State v. Smith , 248 N.C. App. 804 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-1364
Filed: 2 August 2016
Wayne County, No. 13-CRS-54280
STATE OF NORTH CAROLINA
v.
ROBERT MORGAN SMITH
Appeal by Defendant from order and judgment dated 27 August 2014 by Judge
Joseph N. Crosswhite in Superior Court, Wayne County. Heard in the Court of
Appeals 25 April 2016.
Attorney General Roy Cooper, by Assistant Attorney General Whitney Hendrix
Belich, for the State.
Strickland, Agner & Associates, by Dustin B. Pittman, for Defendant.
McGEE, Chief Judge.
Robert Morgan Smith (“Defendant”) appeals from order of the trial court
summarily denying his motion to suppress his medical records pursuant to a search
warrant after he was charged with driving while impaired. Defendant contends the
trial court erred in denying his motion to suppress as untimely under N.C. Gen.
Stat. § 15A-971 et seq. Defendant further argues the trial court erroneously
admitted the medical records in violation of the physician-patient privilege, N.C.
STATE V. SMITH
Opinion of the Court
Gen. Stat. § 8-53, and certain health information disclosure provisions in N.C. Gen.
Stat. § 90-21.20B. We find no error.
I. Background
Sergeant Karl Rabun (“Sgt. Rabun”) of the Goldsboro Police Department
responded to an early morning call on 5 September 2013 reporting a motorcycle
crash at a traffic circle in downtown Goldsboro, North Carolina. Upon arriving at
the scene, Sgt. Rabun found Defendant lying on the ground on the east side of the
intersection, with one arm pinned beneath a “badly damaged” motorcycle. Sgt.
Rabun recognized Defendant as a local attorney who had previously worked in
Wayne County law enforcement. As Sgt. Rabun approached Defendant, he noticed
“the strong odor of alcoholic beverage . . . emanating from [Defendant’s] breath as
he was trying to speak and breathe.” Defendant was “complaining of pain . . . from
obviously being involved in [an] impact.” Sgt. Rabun directed Defendant to lie still
until emergency medical responders arrived. Rescue personnel and additional law
enforcement officers arrived and helped lift the motorcycle off Defendant.
Officer Matthew Marino (“Officer Marino”) of the Goldsboro Police Department
assumed responsibility as lead investigator of the crash. Officer Marino
immediately noticed the “very strong” odor of alcohol on Defendant’s breath. He
observed that the engine of Defendant’s motorcycle was still hot. Defendant was
transported by medical responders to the Emergency Room at Wayne Memorial
Hospital (“the hospital”), where he was treated for injuries.
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Opinion of the Court
Approximately forty-five minutes after Defendant arrived at the hospital,
Officer Marino spoke with Defendant again. Officer Marino continued to detect a
strong odor of alcohol on Defendant’s breath and observed that Defendant had
bloodshot eyes and slurred speech. Officer Marino formed the opinion that
Defendant’s faculties were “appreciably impaired” and that “it was more probable
rather than not that [Defendant] [had been] driving under the influence of alcohol.”
After advising Defendant of his implied-consent rights, Officer Marino asked
Defendant to submit to a blood test. Defendant refused a blood test, telling Officer
Marino to “go get a warrant.” Later that morning, Officer Marino charged
Defendant with driving while impaired.
Officer Marino applied for a search warrant on 9 September 2013 to obtain
Defendant’s medical records from Wayne Memorial Hospital related to the
motorcycle crash, which was granted. Officer Marino received a total of twenty
pages of medical records. Defendant’s medical records noted that Defendant had
an elevated blood alcohol level at the time of treatment on 5 September 2013. The
State filed a notice of intent to use evidence on 6 March 2014, pursuant to N.C. Gen.
Stat. § 15A-975(b), including “any . . . oral, written, recorded, and otherwise
memorialized statements of the defendant” and “[a]ny and all laboratory analyses
provided to the Defendant.”
