Florida Supreme Court Denies Rush Limbaugh Appeal

Court denies Limbaugh’s appeal (CNN)

The Florida Supreme Court has turned down conservative radio host Rush Limbaugh’s request to review a lower court decision that the state could seize his medical records. In a 4-3 decision, the court said it would not consider a motion for rehearing.

Limbaugh has been under investigation into whether he illegally went from doctor to doctor to get multiple painkiller prescriptions. He has not been charged and denies the allegation, saying investigators are on a fishing expedition aimed at embarrassing him.

In October, Florida’s 4th District Court of Appeal ruled that the state did not violate Limbaugh’s privacy rights when it seized his medical records with a search warrant. Limbaugh’s lawyer, Roy Black, has argued that using a warrant gave Limbaugh no opportunity to challenge the seizure. On Thursday, Black released a statement that said in part, “I have said from the start that there was no violation of the doctor-shopping statute, but that Rush Limbaugh should not have to give up his right to privacy in order to prove his innocence.

While I’m admittedly not well informed on medical law, I never have been able to understand Limbaugh’s claim here. When does a defendent ever have a right not to challenge a seizure before a warrant is issued? Indeed, that would practically invite the destruction of the evidence that the warrant sought to seize. Presumably, if a court later found that the warrant was improper and the search therefore invalid, any evidence that came from the search would be suppressed under the Fruit of the Poisonous Tree corollary to the Exclusionary Rule.

FILED UNDER: Law and the Courts, Media, Popular Culture,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Fersboo says:

    Could it be the lack of probable cause to seize confidential records between a physician and that physcian’s patient? Doesn’t a citizen have protections with regards to that citizen’s relationship with his/her lawyer and accountant? Why not his/her doctor? Wasn’t that what all the new HIPA regulations were for?

    I know it is Rush, but the DA really didn’t have probable cause; at least in the way most criminals get the rules applied to them.

  2. James Joyner says:

    Surely, not accountants. They have a duty not to disclose but a warrant would supercede that. One would think the same would be true of doctors. The prosecution here is, after all, for violating a law related to use of multiple docs to get prescriptions.

  3. SoloD says:

    HIPPA does provide greater confidentiality for medical records, but courts have not applied those stricter standards to government entities in their law enforcement role.

    Furthermore, the doctor-patient confidentiality is not the same as attorney-client confidentiality. There are several exceptions to the former, very few for the latter. And doctors can certainly be compelled to give evidence in criminal trials whereas lawyers generally cannot.

    The initial protection for medical records and a patient’s privacy is that the DA had to show that there was probable cause for a search warrant. James is exactly right, if the DA obtained the records without probable cause, they can be excluded at trial. Undoubtedly that will be the next avenue of attack for Roy Black.

  4. Red says:

    James,

    You are joking with regards to the confidentiality of medical records and privilege of patient/physician conversations I hope?

    Everyone better hope that this gets overturned for their own sake. The exception is if a crime is committed, not to aide in helping to get evidence if a crime was committed. Let alone the HIPAA violations that may have been committed.

    To have the ACLU & Rush on the same side shows the severity of the issue. Over zealous prosecutors do not have the right for fishing expedition to gain evidence. There is a high standard of probable cause, especially when it comes to breaking the confidentiality of patient/doctor privileges. Political motivation should never be allowed to create a precedent that will affect all of us. This is really irresponsible.

    What makes matters worse is normally one goes after the seller and the solicitor, not the user. But seeing that I believe they gave the maid (the solicitor of the drugs) immunity, cant do that anymore. This just reeks of a Democratic DA trying to make a name going after Rush. The problem with it is that we will all be then affected by the legal rulings.

  5. SoloD says:

    Red,

    “The exception is if a crime is committed, not to aide in helping to get evidence if a crime was committed” — This is a distinction without a difference. The DA was not randomly searching medical records looking for a crime (unlike say a certain AG in Kansas), or asking a court to look at Limbaugh’s records because he hoped that he would find something. The DA had evidence which he presumably showed a judge, who was convinced that there was probable cause and then issued a search warrant.

    “To have the ACLU & Rush on the same side shows the severity of the issue.” — Or the hypocrisy of an individual who has otherwise not shown much interest in protecting the rights of accused criminals, but who is more than willing to use the same defenses he would otherwise ridicule, and the consistency of an organization (even if you don’t agree with their positions) that objects to government intrusion into what they consider private and/or protected matters even if the person who is being accused has vilified them in the past.

    And, of course, DAs go harder after celebrity criminals where the anonymous criminal might be let off easier. Celebrity criminals serve as a deterrent. Ask Martha Stewart (criminal) or Rudy Giuliani (DA).

  6. McGehee says:

    The DA had evidence which he presumably showed a judge, who was convinced that there was probable cause and then issued a search warrant.

    Only trouble is, the state legislature had enacted a law prescribing a process for obtaining medical records — and this search warrant procedure circumvented that law.

    It’s clear that the Florida legislature does not have the same power to make law that its counterparts in the other 49 states have. The courts have demonstrated they are willing to completely disregard explicit statutory law.

  7. Reasonable says:

    med records are no diff then any other type of record(s) in a criminal investigation

    privacy laws prevent disclosure to third parties not law enforcement w/ search warrant issued by a judge

    no court is going to tie law enforcements arms in obtaining evidence.. PERIOD

  8. Curtis says:

    Let the Pig Man get frog-walked out in front of the camers. The we can all celebrate hypocrisy of a fat biggoted nut-case gone bad

  9. Boyd says:

    Ah, nothing like a good ad hominem attack to liven up the discussion, Curtis!