Rush Limbaugh attorney: Investigators should have warned they were seizing medical records

Associated Press ^ | 4-7-4 | JILL BARTON

[Oldeconomybuyer]

WEST PALM BEACH, Fla. (AP) -- Rush Limbaugh's attorney argued Wednesday that investigators trampled the conservative commentator's privacy rights when they made a surprise visit to a doctor's office to seize his medical records.

Limbaugh attorney Roy Black is seeking to keep the records sealed from prosecutors who accuse the radio host of illegally buying prescription drugs. He said investigators should have provided some notice they were going to seize records containing private information.

Instead, they used search warrants and gave Limbaugh no chance to challenge the seizure.

But Assistant State Attorney Jim Martz said giving notice would have limited the ability to investigate allegations that Limbaugh illegally "doctor shopped" to obtain pain pills, visiting several doctors to receive duplicate prescriptions.

Limbaugh, 53, has not been charged with a crime and the investigation is at a standstill pending a decision on the medical records.

[snip]

[Robert357]

Maybe someone can explain to me why the federal government doesn't stop this.

I thought that medical records privacy was provided by some recent (i.e. last 10 years) federal laws. If so and if a local procescutor is messing with that, why doesn't a federal marshal just come in and arrest the local prosecutor for violation of federal laws and put an end to this.

Is the issue that the state of Florida medical records laws are more strict then the federal laws? If so, then why does someone at the State Law Enforcement level, just arrest the local prosecutor that is going after Rush?

Politics, I am sure is the answer.

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[garyb]

My meager understanding is that Florida state law is more protective of patient information than Federal statute.

Apparently the State's attorney has complied with the Federal Law and 4th amendment rights. But according to Roy Black, the State's attoryney failed to comply with Florida law.

[BlazingArizona]

Maybe someone can explain to me why the federal government doesn't stop this.

Because this is a drug case. Scraps of paper like HIPAA or the US Constitution don't apply under these circumstances.

[tahiti]

"I thought that medical records privacy was provided by some recent (i.e. last 10 years) federal laws."

You make an interesting remark.

Over the last couple of years, every medical practioner I have visited has asked me to read and sign the HIPPA document.

I have discovered when reading the document that you are authorizing your docotor to release your medical records to law enforcement and other government entities without a search warrant.

In every case, I have initialed and noted that I do not consent to that action by my doctor's office administrator.

Only with a valid search warrant is that information to be released.

They have all agreed.

Now to your remark.

The first question you have to ask is does the federal government have jurisdiction in Rush Limbaugh's case?

Does the HIPPA law have jurisdiction within the boundaries of a sovereign state?

I can find no federal power granted in Art I, Section 8, Clause 1-18 for such a federal law to have jurisdiction within a sovereign state.

Now ask yourself the next following question.

If a search warrant can be declared invalid because the potential defendant was not notified before execution of the search warrant for medical records, why can't a search warrant be invalidated to search a potential defendant's home for the same reason?

Isn't the reason a search warrant is required is to insure that a prosecutor has a valid and justifiable reason to convince a judge that there is crucial evidence connected to crime stored at a particular venue, home, vehicle, place of employment, friends house, doctor's offices, etc., or a need for a wire tap that can then be constitutionaly seized for purposes of the trial?

How effective would the search warrant be if the defendant had to be notified that it was about to be executed?

I do not remember the court case citation, but within the last month or so the U.S. Supreme court upheld a defendant's challenge of an executed search warrant because the defendant was in the shower and did not hear the knock. So the cops rammed his door down and executed the search warrant.

The court ruled that since the defendant did not answer the door promptly, that the cops were justified to use force entry after waiting only 20 seconds because the defendant could be destroying or removing the items the search warrant seeks to seize.

I do not see how Rush Limbaugh's lawyer is going to win his argument that the a lawful search warrant can be invalidated because he was not notified of the search for the same reason stated above.

He is toast in my opinion.

[RS]

" Apparently the State's attorney has complied with the Federal Law and 4th amendment rights. But according to Roy Black, the State's attoryney failed to comply with Florida law. "

From the Florida Constitution-

"This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution."

[cherry]

so much money and time spent on trying to prosecute Rush, just because he is Rush......

