State v. Welch
Annotate this Case
STATE_V_WELCH.90-392; 160 Vt. 70; 624 A.2d 1105
[Opinion Filed 30-Oct-1992]
[Motion for Reargument Denied 24-Feb-1993]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 90-392
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit
Judy D. Welch February Term, 1992
Paul F. Hudson, J.
Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
Attorney General, Montpelier, for plaintiff-appellee
E.M. Allen, Defender General, and Anna E. Saxman and William Nelson,
Appellate Defenders, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
GIBSON, J. Defendant Judy Welch appeals orders of the district court
denying two motions to suppress evidence and two motions to dismiss. She
was charged with concealing material facts in obtaining prescriptions for
regulated drugs. 18 V.S.A. { 4223(a)(3) & (h). Defendant argues that her
right to privacy was violated by a warrantless inspection of her prescrip-
tion records at Rutland area pharmacies, that the investigation of her
prescriptions for "doctor shopping" was tainted by confessions she made
after signing an immunity agreement, and that she lacked the requisite mens
rea for the alleged violations. We affirm.
I.
On October 5, 1988, Judy Welch was working as a nurse at the Rutland
Correctional Center (RCC). She was relieved at 2:30 p.m. by nurse Nancy
McDonald, but before leaving for the day Welch went to a neighborhood
pharmacy to pick up a prescription of Vicodan for an inmate. This was
unusual because the pharmacy routinely delivered prescriptions. Later that
afternoon, McDonald discovered that the prescription contained ten Vicodan
tablets instead of the twelve tablets indicated on the label, and that
defendant's prescription-log entry showed that "10-12" tablets had been
ordered. This, too, was unusual because prescriptions are normally ordered
in a definite, not an approximate, amount. Checking with the pharmacy,
McDonald confirmed that the prescription had contained twelve tablets.
Later in the evening, Welch called McDonald at the correctional facility
and asked if "everything was all right," an unusual call for her to make.
McDonald reported these events, including the discrepancy in the pill count,
to RCC Superintendent Michael O'Malley.
O'Malley, who knew that Welch had previously had a drug problem, met
with her on October 7. At O'Malley's behest, Welch telephoned McDonald
after the meeting and admitted that she had taken the two tablets. O'Malley
took no further action regarding the incident. In March 1989, however, an
employee of RCC wrote to the state's attorney alleging drug diversions from
the RCC infirmary, and shortly thereafter, O'Malley received a letter from
the state's attorney inquiring about "potential drug abuse" at RCC.
O'Malley assigned Assistant Superintendent Stewart Robinson to investigate
the matter.
On April 3, Robinson interviewed defendant as part of the internal RCC
investigation. Defendant read and signed a so-called Garrity warning, see
Garrity v. New Jersey, 385 U.S. 493, 500 (1967), which informed her that any
information or evidence she might provide could not be used against her in
any criminal proceeding. She then admitted that she had taken the two
Vicodan tablets from the prescription container in October. A summary of
the internal RCC investigation was prepared on April 3.
As a result of the complaint to the state's attorney, Trooper Steven
Brown of the Vermont State Police Drug Task Force began an independent
criminal investigation. On or about March 24, 1989, he interviewed nurse
McDonald, who related the events of October 5 and told him of defendant's
admission that she had taken two Vicodan tablets. He also interviewed
Robinson and O'Malley, who confirmed that defendant had admitted the Vicodan
incident and had, in O'Malley's words, "fallen off the wagon." Brown
already knew of defendant's previous drug problem. During the course of his
investigation, Brown reviewed pharmacy files at the RCC, but did not examine
personnel records or other files related to RCC's internal investigation.
He attempted to interview defendant, but she refused and instead gave him a
prepared statement that did not mention the October 1988 incident. After
Brown concluded his investigation, the state's attorney decided not to
bring criminal charges against defendant for diversion of the two Vicodan
tablets.
Lt. Gary Boutin, one of Brown's supervisors, suggested a check of area
pharmacies to see if defendant was "doctor shopping" -- i.e., securing
prescriptions for controlled substances from more than one practitioner.
Brown called all the pharmacies in Rutland and obtained information on
defendant's prescriptions from four of them. He discovered that some of
the prescriptions overlapped. He went to the pharmacies, obtained the orig-
inal prescriptions, and then visited the practitioners involved. Three of
them signed statements to the effect that defendant had not told them about
existing prescriptions, a fact that would have been material to a decision
to prescribe medication for her. In these interviews, Brown saw no patient
files and sought only to verify the prescription evidence he already had.
On the basis of this investigation, the State charged defendant with four
counts of concealing a material fact in obtaining regulated substances.
II.
Defendant first contends that Trooper Brown violated her rights under
the Fourth Amendment to the United States Constitution and Chapter I,
Article 11 of the Vermont Constitution when he inspected her pharmacy
records without a warrant. Defendant argues that she has a legitimate
expectation of privacy in her pharmacy records because they are medical
records and society recognizes the confidentiality of medical records. The
State contends that there is no legitimate expectation of privacy in pre-
scription records that must be kept readily available, pursuant to Vermont
law, for inspection by authorized officials. The trial court found that a
privacy interest existed, but concluded that no search warrant was required
because extensive federal and state regulatory schemes govern controlled
substances and the records fell within the "pervasively regulated industry"
exception to the warrant requirement. See New York v. Burger, 482 U.S. 691,
702 (1986) (because owner of automobile junkyard, a closely regulated
industry, has reduced expectation of privacy, Fourth Amendment standard of
reasonableness for government search has lessened application). We discuss
first whether defendant possesses a privacy interest in her pharmaceutical
records.
A.
As we recently noted, the privacy right protected by both the Fourth
Amendment (FN1) and Article 11 (FN2) is the right to be free from unreasonable
government intrusions into legitimate expectations of privacy. State v.
Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991). While this "core value,"
id., is the same under both the United States and Vermont Constitutions, our
Article 11 jurisprudence has diverged from the United States Supreme Court's
analysis of the Fourth Amendment. State v. Berard, 154 Vt. 306, 310, 576 A.2d 118, 120 (1990) (federal law "tends to derogate the central role of the
judiciary in Article Eleven jurisprudence"); State v. Wood, 148 Vt. 479,
487, 536 A.2d 902, 907 (1987) (in focusing away from judicial review and
curtailing scope of protected right to be free from unlawful governmental
conduct, federal test is incompatible with Article 11).
Under the Fourth Amendment, an individual must demonstrate a legitimate
expectation of privacy in the place searched or the items seized before the
court will consider whether the search was unreasonable. Rakas v. Illinois,
439 U.S. 128, 143-44 n.12 (1978). Defendant places particular emphasis on
the Rakas criterion that the privacy interest must derive from "a source
outside of the Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and permitted
by society." Id. Defendant does not assert any property interest in the
prescription records, but contends that prescription records are
confidential medical records and that her legitimate expectation of privacy
derives from society's recognition of the privacy of such records.
