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The state?s core argument is that prosecutors do not have to comply with section 395.3025(4)(d), Fla. Stat. According to the state, it is bound only by the requirements of the Florida and federal constitutions, not the Florida statutes, because the Florida legislature cannot provide Florida citizens with greater protections than those provided by the constitution. The state contends that it can unilaterally decide not to comply with a Florida statute, and that a citizen such as Mr. Limbaugh has no recourse when the state violates a provision of Florida law such as section 395.3025(4)(d). This arrogant argument flouts the rule of law, the fundamental concepts underlying our system of government, and the decisions of this Court.

The state contends that it did not have to comply with section 395.3025(4)(d), Fla. Stat., because ?once probable cause has been established, the Fourth Amendment and article I, section 12 [are] satisfied, taking the matter out of the realm of the right to privacy analysis.? [Resp. at 5,18]. The state urges this Court to follow a Texas case and hold that Mr. Limbaugh has no claim under section 395.3025(4)(d) because his rights are limited to those guaranteed by the warrant requirements of the Florida and United States Constitutions. [Resp. at 19]. The state looks to Texas because its argument is contrary to Florida law.
Just two years ago, in State v. Langsford, 816 So. 2d 136 (Fla. 4th DCA 2002), this Court considered the same argument the state advances here ? and flatly rejected it. ?[T]he limiting language in article I, section 12 does not prohibit the legislature from passing statutes which give Florida citizens greater protections than the Fourth Amendment.? Id. at 139. A statutory scheme in Florida that imposes ?higher standards for police conduct than those required by the Fourth Amendment? is ?entirely permissible as a matter of state law,? and the state?s failure to comply with the statute requires suppression. Id. Even though Langsford originated from the same Palm Beach County State Attorney?s Office that is a party here, Langsford is not even mentioned in the state?s Response.

Langsford upheld suppression of a blood test obtained pursuant to probable cause and in compliance with the Fourth Amendment, but in violation of the stricter procedural requirements of section 316.1933, Fla. Stat., also known as the DUI Implied Consent Statute. Following a car accident, the defendant in Langsford refused consent to a blood test, but the officer ordered a blood test at the hospital anyway. Id. at 138. Under United States Supreme Court precedent, this blood test did not violate the Fourth Amendment because the officer had probable cause to arrest the defendant for DUI, and the blood was extracted in a reasonable manner at a hospital. Id. (citing Schmerber v. California, 384 U.S. 757 (1966)). Nonetheless, this Court agreed with the trial court that even though the officer had properly seized the blood under the Fourth Amendment and article I, section 12 of the Florida Constitution, ?failure to comply with the statutory requirements necessitated suppression of the blood test.? Id. (emphasis in original).
On appeal, the state argued as it does here: that requiring the state to comply with the stricter statutory scheme ?failed to give effect to article I, section 12 of the Florida Constitution, which requires the state constitutional right of the people to be secure against unreasonable searches and seizures to be construed in conformity with the Fourth Amendment to the United States Constitution.? Id. This Court disagreed.

It is ?well settled . . . that the states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment.? Id. at 138. In Florida, ?these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures,? but they ?may be imposed by other provisions of Florida law, including a state statute.? Id. (emphasis added). Thus, the Florida legislature has ?the right . . . to extend to its citizenry protections against unreasonable searches and seizures greater than those afforded by the federal constitution . . . .? Id.
The Florida legislature has exercised this right in enacting the medical privacy statutes, sections 395.3025(4) and 456.057(5)(a), Fla. Stat. These statutes ?create a broad doctor-patient privilege? and prohibit medical providers from disclosing a patient?s medical records or the patient?s medical condition to third parties without the patient?s consent. ?? 395.3025(4), 456.057(5)(a), Fla. Stat.; Acosta v. Richter, 671 So. 2d 149, 150 (Fla. 1996).
As with the statute in Langsford, section 395.3025(4) defines the procedure the state must follow before it can intrude on a patient?s medical affairs. Under subsection (4)(d), police may not seize medical records from a health care provider without first providing the patient with notice and an opportunity to be heard. Section 395.3025(4)(d) states:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent . . .
(d) in any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.
? 395.3025(4)(d). An ex parte search warrant does not fall under this exception, nor does it fall under any of the other exceptions listed in section 395.3025(4). The legislature has expressly excluded ex parte search warrants as a means for obtaining medical records without the patient?s consent. This limitation is entirely proper under Langsford and within the legislature?s power to provide patients with greater protection in their medical affairs.
The state?s reliance on In re T.A.C.P, 609 So. 2d 588 (Fla. 1997), for the proposition that section 395.3025(4)(d) is ?permissive? and ?allows for possible access to medical records by other means, such as by way of a search warrant,? is misplaced. [Resp. at 18-19]. T.A.C.P. involved a different statute, which contained a ?savings clause? specifically providing that ?the standard set forth in this section is not the exclusive standard for determining? when death occurs. Id.
