State v. Wiedeman , 286 Neb. 193 ( 2013 )

Nebraska Advance Sheets
STATE v. WIEDEMAN 193
Cite as 286 Neb. 193to stabbing him. We therefore conclude that double jeopardy
does not preclude a remand for a new trial and that the State
may retry Trice on the second degree murder and manslaugh-
ter charges.
CONCLUSION
We find plain error in the step instruction regarding second
degree murder and manslaughter.
R eversed and remanded for a new trial.
Heavican, C.J., not participating.
State of Nebraska, appellee, v.
Kimberly D. Wiedeman, appellant.
___ N.W.2d ___
Filed July 12, 2013. No. S-11-888.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a rea-
sonable doubt.
3. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.
4. Constitutional Law: Due Process. The Due Process Clause of the 14th
Amendment contains a substantive component that provides at least some protec-
tion to a person’s right of privacy.
5. ____: ____. The substantive component of the 14th Amendment protects (1) the
individual interest in avoiding disclosure of personal matters and (2) the interest
of independence in making certain kinds of important decisions.
6. Controlled Substances: Health Care Providers: Statutes. The State has
broad police powers in regulating the administration of drugs by the health
professions.
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7. Constitutional Law: Controlled Substances: Records. Patients’ substantive
14th Amendment privacy interests in prescription records are limited to the right
not to have the information disclosed to the general public.
8. Constitutional Law: Controlled Substances: Public Health and Welfare:
Records. A legitimate request for prescription information or records by a public
official responsible for safeguarding public health and safety, subject to safe-
guards against further dissemination of those records, does not impermissibly
invade any 14th Amendment right to privacy.
9. Constitutional Law: Search and Seizure: Words and Phrases. A “search”
under the Fourth Amendment occurs whenever an expectation of privacy that
society is prepared to consider reasonable is infringed.
10. ____: ____: ____. A reasonable expectation of privacy is an expectation that has
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.
11. Constitutional Law: Search and Seizure. The “persons, houses, papers, and
effects” listed in the Fourth Amendment as protected objects remain central to
understanding the scope of what the amendment protects.
12. Controlled Substances: Health Care Providers: Statutes. A reasonable patient
buying narcotic prescription drugs knows or should know that the State, which
outlaws the distribution and use of such drugs without a prescription, will keep
careful watch over the flow of such drugs from pharmacies to patients.
13. Constitutional Law. There is no reasonable expectation of privacy in personal
information a defendant knowingly exposes to third parties.
14. Controlled Substances: Health Care Providers. An investigatory inquiry into
prescription records in the possession of a pharmacy is not a search pertaining to
the pharmacy patient.
15. Controlled Substances: Records. A patient who has given his or her prescrip-
tion to a pharmacy in order to fill it has no legitimate expectation that govern-
mental inquiries will not occur.
16. Criminal Law: Records. Issuance of a subpoena to a third party to obtain
records does not violate the rights of a defendant about whom the records per-
tain, even if a criminal prosecution is contemplated at the time the subpoena
is issued.
17. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In review-
ing the strength of an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a totality of the circumstances
test. The question is whether, under the totality of the circumstances illustrated
by the affidavit, the issuing magistrate had a substantial basis for finding that the
affidavit established probable cause.
Appeal from the District Court for Scotts Bluff County: Leo
Dobrovolny, Judge. Affirmed.
Bell Island, of Island & Huff, P.C., L.L.O., for appellant.
Nebraska Advance Sheets
STATE v. WIEDEMAN 195
Cite as 286 Neb. 193Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
McCormack, J.
I. NATURE OF CASE
Kimberly D. Wiedeman was charged and convicted of 10
counts of acquiring a controlled substance by fraud. The con-
trolled substances were obtained pursuant to prescriptions writ-
ten for chronic pain issues, but Wiedeman did not inform her
medical providers that she was being prescribed similar medi-
cations elsewhere. Wiedeman argues that the fraudulent act was
the singular failure to disclose to the other medical providers
and that she should not be charged with multiple counts based
on multiple prescriptions from the same doctor. Wiedeman also
argues that her medical and prescription records were obtained
in violation of her constitutional rights.
II. BACKGROUND
Wiedeman was charged with 10 counts of acquiring a con-
trolled substance by fraud, in violation of Neb. Rev. Stat.
§ 28-418 (Reissue 2008), a Class IV felony. Wiedeman was
charged with violating § 28-418 on or about April 1, 2010
(count I), April 14 (count II), May 3 (count III), May 24
(count IV), June 1 (count V), June 13 (count VI), June 21
(count VII), July 19 (count VIII), August 9 (count IX), and
August 23 (count X).
1. P retrial Motions
Before trial, defense counsel made a plea in abatement,
arguing that it was improper for the State to charge Wiedeman
with 10 different counts of acquiring a controlled substance by
fraud when there were merely 10 times Wiedeman filled pre-
scriptions obtained through a single act of alleged deceit. The
court overruled the motion.
Defense counsel next filed a motion to suppress Wiedeman’s
prescription records, because “[t]he search of [Wiedeman’s]
records was done without a warrant and was in violation
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of [Wiedeman’s] rights under the Fourth and Fourteenth
Amendments to the United States Constitution; Sects. 1, 3,
and 7 of the Bill of Rights to the Nebraska Constitution.” The
Scotts Bluff County Attorney had obtained Wiedeman’s phar-
macy records after issuing subpoenas to the various pharmacies
in Scotts Bluff County pursuant to Neb. Rev. Stat. § 86-2,112
(Reissue 2008).
At the hearing on the motion to suppress, the prosecution
offered exhibit 2, which was a copy of its subpoena to the
pharmacy at Walgreens. No other subpoena was offered into
evidence. Defense counsel admitted during the hearing that the
prosecution had provided him with copies of three or four other
subpoenas for three or four other pharmacies, and the investiga-
tor testified that all the subpoenas were identical. Nevertheless,
defense counsel argued that the prescription records should
be suppressed not only because any search is presumptively
unreasonable without a warrant, but also because there was
only one subpoena in evidence.
Defense counsel also moved to suppress the medical records
and all physical evidence seized during a search of Wiedeman,
her home, and her vehicle, arguing that the warrants for those
searches were invalid.
The trial court denied the motion to suppress. The court
explained that § 86-2,112 and Neb. Rev. Stat. § 28-414 (Cum.
Supp. 2010) provided for the investigation of prescription
records without a warrant. The court found that the warrants
for medical records and other items seized were supported with
probable cause and that the places to be searched and things
to be seized were described with particularity. The case went
to trial.
2. Trial
At trial, the evidence against Wiedeman consisted primarily
of the prescription records and the testimony and records of her
medical providers.
(a) Medical Providers
Wiedeman suffered from chronic pain associated with rheu-
matoid arthritis and spinal fusions performed in 2004 and
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STATE v. WIEDEMAN 197
Cite as 286 Neb. 1932009. In August 2009, Wiedeman saw neurologist Dr. Betty
Ball for her neck issues. Wiedeman continued to see Ball until
August 2010.