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Opinion of the Court
Defendant filed a motion to suppress his medical records on 22 August 2014,
alleging that the search warrant had “illegally authorized the seizure of
[Defendant’s] hospital records pertaining to [his] . . . medical treatment beginning
5 September 2013.” In a memorandum of law filed with Defendant’s motion to
suppress, Defendant alleged that the search warrant violated North Carolina’s
physician-patient privilege, certain health information disclosure provisions in N.C.
Gen. Stat. § 90-21.20B, and the federal Health Insurance Portability and
Accountability Act (HIPAA). Defendant also alleged that the warrant was not
supported by probable cause as required by N.C. Gen. Stat. § 15A-244.
The State moved to summarily dismiss Defendant’s motion to suppress,
alleging that Defendant’s motion was untimely and accompanied by an insufficient
affidavit. Prior to trial, the trial court heard and summarily denied Defendant’s
motion to suppress, finding that Defendant’s motion was untimely under N.C. Gen.
Stat. § 15A-976, and that Defendant had not offered any newly discovered facts or
extraordinary circumstances that would justify a late filing. In denying Defendant’s
motion to suppress, the trial court noted it “[did] not address the merits of
[Defendant’s] motion, and . . . intentionally preserve[d] the right of the Defendant
to raise any objections during the course of th[e] trial at the appropriate time.”
The trial court then heard pre-trial arguments regarding the admissibility of
Defendant’s medical records. After considering the text of N.C.G.S. § 90-21.20B,
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Opinion of the Court
relevant HIPAA provisions, and case law cited by the State, the trial court held it
would
allow [Defendant’s] records to be introduced for the limited
purposes indicated; specifically to establish [Defendant’s]
blood alcohol level, and any statements made by . . .
Defendant concerning the motor vehicle accident. Again,
this is all subject to the proper identifications and
authentications of these [medical] records at the
appropriate time [during trial].
The State was instructed to redact “all remaining information” based on the trial
court’s conclusion that it would have no probative value and that such redaction was
necessary to protect Defendant’s privacy. Defendant’s medical records were
subsequently admitted into evidence and published to the jury. The jury found
Defendant guilty on 27 August 2014 of driving while impaired. Defendant was
sentenced to a level two impaired driving sentence of twelve months, suspended for
a probationary term of twenty-four months. Defendant gave notice of appeal in open
court.
The State filed a motion to dismiss the appeal on 21 July 2015, based on
Defendant’s failure to timely serve the record on appeal. The motion was heard and
allowed by Judge Arnold O. Jones, II on 10 September 2015. Defendant petitioned
this Court on 15 September 2015 to issue a writ of certiorari to review the decision
of the trial court. The petition for writ of certiorari was allowed on 1 October 2015.
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STATE V. SMITH
Opinion of the Court
Defendant appeals the trial court order summarily denying his motion to suppress
and the admission of his medical records into evidence.
II. Standard of Review
A trial court’s conclusions of law in ruling on a motion to suppress evidence are
reviewable de novo. See State v. Barnhill, 166 N.C. App. 228, 230, 601 S.E.2d 215,
217 (2004). “Under a de novo review, the court considers the matter anew and freely
substitutes its own judgment” for that of the trial court. State v. Williams, 362 N.C.
628,632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens of Pine
Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). We review de novo
the trial court’s conclusion that Defendant’s motion to suppress was untimely filed
under N.C. Gen. Stat. § 15A-976.
Defendant also argues that his medical records were improperly admitted
because they were obtained in violation of the physician-patient privilege, N.C. Gen.
Stat. § 8-53, as well as certain health information disclosure provisions in N.C. Gen.
Stat. § 90-21.20B. “Resolution of issues involving statutory construction is ultimately
a question of law for the courts. Where an appeal presents a question of statutory
interpretation, full review is appropriate, and we review a trial court’s conclusions of
law de novo[.]” In re Hamilton, 220 N.C. App. 350, 352, 725 S.E.2d 393, 395 (2012)
(citation omitted).