Defendant may not have standing to assert her Fourth Amendment claim,
see Whalen v. Roe, 429 U.S. 589, 603-04 (1977) (limited official access to
prescription records for dangerous drugs does not implicate patient's
privacy interests), but we need not decide that issue today. We reach the
merits of defendant's claim under Article 11 of the Vermont Constitution and
find our analysis would be the same under either the Federal or State
constitutions.
In deciding whether defendant has standing to assert her privacy claim
under Article 11 of the Vermont Constitution, we look at the objective
relationship of the person to the place searched or items seized, as opposed
to a subjective evaluation of the legitimacy of the person's expectation of
privacy. Wood, 148 Vt. at 489, 536 A.2d at 908; see also Kirchoff, 156 Vt.
at 10, 587 A.2d at 994 (inquiry is objective -- i.e., whether reasonable
person should know occupant sought to exclude public). A defendant "need
only assert a possessory, proprietary, or participatory interest in the item
seized or the area searched to establish standing to assert an Article
Eleven challenge." Wood, 148 Vt. at 489, 536 A.2d at 908. Here, defendant
can claim no possessory or proprietary interest in the pharmacies or their
records, and the term "participatory interest" is not defined in our cases;
however, the dictionary defines the word "participate" as follows: "To
receive or have a part or share of; to partake of; experience in common with
others . . . ." Black's Law Dictionary 1118 (6th ed. 1990). The Supreme
Court of New Jersey has defined "participatory" to "connote[] some
involvement in the underlying criminal conduct" that generated the seized
evidence. State v. Mollica, 114 N.J. 329, 339-40, 554 A.2d 1315, 1321
(1989). It accorded standing to a defendant, whose gambling activities
generated certain telephone toll calls, to challenge the seizure of records
related to calls that were made from a codefendant's hotel room. Id.
In the instant case, it was defendant whose illicit actions gave rise
to the pharmaceutical records. Further, patients, including defendant,
share with their pharmacists an expectation that information obtained in an
inspection of their prescriptions will not be disclosed except in certain
limited ways. 18 V.S.A. { 4211 (access to records barred to all but
authorized officials, and no person having knowledge by virtue of his office
of any such record shall divulge such knowledge, except in connection with a
prosecution or licensing proceeding).
In so holding, we reject defendant's claim that her privacy interest in
the pharmacy records is predicated upon doctor-patient confidentiality.
Neither the statute, 12 V.S.A. { 1612(a), nor the evidentiary rule, V.R.E.
503, includes pharmacists among the professionals covered by the patient's
privilege. The reason may be that the communications involved in pharmacy
records are between a prescriber and a pharmacist, not between a prescriber
and patient. But even if pharmacists were included, the rules of evidence
exempt from privilege any report of a medical condition "required to be made
by statute." V.R.E. 503(d)(6). Under 18 V.S.A. { 4217, it is the duty of
every doctor and hospital to report promptly to the board of health all
cases wherein a person has been or is being treated for drug abuse. We are
satisfied that there is no patient's privilege available to defendant
herein with respect to her pharmaceutical records. We agree instead with
the trial court, that defendant does have a privacy interest that derives
from her expectation that those records cannot be arbitrarily disclosed, and
hold that she has standing to raise her claim under Article 11. We move now
to a consideration of the merits of her claim.
B.
Under Article 11, a search requires a warrant and probable cause except
in exceptional circumstances which make the warrant and probable-cause
requirement impracticable. Berard, 154 Vt. at 310-11, 576 A.2d at 120-21.
Article 11 does not contemplate an absolute prohibition on warrantless
searches or seizures, but circumstances under which warrantless searches or
seizures are permitted must be jealously and carefully drawn. State v.
Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986). Our analysis in the
instant case involves two questions: first, whether the inspection of
defendant's prescription records was justified as an exception to the
warrant requirement, and second, whether authority for a warrantless
inspection may be used to gather criminal evidence regarding an individual's
prescription activity.
1.
The trial court adopted the "pervasively regulated industry"
exception to the warrant requirement and concluded that the warrantless
inspection of prescriptions for controlled substances was reasonable. This
exception to the warrant requirement has been applied to allow warrantless
administrative inspections of businesses that are closely regulated by the
government where such inspections are necessary for effective enforcement of
the law. See Burger, 482 U.S. at 699-701, and cases cited therein.
"[W]here the privacy interests of the owner are weakened and the government
interests in regulating particular businesses are concomitantly heightened,
a warrantless inspection of commercial premises may well be reasonable
within the meaning of the Fourth Amendment." Id. at 702. Warrantless
inspections have been upheld in cases involving a liquor dealer, Colonnade
Catering Corp. v. United States, 397 U.S. 72, 77 (1970), a gun dealer,
United States v. Biswell, 406 U.S. 311, 315-16 (1972), a mining company,
Donovan v. Dewey, 452 U.S. 594, 605 (1981), and an automobile junkyard,
Burger, 482 U.S. at 712. We believe the state's interest in regulating
pharmacies and controlling the illicit use of drugs is as great as that of
the federal government in regulating the just-named industries. See Whalen,
429 U.S. at 598 (state has "vital interest in controlling the distribution
of dangerous drugs"); Commonwealth v. Lipomi, 385 Mass. 370, 381, 432 N.E.2d 86, 93 (1982) (state interest in inspection of pharmacies is as urgent as
federal regulatory interests in liquor and gun cases).
The "pervasively regulated industry" exception has been adopted in
several states in litigation involving owners or proprietors of pharmacies.
See Mendez v. Arizona State Board of Pharmacy, 129 Ariz. 89, 91, 628 P.2d 972, 974 (1981); Hosto v. Brickell, 265 Ark. 147, 153, 577 S.W.2d 401, 405
(1979); Lipomi, 385 Mass. at 381, 432 N.E.2d at 93; State v. Rednor, 203
N.J. Super. 503, 508, 497 A.2d 544, 547 (1985); People v. Curco Drugs, Inc.,
76 Misc. 2d 222, 231, 350 N.Y.S.2d 74, 84 (1973); Poindexter v. State, 545 S.W.2d 798, 800 (Tex. Crim. App. 1977). Federal courts have upheld
inspections of pharmacy records on the less-than-probable-cause standard of
an administrative warrant. See 21 U.S.C. { 880(d)(1) (probable cause to
issue administrative inspection warrant is "valid public interest in the
effective enforcement of this subchapter or regulations"); United States v.
Nechy, 827 F.2d 1161, 1165 (7th Cir. 1987) (literal reading of { 880 means
all investigator had to show in order to secure administrative warrant was
that drugstore handled controlled substances); United States v. Schiffman,
572 F.2d 1137, 1141 (5th Cir. 1978) ("valid public interest" is
constitutional standard for administrative warrant, even though less
stringent than probable cause for criminal search).