Separately, beginning sometime in 2009 and continuing
until July 2010, Wiedeman was a patient of nurse practitioner
Cheryl Laux at the Chimney Rock Medical Center in Bayard,
Nebraska (Chimney Rock). On January 12, 2009, Wiedeman
signed a pain contract with Chimney Rock, apparently in
conjunction with pain management issues resulting from her
2009 spinal fusion surgery. In the contract, Wiedeman agreed
to receive opioid medication only from Chimney Rock and
not from any other source. Wiedeman further agreed to fill
her prescriptions for opioid medications at only one phar-
macy of her choosing, not at multiple pharmacies. Laux tes-
tified that she did not know Wiedeman had any other medi-
cal providers.
During this period, Wiedeman also went to Quick Care
Medical Services from time to time. There, she saw nurse
practitioner Jodene Burkhart and also, as can be surmised from
the record, a “Dr. Harkins.” In December 2009, Burkhart ran
blood tests that indicated Wiedeman had rheumatoid arthritis.
Burkhart prescribed hydrocodone and recommended Wiedeman
see a rheumatologist. The nearest rheumatologists are located
in Colorado. Many of those were not accepting new patients,
and the evidence was that Wiedeman has still not been able to
see one.
Dr. Michelle Cheloha became Wiedeman’s treating fam-
ily practice physician in April 2010. Cheloha explained that
Wiedeman needed to see a rheumatologist for a more defini-
tive diagnosis and better treatment of her arthritis, but Cheloha
tried to address the issues relating to Wiedeman’s condition
until a rheumatologist could do so. Cheloha was aware of
urgent care visits to the clinic where Cheloha worked and
explained that it looked like Wiedeman needed to establish
routine medical care.
Cheloha was also aware of Wiedeman’s past treatment
with Ball and of the arthritis test results. It does not appear,
however, that Cheloha knew Wiedeman was still regularly
seeing Ball when Cheloha accepted Wiedeman as a patient.
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Nor, apparently, was Cheloha aware of Wiedeman’s treat-
ment by Laux at Chimney Rock, or of the visits to Quick
Care Medical Services. Cheloha admitted she did not specifi-
cally ask Wiedeman if she was seeing other physicians. But
Cheloha did specifically recall discussing with Wiedeman
what medications she had previously tried. Cheloha mistak-
enly concluded from that conversation, and from reviewing
her records, that Wiedeman had last been prescribed a narcotic
in 2008.
Wiedeman told Cheloha that she had been taking tremendous
amounts of over-the-counter ibuprofen for her pain. Wiedeman
also told Cheloha that she had “tried” her mother’s narcotic
medications relating to rheumatoid arthritis. Wiedeman did not
disclose any other past or present prescriptions relating to her
chronic pain issues.
Wiedeman saw Cheloha monthly. Cheloha began prescrib-
ing hydrocodone. She stated that the maximum dosage was 6
pills per day, or 180 pills per month. Cheloha started with a
plan of 90 pills per month. By May 3, 2010, Cheloha increased
the prescription to the maximum dosage of 180 pills per
month. Cheloha eventually switched Wiedeman to oxycodone
when the maximum dosage of hydrocodone was still failing to
address Wiedeman’s pain issues. Cheloha told Wiedeman not
to mix hydrocodone with oxycodone. The maximum monthly
dosage of oxycodone is also 180 pills.
On April 14, 2010, Cheloha represcribed 90 pills of hydro-
codone after Wiedeman told Cheloha that her husband had
accidentally taken her pills out of town. On June 1, Wiedeman
told Cheloha that she had an allergic reaction to the oxycodone
and that she had flushed the pills down the toilet. Cheloha
rewrote a prescription for 180 hydrocodone pills, with one per-
mitted refill. This was the only prescription written by Cheloha
that allowed a refill, and the record is unclear whether this
was intentional.
(b) Prescription Records
The State entered into evidence Wiedeman’s prescription
records from five different pharmacies for the period of August
1, 2009, to August 27, 2010. The prescription records reflect
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STATE v. WIEDEMAN 199
Cite as 286 Neb. 193that in August 2009, Ball prescribed 30 pills of oxycodone
and the prescription was filled at the Community Pharmacy at
Regional West Medical Center. No other prescriptions for con-
trolled substances were filled in August.
In September 2009, Wiedeman was prescribed a total of 120
hydrocodone pills and 100 oxycodone pills. Ball prescribed 60
oxycodone pills, filled at the Community Pharmacy. Harkins at
Quick Care Medical Services prescribed a total of 40 oxyco-
done and 120 hydrocodone pills on several different occasions,
and those were filled at the pharmacy at Kmart.
In October 2009, Wiedeman filled prescriptions for a
total of 40 oxycodone pills and 200 hydrocodone pills. She
filled one 30-pill hydrocodone prescription from Ball at
Community Pharmacy, a 60-pill hydrocodone prescription
from Harkins at Kmart, a 40-pill oxycodone prescription
from Harkins at Walgreens, and three different hydrocodone
prescriptions from Burkhart at the Co-op Plaza Pharmacy,
totaling 110 pills.
In November 2009, Wiedeman filled prescriptions totaling
60 oxycodone pills and 75 hydrocodone pills. One prescrip-
tion was for 60 oxycodone pills from Ball through Community
Pharmacy. One was for 40 hydrocodone pills from Harkins,
filled at Kmart. Two smaller hydrocodone prescriptions were
written by “Ernst, C.,” and “Keralis, M.,” respectively, and
were filled at Walgreens.
In December 2009, Wiedeman obtained 120 oxycodone pills
and 40 hydrocodone pills. She filled her regular 60-pill oxy-
codone prescription from Ball at Community Pharmacy. She
filled a 60-pill oxycodone prescription from Laux at the Co-op
Plaza Pharmacy and a 40-pill hydrocodone prescription from
Burkhart at Kmart.
In January 2010, Wiedeman filled prescriptions totaling 60
oxycodone pills and 220 hydrocodone pills. The oxycodone
prescription was from Ball, the hydrocodone prescriptions were
all from Burkhart. Wiedeman filled prescriptions from Burkhart
for 40 hydrocodone pills on January 2, 90 pills on January 16,
and 90 pills on January 29.
In February 2010, Wiedeman received 40 oxycodone pills
and 150 hydrocodone pills. February was the only month Ball
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wrote prescriptions for both oxycodone and hydrocodone, for
40 and 30 pills respectively, filled at Community Pharmacy.
Burkhart wrote a 90-pill prescription for hydrocodone, filled
at Kmart. An “Agarwal, V.,” prescribed 30 hydrocodone pills,
filled at Walgreens.
In March 2010, Wiedeman received 80 oxycodone pills
and 120 hydrocodone pills. Ball prescribed her regular dosage
of 60 oxycodone pills, filled at Community Pharmacy, while
Burkhart prescribed a total of 120 hydrocodone pills, filled
at Kmart. A “Hadden/Keena” prescribed 20 oxycodone pills,
filled at the Co-op Plaza Pharmacy.
In April 2010, Wiedeman filled prescriptions totaling
60 oxycodone pills and 320 hydrocodone pills. On April 1
(count I), Wiedeman filled a prescription for 90 hydroco-
done pills from Cheloha at Walmart. On April 5, she filled
a prescription from Burkhart for 30 hydrocodone pills at
Kmart. On April 7, she filled a 60-pill oxycodone prescription
from a “Zimmerman” at Community Pharmacy. On April 14
(count II), Wiedeman filled another prescription from Cheloha
for 90 hydrocodone pills at Walmart. Wiedeman filled two
prescriptions for hydrocodone from Harkins on April 17 and
19, each for 25 pills, at Kmart. On April 27, Wiedeman filled
another hydrocodone prescription from Burkhart for 60 pills,
also at Kmart.