By contrast, section 395.3025(4) contains no savings clause. Instead, the statute is clear that patient records are confidential and ?must not be disclosed? without the patient?s consent. The word ?may? in section (4) simply recognizes that the privilege is not absolute and that ?appropriate disclosure may be made without such consent? under the limited circumstances listed. When the circumstance is a civil or criminal case, disclosure without the patient?s consent is proper under subsection (d), after notice to the patient, a hearing, and issuance of a subpoena by a court. This language is mandatory and excludes all other options.
Any other reading of the statute would lead to an absurd result that the legislature could not have intended. After all, it would be senseless under subsection (4)(d) to require notice to the patient and a hearing before medical records are seized from the health care provider, yet at the same time allow such seizure by search warrant without notice to the patient or a hearing. The state?s proposed interpretation of section 395.3025(4)(d) would also lead to the absurd result of requiring notice and a hearing when discrete records are sought pursuant to a narrowly-tailored subpoena, but not when an entire medical file is sought pursuant to a broad search warrant.
Such readings of the statute would render subsection (4)(d) meaningless, and the legislature does not enact meaningless legislation. ?As a fundamental rule of statutory interpretation, courts should avoid readings that would render part of a statute meaningless. Furthermore, whenever possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another. This follows the general rule that the legislature does not intend to enact purposeless and therefore useless legislation.? Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996).
The state?s Fourth Amendment argument is meritless under Langsford (1). In enacting section 395.3025(4)(d), the legislature provided patients with greater protection of their medical records and medical conditions. The state was duty-bound to follow the statute. The trial court departed from the essential requirements of the law by ruling that the state did not have to follow section 395.3025(4)(d).
The state next argues that its actions were proper under State v. Viatical Serv. Inc., 741 So. 2d 560 (Fla. 4th DCA 1999). The state?s attempt to justify its actions under Viatical fails because Viatical did not implicate section 395.3025(4), whereas this case does. Section 395.3025(4) protects from disclosure patient records held by a health care provider. In this case, the medical records were seized from Mr. Limbaugh?s doctors, thereby triggering section 395.3025(4)(d) and its requirement that the state proceed by subpoena, with notice to the patient and a pre-seizure evidentiary hearing.
In Viatical, notice and a pre-seizure hearing were not required under section 395.3025(4)(d) because the records were seized from an investment company, not from the health care providers. Thus, this Court specifically found that section 395.3025(4) was not implicated:
Although in State v. Rutherford, 707 So. 2d 1129, 1131 (Fla. 4th DCA 1997), rev. denied, 718 So. 2d 171 (Fla.1998), we held that a patient’s medical records are protected under article I, section 23, of the Florida Constitution, the records sought to be produced in Rutherford were held by the health care provider, the hospital. In arguing that the right of privacy applies to protect the medical records of the insureds in the possession of Mutual, the respondent points to section 395.3025(4)(d), Florida Statutes (1997), which prohibits a licensed medical facility, such as a hospital, from disclosing patient records without consent, section 455.667(5)(c), which prohibits health care practitioners from disclosing patient records without consent, and section 381.004(3)(f), which precludes dissemination by a testing facility of HIV tests. However, none of those statutes, by their terms, would apply to Mutual or VSI.
Viatical, 741 So. 2d at 564. The state does not address this critical part of Viatical in its Response because it proves the fallacy of the state?s argument.
Section 395.3025(4)(d), by its terms, applies here. Mr. Limbaugh?s medical records were held by his doctors, not by an investment company. Accordingly, Mr. Limbaugh was entitled to notice and an opportunity to be heard before the records were seized. Viatical does not apply.
The state?s third argument is that no evidentiary hearing was required pursuant to section 395.3025(4)(d) because once the state obtained ?a search warrant based on probable cause, . . . the requirements of the statute do not apply, including those for a hearing.? [Resp. at 20]. This argument fails under Langsford.
The state then contends that even if a pre-seizure evidentiary hearing was required, Judge Winikoff?s post-seizure review of the warrant affidavit constituted an evidentiary hearing. The state also argues that Judge Winikoff could have taken judicial notice of the warrant affidavit because the affidavit was attached to the state?s pleading. The state is incorrect on all accounts.
First, section 395.3025(4)(d) requires a pre-seizure evidentiary hearing, where the state must offer evidence to meet the strict scrutiny test of relevance, least intrusive means, and compelling state interest. State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA), rev. denied, 718 So. 2d 171 (1998). Such a hearing ?allow[s] the trial court to narrow the scope of a subpoena, to separate information relevant to the criminal investigation from facts that are protected from disclosure by the patient?s right to privacy.? Id. at 1131. Here, there was no pre-seizure hearing. Consequently, all of Mr. Limbaugh?s medical records from four of his physicians were seized and then all of the records were reviewed by the police at the direction of the State Attorney himself, despite the fact that a ruling on Mr. Limbaugh?s motion to stay was pending.