Vermont has long required anyone selling potentially dangerous drugs,
including narcotics, to keep accurate records. As early as 1904, the
Legislature required that such records specify "the kind and quantity of the
article sold, and the time when, and the name of the person to whom such
sale is made, which record shall be open to all health officers, members of
the state board of health and state officials who may wish to examine the
same." 1904, No. 143, { 13. In 1915, the Legislature required prescrip-
tions for the use of narcotics. Records of their sale were to be kept for
not less than two years, and to be "at all times open to inspections by
[health officials and] police authorities and police officers of cities and
towns." 1915, No. 197, { 4. In 1945, the Legislature adopted the Uniform
Narcotic Drug Act, 1945, No. 113, which put into place many of the statutory
provisions still in effect today, including the requirement that pertinent
records be open to inspection by state and federal officials responsible for
enforcing narcotics laws. Id. { 17. In short, the Legislature has consist-
ently recognized the state's interest in regulating the drug industry and
that official access to prescription records is critical to effective drug
enforcement. We conclude that Vermont's pharmaceutical industry qualifies
as a "pervasively regulated industry."
Pronouncing an industry "pervasively regulated" will not alone validate
a warrantless inspection. The United States Supreme Court has held that
"[i]n the context of a regulatory inspection system of business premises
that is carefully limited in time, place, and scope, the legality of the
search depends not on consent but on the authority of a valid statute."
Biswell, 406 U.S. at 315. In Burger, the Court upheld, against a Fourth
Amendment challenge, New York's regulation of the automobile junkyard
industry, which allowed warrantless inspection of required records of
automobile parts, because the statute satisfied three criteria necessary to
make the inspections reasonable: (1) the state must have a substantial
interest in regulating the industry, (2) regulation must reasonably serve
the achievement of state interest, and (3) the statute must inform the
industry that inspections will be made on a regular basis and must place
appropriate restraints upon the discretion of the inspecting officers.
Burger, 482 U.S. at 702-03. (FN3)
Taking each Burger criterion in turn, we first find, as already stated,
that the state has a substantial interest in the regulation of dangerous
drugs. We conclude, second, that Vermont's statute permitting authorized
persons warrantless access to prescription records of controlled substances
reasonably serves the achievement of that interest. See Whalen, 429 U.S. at
597 (New York central reporting system allowing authorized personnel to
inspect without warrant the prescription records of users of Schedule II
drugs "is manifestly the product of an orderly and rational legislative
decision"). At present, chapter 84 of Title 18 regulates the possession and
control of certain classes of drugs. 18 V.S.A. {{ 4201-4248. The depart-
ment of public safety is charged with the duty of enforcing the drug laws of
the state, id. { 4218(a); { 4218(b) gives its authorized agents access "at
all times . . . to all orders, prescriptions and records kept or maintained
under [chapter 84] . . . ."(FN4) Obtaining or attempting to obtain a regulated
drug by fraud or deceit or by concealment of a material fact is prohibited
under chapter 84. Id. { 4223. Recognizing the privacy interest of the
individual, the Legislature has appropriately limited inspections to
specifically authorized federal and state officers and prohibited disclosure
of knowledge obtained during an inspection, except in connection with a
criminal prosecution or licensing proceeding. See id. { 4211. Although {
4218 allows access "at all times," no provision is made for warrantless
entry of closed premises. It is a reasonable inference that the Legislature
intended to authorize inspections only during normal business hours, and we
have no reason to believe the Legislature intended otherwise. Vermont's
statutes differ from the New York scheme challenged in Whalen in that
Vermont has no central reporting system and permits a broader group of
personnel to inspect prescriptions. These differences, however, are
differences in implementation and do not affect the reasonableness of
warrantless inspection as a form of regulation.
In further discussion of the second criterion, the Burger Court held
that the New York regulations of automobile junkyards permitting warrantless
inspections were not only reasonable but were also necessary. The Court
analogized the exigency facing the police in their inspection of the junk-
yard in Burger to that facing the investigators seeking to inspect a gun
dealer's storeroom in Biswell, namely, that in order for the deterrent
function of the regulations to be effective, "'unannounced, even frequent,
inspections are essential.'" Burger, 482 U.S. at 710 (quoting Biswell, 406
U.S. at 316). The need for authority to conduct warrantless inspections of
pharmacy records arises from the same exigency. Indeed, federal law pro-
hibits anyone from refusing to make, keep, or furnish records required to
be kept under the Controlled Substances Act. 21 U.S.C. { 842(a)(5).
Although it may be argued that the defendant in this case, a customer and
not a pharmacist, was never in a position to alter or hide pharmacy records,
this does not affect the need for official authority to inspect those
records without a warrant. To hold otherwise would place investigators in
the curious position of having to secure a warrant in order to examine
records which it is unlawful for the pharmacist to refuse to provide. We
address this question further in our discussion of the use of inspection
authority in gathering criminal evidence, below.
With respect to the third Burger criterion, the Supreme Court stated
that "the regulatory statute must perform the two basic functions of a
warrant: it must advise the owner of the commercial premises that the
search is being made pursuant to the law and has a properly defined scope,
and it must limit the discretion of the inspecting officers." Burger, 482 U.S. at 703. We believe the Vermont statutes perform these functions.
Pharmacists may not dispense drugs without obtaining a license, 26 V.S.A. {
2042, and this necessarily implies knowledge of their record-keeping obli-
gations. The Legislature has limited inspections to specifically authorized
federal and state officers. 18 V.S.A. { 4211. It has also limited the
scope of those inspections to required records and to enforcement of chapter
84 provisions only. Id.; see also Olson v. State, 287 So. 2d 313, 314 (Fla.
1973)(inspections and warrantless searches authorized under controlled sub-
stances regulations cannot be used to further investigations for violations
of other chapters of Florida statutes). Thus, we are persuaded that the
statutory scheme satisfies the three criteria deemed necessary in Burger to
make warrantless inspections reasonable. See Burger, 482 U.S. at 702-03.
We therefore hold that the warrantless inspection of pharmacy records
maintained under Title 18, chapter 84, is permissible, and agree with the
trial court that the inspection undertaken by Trooper Brown in this case
conformed to statutory authority and was reasonable.
2.
Next, we consider whether a warrantless inspection may be used to
gather evidence for a criminal prosecution. Some jurisdictions have held
that the exception to the warrant requirement applies only to routine admin-
istrative inspections, not to criminal investigations. See Commonwealth v.
Frodyma, 386 Mass. 434, 440, 436 N.E.2d 925, 929 (1982); State v. Penn, 61
Ohio St. 3d 720, 726, 576 N.E.2d 790, 794 (1991). In Burger, the United
States Supreme Court observed, however, that administrative regulations "may
have the same ultimate purpose as penal laws," 482 U.S. at 713, and that the
inspecting officers in that case acted within their regulatory authority
when they examined vehicle parts to ascertain if the vehicles had been
stolen. Id. at 716; see also Nechy, 827 F.2d at 1167 (where inspection of
pharmacy records was reasonable, and evidence of criminal violations was
obtained, "the motives of the officers conducting it will not turn it into a
violation of the Fourth Amendment"); United States v. Acklen, 690 F.2d 70,
74 (6th Cir. 1982) (administrative standard of probable cause sufficient for
warrant even where inspection was in pursuit of criminal evidence); Rednor,
203 N.J. Super. at 509, 497 A.2d at 547, and cases cited therein ("In
determining the constitutionality of a search, we concern ourselves with the
propriety of the conduct, not the motivation of the searcher."). In the
instant case, Trooper Brown's access was lawful, and we hold that his
enforcement powers, which include enforcement of criminal violations of 18
V.S.A. { 4223, under which defendant herein was charged, allowed him to look
at prescription records in furtherance of his investigation.
