Can the Police Get a Search Warrant Based Upon a Doctor's HIPAA Violation

[Steve418]

My question involves public health law in the State of: Georgia, New York

I don't do drugs, but it's something that I wondered about recently. I know that doctors cannot report someone for doing drugs without violating HIPPA. It seems like a potentially common scenario. Also, if HIPPA is violated in some way, could a warrant be legally issued as a result of "word getting around". Let's say a cop's wife were a doctor or pharmacist or another medical professional who is legally authorized to give medical advice, and the doctor starts telling the cop about her day, which includes talking about the meth-head asking if they can inject their crystal meth while on their medication without dying or something along those lines (a violation of HIPPA, I know, though I haven't been able to find any info on whether or not pharmacists are bound to HIPPA). For some reason, the police officer takes it upon himself to tell others at the station about how he has information about how the doctor's patient is a meth addict. Then, if this information were given to the magistrate, would they be able to legally execute a search warrant based on this information? And practically speaking, would they in this situation? I hear about how HIPPA protects people from prosecution if someone admits drug use to a health professional, but I wonder if this law would protect someone from prosecution in this scenario. Also, are pharmacists bound to HIPPA?

[jk]

What makes you believe a statement you are a meth head is enough probable cause to obtain a search warrant?

Yes, pharmacists are bound by hipaa.
https://www.hhs.gov/hipaa/for-profes...ons/index.html


I doubt the doctor would want her hipaa violation to be reported to HHS. It can be prosecuted criminally if the situation warrants it. Regardless, even civil violations are taken seriously


as to the base question;

evidence is not considered obtained illegally, at least in regards to the issuing of a warrant, if the police do not solicit the information. In other words; if the cop asks the wife if she knows of any drug users or if she is aware of anything that could help him make some busts, that would be improper. If the cop hears information, even if the person providing the information broke the law in obtaining it, that would provide probable cause to obtain a warrant, that is permitted.

[Taxing Matters]

If the cop hears information, even if the person providing the information broke the law in obtaining it, that would provide probable cause to obtain a warrant, that is permitted.

I agree with that so long as the cop did not do anything illegal or that violates the rights of the suspect in getting the person to disclose the information he or she hears.

In other words; if the cop asks the wife if she knows of any drug users or if she is aware of anything that could help him make some busts, that would be improper.

But I disagree with your conclusion here. The issue, as you correctly implied above, is whether law enforcement did anything improper, i.e. anything illegal or that would violate the rights of the suspect, to obtain the information. It is not improper for the cop to ASK for information. He violates no law nor any rights of the suspect in doing so. He is not compelling anyone to give him information. Nor is it the cop’s job to know who is bound by the HIPAA privacy rule or what the details of the privacy rule are. The medical professional who is bound by HIPAA is the one that is obligated to know that and to comply with it. If he or she chooses to disclose information that would violate HIPAA, that is on the medical professional, not the cop. And as the cop did not act improperly in obtaining the information, that information could be relied upon in seeking a search warrant.

[jk]

If a cop asks a question, does that not make the wife an informant?
a quick look provided this;

https://www.law.cornell.edu/cfr/text...I/subchapter-A

§ 2.17 Undercover agents and informants.

(a)Restrictions on placement. Except as specifically authorized by a court order granted under § 2.67, no part 2 program may knowingly employ, or enroll as a patient, any undercover agent or informant.
(b)Restriction on use of information. No information obtained by an undercover agent or informant, whether or not that undercover agent or informant is placed in a part 2 program pursuant to an authorizing court order, may be used to criminally investigate or prosecute any patient.

[Taxing Matters]

If a cop asks a question, does that not make the wife an informant?

I think not. The definition of informant for the purpose of the regulation is this:

Informant means an individual:

(1) Who is a patient or employee of a part 2 program or who becomes a patient or employee of a part 2 program at the request of a law enforcement agency or official; and

(2) Who at the request of a law enforcement agency or official observes one or more patients or employees of the part 2 program for the purpose of reporting the information obtained to the law enforcement agency or official.

42 CFR § 2.11 (Bolding added.) If the cop asked his his wife to actively observe patients and report those that may be using illegal drugs, then the wife is an informant. If the cop regularly asks his wife for that information, she might also be considered an informant, as the regulation suggests a setup where the police have some ongoing activity to monitor patients for possible criminal acts. But just a one off question to his wife I think would fail to rise to the level of being an informant.

[jk]

I think not. The definition of informant for the purpose of the regulation is this:

Informant means an individual:

(1) Who is a patient or employee of a part 2 program or who becomes a patient or employee of a part 2 program at the request of a law enforcement agency or official; and

(2) Who at the request of a law enforcement agency or official observes one or more patients or employees of the part 2 program for the purpose of reporting the information obtained to the law enforcement agency or official.

42 CFR § 2.11 (Bolding added.) If the cop asked his his wife to actively observe patients and report those that may be using illegal drugs, then the wife is an informant. If the cop regularly asks his wife for that information, she might also be considered an informant, as the regulation suggests a setup where the police have some ongoing activity to monitor patients for possible criminal acts. But just a one off question to his wife I think would fail to rise to the level of being an informant.

Section b states it does not have to be a part 2 participant

Now, if you read my post that you quoted;

In other words; if the cop asks the wife if she knows of any drug users or if she is aware of anything that could help him make some busts, that would be improper.

that obviously speaks to a situation where the cop is using his wife as an informant.


I agree that a one off conversation would likely be difficult to be framed as him using the wife as an informant.

[Taxing Matters]

Now, if you read my post that you quoted;...that obviously speaks to a situation where the cop is using his wife as an informant.

Well, it’s obvious to you, as you are the one who knows what you had in mind when you wrote it. It was not obvious to me just from what you had written.

[jk]

Well, it’s obvious to you, as you are the one who knows what you had in mind when you wrote it. It was not obvious to me just from what you had written.

Fair enough.