III. Analysis
A. Timeliness of Defendant’s Motion to Suppress
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Opinion of the Court
Defendant first argues the trial court erred by summarily dismissing his
motion to suppress as untimely, pursuant to N.C. Gen. Stat. § 15A-976. Defendant
contends that, because the motion to suppress was not based on any of the grounds
specified in N.C. Gen. Stat. § 15A-974, it was not subject to the time constraints set
forth in N.C.G.S. § 15A-976. Under § 15A-974, evidence must be suppressed if “(1)
[i]ts exclusion is required by the Constitution of the United States or the Constitution
of the State of North Carolina; or (2) [i]t [was] obtained as a result of a substantial
violation of the provisions of this Chapter.” N.C. Gen. Stat. §§ 15A-974(a)(1)-(2)
(2015). See State v. Simpson, 320 N.C. 313, 322, 357 S.E.2d 332, 337 (1987) (“In
determining whether [N.C.G.S. § 15A-974(a)(2)] requires suppression, the reviewing
court must consider the importance of the interest violated, the extent of the deviation
from lawful conduct and whether the violation was willful, as well as the extent to
which suppression will deter future violations.”); State v. Wilson, 293 N.C. 47, 50, 235
S.E.2d 219, 221 (1977) (“G.S. 15A-974[(a)](1) . . . mandates the suppression of
evidence only when the evidence sought to be suppressed is obtained in violation of
defendant's constitutional rights.” (emphasis in original)). Defendant explicitly cited
the North Carolina and United States constitutions, as well as N.C.G.S. § 15A-971 et
seq., in support of his motion to suppress. As our Supreme Court has noted,
[a] defendant who seeks to suppress evidence upon a
ground specified in G.S. 15A-974 must comply with the
procedural requirements outlined in G.S. 15A-971, et
seq. Moreover, such defendant has the burden of
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Opinion of the Court
establishing that his motion to suppress is timely and
proper in form.
State v. Satterfield, 300 N.C. 621, 624-25, 268 S.E.2d 510, 513-14 (1980) (internal
citation omitted)).
N.C. Gen. Stat. § 15A-976(b) provides that
[i]f the State gives notice not later than 20 working days
before trial of its intention to use evidence and if the
evidence is of a type listed in G.S. 15A-975(b), the
defendant may move to suppress the evidence only if [the]
motion is made not later than 10 working days following
receipt of the notice from the State.
N.C. Gen. Stat. § 15A-976(b) (2015). In turn, the “type[s] of evidence listed in G.S. §
975(b)” are
(1) [e]vidence of a statement made by a defendant;
(2) [e]vidence obtained by virtue of a search without a
search warrant; or
(3) [e]vidence obtained as a result of [a] search with a
search warrant when the defendant was not present at the
time of the execution of the search warrant.
N.C. Gen. Stat. §§ 15A-975(b)(1)-(3) (2015). Defendant concedes that his medical
records were obtained “with a search warrant when [he] was not present at the time
of the execution of the search warrant.” N.C.G.S. § 15A-976(b)(3). Accordingly,
Defendant’s motion to suppress fell squarely within the language of N.C.G.S. § 15A-
975(b)(3), and thus was subject to N.C.G.S. § 15A-976(b).
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STATE V. SMITH
Opinion of the Court
The State filed its notice of intent to use certain evidence1 on 6 March 2014.
Defendant filed his motion to suppress all evidence obtained by search warrant on 22
August 2014, a few business hours before his trial was scheduled to begin. As
Defendant sought to suppress evidence obtained as a result of a search warrant
executed outside his presence, and because Defendant failed to file the motion to
suppress “not later than 10 working days following receipt of the notice from the
State,” N.C.G.S. § 15A-976(b) applies and his motion to suppress was untimely filed.
The trial court acted within its “statutorily vested [authority] . . . to deny summarily
[a] motion to suppress when the defendant fails to comply with the procedural
requirements of Article 53.” State v. Holloway, 311 N.C. 573, 578, 319 S.E.2d 261,
264 (1984).2
We note that even if a trial court erroneously summarily denies a motion to
suppress, the defendant must show the error was prejudicial. See, e.g., State v.
