Gates v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia


                                                   Decided: December 19, 2023


                          S23A1158. GATES v. THE STATE.

        MCMILLIAN, Justice.

        After Joseph Robert Gates was involved in a serious

automobile accident with another driver and entered a hospital for

treatment, law enforcement used an ex parte court order to access

his medical records and relied on them to arrest him. Gates was

indicted on several charges, including driving under the influence

per se. He then filed a motion to suppress his medical records, which

the trial court denied. Gates now appeals from that denial, arguing

that by obtaining his medical records via an ex parte court order,

instead of a warrant, the State violated his rights to privacy and due

process under the Georgia Constitution. Relying on our precedent,

we conclude that the State violated Gates’s right to privacy by

obtaining his medical records via an ex parte court order, and,

accordingly, we reverse the trial court’s denial of his motion to
suppress. 1

      1. When reviewing a trial court’s ruling on a motion to

suppress, we review its legal conclusions de novo and independently

apply the law to the undisputed facts. 2 See Love v. State, 309 Ga.

833, 836 (2) (848 SE2d 882) (2020) (“in reviewing a ruling on a

motion to suppress, we review the trial court’s . . . legal conclusions

de novo” (citation and punctuation omitted)); Mizell v. State, 304 Ga.

723, 727 (2) (822 SE2d 211) (2018) (“In reviewing the trial court’s

grant or denial of a motion to suppress, we apply the well-

established principle[] that . . . the trial court’s application of the law

to undisputed facts is subject to de novo review” (citation omitted)).



      1   This case was orally argued at Pierce County High School in
Blackshear, Georgia, on October 26, 2023.
       2 Here, the trial court made very few, if any, factual findings, in denying

the suppression motion, and no trial has been conducted. Thus, we recite the
undisputed facts from the record, including pretrial testimony presented at the
hearing on the motion to suppress. See Jones v. State, 314 Ga. 605, 609 (2) (878
SE2d 505) (2022) (explaining that the Court can consider “pretrial testimony
adduced at the suppression hearing” when a trial court has not made express
findings of fact after a hearing on the motion to suppress); Hughes v. State, 296
Ga. 744, 746 (1) n.4 (770 SE2d 636) (2015) (When we review a ruling on a
motion to suppress, “some or all of the material facts may be undisputed . . . In
such cases, an appellate court properly may take notice of the undisputed
facts—even if the trial court did not—without interfering with the prerogative
of the trial court to resolve disputes of material fact.”).
                                        2
     The undisputed facts are as follows. On August 10, 2022,

Corporal Jason Fondren of the Effingham County Sheriff’s Office

responded to a collision between Gates and another driver on State

Route 275 at Industrial Boulevard in Effingham County. That

collision rendered Gates unconscious and caused serious bodily

injury to the other driver. Gates was transported to the Memorial

University Medical Center (“Hospital”) in Savannah, Chatham

County, for treatment. An EMS officer alleged that while he was

helping transport Gates to the Hospital, he could smell the odor of

alcohol coming from Gates’s person. The day after the collision,

Fondren prepared a search warrant application addressed to the

Chatham County Recorder’s Court asking for Gates’s blood vial held

at the Hospital. However, the warrant was never issued.3

     Instead, on September 26, 2022, about six weeks after the

collision, Fondren obtained an ex parte court order from the




     3 It is unclear from the record why that warrant was never issued, but it

appears that the judge from whom Fondren initially sought the warrant was
ill and unavailable.
                                     3
Superior Court of Effingham County pursuant to OCGA § 24-12-1,4

directing the Hospital to furnish “medical records, including but not

limited to emergency room reports, X-rays, CT Scans, MRI’s and Lab

reports . . . for Joseph Albert Gates . . . from August 10, 2022 through

the date of discharge.” The order further directed the Hospital “not

to disclose to anyone of the fact that this information [had] been

requested or that any Order [had] been issued by the Court.” The

Hospital turned over Gates’s medical records, including results of

the blood testing that it had performed on Gates while treating him.

