obtain a prescription for a controlled substance when the person has obtained the same or similar prescription from another doctor within the past 30 days (more commonly known as doctor shopping).
 
          
          Mr. Sun's case eventually reached Florida's Fourth District Court of Appeal which decided the following four issues:
 
 
           1.  Whether Sun's patient contracts were protected from examination by Detective Keith because of Sun's right to privacy in his medical records;
 
 
          2.  Whether the doctors' statements to Detective Keith about Sun violated the doctor-patient privilege that Sun had with his doctors;
 
 
          3.  Whether the trial judge was correct when he suppressed Sun's patient contracts and the doctors' statements to Detective Keith about Sun; and
 
 
          4.  Whether the trial judge should have suppressed the pharmacy records that the detective obtained without a search warrant or subpoena.
 
 
          Regarding the first issue, the appellate court ruled that Florida law requires the police to obtain a subpoena after providing notice to a patient before they may seize a patient's medical records.  Because Detective Keith did not obtain a subpoena in this case, it was unlawful for him to seize Sun's medical records.
 
 
          Regarding the second issue, the appellate court likewise ruled that Florida law requires the police to obtain a subpoena before they are allowed to elicit confidential information from a patient's doctor.  Because the detective did not obtain such a subpoena in this case, it was unlawful for him to elicit such information from Sun's doctors.
 
 
          Regarding the third issue, the appellate court ruled that the trial judge was correct to suppress Sun's patient contracts as well as the doctors' statements to Detective Keith about Sun because "suppression is the only remedy to sanction [Detective Keith's] misconduct and deter similar misconduct. . . .  Without court intervention and review as mandated by statute, countless innocent patient records are subject to examination and review by well-meaning but misguided law enforcement officials."
 
 
          Regarding the last issue, the appellate court stated that Florida law does authorize law-enforcement officers to obtain patient pharmacy records without first acquiring a search warrant or subpoena.  Therefore, it was lawful for Detective Keith to seize Sun's pharmacy records in this case.
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Florida Drug Law Declared Unconstitutional

Posted on August 7, 2011 by Ron Chapman

           In the case Mackle Vincent Shelton versus the Secretary of the Florida Department of Corrections, United States District Judge Mary Scriven ruled that one of Florida's drug laws is unconstitutional because:

 

          1.  It does not require prosecutors to prove that someone accused of violating that law knew that the controlled substance he had in his possession was illegal; and

 

          2.  It is a strict-liability crime which does not meet the constitutional requirements necessary for such a crime.

 

          Regarding point number 1, it is generally the case in the United States that someone cannot be convicted of a crime unless he knows that what he was doing was illegal when he did it.  However, in 2002 the Florida Legislature passed a law which eliminated the requirement that someone charged with possessing an illegal controlled substance know that the substance in his possession is illegal.  Thus, if a college student in Florida were, for example, to put some cocaine into another student's book bag, that other student could be convicted of possessing cocaine even though he did not know that it was cocaine that had been put into his bag.

 

          Regarding point number 2, a strict-liability crime is one for which someone can be convicted even though she is ignorant of the fact that what she is doing is illegal when she is doing it.  But in order for a strict-liability crime to be constitutional, it must meet each of the following three requirements:

 

          a.  The penalty imposed must be slight;

 

          b.  A conviction does not result in substantial social stigma; and

 

          c.  Such a law must regulate inherently dangerous conduct.

 

          Regarding point "a," the penalty for violating Florida's drug law is not slight.  For example, someone convicted of delivering a controlled substance could be sentenced to up to 15 years in prison.

 

          Regarding point "b," Judge Scriven stated that "[t]he label of 'convicted felon' combined with a proclamation that the defendant is so vile that he must be separated from society for fifteen to thirty years, creates irreparable damage to the defendant's reputation and standing in the community.  This social stigma precludes, for example, the ability of a convicted felon to reside in any neighborhood of his choosing or to obtain certain employment."

 

          Regarding point "c," Judge Scriven observed that "there is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances:  carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation . . . .  Under Florida's statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer's knowledge or intent."

 

          Based upon the ruling in the Shelton case, criminal-defense lawyers throughout Florida are already filing motions asking judges to declare Florida's drug laws unconstitutional.

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Licensed to practice in Florida