I am not a Rush fan, but I think there are probably about 10,000 bigger fish to fry in Florida than him.....

how about putting a few child molesters and rapist and killers in jail instead....

[gcruse]

Maybe someone can explain to me why the federal government doesn't stop this.

Ask Tommy Chong.

[AndyTheBear]

If a search warrant can be declared invalid because the potential defendant was not notified before execution...

This does not seem to be the legal argument, at least not the one the ACLU is using:

In its brief, the ACLU argues that law enforcement officers violated state law by using the more intrusive search warrant process to seize Limbaugh’s medical records, rather than by obtaining a subpoena through the proper procedures outlined Florida Statute § 395.3025.

-From the Florida ACLU website

[js1138]

I hope your thinking is better than your writing.

I do not remember the court case citation, but within the last month or so the U.S. Supreme court upheld a defendant's challenge of an executed search warrant...

seems to contradict your assertion that the search was upheld.

Florida law grants additional rights to Florida citizens in the specific area of medical records. Your analogy makes no sense. Doctors are presumably not the offending party here and the law has no right to assume that doctors would flush patients' records while the cops are knocking on the door.

Furthermore, the prosecutor has already said in public what "will be" found in the medical records. That implies that the prosecutor knows what is in the records, even though they are supposedly sealed.

[RS]

"Furthermore, the prosecutor has already said in public what "will be" found in the medical records. That implies that the prosecutor knows what is in the records, even though they are supposedly sealed."

They don't have to IMPLY anything -

The prosecutors had a day to legally go through the records when the hearing was decided against Black and before he finally got the paperwork filed to appeal it.
( he screwed up )

So Black and the prosecutors both KNOW what is in there... perhaps that is why they are fighting so hard ?

[RS]

"He is toast in my opinion."

From the deafening silence here, I think a lot of Freepers agree. ( just got finished watrching it )

[greasepaint]

This will go to the Florida Supreme Court,
the appeals court ruling is meaningless.
As this case involves privacy issues above
those deliniated by federal law, there is no federal involvement.
Lim. will loose on this issue.

[ClintonBeGone]

Maybe someone can explain to me why the federal government doesn't stop this.

Two reasons: State's rights and why would the federal government try to hinder state law enforcement?

[ClintonBeGone]

If a search warrant can be declared invalid because the potential defendant was not notified before execution of the search warrant for medical records, why can't a search warrant be invalidated to search a potential defendant's home for the same reason?

Funny, Roy Black doesn't seem to have raised that as an issue.

[ClintonBeGone]

From the deafening silence here, I think a lot of Freepers agree. ( just got finished watching it )

RS, before I agree I need to read what the chief organ grinder's monkey has to say. Mark? What say you?

[Hacksaw]

So Black and the prosecutors both KNOW what is in there... perhaps that is why they are fighting so hard ?

LOL - RS you are the Bagdhad Bob of the Rush Limbaugh case. And I am sure when Rush skates, you will be admitting what an idiot and troll you are. Nah - you won't - cause guys like you never do. But you will be pinged anyway just to see what pretzel shape you twist yourself into.

[RS]

"LOL - RS you are the Bagdhad Bob of the Rush Limbaugh case."

Fuuny - a Freeper made a WRONG assumption that the prosecutor did not have any legal access to the records, and I corrected him.
Do you feel three is a problem with Freeper knowing the actual facts, rather then spreading the lies of a Kennedy lawyer ?



"And I am sure when Rush skates, you will be admitting what an idiot and troll you are. Nah - you won't - cause guys like you never do."

Perhaps if you watch the hearing, your opinion on Rush skating will change ... and in the unlikly situation where Rush does "skate", I will consider him the same way as I consider the Clintons, Ted Kennedy, and O.J.

[RS]

"If a search warrant can be declared invalid because the potential defendant was not notified before execution of the search warrant for medical records, why can't a search warrant be invalidated to search a potential defendant's home for the same reason?

Funny, Roy Black doesn't seem to have raised that as an issue."

It appears that Martz DID bring up that as an issue, that medical records were never meant to be elevated to a more protected status then a persons home.

BTW - Did you notice that Rush has put the video ( which dosent do much good if you don't have high speed ) of the appeal on his website, rather then a transcript which everyone could read and comment on ?
Wonder how quickly this will move behind the 24/7 "wall" or disappear ?