      Based on these records, Fondren averred under oath that at

the time of the collision, Gates had been driving with a blood alcohol

content (BAC) of 0.201 grams, which was above the per se 0.08-gram

limit established by Georgia law. See OCGA § 40-6-391 (a) (5).

Relying in part on the BAC test results, Fondren obtained warrants

for Gates’s arrest. On January 24, 2023, Gates was indicted on

several felony and misdemeanor counts, including four counts of


      4 OCGA § 24-12-1 provides in pertinent part: “[N]o hospital or health care

facility . . . shall be required to release any medical information concerning a
patient except . . . on appropriate court order or subpoena.”
                                       4
Serious Injury by Vehicle (OCGA § 40-6-394 (b)), and one count of

Driving Under the Influence (Per Se) (OCGA § 40-6-391 (a) (5)).5

      Gates then filed a motion to suppress his medical records,

including his BAC test results. Following a hearing on that motion,6

the trial court denied it, ruling that the use of an ex parte court order

to obtain Gates’s medical records did not violate his constitutional

rights. The trial court determined that although this Court had

prohibited the use of an ex parte subpoena to obtain medical records

in King v. State, 272 Ga. 788 (535 SE2d 492) (2000) (King I), that

prohibition did not extend to an ex parte court order. Instead, the

trial court reasoned, an ex parte court order was like an ex parte

search warrant, which this Court had previously held in King v.

State, 276 Ga. 126, 129 (2) (577 SE2d 764) (2003) (King II) (a case

unrelated to King I) could be used to obtain medical records even




      5 Gates was also indicted for Driving on Wrong Side of Roadway (OCGA

§ 40-6-40), and Failure to Maintain Lane (OCGA § 40-6-48).
       6 At the hearing, the State did not present any evidence to support that

the State had probable cause to search Gates’s medical records, nor did the
trial court make any such finding.
                                      5
without notice or a hearing. 7

      2. On appeal, Gates contends that his medical records are

protected by the Georgia Constitution’s right to privacy and that the

State’s use of an ex parte court order to obtain Gates’s medical

records is akin to use of the ex parte subpoena that we held violated

the right to privacy in King I.8

      (a) In King I, we held that “the personal medical records of this

state’s citizens clearly are protected by [the right of privacy] as

guaranteed by our [state] constitution.” 272 Ga. at 790 (1). See also

King II, 276 Ga. at 127 (1) (stating that King I had “held that

individuals have a state constitutional right to privacy in their

personal medical records”). This right to privacy is “premised upon

the due process clause of our [state] constitution,” that is, Article I,


      7 After the court issued its order denying the motion to suppress on May

23, 2023, Gates filed a motion on May 25 to certify that order for immediate
review pursuant to OCGA § 5-6-34 (b), which the court granted on May 30.
Gates then filed an application for interlocutory appeal, which we granted on
June 29, 2023.
      8 To the extent that Gates also argued that the use of the ex parte court

order violated his due process rights under the Georgia Constitution apart
from his right to privacy, we need not address that argument given our
conclusion that obtaining the medical records by ex parte court order violated
Gates’s right to privacy.
                                      6
Section I, Paragraph I of the Georgia Constitution (hereinafter

“Paragraph I”). King I, 272 Ga. at 793 (1). See also King II, 276 Ga.

at 127-29 (1)-(2) (same); Pavesich v. New England Life Ins. Co., 122

Ga. 190, 197 (50 SE 68) (1905) (“The right of privacy . . . is . . .