Finally, we address defendant's claim that 12 V.S.A. { 1612(a) and
V.R.E. 503 prohibited the prescribers in this case from disclosing any
information to Trooper Brown when he interviewed them to verify the
prescriptions. The trial court concluded that any information communicated
to a prescriber by defendant was not privileged under 18 V.S.A. { 4223(b),
which nullifies any privilege where the communication is made in an attempt
to obtain drugs illegally. Defendant argues that this is circular reasoning
whereby the State may declare information nonprivileged after it has already
engaged in improper interviews in order to gather evidence of violations.
Interviews with prescribers are not dealt with in chapter 84. We agree
that the trial court's reasoning raises a circularity, but we do not concede
that the interviews here were improper. Without deciding whether or not the
information communicated to the prescribers and thence to Trooper Brown was
privileged, we find that any error was harmless. At the time of the inter-
views, Brown already had in his possession prescriptions that indicated
probable violations by defendant. He sought merely to verify that the
prescriptions had indeed been written by each prescriber, and elicited from
them the opinion that had they been aware of a concurrent prescription from
another prescriber, their own prescribing decisions would have been
affected. Of course, prescribers of dangerous drugs are themselves subject
to regulatory provisions pursuant to chapter 84. See, e.g., 18 V.S.A. {
4210(a), (d) (physicians must keep records, subject to inspection by author-
ized federal and state officers, of all regulated drugs received, sold,
administered, dispensed or professionally used); id. { 4217 (physicians must
report all cases of drug abuse). If there was error here, it was harmless.
In sum, we hold that defendant cannot prevail in her challenge to the
constitutionality of the warrantless inspection of her prescription records
at the various pharmacies.
III.
Defendant next argues that Brown's doctor-shopping investigation was
prompted by knowledge of involuntary statements she made to RCC personnel in
which she admitted taking the Vicodan tablets. Those admissions, she
claims, tainted any evidence obtained by Brown, which therefore should have
been suppressed. The trial court agreed that her statements were made under
threat of being fired, and granted her motion to suppress the statements she
made to Superintendent O'Malley on October 7, 1988, those she made to nurse
McDonald over the telephone on October 7, 1988, and those made to Assistant
Superintendent Robinson at the interview on April 3, 1989. The court did
not suppress evidence gathered by Brown at the Rutland pharmacies, finding
that his investigation had proceeded independently from the RCC investi-
gation.
Under both the United States and the Vermont constitutions, a
confession must be voluntary in order to be used against a criminal defend-
ant. Chambers v. Florida, 309 U.S. 227, 239 (1940); State v. Badger, 141
Vt. 430, 450-51, 450 A.2d 336, 348 (1982). Statements made "under threat of
removal from office," like those defendant made in this case to O'Malley,
McDonald, and Robinson, are involuntary. See Garrity, 385 U.S. at 500.
Defendant's statements were properly suppressed, therefore, and any evidence
gathered as a product of those statements would be tainted. See Badger, 141
Vt. at 440-41, 450 A.2d at 342-43 (evidence that is the product of an
initial illegality is tainted and should be suppressed unless purged of the
taint). Further, if the State has used the product of coerced statements as
a "springboard" to future proceedings, the State must demonstrate an
independent source for its evidence. In Re Justice Hill, 149 Vt. 431, 439-
40, 545 A.2d 1019, 1025 (1988); see also Wong Sun v. United States, 371 U.S. 471, 488 (1963) (inquiry is whether the evidence objected to by defendant
was obtained "'by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint'") (quoting
Maguire, Evidence of Guilt, 221 (1959)).
Brown's inquiry began in March 1989 following a letter to the state's
attorney from an RCC employee. Brown learned of defendant's admissions
during his interview with McDonald on or about March 24, 1989, after defend-
ant's talk with O'Malley but before her talk on April 3 with Robinson when
she signed the Garrity warning. Suppressed statements therefore mingled
with independent observations by McDonald. The independent observations,
however, indicated to a virtual certainty that Welch had taken the Vicodan
tablets. Among these observations were defendant's unusual behavior in
personally retrieving the inmate's prescription, the missing tablets, the
range "10-12" noted in the medication log, and the call that evening from
defendant asking if everything was all right. It was not necessary, there-
fore, for Brown to "exploit" the suppressed statements in order to build a
case against defendant.
Defendant argues that Lt. Boutin's suggestion to check the pharmacies
was itself tainted by knowledge of defendant's admissions, but the trial
court found that Lt. Boutin suggested the pharmacy check because of his
experience, his prior knowledge of defendant's drug problem, and McDonald's
observations. The court found further that Brown declined the offer of
O'Malley and Robinson to review RCC personnel files, its records, or its
internal investigation materials, and the court concluded that the State's
case was not predicated upon the RCC internal investigation or upon any RCC
records or personnel files. We agree that the record shows an independent
basis for Brown's inspection of the pharmacy records. Defendant's motion
was properly denied.
IV.
Defendant's next claim is that the Garrity warning immunized her from
prosecution based on her statements to Robinson on April 3. In addition,
she argues that Robinson was acting on behalf of the State when he initiated
the interview, and therefore, she is immune pursuant to 12 V.S.A. { 1664.
The rule in Garrity and defendant's signature on the "Employee Warning"
form foreclose the use of her statements or any evidence derived from those
statements in subsequent criminal proceedings. Garrity, 385 U.S. at 497-98.
But defendant's argument on this point is essentially a reworking of the
"taint" argument, and is consequently meritless. We have held that the
trial court's finding of an independent source for the State's case on the
doctor-shopping charges is supported by the record. Immunity under Garrity
is not implicated here.
Defendant also claims immunity under 12 V.S.A. { 1664. This statute
grants authority to immunize individuals compelled to testify in court or
grand jury proceedings who wish to invoke their right against self-incrimin-
ation. Their testimony, and any evidence derived directly or indirectly
from it, cannot be used in subsequent criminal proceedings against them.
Defendant asserts that the Corrections Department and the State are the same
entity, because Brown needed no subpoena in order to see the prescription
records at the RCC. She contends that Robinson was acting on behalf of the
State when he provided defendant with the Employee Warning. She concludes
that she is, therefore, immunized under { 1664 and that the State must prove
"beyond a reasonable doubt that any proffered evidence was derived from
sources totally independent of the compelled testimony." 12 V.S.A. {
1664(a).