In May 2010, Wiedeman filled prescriptions totaling
250 oxycodone pills and 230 hydrocodone pills. On May 3
(count III), at Walmart, she filled a 180-pill hydrocodone
prescription from Cheloha. On May 10, at Kmart, Wiedeman
filled a prescription from Burkhart for 50 hydrocodone pills.
The next day, on May 11, she filled a 30-pill oxycodone
prescription from Ball at Community Pharmacy. On May 14,
Wiedeman filled an oxycodone prescription from Burkhart for
30 pills at Co-op Plaza Pharmacy. On May 24 (count IV), she
filled another prescription from Cheloha for 180 oxycodone
pills at Walgreens. Wiedeman filled a small prescription for
10 oxycodone pills at Walgreens, prescribed by “Hill, B.,” on
May 30.
In June 2010, Wiedeman filled prescriptions totaling 30
oxycodone pills from Ball and 540 hydrocodone pills from
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STATE v. WIEDEMAN 201
Cite as 286 Neb. 193Cheloha. She filled prescriptions from Cheloha for 180 pills
each at Walmart on June 1 (count V) and again on June 13
(count VI). The June 13 prescription was presumably the refill
of the June 1 prescription. Wiedeman filled a prescription
from Cheloha for 180 hydrocodone pills at Kmart on June 21
(count VII). Wiedeman filled her prescription of 30 oxycodone
pills from Ball at Community Pharmacy.
In July 2010, Wiedeman obtained 80 oxycodone pills and
240 hydrocodone pills. She filled a prescription from “Voth-
Mueller, C.,” for 20 oxycodone at Walgreens on July 5. She
filled a 30-pill hydrocodone prescriptions from “Lacey, Trish,”
at Co-op Plaza Pharmacy on July 9. Wiedeman filled a prescrip-
tion for 60 oxycodone pills from Ball at Community Pharmacy
on July 6. She filled another 30-pill hydrocodone prescription
from “Lacey, Trish,” at Co-op Plaza Pharmacy on July 15.
Finally, she filled a prescription on July 19 (count VIII) from
Cheloha for 180 hydrocodone pills at Kmart.
In August 2010, Wiedeman obtained 180 oxycodone pills
and 120 hydrocodone pills. On August 4, she filled her monthly
prescription of 60 oxycodone pills from Ball at Community
Pharmacy. On August 9 (count IX), Wiedeman filled her 120-
pill oxycodone prescription from Cheloha at Walgreens. On
August 23 (count X), she filled her prescription for 120 hydro-
codone pills from Cheloha at Kmart.
These prescriptions came to an end when, sometime in
August 2010, Wiedeman went to Chimney Rock to see Laux.
Nurse practitioner Kevin Harriger saw Wiedeman because
Laux was on medical leave. Wiedeman complained of pain
associated with her rheumatoid arthritis and past neck surger-
ies. Harriger prescribed oxycodone, but became suspicious
after Wiedeman left the clinic. After confirming with several
pharmacies that Wiedeman was filling narcotic prescriptions
from multiple doctors and multiple pharmacies, Harriger called
the police, who began their investigation of Wiedeman.
(c) Wiedeman’s Statements
Investigator James Jackson testified as to a recorded inter-
view with Wiedeman conducted as part of his investigation.
Wiedeman admitted in the interview that she took the narcotic
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medications for both pain and addiction. Wiedeman said she
was taking up to 18 hydrocodone a day, on an “as-needed
basis.” In the interview, Wiedeman admitted that she knew that
Cheloha would not have written all the prescriptions for her
had Wiedeman told Cheloha about the other medical providers
she was seeing and her other prescriptions.
At trial, Wiedeman testified that she always took her medi-
cations as directed. She said that she never obtained a prescrip-
tion when she already had one. Wiedeman testified that most
of her prescriptions were written for 12 pills a day and “then it
went up.” She was sure she never took in more than the larg-
est number prescribed per day, and she did not think she had
ever taken more than 15 in one day. Wiedeman testified that
she never took hydrocodone and oxycodone on the same day.
She explained that she went to different medical providers and
filled her prescriptions at different pharmacies simply because
she traveled a lot for work.
Defense counsel’s motions for directed verdict were over-
ruled. The jury found Wiedeman guilty of all 10 counts.
She appeals.
III. ASSIGNMENTS OF ERROR
Wiedeman assigns that the trial court erred in (1) failing
to direct a verdict when the State failed to prove Wiedeman
obtained a prescription by fraud, deception, subterfuge, or
misrepresentation; (2) failing to sustain the motion to sup-
press pharmacy records when they were seized without a
warrant; (3) failing to sustain the motion to suppress when
the State failed to offer the subpoenas which it used to obtain
Wiedeman’s pharmacy records; and (4) finding the affidavit
for the warrant set forth sufficient facts establishing prob-
able cause.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. Regarding histori-
cal facts, we review the trial court’s findings for clear error.
But whether those facts trigger or violate Fourth Amendment
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STATE v. WIEDEMAN 203
Cite as 286 Neb. 193protections is a question of law that we review independently
of the trial court’s determination.1
[2] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.2 The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.3
V. ANALYSIS
1. Failure to Suppress
Pharmacy R ecords
We first address Wiedeman’s arguments that the manner in
which the State obtained her pharmacy records and offered those
records into evidence violated her 4th and 14th Amendment
rights. Section 28-414(3)(a) provides that prescriptions for all
controlled substances listed in Schedule II shall be kept in a
separate file by the dispensing practitioner and that the practi-
tioner “shall make all such files readily available to the depart-
ment and law enforcement for inspection without a search
warrant.” Without challenging the statute itself, Wiedeman
argues that law enforcement violated her rights under the 4th
and 14th Amendments to the U.S. Constitution and article I,
§ 7, of the Nebraska Constitution by obtaining her prescrip-
tion records without a warrant. Alternatively, she argues those
rights required that the State obtain her records by means of
something “in between a subpoena and a warrant” and that it
demonstrate at trial the prescription records were obtained “in
a proper manner.”4
1
State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
2
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
3
Id.
4
Brief for appellant at 19.
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[3] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.5 The Fourth Amendment
provides:
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 person or things to be seized.
[4,5] In addition, the Due Process Clause of the 14th
Amendment contains a substantive component that provides at
least some protection to a person’s right of privacy.6 The U.S.
Supreme Court has said that this privacy entails at least two
kinds of interests: (1) the individual interest in avoiding disclo-
sure of personal matters and (2) the interest of independence in
making certain kinds of important decisions.7
Virtually every governmental action interferes with per-
sonal privacy to some degree.8 The question in each case is
whether that interference violates a command of the U.S.
Constitution.9
(a) 14th Amendment
We find the U.S. Supreme Court opinion in Whalen v. Roe10
to be dispositive of Wiedeman’s arguments under the 14th
Amendment. In Whalen, the U.S. Supreme Court held that
the collection of narcotics prescription records in a database
accessible to certain health department employees and inves-
tigators—and also to general law enforcement pursuant to
5
See, Omni v. Nebraska Foster Care Review Bd., 277 Neb. 641, 764
N.W.2d 398 (2009); State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335(2007).