Speight, 166 N.C. App. 106, 115, 602 S.E.2d 4, 11 (2004) (concluding that although
the trial court erroneously denied defendant’s motion to suppress for untimeliness,
the error was not prejudicial); State v. Chance, 130 N.C. App. 107, 112, 502 S.E.2d
1 The State’s notice of intent identified two specific types of evidence potentially obtainable
from Defendant’s medical records: statements made by Defendant, and “[a]ny and all laboratory
analyses provided to [] Defendant.” Additional evidence listed in the notice of intent—“[a]ny and all
photographs, physical evidence, and video tapes collected from the Defendant, the Defendant’s home
or vehicle, the crime scene, and any other location”—was unrelated to Defendant’s medical records
and is not at issue in this appeal.
2 The General Assembly has indicated that procedural requirements found in Article 53 are
intended “to produce in as many cases as possible a summary granting or denial of the motion to
suppress.” See N.C. Gen. Stat. § 15A-977 official cmt. (2015).
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Opinion of the Court
22, 25 (1998) (upholding trial court’s erroneous denial of motion to suppress where
defendant “failed to show a reasonable possibility that a different result would have
been reached at trial had such error[] not been committed.”). In this case, despite
denying Defendant’s motion to suppress on procedural grounds, the trial court
stressed that it “[did] not address the merits of [the] motion” and “intentionally
preserve[d] the right of the Defendant to raise any objections during the course of
th[e] trial at the appropriate time.” The trial court did, in fact, permit defense counsel
to argue at length regarding the admissibility of Defendant’s medical records,
including discussion of the substantive statutory arguments raised in Defendant’s
motion to suppress. Even assuming arguendo that the trial court erroneously
concluded Defendant’s motion to suppress was untimely, Defendant has not shown
“a reasonable possibility that, had the error in question not been committed, a
different result would have been reached at the trial.” See also N.C. Gen. Stat. § 15A-
1443(a) (2015).
B. Admissibility of Defendant’s Medical Records
Defendant also contends the trial court erred in admitting his medical records
into evidence “without regard for” the physician-patient privilege set forth in N.C.
Gen. Stat. § 8-53, and contrary to several health information disclosure provisions in
N.C. Gen. Stat. § 90-21.20B. We disagree and address each in turn.
(1) Physician-Patient Privilege
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Opinion of the Court
Defendant maintains that, by the plain language of the physician-patient
privilege statute, N.C. Gen. Stat. § 8-53, disclosure of a patient’s medical records may
be compelled only by judicial order after determination that such disclosure is
“necessary to a proper administration of justice.” See N.C. Gen. Stat. § 8-53 (2015).
Defendant cites no authority, other than N.C.G.S. § 8-53 itself, to support his
argument that this statute provides the exclusive means of obtaining patient medical
records. The State asserts that another statute, N.C. Gen. Stat. § 90-21.20B, allows
law enforcement to obtain medical records through a search warrant for criminal
investigative purposes. It notes that the latter explicitly permits the disclosure of
certain protected patient health information to law enforcement “[n]otwithstanding
G.S. 8-53 or any other provision of law . . . .” See N.C. Gen. Stat. §§ 90-21.20B(a), (a1)
(2015). According to the State, this demonstrates that N.C.G.S. § 8-53 is not the only
statute under which patient medical records may be requested and released. We
agree.
(2) Disclosure pursuant to search warrant
We next consider Defendant’s argument that N.C.G.S. § 90-21.20B “[did not]
permit[] the disclosure to law enforcement and use at trial of the medical records in
this case.” (Def. br. at 15) We disagree.
N.C. Gen. Stat. § 90-21.20B provides in pertinent part:
(a) Notwithstanding G.S. 8-53 or any other provision of
law, a health care provider may disclose to a law
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Opinion of the Court
enforcement officer protected health information only to
the extent that the information may be disclosed under the
federal Standards for Privacy of Individually Identifiable
Health Information, 45 C.F.R. § 164.512(f) and is not
specifically prohibited from disclosure by other state or
federal law.
(a1) Notwithstanding any other provision of law, if a person
is involved in a vehicle crash:
(1) Any health care provider who is providing
medical treatment to the person shall, upon request,
disclose to any law enforcement officer investigating
the crash the following information about the
person: name, current location, and whether the
person appears to be impaired by alcohol, drugs, or
another substance.