Defendant's conclusion is groundless. Immunity applies only to those
called to testify in a proceeding before or ancillary to a court or grand
jury and who wish to invoke their rights against self-incrimination. The
statute makes no reference to administrative proceedings. Id. Moreover,
even if we were to find that the State and the Corrections Department are
the same entity, Robinson had no statutory authority to grant immunity.
That prerogative belongs solely to the presiding judge, at the request of
the attorney general or state's attorney. Id. { 1664(b), (c); see State v.
Hamlin, 146 Vt. 97, 107, 499 A.2d 45, 52 (1985). Further, as we have pre-
viously noted, Brown possessed independently acquired information, separate
and apart from any statements made by defendant, that justified the prosecu-
tion. We find no error in the trial court's rejection of defendant's
immunity arguments.
V.
Finally, defendant argues that the State failed to prove that she
knowingly concealed a material fact when she obtained overlapping prescrip-
tions for regulated drugs from different practitioners. The State does not
dispute that 18 V.S.A. { 4223(a)(2) requires a "knowing" mens rea, but
argues that the evidence was sufficient to prove beyond a reasonable doubt
that defendant concealed material facts by deliberately withholding infor-
mation about her prescriptions. The trial court agreed.
Intent must often be inferred from what a person does, and proved by
circumstantial evidence. State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255
(1988). The definition of "conceal" is "to hide, secrete, or withhold from
the knowledge of others," Black's Law Dictionary 288 (6th ed. 1990), all of
which connote intentional, knowing conduct. The trial court found that
defendant was a trained nurse whose job at the RCC included dispensing drugs
to inmates, and that the overlapping prescriptions from different dispensers
all involved prescriptions for the very same drug. The court concluded that
a reasonable jury could find beyond a reasonable doubt that defendant had
concealed the material fact of a prior prescription and obtained drugs in
violation of the law. We are satisfied that the evidence was sufficient to
support beyond a reasonable doubt the court's conclusion that defendant had
concealed material information.
Affirmed.
FOR THE COURT:
________________________________
Associate Justice
FN1. The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and 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.
FN2. Chapter I, Article 11 of the Vermont Constitution states:
That the people have a right to hold themselves, their houses,
papers, and possessions, free from search or seizure; and
therefore warrants, without oath or affirmation first made,
affording sufficient foundation for them, and whereby by any
officer or messenger may be commanded or required to search
suspected places, or to seize any person or persons, his, her or
their property, not particularly described, are contrary to that
right, and ought not to be granted.
FN3. The New York Court of Appeals, in a split decision, recently ruled,
however, that the statute at issue in Burger violates the New York Consti-
tution's guarantee against unreasonable searches and seizures because (1)
the essential element of pervasive governmental supervision is lacking, and
(2) the statute fails to set forth appropriate guidelines or restrictions
for warrantless searches. New York v. Keta, 60 U.S.L.W. 2656 (April 2, 1992).
FN4. Other sections of chapter 84 also require that drug records and pre-
scriptions be kept readily available for inspection: 18 V.S.A. { 4210(d)
(records of authorized sale or dispensing of drugs to be kept for three
years "subject to inspection by a federal officer or an officer of this
state . . . engaged in the enforcement of the federal drug laws or of this
chapter"); { 4211 (prescriptions and records "shall be open for inspection
only to federal or state officers"); { 4213(c) (each party to transaction of
sale by duly licensed manufacturer of regulated drugs to keep record for
three years "in such a way as to be readily accessible for inspection"); {
4215(a) (pharmacist shall keep record of prescriptions, with full name and
address of patient, for period of three years, "so as to be readily access-
ible for inspection by a federal or state officer . . . engaged in the
enforcement of the federal drug laws or of this chapter.").
-----------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 90-392
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit
Judy D. Welch February Term, 1992
Paul F. Hudson, J.
Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
Attorney General, Montpelier, for plaintiff-appellee
E.M. Allen, Defender General, and Anna E. Saxman and William Nelson,
Appellate Defenders, Montpelier, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J, dissenting. Today, the majority rules that the police have
unlimited access to the prescription records of every pharmacist in the
state of Vermont and may, without warrant or probable cause, search those
records in hopes of finding violations of law, not by pharmacists, but by
patients. In other words, as a consequence of today's ruling, the
prescription records of all persons held by a Vermont pharmacist are open to
unrestricted surveillance by the police.
One of the great conservative justices of United States Supreme Court
once observed that "[t]he history of liberty has largely been the history of
observance of procedural safeguards." McNabb v. United States, 318 U.S. 332, 347 (1943)(Frankfurter, J.). The requirements of probable cause and
valid search warrants are surely among the most valued procedural safeguards
against unreasonable searches and seizures contained in our constitution.
An insistence upon the observance of these requirements is one of the
principal defining qualities between totalitarian governments and govern-
ments devoted to the protection of the liberties of free men and women.
Today's decision, albeit motivated by a well-meaning desire to curb the
abuse of prescription drugs, represents a perilous step away from these
constitutional values.
The majority permits the warrantless search in this case based on an
exception to the warrant requirement for administrative searches of
commercial enterprises. This is despite the fact that, from the outset,
the state admits the search was aimed at gathering criminal evidence against
an individual patient rather than conducting a routine administrative
inspection of a regulated business. Because I believe that allowing
warrantless searches to uncover criminal evidence under the guise of the
administrative search exception undermines Article 11 of the Vermont
Constitution and disregards our recent case law interpreting that
constitutional provision, I dissent.
Article 11 protects the people of this state from unreasonable,
warrantless governmental intrusions into their private affairs. State v.
Kirchoff, 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). There is little doubt,
and indeed both the trial court and the majority agree, that individuals
have a privacy interest in their prescription records. Such records
"contain extremely private and potentially embarrassing information" about
the patient. Commonwealth v. Slaton, 383 Pa. Super. 301, 328, 556 A.2d 1343, 1356 (1989) (Kelly, J., concurring and dissenting) (citing law review
articles regarding confidentiality of health records), aff'd, ___ Pa. ___,
608 A.2d 5 (1992). They may disclose highly personal facts concerning a
person's lifestyle, ailments, or sources of stress and anxiety. See Roe v.
Ingraham, 480 F.2d 102, 108 n.7 (2d Cir. 1973) (members of public know
ailments for which drugs commonly prescribed). These are matters of great
sensitivity that go to the heart of our concerns for privacy. This fact is
recognized by the very statutory provision that permits inspection of
pharmacy records, which is entitled "Records confidential." See 18 V.S.A. {
4211. That provision allows inspection "only to federal or state officers
or their specially authorized agent whose duty it is to enforce the federal
drug laws," and forbids those who gain knowledge of any prescription from
divulging such knowledge, except in connection with a prosecution. Id.
(emphasis added); see also V.R.E. 503 (patient has privilege to prevent "any
other person" from disclosing confidential communications made for purposes
of treatment).