6
State v. Senters, 270 Neb. 19, 699 N.W.2d 810 (2005).
7
Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).
8
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576(1967).
9
Id.
10
Whalen v. Roe, supra note 7.
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STATE v. WIEDEMAN 205
Cite as 286 Neb. 193a judicial subpoena or court order—did not violate the 14th
Amendment right to privacy.11
[6] The Court found that the reporting and monitoring of
prescription records was a rational exercise of the state’s broad
police powers and that it is “well settled that the State has
broad police powers in regulating the administration of drugs
by the health professions.”12 Further, it was reasonable for
the state to believe that the recording program would have a
deterrent effect on potential violators and that it would aid in
the detection or investigation of specific instances of abuse or
misuse of dangerous drugs.13
The Court then concluded that the program did not “pose a
sufficiently grievous threat to either [14th Amendment privacy]
interest to establish a constitutional violation.”14 Concerning
the interest in avoiding disclosure of personal matters, the
Court found that the recording program contained adequate
safeguards against disclosure of prescription records to the
general public. Although prescription records were automati-
cally disclosed to certain state employees, the Court found such
disclosures were not meaningfully distinguishable from “a host
of other unpleasant invasions of privacy that are associated
with many facets of health care.”15 Patients must disclose pri-
vate medical information to “doctors, to hospital personnel, to
insurance companies, and to public health agencies, . . . even
when the disclosure may reflect unfavorably on the character
of the patient.”16
As for the privacy interest of independence in making
certain kinds of important decisions, the Court held that the
recording program did not deprive patients of their right to
decide independently, with the advice of a physician, to use
11
Id.
12
Id., 429 U.S. at 603 n.30.
13
See Whalen v. Roe, supra note 7.
14
Id., 429 U.S. at 600.
15
Id., 429 U.S. at 602.
16
Id.
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206 286 NEBRASKA REPORTS
the medication.17 This was true despite the uncontested evi-
dence that the program discouraged some patients from using
monitored medications. The Court observed on this point that
the state “no doubt could prohibit entirely the use of particular
Schedule II drugs.”18
In sum, the prescription recordkeeping scheme considered in
Whalen provided “proper concern with, and protection of, the
individual’s interest in privacy.”19 Therefore, it did not violate
patients’ 14th Amendment privacy rights.
Nebraska does not have a centralized database for prescrip-
tion records, but instead mandates that such records be kept
by the pharmacies for a period of 5 years.20 Nebraska law
provides protection against dissemination of these prescrip-
tion records to the general public. Neb. Rev. Stat. § 38-2868
(Reissue 2008) states that pharmacy records shall be privi-
leged and confidential and may be released only to the patient,
caregiver, or others authorized by the patient or his or her
legal representative; the treating physician; other physicians or
pharmacists when such release is necessary to protect patient
health or well-being; or other persons or governmental agen-
cies authorized by law to receive such information.
[7,8] Weighing the State’s significant interest in the regu-
lation of potentially dangerous and addictive narcotic drugs
against the minimal interference with one’s ability to make
medical decisions and the protections from broader dissemi-
nation to the general public, we find the State did not violate
Wiedeman’s 14th Amendment privacy rights through its war-
rantless, investigatory access to her prescription records pur-
suant to § 28-414. Other courts have explained that patients’
substantive 14th Amendment privacy interests in prescription
records are “limited to the right not to have the information
17
Whalen v. Roe, supra note 7.
18
Id., 429 U.S. at 603.
19
Id., 429 U.S. at 605.
20
See Neb. Rev. Stat. § 28-411 (Reissue 2008) and § 28-414.
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STATE v. WIEDEMAN 207
Cite as 286 Neb. 193disclosed to the general public.”21 We agree. A legitimate
request for prescription information or records by a public
official responsible for safeguarding public health and safety,
subject to safeguards against further dissemination of those
records, does not impermissibly invade any 14th Amendment
right to privacy.22 Having so concluded, we find no support for
Wiedeman’s suggestion that the 14th Amendment demands a
special process for access to her prescription records or for the
use of such records in court. We note that Wiedeman did not
allege that Jackson’s investigation of the prescription records
was for a discriminatory or arbitrary purpose or for anything
other than a legitimate investigatory purpose.
(b) Fourth Amendment
[9-11] We next address Wiedeman’s claims under the Fourth
Amendment. The U.S. Supreme Court has said a “search”
under the Fourth Amendment occurs whenever an “expectation
of privacy that society is prepared to consider reasonable is
infringed.”23 A reasonable expectation of privacy is an expec-
tation that has a source outside of the Fourth Amendment,
by reference either to concepts of real or personal property
law or to understandings that are recognized and permitted
by society.24 Under the reasonable-expectation-of-privacy test,
however, “the four items listed in the [Fourth] Amendment
as the protected objects remain central to understanding the
scope of what the Amendment protects.”25 Otherwise, “the
21
Stone v. Stow, 64 Ohio St. 3d 156, 166, 593 N.E.2d 294, 301 (1992). See,
also, State v. Russo, 259 Conn. 436, 790 A.2d 1132 (2002).
22
See, Whalen v. Roe, supra note 7; State v. Russo, supra note 21.
23
United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed.
2d 85 (1984).
24
See U.S. v. Jones, ___ U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012).
25
Thomas K. Clancy, The Fourth Amendment, Its History and Interpretation
10 (2008). See, also, e.g., Kyllo v. United States, 533 U.S. 27, 121 S. Ct.
2038, 150 L. Ed. 2d 94 (2001); State v. Cortis, 237 Neb. 97, 465 N.W.2d
132 (1991); State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989).
Nebraska Advance Sheets
208 286 NEBRASKA REPORTS
phrase ‘in their persons, houses, papers, and effects’ would
have been superfluous.”26
The investigatory inquiry into prescription records is dis-
tinguishable from the invasion of the “person” that occurs
during drug or alcohol testing.27 Wiedeman had no owner-
ship or possessory interest in the pharmacies from where
the records were obtained. And, even though they may con-
cern Wiedeman, the prescription records are not Wiedeman’s
effects or papers.
In State v. Cody,28 we explained:
“Property ownership is one factor to consider in deter-
mining whether a defendant has a reasonable expecta-
tion of privacy. . . . Other factors include the nature
of the place searched, . . . whether the defendant had
a possessory interest in the thing seized or the place
searched, whether the defendant had a right to exclude
others from that place, whether the defendant exhibited
a subjective expectation that the place would remain free
from governmental intrusion, whether the defendant took
precautions to maintain privacy, and whether the defend­
ant was legitimately on or in possession of the prem-
ises searched.”
We generally ask whether the defendant owned the prem-
ises, property, place, or space, and whether the defendant had
dominion or control over such things or places based on per-
mission from the owner.29 Wiedeman fails to have any interest
in the prescription records under any of these property-based
26
U.S. v. Jones, supra note 24, 132 S. Ct. at 949.
27
See, Ferguson v. Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed.
2d 205 (2001); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.
Ct. 2386, 132 L. Ed. 2d 564 (1995); Skinner v. Railway Labor Executives’
Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989).
28
State v. Cody, 248 Neb. 683, 694, 539 N.W.2d 18, 26 (1995).