(2) Law enforcement officers shall be provided
access to visit and interview the person upon
request, except when the health care provider
requests temporary privacy for medical reasons.
(3) A health care provider shall disclose a certified
copy of all identifiable health information related to
that person as specified in a search warrant or an
order issued by a judicial official.
In interpreting N.C.G.S. § 90-21.20B, we look to the federal regulations referenced in
N.C.G.S. §90-21.20B(a), which govern disclosure of “protected health information for
a law enforcement purpose[.]” See 45 C.F.R. § 164.512(f) (2016). Those regulations
define “protected health information” as “individually identifiable health
information,” which in turn is defined as:
[I]nformation that is a subset of health information,
including demographic information collected from an
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Opinion of the Court
individual, and:
(1) Is created or received by a health care provider,
health plan, employer, or health care clearinghouse;
and
(2) Relates to the past, present, or future physical
or mental health or condition of an individual; the
provision of health care to an individual; or the past,
present, or future payment for the provision of
health care to an individual; and
(i) That identifies the individual; or
(ii) With respect to which there is a reasonable basis to
believe the information can be used to identify the
individual.
45 C.F.R. § 160.103 (2016).3 The regulations further provide that a health care
provider may disclose protected health information (i.e., “individually identifiable
health information”) for a law enforcement purpose to a law enforcement official “[i]n
compliance with . . . [a] court order or court-ordered warrant” as long as “(1) [t]he
information sought is relevant and material to a legitimate law enforcement inquiry;
(2) [t]he request is specific and limited in scope to the extent reasonably practicable
3 “Protected health information” explicitly excludes four specific types of “individually
identifiable health information,” none of which are at issue in this case: (1) education records covered
by the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; (2) FERPA
records described in 20 U.S.C. § 1232g(a)(4)(B)(iv); (3) employment records held by a covered entity in
its role as employer; and (4) records “[r]egarding a person who has been deceased for more than 50
years.” See 45 C.F.R. § 160.103.
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Opinion of the Court
in light of the purpose for which the information is sought; and (3) [d]e-identified
information4 could not reasonably be used.” 45 C.F.R. § 164.512(f)(1)(ii) (2016).
Defendant argues that “protected health information” obtainable by law
enforcement under 45 C.F.R. § 164.512(f) (and thus N.C.G.S. § 90-21.20B(a)) is
limited to “demographic information which identifies an individual or upon which
there is a reasonable basis to believe that an individual may be identified,” and that
N.C.G.S. § 90-21.20B(a) does not permit law enforcement to obtain any further
information. As an initial matter, we note that Defendant did not contend at trial
that certain “demographic information” in his medical records was obtainable by
search warrant; he contended that the records were improperly released because the
information in the records was “not obtained for a law enforcement purpose or a law
enforcement use.”5
Defendant overlooks the fact that “protected health information” (used
synonymously with “individually identifiable health information”), as defined in 45
C.F.R. § 160.103, “includ[es],” rather than is limited to, demographic information
4 “De-identified information” is “[h]ealth information that does not identify an individual and
with respect to which there is no reasonable basis to believe that the information can be used to identify
an individual . . . .” 45 C.F.R. § 164.514(a) (2016). HIPAA permits covered entities (i.e., health care
providers) to disclose limited de-identified health information “for the purposes of research, public
health, or health care operations.” 45 C.F.R. § 164.514(e)(3)(i) (2016).
5 Defendant argued instead that a different standard altogether, 45 C.F.R. § 164.512(e),
applied in this case. That provision governs disclosures of protected health information for judicial
and administrative proceedings (as opposed to disclosures for law enforcement purposes, see 45 C.F.R.
§ 164.512(f)), and contains notice and hearing requirements. In his brief before this Court, Defendant
does not refer to 45 C.F.R. § 164.512(e).