Where a privacy interest is implicated, warrantless searches are
permitted only in exceptional circumstances that are factually and narrowly
tied to an exigency or special needs. See State v. Savva, 2 Vt. L.W. 398,
402 (Oct. 25, 1991); State v. Berard, 154 Vt. 306, 312, 576 A.2d 118, 121
(1990). An exigency is created by particular circumstances of the moment,
not by shifts in the political winds or by society's "perceived exigencies
of the day." See Kirchoff, 156 Vt. at 12, 587 A.2d at 995-96. Thus, the
trial court's allusion to the "drug crisis" cannot limit the protection
afforded by our constitution against intrusive governmental searches. See
People v. Scott, 79 N.Y.2d 474, ___, 593 N.E.2d 1328, 1345, 583 N.Y.S.2d 920, 937 (1992) (responsibility of judicial branch not to respond to
temporary crises or shape law to advance goals of law enforcement, but
rather to safeguard constitutional rights). Moreover, when "special needs"
require warrantless searches in certain regulatory contexts, we have always
insisted that such searches be carried out through objective guidelines that
preclude law enforcement officers from targeting specific individuals. See
Berard, 154 Vt. at 314, 576 A.2d at 122 (routine search of prisoners'
cells); State v. Record, 150 Vt. 84, 88, 548 A.2d 422, 425 (1988) (random
DUI roadblock). In short, this Court has permitted warrantless regulatory
searches in circumstances evincing special needs, but only when explicit
guidelines ensure that the searches are not a pretext for singling out
individuals.
Against this backdrop, the majority permits the police to inspect the
prescription records of an individual based on an officer's hunch that they
will provide evidence that the individual has committed a crime. The
majority arrives at its holding by concluding that the warrantless
inspection was a proper search of a "pervasively regulated" business. This
is a remarkable conclusion considering that the "pervasively regulated
industry" exception adopted by the majority is an exception to the warrant
requirement of an administrative search, and that not even the State con-
tends that this particular search was administrative in nature. Therefore
the warrantless search could only be supported by exigent circumstances or
special needs, none of which was present here.
The application of the administrative search exception is disturbingly
ironic in this case considering that, because of our aversion to warrantless
searches, we have refused to follow federal precedents that derogate "the
central role of the judiciary in Article Eleven jurisprudence." Berard, 154
Vt. at 310, 577 A.2d at 120; see also State v. Wood, 148 Vt. 479, 487, 536 A.2d 902, 907 (1987)(judiciary must "review and restrain overreaching
searches and seizures by the government"). Yet, today the majority permits
governmental intrusion that would not be permitted even under federal law.
The federal counterpart to { 4211, 21 U.S.C { 880, requires an
administrative warrant, albeit under a diminished standard, to inspect
pharmacy records unless the officer has the consent of the owner or there is
an emergency situation. That statute contains another provision requiring
"probable cause" for the issuance of search warrants "relating to offenses
involving controlled substances." 21 U.S.C. { 879. The fact that the
federal law includes a traditional warrant provision strongly suggests that
searches of pharmacy records undertaken to collect evidence of a crime
requires a full-blown warrant based on probable cause. See Commonwealth v.
Frodyma, 386 Mass. 434, 444-45, 436 N.E.2d 925, 932 (1982).
Nothing in the language of { 4211 suggests that the provision was
intended to do anything more than to provide the authority for officers to
make random, routine compliance inspections of the records of controlled
premises. Cf. Kirchoff, 156 Vt. at 11-12, 587 A.2d at 995 (statutory
provisions providing the public with certain privileges on private land do
not evidence intent to limit landowners' right to pursue their affairs free
from unregulated governmental intrusion). It is highly questionable whether
the generally worded provision, which merely states that pharmacy records
shall be open for inspection by law enforcement officers to enforce the drug
laws, sufficiently limits the scope of bona fide administrative searches to
pass constitutional muster under the test recently enunciated by the United
States Supreme Court. See New York v. Burger, 482 U.S. 691, 703 (1987)
(statute permitting warrantless administrative searches must limit
discretion of inspectors, as well as time, place and scope of searches);
Scott, 79 N.Y.2d at ___, 593 N.E.2d at 1344, 583 N.Y.S.2d at 936 (statutory
provision allowing warrantless administrative searches of vehicle-
dismantling businesses held to violate state constitution because only
restriction statute contained is requirement that searches occur during
business hours). But certainly it cannot authorize warrantless searches
against individuals. If the legislature did intend the provision to allow
police to make warrantless inspections of the prescription records of
individuals suspected of criminal activity, then the statute violates
Article 11 of the Vermont Constitution.
The primary evil Article 11 sought to avoid was the issuance and
enforcement of general warrants. Record, 150 Vt. at 85, 548 A.2d at 423
(citing Lincoln v. Smith, 27 Vt. 328, 346 (1855)). Indeed, the abuse of
warrants was one of the primary causes of the colonies' revolt against the
crown and of the development of search and seizure provisions in colonial
constitutions predating the federal constitution. Savva, 2 Vt. L.W. at 401.
Administrative searches, such as those authorized by statutes that concern
regulated industries, are "'the 20th-century equivalent' of colonial writs
of assistance . . . which were general warrants authorizing officials to
search any and all residential and commercial premises . . . to enforce
various trade regulations and . . . to halt the rampant smuggling of untaxed
goods." Scott, 79 N.Y.2d at ___, 593 N.E.2d at 1343, 583 N.Y.S.2d at 935
(quoting Illinois v. Krull, 480 U.S. 340, 364 (1987) (O'Connor, J.,
dissenting)). Given the similarity between searches made pursuant to the
English general warrants outlawed by the colonists and administrative
searches made pursuant to modern-day statutory provisions, we are bound to
narrowly and precisely construe such provisions so as not to subvert the
basic privacy interests protected by our constitution. See id. By allowing
police to inspect, without warrant, the prescription records of individual
citizens suspected of criminal activity, the majority ignores the rationale
for allowing searches of certain industries without judicial oversight --
that such searches are routine, random, and limited to ensuring that highly
regulated businesses comply with administrative regulations -- and thereby
allows law enforcement agencies to circumvent the warrant requirement that
we have so conscientiously guarded in the past.
Moreover, the owners of pervasively regulated businesses are on notice
of the special government interest in their affairs and they impliedly
consent, by engaging in such businesses, to the abridgement of certain
rights in exchange for the right to do business at all. See United States
v. Biswell, 406 U.S. 311, 316 (1972) (warrantless inspection scheme of Gun
Control Act poses limited threat to justifiable expectation of privacy
because dealer who chooses to engage in pervasively regulated business does
so with understanding that his business records will be subject to
inspection). This is a far cry from the individual who, afflicted with
disease or injury, is prescribed a regulated drug by a physician in the
course of medical treatment. That person has no choice but to have the
prescription filled by a pharmacist. If the drug prescribed is one in which
the police have an interest, the mere act of having that prescription filled
now permits the police to intrude on that person's private affairs by
reviewing the prescription, looking for other prescriptions, and, as
occurred in this case, having one's doctor or doctors questioned. Article
11 simply does not permit the statute to go that far.