Second, Judge Winikoff?s review of the search warrant affidavit cannot take the place of an evidentiary hearing where witnesses are sworn and testify subject to cross-examination. A judge ?reviewing the record, including the motions, the memoranda submitted in connection therewith, the sworn complaint and mittimus, and the affidavits for search warrants? cannot take the place of an evidentiary hearing. Ferrazzoli v. State, 442 So. 2d 1056, 1057 (Fla. 4th DCA 1983); see also Burgess v. State, 831 So. 2d 137, 140-41 (Fla. 2002) (hearsay in police reports or arrest affidavit cannot form basis of judicially-noticed ?facts? when parties are entitled to an evidentiary hearing).
The state cites footnote one of this Court?s decision in Campuzano v. State, 771 So. 2d 1238, 1240 n.1 (Fla. 4th DCA 2000), for the proposition that ?courts may properly take judicial notice of contents of court file in motion to suppress proceedings.? [Resp. at 20-21]. Apparently the state missed the sentence immediately preceding that in the same footnote, where this Court stated: ?This is not a case where the defendant was denied the evidentiary hearing required by Florida Rule of Criminal Procedure 3.190(h).? Id. In fact, unlike Mr. Limbaugh, Mr. Campuzano was afforded a full evidentiary hearing ?where the officer who swore the truth of the probable cause affidavit was . . . [a] witness . . .? Id. No such hearing took place here.
Third, a court cannot take judicial notice of contested matters that were never ?subject to refutation by the party against whom they were offered.? Huff v. State, 495 So. 2d 145, 151 (Fla. 1986). Because judicial notice takes the place of proof and makes evidence unnecessary, it is proper only upon stipulation of the parties or upon facts that ?need not be proved because knowledge of the facts judicially noticed is so notorious that everyone is assumed to possess it . . . .? Id. ?As has been held in this state and elsewhere, judicial notice is not intended to fill the vacuum created by the failure of a party to prove an essential fact.” Id.
Here, the warrant affidavit contained hotly-contested allegations that were not ?so notorious? that ?everyone is assumed to? know them. The trial court could not strip Mr. Limbaugh of his right to an evidentiary hearing by taking judicial notice of the ex parte affidavit. The state?s announcement that the lead investigator was a spectator in the courtroom did not make this an evidentiary hearing.
Additionally, even if Judge Winikoff could take judicial notice of the warrant affidavit, that affidavit does not ?fill the vacuum created by the failure of? the state to prove relevance and least intrusive means. Since the state never sought to comply with section 395.3025(4)(d), the warrant affidavit makes no mention of relevance or least intrusive means. Thus, the affidavit does not establish that the records seized from the four doctors are relevant to the state?s investigation of overlapping prescription medications, or that issuance of the search warrants was the least intrusive means by which the state could accomplish its investigative goals.
Probable cause to seize medical records does not establish that any or all of the seized records are actually relevant to the investigation. Probable cause ?merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband . . . or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false.? State v. Neuman, 567 So. 2d 950, 952 (Fla. 4th DCA 1990), rev. denied, 576 So. 2d 289 (Fla. 1991). Probable cause ?does not deal with certainties but with probabilities.? State v. Husky, 617 So. 2d 1131, 1134 (Fla. 4th DCA 1993).
Relevance, on the other hand, is not an assessment of probabilities. Rather, it requires proof that the medical records actually have a logical tendency to prove or disprove a material fact at issue. ? 90.401, Fla. Stat. Relevance is not satisfied by showing that the records ?may be useful? to the state, nor by the state rifling through a patient?s entire medical file to see ?what it can charge, if anything,? as the state proposes to do here. [Resp. at 21 n.11].
In this case, the state seized every single document in Mr. Limbaugh?s entire medical file from four of his physicians, with a large number of records dating as far back as 2001. These medical records ? detailing hearing tests, or the results of a cholesterol test, or the details of a particular surgery, for example ? are irrelevant because they have no logical tendency to prove whether Mr. Limbaugh allegedly obtained overlapping prescription medications. The state did not ? because it could not ? articulate in its Response how any of these medical records are relevant to its investigation. All the state could say is that it wants to fish through the privileged records to see ?what it can charge, if anything.? Id. This is precisely what section 395.3025(4)(d) prohibits.