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Opinion of the Court
about an individual patient. Defendant also reads the phrase out of context: the
regulations refer specifically to “demographic information collected from an
individual” (emphasis added). In our view, this merely recognizes that “health
information” encompasses information received directly from the patient, in addition
to information created by the provider or received from some other source.
By its plain language, 45 C.F.R. § 164.512(f) permits disclosure of health
information to law enforcement as required by search warrant, if certain conditions
are met. Defendant has not alleged that the search warrant in this case sought
information that was not “relevant and material to a legitimate law enforcement
inquiry” or was insufficiently “specific and limited in scope,” or that de-identified
information could have reasonably been used instead. See 45 C.F.R. § 164.512(f)(1)(ii)
(2016). Accordingly, Defendant has not demonstrated that his medical records were
obtained in violation of 45 C.F.R. § 164.512(f) or N.C.G.S. § 90-21.20B(a).
(3) Disclosures Related to a Vehicle Crash
Finally, N.C. Gen. Stat. § 90-21.20B(a1)(1) specifically addresses disclosure of
medical information about a person involved in a vehicle crash. It provides that
[n]otwithstanding any other provision of law, . . . [a]ny
health care provider who is providing medical treatment to
the person [involved in a vehicle crash] shall, upon request,
disclose to any law enforcement officer investigating the
crash the following information about the person: name,
current location, and whether the person appears to be
impaired by alcohol, drugs, or another substance.
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Opinion of the Court
N.C. Gen. Stat. § 90-21.20B(a1)(1) (2015). Defendant argues that this “more narrow
provision” permits law enforcement officers investigating a vehicle crash, with or
without a search warrant, “to be provided information which informs them of the
identity of an individual and whether that person appears to be impaired—nothing
more.” We disagree.
In N.C.G.S. § 90-21.20B(a1)(1), the General Assembly authorized disclosure
“upon request” to law enforcement of the three types of information listed, in the
context of a vehicular accident. By contrast, N.C. Gen. Stat. § 90-21.20B(a1)(3)
permits disclosure of “identifiable health information related to th[e] person [involved
in the vehicle crash] as specified in a search warrant or other judicial order.” N.C.
Gen. Stat. § 90-21.20B(a1)(3) (2015) (emphases added). “The rules of statutory
construction require presumptions that the legislature inserted every part of a
provision for a purpose and that no part is redundant.” Hall v. Simmons, 329 N.C.
779, 784, 407 S.E.2d 816, 818 (1991) (citing State v. Williams, 286 N.C. 422, 432, 212
S.E.2d 113, 120 (1975)). This principle leads us to conclude that the information
listed in N.C.G.S. § 90-21.20B(a1)(1) may be disclosed, without a warrant, at the
request of law enforcement officials investigating a vehicle crash, while disclosure of
additional “identifiable health information” in the same context is possible, but
requires a search warrant or judicial order that “specifie[s]” the information sought.
As discussed above, under federal law, “identifiable health information” includes
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Opinion of the Court
information created by a health provider that “[r]elates to the past, present, or future
physical or mental health or condition of an individual.” 45 C.F.R. § 160.103. Thus,
we conclude that under N.C.G.S. § 90-21.20B(a1)(3), “identifiable health
information” obtainable by search warrant is not strictly limited to an individual’s
name, current location, and perceived state of impairment.
On appeal, Defendant argues his medical records were inadmissible based
upon N.C.G.S. § 8-53 and N.C.G.S. § 90-21.20B only. He does not reassert the
additional argument raised before the trial court in his motion to suppress, that the
search warrant was not supported by sufficient probable cause in violation of N.C.
Gen. Stat. § 15A-244, and we do not reach that issue. Defendant also does not allege
the records were otherwise inadmissible due to some defect in evidentiary procedure.
See, e.g., State v. Drdak, 330 N.C. 587, 592-93, 411 S.E.2d 604, 607-08 (1992) (holding
that the State was required to lay a proper foundation for the admission of blood
alcohol test results not controlled by implied-consent statutory procedures). Because
Defendant has not shown that his medical records were obtained in violation of either
statute he cites, we find no error.
NO ERROR.
Judges STEPHENS and DAVIS concur.
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