29
See, State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011); State v. Smith,
279 Neb. 918, 782 N.W.2d 913 (2010); State v. Sinsel, 249 Neb. 369, 543
N.W.2d 457 (1996); State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921(1993); State v. Trahan, 229 Neb. 683, 428 N.W.2d 619 (1988).
Nebraska Advance Sheets
STATE v. WIEDEMAN 209
Cite as 286 Neb. 193tests. Fourth Amendment rights are personal rights; they may
not be vicariously asserted.30
[12] If the expectation of privacy in a pharmacy’s pre­
scription records is not based in the four items listed in the
Fourth Amendment, or in concepts of real or personal prop-
erty law, then it can only be reasonable if so recognized and
permitted by society.31 Societal expectations as to prescrip-
tion records were aptly described by the Washington Court
of Appeals:
When a patient brings a prescription to a pharmacist,
the patient has a right to expect that his or her use of a
particular drug will not be disclosed arbitrarily or ran-
domly. But a reasonable patient buying narcotic prescrip-
tion drugs knows or should know that the State, which
outlaws the distribution and use of such drugs without
a prescription, will keep careful watch over the flow of
such drugs from pharmacies to patients.32
While the state cannot take away an established societal expec-
tation of privacy through the mere passage of a law,33 there is
a long history of governmental scrutiny in the area of narcotics
and other controlled substances. All states highly regulate pre-
scription narcotics, and many state statutes specifically allow
for law enforcement investigatory access to those records
without a warrant.34 This well-known and long-established
regulatory history significantly diminishes any societal expec-
tation of privacy against governmental investigation of narcot-
ics prescriptions.
30
See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387(1978). See, also, State v. Cody, supra note 28.
31
See U.S. v. Jones, supra note 24.
32
Murphy v. State, 115 Wash. App. 297, 312, 62 P.3d 533, 541 (2003). See,
also, e.g., State v. Russo, supra note 21.
33
See, e.g., Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d
220 (1979).
34
See 50 State Statutory Surveys, Health Care Records and Recordkeeping,
0100 Surveys 53 (West 2012).
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210 286 NEBRASKA REPORTS
[13] Furthermore, the U.S. Supreme Court has repeatedly
said there is no reasonable expectation of privacy in personal
information a defendant knowingly exposes to third parties.35
This is true even when the information revealed to the third
party is revealed on the assumption that it will be used only for
a limited purpose and on the assumption that the confidence in
the third party will not be betrayed.36
Thus, there is no reasonable expectation of privacy in situ-
ations such as the numerical information conveyed to a tele-
phone company of the numbers dialed,37 financial records
given to an accountant,38 or personal account records main-
tained at one’s bank.39 In State v. Kenny,40 we held that the
defendant had no reasonable expectation of privacy in letters
he sent through the mail. We explained that while the defend­
ant “may have hoped for privacy, . . . he had no ‘expectation
of privacy’ as contemplated by the fourth amendment to the
U.S. Constitution.”41
In Whalen,42 the U.S. Supreme Court addressed the appel-
lees’ Fourth Amendment arguments in a footnote. With little
explanation, the Court held that a prescription recordkeeping
scheme also did not violate any privacy right emanating from
the Fourth Amendment.43 Whalen may be distinguishable to
the extent that the Court was not presented with a targeted
35
Smith v. Maryland, supra note 33; United States v. Miller, 425 U.S. 435,
96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976); Couch v. United States, 409 U.S.
322, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973); Hoffa v. United States, 385
U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966); Lopez v. United States,
373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963).
36
United States v. Miller, supra note 35. See, also, United States v. White,
401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971); Hoffa v. United
States, supra note 35; Lopez v. United States, supra note 35.
37
Smith v. Maryland, supra note 33.
38
Couch v. United States, supra note 35.
39
United States v. Miller, supra note 35.
40
State v. Kenny, 224 Neb. 638, 399 N.W.2d 821 (1987).
41
Id. at 642, 399 N.W.2d at 824.
42
Whalen v. Roe, supra note 7.
43
Id.
Nebraska Advance Sheets
STATE v. WIEDEMAN 211
Cite as 286 Neb. 193police investigation.44 Nevertheless, we find Whalen to be
persuasive authority for the conclusion that disclosure by a
pharmacy of patient prescription records to law enforcement is
not a search from the standpoint of the patient.
The desire for medical care will not negate the voluntari-
ness of the disclosure to third-party pharmacies.45 The desire
to have a checking account or credit card, to use a telephone,
or to mail a letter does not negate the voluntariness of the dis-
closure to the entities necessary for those important services.
Indeed, the Court in Whalen suggested that there is no right
to narcotic drugs at all; the state would be within its power
to prohibit access to such drugs altogether. While there is a
trust relationship between the pharmacy and the patient, cases
such as Smith v. Maryland,46 United States v. Miller,47 Couch
v. United States,48 and Kenny49 hold that disclosure, even on
the assumption that the confidence in the third party will not
be betrayed,50 negates any expectation of privacy cognizable
under the Fourth Amendment.
The court in Williams v. Com.51 thus held that the law
enforcement investigation of prescription records under a
law similar to § 28-414 is not a search under the Fourth
Amendment. Noting the proposition that what is voluntarily
exposed to the public is not subject to Fourth Amendment
protections, the court concluded that its citizens “have no
reasonable expectation of privacy in this limited examina-
tion of and access to their prescription records.”52 The court
further explained that “it is well known by citizens that any
44
See, e.g., United States v. Miller, supra note 35; Ferguson v. Charleston,
supra note 27.
45
See Ferguson v. Charleston, supra note 27.
46
Smith v. Maryland, supra note 33.
47
United States v. Miller, supra note 35.
48
Couch v. United States, supra note 35.
49
State v. Kenny, supra note 40.
50
See cases cited supra note 36.
51
Will. v. Com., 213 S.W.3d 671 (Ky. 2006).
52
Id. at 682.
Nebraska Advance Sheets
212 286 NEBRASKA REPORTS
p
­ rescriptions they receive and fill will be conveyed to several
third parties, including their physician, their pharmacy, and
their health insurance company.”53 And “pharmacy records
have long been subject not only to use and inspection by [those
entities] but also to inspection by law enforcement and state
regulatory agencies.”54
The court in Williams opined that it would be “mindful”
of its duty to jealously protect the freedoms of the Fourth
Amendment and would hold differently if it “perceived some
sort of manipulation of these well-recognized freedoms by the
state.”55 But it did not find such manipulation in the case of law
enforcement’s obtaining prescription records from businesses
that keep those records in the ordinary course of business and
pursuant to a statutory obligation to do so.56
[14,15] We agree that an investigatory inquiry into prescrip-
tion records in the possession of a pharmacy is not a search
pertaining to the pharmacy patient. A patient who has given
his or her prescription to a pharmacy in order to fill it has
no legitimate expectation that governmental inquiries will
not occur.
[16] Issuance of a subpoena to a third party to obtain records
does not violate the rights of a defendant about whom the
records pertain, even if a criminal prosecution is contemplated
at the time the subpoena is issued.57 The U.S. Supreme Court
in Miller explained that the bank in possession of account
records, not the customer whom they concern, has standing to
challenge a subpoena.58 Although it may be “unattractive” for a
business not to notify its customer of the subpoena, such lack
of notification is simply “without legal consequences” under
the Fourth Amendment.59
53
Id. at 683.