In its last argument, the state offers hollow excuses for its conduct and argues that bad faith is ?irrelevant to the legal issues under review.? [Resp. at 22]. The state is wrong. As more fully explained in Mr. Limbaugh?s Petition, this Court has spoken frequently and strongly that suppression of medical records is the required remedy when the state in bad faith fails to provide the patient with notice and an opportunity to be heard before seizing his medical records from a health care provider. State v. Cashner, 819 So. 2d 227, 229 (Fla. 4th DCA 2002); Klossett v. State, 763 So. 2d 1159, 1160 (Fla. 4th DCA 2000); Rutherford, 707 So. 2d at 1132. Incredibly, the state?s Response cites a variety of cases from Alabama, Arkansas, Georgia, Indiana, New Hampshire, Ohio, Philadelphia, Texas, and Virginia, but ignores this Court?s precedents of Cashner, Klossett, and Rutherford.
The state?s conduct in this case was in bad faith. The decision to violate section 395.3025(4)(d) was deliberate. The prosecutors admitted during the hearing in the trial court that they were aware of the notice and hearing requirements of section 395.3025(4)(d), [A:1:5-11], yet they intentionally chose to bypass them. Their selective reliance on portions of Viatical is dishonest and their Fourth Amendment argument a pretext ? this State Attorney?s Office made the same argument to this Court in Langsford and was unequivocally told ?no.?

No good faith motivated the state?s public filing of the warrant affidavit with the list of Mr. Limbaugh?s privileged prescription medications. The state?s claim that ?these documents were filed because they were to be made part of the record at the hearing? [Resp. at 23] is a fabrication. The state filed the records with the Clerk on December 4, 2003. At that time, there was no ?hearing? set and, consequently, no ?record? to make. In fact, there was no hearing set until December 22, 2003, and it was set by Mr. Limbaugh, not the state, because the state would not set the hearing.
The state?s further claim that the materials were filed in the public record because an unnamed clerk ?required the attachments to the warrant for filing? [Resp. at 23] is incredulous. Clerks cannot order the public filing of privileged medical information in violation of a statute. Here, the public filing of Mr. Limbaugh?s prescription medications violated sections 465.017(2)(a), and 893.13(7)(a)(6), Fla. Stat., as well as Mr. Limbaugh?s fundamental right to privacy under article I, section 23 of the Florida Constitution. The state?s attempt to blame a clerk for its own actions is shameful, and not good faith. The truth is that the state filed the warrant affidavit in the public record so it could direct the media to the court file and publicly embarrass Mr. Limbaugh.
The state is not an ordinary litigant, and for good reason the courts often defer to its views. With this special status, however, comes the responsibility of acting in good faith at all times, and being complete, fair, and scrupulously honest in all submissions to the courts. The state?s conduct in this case, and its Response filed with this Court, have fallen short of that standard. The proper remedy for the state?s violation of section 395.3025(4)(d) is return of the medical records to Mr. Limbaugh?s doctors and prohibition of any future use of the records by the state.
Respectfully submitted,
201 South Biscayne Boulevard, Suite 1300 Miami, Florida 33131
By: ROY BLACK, ESQ. Florida Bar No. 126088
JACKIE PERCZEK, ESQ. Florida Bar No. 0042201
Counsel for Petitioner Rush Limbaugh
I certify that this brief was prepared in Times New Roman, 14-point font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.
I hereby certify that on March 18, 2004, this Reply was faxed and mailed to James L. Martz, Esq., Assistant State Attorney, 15th Judicial Circuit of Florida, 401 N. Dixie Highway, West Palm Beach, FL 33401-4209.
I further certify that on March 18, 2004, a copy of this Reply was mailed to: Jon May, Esq., Counsel for Amicus ACLU, 110 S.E. 6th Street, Suite 1970, Fort Lauderdale, FL 33301; Randall Marshal, Esq., Legal Director, American Civil Liberties Union of Florida, 4500 Biscayne Boulevard, Suite 340, Miami, FL 33137-3227; Robert C. Buschel, Esq., Buschel, Carter, Schwartzreich & Yates, P.A., 1225 S.E. 2nd Avenue, Fort Lauderdale, FL 33316; Prof. Michael R. Masinter, Nova Southeastern University, Shepard Broad Law Center, 3305 College Avenue, Fort Lauderdale, FL 33314; Mary Baluss, Esq., Counsel for Amici The National Foundation for the Treatment of Pain and The Florida Pain Initiative, 2850 Arizona Terrace, N.W., Washington, DC 20016; Andrew Schlafly, Esq., Association of American Physicians and Surgeons, 99 Old Chester Road, Far Hills, New Jersey 07931; and Nancy Gregoire, Esq., Bunnelle, Woulfe, Krischbaum, Keller, McIntyre & Gregoire, P.A., 100 S.E. Third Avenue, Ninth Floor, Fort Lauderdale, FL 33394.
Counsel for Petitioner Rush Limbaugh
1. The state cites a variety of Florida and foreign cases to argue that the seizure in this case was reasonable under the Fourth Amendment. Those cases do not apply because they did not implicate a statute such as section 395.3025(4)(d).

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