Although I ground my dissent on Article 11, I believe the instant
search would be improper even under the United States Supreme Court's ever-
narrowing interpretations of the Fourth Amendment. In Camera v. Municipal
Ct., 387 U.S. 523 (1967), the Supreme Court held that the Fourth Amendment
applies to administrative searches undertaken for regulatory purposes as
well as to searches for criminal evidence, but that warrants for
administrative searches need not be supported by probable cause in the
traditional sense because they "are neither personal in nature nor aimed at
the discovery of evidence of crime." Id. at 537. Soon after Camera, the
Court created an exception to the warrant requirement for administrative
searches when the particular industry is subject to close governmental
supervision and an authorizing statute provides specific procedures
governing the scope of the search. See United States v. Biswell, 406 U.S. 311 (1972)(Gun Control Act); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)(regulation of liquor industry).
This exception is relevant, however, only within the context of
administrative searches, as evidenced by the United States Supreme Court's
most recent pronouncement on administrative searches. See New York v.
Burger, 482 U.S. 691 (1987). In Burger, the Court reversed a decision of
the New York Court of Appeals that struck down a statute permitting police
to conduct warrantless searches of automobile junkyards. New York's highest
court had struck down the law because it authorized searches "undertaken
solely to uncover evidence of criminality and not to enforce a comprehensive
regulatory scheme." People v. Burger, 67 N.Y.2d 338, 344, 493 N.E.2d 926,
929, 502 N.Y.S.2d 702, 705 (1986). The Supreme Court held that the
"discovery of evidence of crimes in the course of an otherwise proper
[warrantless] administrative inspection [of a closely regulated industry]
does not render that search illegal or the administrative scheme suspect."
New York v. Burger, 482 U.S. at 716 (emphasis added). The Court pointed
out, however, that it was "undisputed that the inspection was made solely
pursuant to the administrative scheme," and that there was "no reason to
believe that the instant inspection was actually a 'pretext' for obtaining
evidence of respondent's violation of the penal laws." Id. at 716-17 n.27.
Contrary to the majority's statement herein, motive of the officers
conducting the search is a relevant consideration under Burger. The Court
in Burger was concerned with a routine administrative investigation that
uncovered criminal evidence, not with a criminal investigation unrelated to
any administrative search. Commonwealth v. Slaton, ___ Pa. at ___, 608 A.2d
at 8. The Burger holding is much more limited than the majority's holding
here, which gives its blessing to an inspection whose sole purpose from the
start was to gather evidence that defendant had committed a crime. It is
irrelevant that defendant was charged with a criminal violation defined in
the same statute that authorizes inspection of pharmacy records. The point
is that defendant's medical records were targeted for discovery; they were
not the incidental discovery of a lawful administrative search.
The situation here is similar to the one in Slaton, where the
Pennsylvania Supreme Court recently upheld the suppression of evidence
obtained by narcotics agents, who first inspected prescription records of a
suspected individual with the consent of the pharmacist, and then returned
to inspect more records after the focus of the investigation had turned to
the pharmacist. According to the court, the "primary flaw" in the State's
position was its characterization of the agents' action as an "adminis-
trative search," which the court labeled as an attempt "to diminish [the
defendant's] expectation of privacy in the premises searched." Id. at ___,
608 A.2d at 7. Distinguishing the United States Supreme Court's Burger
decision as being concerned with a routine investigation that was initially
conducted to ascertain compliance with administrative regulations, the court
stated:
In the case at bar, the narcotics agents' only
purpose in searching Slaton's pharmacy was to
investigate alleged activity. This was true even
when the first search was conducted. The agents
never claimed to have any administrative purpose but
instead, declared at the outset that their desire
was to gather additional information for an ongoing
criminal investigation whose subject at the time was
someone other than Slaton. The search, therefore,
was not an administrative inspection conducted, as
the case requires, on a regular basis, but a
discretionary act by officials who were involved in
an ongoing criminal investigation. Since it was
never claimed that the searches were administrative,
the question of the parameters of an administrative
search is not relevant here. The traditional Fourth
Amendment warrant requirements for a valid search,
therefore, apply in this case.
Id. at ___, 608 A.2d at 8; see also Frodyma, 386 Mass. at 438-441, 436 N.E.2d at 928-29 (because entire justification for lesser showing required
to obtain administrative warrant is grounded on limited scope of
administrative search, such warrant cannot be used to search for evidence
of a crime); People v. Pace, 101 A.D.2d 336, 340, 475 N.Y.S.2d 443, 446
(1984) (court concluded it need not consider whether statute allowing
warrantless administrative searches had sufficiently specific guidelines to
pass constitutional muster because "[w]hen a search is not undertaken as a
routine regulatory inspection, the administrative search rationale is simply
inapplicable"). But cf. State v. Rednor, 203 N.J. Super. 503, 509, 497 A.2d 544, 547 (1985) (in determining constitutionality of search, court must
concern itself with propriety of conduct, not motivation of searcher).
The lower federal courts have adopted conflicting positions on whether
the motivation of law enforcement officers should affect the validity of an
administrative search warrant. Compare United States v. Acklen, 690 F.2d 70, 74 (6th Cir. 1982) (validity of administrative search warrant should
depend on manner and scope of search, not motivation of inspector); United
States v. Prendergast, 585 F.2d 69, 70-71 (3d Cir. 1978) (same) with United
States v. Russo, 517 F. Supp. 83, 84-86 (E.D. Mich. 1981) (administrative
warrant cannot support search of records to gather evidence for possible
prosecution); United States v. Lawson, 502 F. Supp. 158, 164-66 (D. Md.
1980) (once purpose of search shifts from administrative compliance to quest
for criminal evidence, government must secure warrant supported by full
probable cause because individual's privacy interest is heightened). The
majority cites three cases for the proposition that the intent of the police
to uncover suspected criminal activity cannot taint an otherwise valid admi-
nistrative search. Those cases are hardly a ringing endorsement for the
majority's point of view. First, all three cases construe the Fourth
Amendment, yet, as noted, this Court has repeatedly stated that it will not
follow precedents that derogate the central role of the judiciary in Article
Eleven jurisprudence. See, e.g., State v. Berard, 154 Vt. at 310, 577 A.2d
at 120. In one of the cases, the court stated that it need not decide
whether it would allow warrantless administrative searches pursuant to
criminal investigations in situations where the government had, as an
institution, committed itself to the prosecution. Acklen, 690 F.2d 70 at
74. In another, an intermediate appellate state court construing the Fourth
Amendment said, absent any analysis, that the motivation of police in
searching a pharmacist's records was irrelevant. State v. Rednor, 203 N.J.
Super. at 509, 497 A.2d at 547. But the gist of its holding was revealed in
the sentence that followed, wherein the court concluded that the pharmacist
had no expectation of privacy in the records because he had willingly
engaged in a business subject to pervasive government regulation. Id. In
the third case, United States v. Nechy, 827 F.2d 1161, 1166-67 (7th Cir.