54
Id.
55
Id.
56
Id. See, also, State v. Welch, 160 Vt. 70, 624 A.2d 1105 (1992).
57
See United States v. Miller, supra note 35.
58
Id.
59
Id., 425 U.S. at 443 n.5.
Nebraska Advance Sheets
STATE v. WIEDEMAN 213
Cite as 286 Neb. 193Wiedeman lacks standing to challenge the manner of the
State’s inquiry into the prescription records or the constitu-
tional or statutory adequacy of the subpoenas offered and not
offered into evidence. There is no argument on appeal that
there is insufficient foundation for the prescription records or
that the prescription records are not what they purport to be.
We find no merit to Wiedeman’s assertion that the admission
of the pharmacy records violated her constitutional or statu-
tory rights.
2. Failure to Suppress
Medical R ecords
[17] Next, Wiedeman argues that her medical records should
have been suppressed because the warrant for her medical
records lacked probable cause. In reviewing the strength of
an affidavit submitted as a basis for finding probable cause to
issue a search warrant, an appellate court applies a “totality of
the circumstances” test.60 The question is whether, under the
totality of the circumstances illustrated by the affidavit, the
issuing magistrate had a substantial basis for finding that the
affidavit established probable cause.61
Aside from the argument that the prescription records
should have been stricken—an argument we conclude has
no merit due to our analysis above—Wiedeman asserts that
the probable cause affidavit was insufficient because it failed
to disclose information about any false or misleading state-
ment made by her. In the affidavit, Jackson explained that
Harriger, a nurse practitioner, had contacted him with concerns
that Wiedeman was abusing prescription drugs. Harriger had
become suspicious that Wiedeman was traveling a significant
distance to the clinic. Harriger contacted a couple of pharma-
cies that confirmed Wiedeman was seeing several doctors and
filling multiple narcotics prescriptions at different pharma-
cies. This information, combined with the prescription records
that revealed Wiedeman was filling multiple prescriptions
at multiple pharmacies for an extraordinary number of pills,
60
State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012).
61
Id.
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214 286 NEBRASKA REPORTS
established probable cause. We find no merit to this assign-
ment of error.
3. Sufficiency of Evidence
Lastly, Wiedeman challenges the sufficiency of the evi-
dence to support her conviction of 10 counts of violating
§ 28-418. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.62 The relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.63
Section 28-418 states it shall be unlawful for any person
“knowingly or intentionally . . . [t]o acquire or obtain or to
attempt to acquire or obtain possession of a controlled sub-
stance by theft, misrepresentation, fraud, forgery, deception,
or subterfuge”64 or “[t]o communicate information to a practi­
tioner in an effort to unlawfully procure a controlled substance
. . . or a medical order for a controlled substance issued by a
practitioner authorized to prescribe.”65
We find no merit to Wiedeman’s argument that filling
multiple prescriptions obtained by virtue of a single misrep-
resentation or act of deception is but a single violation. The
statute plainly states that a violation occurs upon the act of
acquiring or obtaining. Section 28-418 does not state that
each act of acquiring or obtaining must be accompanied by
a new act of misrepresentation or deception. When the act
of obtaining the prescription was facilitated by a continuing
deception based on a single conversation or other event, the
statute is satisfied.
62
State v. McCave, supra note 2.
63
Id.
64
§ 28-418(1)(c).
65
§ 28-418(1)(i).
Nebraska Advance Sheets
STATE v. WIEDEMAN 215
Cite as 286 Neb. 193The court did not err in concluding that Wiedeman com-
mitted multiple violations of § 28-418 each time she obtained
and filled a prescription from Cheloha. Each prescription from
Cheloha would not have been written but for Wiedeman’s fail-
ure to disclose that she was already taking narcotics through
prescriptions from other providers.
We also find no merit to Wiedeman’s claim that she never
affirmatively acted in a way that could violate § 28-418,
because she did not “affirmatively” provide fraudulent or false
information to anyone. Pointing out dictionary definitions of
“misrepresentation,” “fraud,” “deception,” and “subterfuge,”
Wiedeman argues that in order to violate § 28-418, there must
be “[s]ome word or deed that hides or misleads the one who
relies upon the act or deed.”66
Even accepting Wiedeman’s definitions, we find the record
more than adequate to support the trial court’s findings. It
is apparent that Wiedeman affirmatively misrepresented her
medical history. Particularly, Wiedeman told Cheloha she had
once “tried” her mother’s narcotic medications, but otherwise
relied on over-the-counter ibuprofen for her pain. In fact, at
the time of her first visit to Cheloha, Wiedeman had been
averaging 200 pills per month since September 2009, more
than the maximum dosage. With the addition of the prescrip-
tions by Cheloha, Wiedeman was able to obtain an average of
over 400 pills per month. Wiedeman admitted to Jackson that
she knew Cheloha would not have written all the prescriptions
for her had she told Cheloha about the other medical provid-
ers and her other prescriptions. The pain contract Wiedeman
signed with Laux in January 2009 is further evidence of
such knowledge. We find the evidence sufficient to support
the convictions.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
Cassel, J., not participating.
66
Brief for appellant at 13.
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216 286 NEBRASKA REPORTS
Connolly, J., dissenting.
The Fourth Amendment forbids a government agent’s intru-
sion into a person’s legitimate expectation of privacy to
search for evidence of a crime without judicial oversight and
probable cause. Such searches are per se unreasonable, sub-
ject only to a few well-defined exceptions.1 Here, no excep-
tions apply.
But the majority opinion concludes that if a citizen presents
a prescription order for a narcotic drug at a pharmacy, he has
no expectation that the information will remain private because
(1) he voluntarily disclosed the prescription and (2) the gov-
ernment heavily regulates the dispensing of narcotics. The
majority reasons that once a person gives the prescription to a
pharmacist, it is no longer private information. Thus, a pros-
ecutor can subpoena a person’s prescription records without
violating the Fourth Amendment; i.e., no search of personal
information occurs if the target of a criminal investigation has
publicly exposed it.
I believe that this decision will have far-reaching effects for
citizens’ Fourth Amendment protections. Information that citi-
zens normally considered private will not be protected by the
Fourth Amendment if it is held by a third party that is subject
to extensive regulation. And as we know, many human activi-
ties are subject to extensive federal and state regulations: e.g.,
banking, investing, attending school, or seeking medical or
psychiatric care. But if an individual is suspected of a crime
and his personal information is held by a third party that is
subject to regulation, the majority would permit the state—
without probable cause or court order—to invade by subpoena
a citizen’s protected zone of privacy.
According to the majority opinion, because Wiedeman gave
her prescriptions to a pharmacist, she voluntarily disclosed this
information and had no expectation of privacy in her personal
medical information. This “voluntarily disclosed” rationale
will not be limited to narcotic prescriptions. It necessarily
1
Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295, 137 L. Ed. 2d 513(1997); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d
576 (1967); State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
Nebraska Advance Sheets
STATE v. WIEDEMAN 217
Cite as 286 Neb. 193means that if a citizen presents a prescription to a pharmacist,
he or she has voluntarily disclosed any medical information
disclosed by the prescription. Nor will the “voluntarily dis-
closed” rationale be limited to prescription orders. And I do
not believe this result is required by or consistent with the U.S.
Supreme Court’s decision in Whalen v. Roe.2
The majority opinion misinterprets the Court’s decision
in Whalen. It did not hold that citizens have no reasonable
expectation of privacy in their prescription records. There,
the plaintiffs were physicians and patients who challenged a
state statutory scheme that required doctors and pharmacists to
report prescriptions for narcotic drugs to a state agency. The
plaintiffs challenged the act as an invasion of the patients’ pri-
vacy interests; i.e., its potential to disclose their private medi-
cal information would have a chilling effect on a patient’s or a
doctor’s medical decisions.
Notably, the Court did not disturb the lower court’s ruling
that the doctor-patient relationship is one of the “zones of pri-
vacy” accorded constitutional protection3:
An individual’s physical ills and disabilities, the medi-
cation he takes, [and] the frequency of his medical con-
sultation are among the most sensitive of personal and
psychological sensibilities. One does not normally expect
to be required to have to reveal to a government source,
at least in our society, these facets of one’s life. Indeed,
generally one is wont to feel that this is nobody’s business
but his doctor’s and his pharmacist’s.4
Instead, the Court held that the act did not violate patients’
privacy interests under the 14th Amendment because its safe-
guards adequately protected their interests in keeping their
medical information confidential. Because Whalen was not
a criminal case, no one challenged the law as authorizing a
warrantless search of a person’s prescription records during
a targeted criminal investigation. More important, the Court’s
2
Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).
3
See Roe v. Ingraham, 403 F. Supp. 931, 935 (S.D.N.Y. 1975), reversed,
Whalen, supra note 2.
4
Id. at 937.
Nebraska Advance Sheets
218 286 NEBRASKA REPORTS
reasoning in Whalen refutes the majority’s reliance on the “vol-
untarily disclosed” rationale.
The Whalen Court stated that a public disclosure of a
patient’s medical information could only occur in three cir-
cumstances: (1) if a state official violated the law and deliber-
ately or negligently disclosed the information; (2) if the state
accused a doctor or patient of violating the law and offered the
data as evidence in a judicial proceeding; and (3) if a doctor,
pharmacist, or patient “voluntarily reveal[ed] information on a
prescription form.”5
Obviously, a prescription must be revealed to a pharmacist.
But the Court did not consider the mere act of presenting a pre-
scription order to a pharmacist to be a public disclosure of med-
ical information that negates a person’s expectation of privacy
in the information. The Court’s reasoning in Whalen shows that
the majority opinion’s reliance on the Court’s earlier decision
in United States v. Miller6 is misplaced. The Whalen Court did
not follow the “voluntarily disclosed” reasoning of Miller, and
the different result reached in these decisions is not surprising.
The information contained in the banking records subpoenaed
in Miller is not comparable to the private medical information
that our prescription records reveal about our physical ailments
and medical decisions.
Equally important, if the plaintiff patients had no expec-
tation of privacy in their prescription records, the Court in
Whalen would not have decided whether the information was
adequately protected. So, contrary to the majority’s conclusion,
federal appellate courts have specifically interpreted Whalen as
recognizing a right of privacy in a person’s prescription records
and medical information.7
5
Whalen, supra note 2, 429 U.S. at 600 (emphasis supplied).
6
United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71(1976).
7
See, Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005); Doe v. Southeastern
Penn. Transp. Auth. (SEPTA), 72 F.3d 1133 (3d Cir. 1995); Murphy v.
Townsend, Nos. 98-35360, 98-35434, 98-35481, 1999 WL 439468 (9th
Cir. June 22, 1999) (unpublished disposition listed in table of “Decisions
Without Published Opinions” at 187 F.3d 648 (9th Cir. 1999)).
Nebraska Advance Sheets
STATE v. WIEDEMAN 219
Cite as 286 Neb. 193The Court stated that the remote possibility of inadequate
judicial supervision of the information, if used as evidence,
was not a reason for invalidating the entire program.8 But
importantly, it did not decide how state agents could obtain
the evidence initially or what judicial supervision was required
under the Fourth Amendment. It specifically declined to decide
“any question which might be presented by the unwarranted
disclosure.”9 And the facts from the lower court’s decision
showed only that state agents had discovered evidence of drug
crimes during administrative inspections—not targeted crimi-
nal investigations.10
In short, Whalen is not persuasive authority that a state
agent’s subpoena of a person’s prescription records for a
criminal investigation does not violate the Fourth Amendment.
This issue was simply not presented. The majority opinion
mistakenly concludes that the Court persuasively addressed the
Fourth Amendment issue in a footnote. In that footnote, the
Court addressed only the plaintiffs’ argument that the Fourth
Amendment’s protection of privacy interests from unreason-
able government intrusions was a source of a general guarantee
of privacy emanating from the federal Constitution.11
The Court’s statement that the Fourth Amendment can-
not be translated into a general right to privacy under the
Constitution was not a new pronouncement.12 But the Court’s
statement did not authorize a warrantless government intru-
sion into a legitimate expectation of privacy for a targeted
criminal investigation. As stated, such searches are per se
unreasonable.
It is true that “‘[l]egitimation of expectations of privacy
by law must have 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
8
Whalen, supra note 2.
9
Id., 429 U.S. at 605.
10
See Roe, supra note 3.
11
Whalen, supra note 2.
12
See Katz, supra note 1.
Nebraska Advance Sheets
220 286 NEBRASKA REPORTS
society.’”13 As the majority opinion states, “A ‘search’ occurs
when an expectation of privacy that society is prepared to con-
sider reasonable is infringed.”14
But the U.S. Supreme Court has rejected the majority’s
cheapening of nonpossessory privacy interests: “[O]nce it is
recognized that the Fourth Amendment protects people—and
not simply ‘areas’—against unreasonable searches and sei-
zures, it becomes clear that the reach of that Amendment can-
not turn upon the presence or absence of a physical intrusion
into any given enclosure.”15 The Fourth Amendment’s protec-
tion of legitimate nonpossessory privacy interests adds to the
Amendment’s baseline protections without subtracting from
its protection against a physical intrusion of a constitutionally
protected area.16
And in Whalen, the Court clearly recognized that individuals
have a legitimate expectation of privacy in their prescription
records. Other courts have also recognized this expectation,
under both federal law and state law.17 These cases strongly
support the conclusion that we, as a society, consider prescrip-
tion records to contain our most private and sensitive informa-
tion about our physical ailments and medical decisions. To
skirt this problem, the majority opinion must ignore obvious
flaws in putting a targeted criminal investigation on equal foot-
ing with crimes discovered during administrative inspections,
as in Whalen.
Obviously, many states have statutes that allow state agents
to inspect a pharmacy’s prescription records without a warrant.
13
United States v. Jacobsen, 466 U.S. 109, 123 n.22, 104 S. Ct. 1652, 80 L.
Ed. 2d 85 (1984) (emphasis supplied).
14
See id., 466 U.S. at 113. Accord Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968).
15
Katz, supra note 1, 389 U.S. at 353.
16
See Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 185 L. Ed. 2d 495(2013).