1987), the court lamented the fact that it was compelled to allow law
enforcement to use administrative search warrants as a subterfuge for
investigating suspected criminal activity. Id. at 1166 ("We are not happy
with a mode of justification by which the government is allowed to do in two
steps what if done in one would violate the Fourth Amendment.").
State courts that have recently addressed the same issue, however, have
not felt so constrained. In addition to the Massachusetts and Pennsylvania
cases already cited, the highest courts of New York and Ohio have recently
held that law enforcement authorities must obtain a warrant based on
probable cause before searching regulated enterprises as part of an ongoing
criminal investigation, even where statutory law permits administrative
searches of the enterprises. Despite the Supreme Court's relatively limited
holding in Burger, the New York Court of Appeals recently rejected that
analysis and determined that the same statute it had earlier struck down
under the Fourth Amendment also violated the state constitutional provision
prohibiting unreasonable governmental searches. Scott, 79 N.Y.2d at ___,
593 N.E.2d at 1339, 583 N.Y.S.2d at 931. The court grounded its holding on
the "fundamental assumption" that an administrative-search exception cannot
be invoked when the search is undertaken to uncover evidence of a crime, and
the underlying regulatory scheme is designed to give police a means of
enforcing criminal sanctions. Id. at ___, 593 N.E.2d at 1343, 583 N.Y.S.2d
at 935; see also Burger, 482 U.S. at 724 (Brennan, J., dissenting) ("In the
law of administrative searches, one principle emerges with unusual clarity
and unanimous acceptance: the government may not use an administrative
inspection scheme to search for criminal violations."). According to the
court, without this limitation, the exception would swallow the rule and
permit police to circumvent traditional warrant requirements. Scott, 79
N.Y.2d at ___, 593 N.E.2d at 1343, 583 N.Y.S.2d at 935.
The Supreme Court of Ohio has also recently held that the search and
seizure provision of the state constitution prohibits police from searching
for criminal evidence pursuant to a statute authorizing warrantless
"administrative" searches. State v. Penn, 61 Ohio St. 3d 719, 723, 576 N.E.2d 790, 792-93 (1991). In that case, police and agents of the state
board of pharmacy inspected the prescription records of a pharmacy after the
police had already begun a criminal investigation of the pharmacist.
Calling the state's attempt to "shelter itself" behind the administrative
powers of the board "disingenuous," the court stated that "the board cannot
act as a surrogate for the police to obviate the constitutional duty of
obtaining a search warrant" before gathering evidence of general crim-
inality. Id. at 726, 576 N.E.2d at 794.
I recognize that it will not always be easy, as it is in this case, to
determine whether a search is truly administrative in character or merely an
attempt to uncover evidence of a crime. But this difficulty does not permit
us to abdicate our duty to protect the citizens of this state from unconsti-
tutional searches. If we are to allow law enforcement officials to inspect
personal records, without judicial oversight, pursuant to an exception that
permits routine administrative searches, we cannot then shrug our shoulders
in helplessness while police exploit that exception by using it to gather
evidence on individuals suspected of criminal activity. Suspicion on the
part of the police should not invalidate an otherwise valid administrative
exception, but when police have specific information that triggers a search
made solely for the purpose of gathering criminal evidence against an
individual, a warrant based on probable cause is required. People v.
Brigante, 131 Misc. 2d 708, 715, 501 N.Y.S.2d 583, 588 (1986) (the litmus
test for determining whether inspection is valid administrative search is
whether purpose of search was to gather evidence of a crime, not whether the
police had suspicions of criminal activity).
Our constitution requires a warrant when the government seeks to
uncover evidence of criminal activity. Cf. State v. Dorn, 145 Vt. 606, 616-
17, 496 A.2d 451, 457 (1985) (assuming, without deciding, that seizure of
prescription records from barn of pharmacy owner suspected of welfare fraud
required a warrant based on full probable cause). We cannot allow police to
circumvent our steadfast stricture against warrantless searches by wearing
the masks of administrative officials while pursuing criminal investi-
gations. Because the instant search violated Article 11, evidence gathered
from it must be suppressed. Further, because the search of the pharmacy was
unlawful, and the police uncovered evidence during that search that led them
to contact and interview defendant's prescribers, I believe that the evi-
dence obtained by police in conversations with those prescribers was tainted
and, therefore, must also be suppressed. See State v. Badger, 141 Vt. 430,
439-41, 450 A.2d 336, 342-43 (1982) (illegality of first confession tainted
second confession).
There is one other point about the majority's opinion that deserves
mention. Even if the search of defendant's pharmaceutical records had been
lawful, I disagree with the majority's conclusion that admission of the
statements police obtained from defendant's physicians was harmless error.
The majority agrees that the court's reasoning for allowing admission of
the statements -- that the statements were nonprivileged because they were
found to be made in an attempt to obtain illegal drugs -- is flawed because
it allows the State to declare a communication nonprivileged after the
doctor-patient confidentiality has been breached. Nevertheless, the
majority upholds the court's ruling, stating that admission of the evidence
was harmless because the police sought only to find out from the prescribers
whether they would have prescribed the medication if they had known of other
concurrent prescriptions.
I do not understand the majority's reasoning. The patient's privilege
is very broad. Our law prohibits physicians from disclosing "any infor-
mation acquired in attending a patient in a professional capacity, and which
was necessary to enable the provider to act in that capacity." See State v.
Raymond, 139 Vt. 464, 470-71, 431 A.2d 453, 457 (1981) (privilege prevented
nurse from testifying that the defendant had alcohol on his breath); see
also V.R.E. 503(b) (privileged information includes "confidential communi-
cations made for the purpose of diagnosis or treatment of [the patient's]
physical, mental, dental, or emotional condition"). Certainly the infor-
mation disclosed in this case meets these definitions, and the majority does
not argue otherwise.
Once we conclude the communication is privileged, we cannot call it
harmless unless "'it is clear beyond a reasonable doubt that the jury would
have returned a guilty verdict regardless of the error.'" State v. Wright,
154 Vt. 512, 519-20, 581 A.2d 720, 725 (1990) (quoting State v. Hamlin, 146
Vt. 97, 106, 499 A.2d 45, 52 (1985)). That is hardly the situation here.
The doctors' statements that they were unaware of other prescriptions, and
that they would not have prescribed the medication if they had known of the
other prescriptions, constituted the principal element of the charged crime
-- obtaining a regulated drug by concealment of a known fact. See 18 V.S.A.
{ 4223(a)(3). The issue cannot be dismissed in summary fashion merely by
concluding that the evidence is harmless.
Accordingly, I dissent not only from the majority's conclusion that the
warrantless search of defendant's prescription records was lawful, but also
from the conclusion that admission of statements made to police by defend-
ant's doctors was harmless error.
I am authorized to say that Justice Morse joins in this dissent.
____________________________________
Denise R. Johnson, Associate Justice
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