17
See, Douglas, supra note 7; Doe, supra note 7; King v. State, 272 Ga. 788,
535 S.E.2d 492 (2000); State v. Skinner, 10 So. 3d 1212 (La. 2009); State
v. Bilant, 307 Mont. 113, 36 P.3d 883 (2001); Murphy, supra note 7. See,
also, Doe v. Broderick, 225 F.3d 440 (4th Cir. 2000).
Nebraska Advance Sheets
STATE v. WIEDEMAN 221
Cite as 286 Neb. 193These statutes exist because agency officials or law enforce-
ment officers can conduct warrantless administrative inspec-
tions of highly regulated businesses only if the state has an
authorizing statute.18 Such inspections fall into the “special
needs” exception to the warrant requirement.19 Because busi-
nesses like pharmacies are highly regulated, the owners have
a reduced expectation of the privacy in their business records
and can be subjected to warrantless inspections.20 But the
majority opinion ignores Nebraska’s statutory provisions that
show the Legislature did not intend to permit administrative
inspections to be used for criminal investigations.21 And state
statutes cannot define what the Fourth Amendment requires
for government intrusions into private information for targeted
criminal investigations.
Unlike administrative inspections of pharmacies, the Fourth
Amendment’s warrant and probable cause exceptions cannot
apply to targeted criminal investigations into a person’s pre-
scription records. First, probable cause is not required for
administrative inspections because they are “neither personal in
nature nor aimed at the discovery of evidence of crime.”22 But
that is obviously not true of a targeted search conducted with
particularized suspicion of a crime, as in this case. And the
Supreme Court has specifically held that government agents
cannot use administrative inspections to search for evidence
of a crime in a targeted investigation.23 Second, the Court has
18
See, New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601(1987); United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed.
2d 87 (1972); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L.
Ed. 2d 943 (1967); Annot., 53 A.L.R. 4th 1168 (1987) (explaining history).
19
See, Burger, supra note 18; Annot., 29 A.L.R. 4th 264 (1984).
20
See id.
21
See Neb. Rev. Stat. §§ 28-428 and 81-119 (Reissue 2008).
22
Camara v. Municipal Court, 387 U.S. 523, 537, 87 S. Ct. 1727, 18 L. Ed.
2d 930 (1967).
23
See, e.g., Michigan v. Clifford, 464 U.S. 287, 104 S. Ct. 641, 78 L. Ed. 2d
477 (1984); Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d
486 (1978); Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed.
2d 262 (1981).
Nebraska Advance Sheets
222 286 NEBRASKA REPORTS
never held that because the medical industry is highly regu-
lated, patients have a reduced expectation of privacy in their
medical information held by medical institutions. To the con-
trary, it has held that the “special needs” exception applies only
if the reason for a search is divorced from the State’s general
interest in law enforcement.
In Ferguson v. Charleston,24 the U.S. Supreme Court
addressed the involvement of law enforcement in obtaining
medical diagnostic testing results. There, state hospital employ-
ees coordinated with law enforcement agents to develop a pro-
gram of testing urine samples of pregnant women for evidence
of cocaine use. If the urine samples tested positive for cocaine,
the hospital employees reported the women to law enforce-
ment agents, who used the information to coerce the women
into drug treatment or to charge them with drug offenses. The
Court concluded that the urine tests were searches that did not
fall into the special needs exception. It distinguished other
urine tests that it had upheld under the special needs excep-
tion. It concluded that the hospital’s reporting of the testing
results to law enforcement agents specifically to incriminate
the women was a more significant privacy intrusion and was
contrary to patients’ reasonable expectations of privacy in their
medical information:
The use of an adverse test result to disqualify one from
eligibility for a particular benefit, such as a promotion or
an opportunity to participate in an extracurricular activity,
involves a less serious intrusion on privacy than the unau-
thorized dissemination of such results to third parties.
The reasonable expectation of privacy enjoyed by the
typical patient undergoing diagnostic tests in a hospital
is that the results of those tests will not be shared with
nonmedical personnel without her consent. . . . In none
of our prior cases was there any intrusion upon that kind
of expectation.
The critical difference between those four drug-testing
cases and this one, however, lies in the nature of the
24
Ferguson v. Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205
(2001).
Nebraska Advance Sheets
STATE v. WIEDEMAN 223
Cite as 286 Neb. 193“special need” asserted as justification for the warrant-
less searches. In each of those earlier cases, the “spe-
cial need” that was advanced as a justification for the
absence of a warrant or individualized suspicion was one
divorced from the State’s general interest in law enforce-
ment. . . . In this case, however, the central and indispens-
able feature of the policy from its inception was the use
of law enforcement to coerce the patients into substance
abuse treatment. This fact distinguishes this case from
circumstances in which physicians or psychologists, in
the course of ordinary medical procedures aimed at help-
ing the patient herself, come across information that
under the rules of law or ethics is subject to reporting
requirements . . . .25
I believe that the same reasoning must apply here:
If [medical] records are private, then so must be records
of prescription medications. . . . [M]edical science has
improved and specialized its medications. It is now pos-
sible from looking at an individual’s prescription records
to determine that person’s illnesses, or even to ascertain
such private facts as whether a woman is attempting to
conceive a child through the use of fertility drugs. This
information is precisely the sort intended to be protected
by penumbras of privacy. See Eisenstadt v. Baird, 405
U.S. 438, 450, 92 S. Ct. 1029, 1036, 31 L. Ed. 2d 349(1972) (“If the right to privacy means anything, it is
the right of the individual . . . to be free from unwanted
governmental intrusions into matters so fundamentally
affecting a person as the decision whether to bear or beget
a child.”). An individual using prescription drugs has a
right to expect that such information will customarily
remain private.26
If state agents had discovered evidence of Wiedeman’s
crime during a valid administrative inspection of pharmacy
25
Id., 532 U.S. at 78-81 (emphasis supplied). See, also, Vernonia School
Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564(1995).
26
Doe, supra note 7, 72 F.3d at 1138.
Nebraska Advance Sheets
224 286 NEBRASKA REPORTS
records, I would agree that she had no reason to com-
plain.27 But this case does not present those facts. Because
law enforcement agents sought Wiedeman’s records solely to
incriminate her in a targeted investigation, the search was not
an administrative inspection and did not fall within the special
needs exception.
In short, targeted criminal investigations are distinct
from other types of government searches. And once a court
r
­ecognizes that citizens have legitimate expectations of pri-
vacy in their prescription records, which many courts have
done, the Fourth Amendment requires probable cause and a
warrant before intruding on that interest. Because I believe
that Wiedeman had a legitimate expectation of privacy in
her prescription records, she was entitled to challenge the
search of these records without a warrant and her challenge
had merit.
The Fourth Amendment does not prevent law enforce-
ment agents from searching private information for a criminal
investigation if the agents comply with its procedural protec-
tions of that information. I think most Nebraskans will be
surprised to learn that by filling their prescription orders, they
have publicly disclosed the medical information revealed by
those orders. They likely did not suspect that a prosecutor,
without any judicial oversight, could obtain their prescription
records merely by issuing a subpoena. For these reasons, I
cannot join the majority’s opinion.
27
See, Burger, supra note 18; Stone v. Stow, 64 Ohio St. 3d 156, 593 N.E.2d
294 (1992).
Mary K ay Young, an individual, appellant, v.
Govier & Milone, L.L.P., et al., appellees.
___ N.W.2d ___
Filed July 12, 2013. No. S-11-959.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show