guaranteed . . . by the constitutions of the United States and of the

State of Georgia, in those provisions which declare that no person

shall be deprived of liberty except by due process of law.”). Thus,

pursuant to King I, Gates had a right to privacy in his medical

records under Paragraph I of the Georgia Constitution. 9

      Yet the State, despite conceding that it “cannot obtain all of a

person’s medical records,” still argues that Gates lacked a right of

privacy in his BAC test results because they resulted from blood



      9 The State requested at oral argument that this Court overturn King I,

but never made this request—let alone give a compelling argument supporting
it—in any of the State’s briefing. We decline to consider a request to overrule
precedent made for the first time in oral argument with no briefing in support.
See Session v. State, 316 Ga. 179, 185 (2) (887 SE2d 317) (2023) (“To consider
[a] completely different issue, raised at oral argument for the first time, would
render our rules a dead letter, and we will not allow that.”). Cf. Saint v.
Williams, 287 Ga. 746, 747 (2) (699 SE2d 312) (2010) (declining to address an
appellant’s assignment of error “because [that assignment] was not raised and
argued in appellants’ original brief” and “[i]t [was] improper to use a
supplemental brief to expand upon the issues to be decided by this Court.”).
                                       7
tests performed by a hospital in the course of Gates’s medical

treatment following his collision, rather than tests instigated by the

State.10 This argument, however, runs against King I, where the

medical records that we held were “protected by the constitutional

right of privacy,” included the results of BAC tests that a hospital

had administered upon an accused “in accordance with [its] trauma

protocol” for the “purpose of medical diagnosis and treatment”

following a single-car collision. 272 Ga. at 788-90 (1). As we

explained, “[e]ven if the medical provider is the technical ‘owner’ of

the actual records, the patient nevertheless has a reasonable

expectation of privacy in the information contained therein, since

that data reflects the physical state of his or her body.” King I, 272

Ga. at 790 (1). See also King II, 276 Ga. at 126-27 (1) (medical


      10 In its appellate briefing, the State conflates Paragraph I’s right to

privacy with Georgia’s constitutional right against unreasonable searches and
seizures (Ga. Const. Art. I, Sec. I, Par. XIII (hereinafter “Paragraph XIII”)),
and argues that Gates had no right to privacy in his medical records under
Paragraph XIII because Gates has no reasonable expectation of privacy in
records generated by a third party, see Bowling v. State, 289 Ga. 881, 883 (717
SE2d 190) (2011). Because we conclude that pursuant to King I Gates had a
right to privacy in his medical records under Paragraph I, we decline to
consider the State’s arguments under Paragraph XIII.

                                      8
records covered by the right to privacy included records related to a

hospital’s drawing of the defendant’s blood “for diagnosis and

treatment” after a car accident). Thus, pursuant to King I, Gates had

a constitutional right to privacy in his medical records, including the

BAC test results.

     (b) Having determined that Gates’s medical records are

protected by Paragraph I’s right to privacy, we now turn to the

question of whether the ex parte court order used to obtain the

medical records was more like the unconstitutional ex parte

subpoena in King I or the permissible ex parte search warrant in

King II.

     In King I, the State attempted to rely on OCGA § 24-9-40 (a) to

justify accessing an accused’s medical records via an ex parte

subpoena. That statute—like its successor statute OCGA § 24-12-1,

which the State tries to rely on here—provided that “no hospital or

health care facility . . . shall be required to release any medical

information concerning a patient except . . . on appropriate court

order or subpoena.” In considering that statute, the King I Court

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focused on the term “appropriate,” which was not defined in the

statute, and concluded that “the issuance of a subpoena for [the

defendant’s] medical records could not be ‘appropriate’ as otherwise

required by OCGA § 24-9-40 (a), because such a subpoena would

result in a violation of her constitutional right to privacy arising

from the due process clause of this state’s constitution.” Id. at 793

(1). This was because OCGA § 24-9-40 (a) “[did] not contain any

express limits on the use of a subpoena to obtain a defendant’s

medical records for possible introduction as evidence in a criminal

proceeding.” Id. at 792 (1). The statute neither required the State to

first show “probable cause prior to the seizure of an accused[’s] . . .

property,” nor required the accused be given “an opportunity to

contest the validity of the subpoena before the disclosure of her

medical records to the prosecution.” Id. To construe “appropriate”

under OCGA § 24-9-40 (a) to include an ex parte subpoena, King I

reasoned, would allow the State to access confidential information

“by means of a subpoena issued upon the mere filing of an

indictment or accusation, if not before[]” and “to circumvent []

                                  10
procedural safeguards” it would have otherwise needed to meet. See

id. Noting that “unlimited access [by the State] to medical records”

for prosecutorial purposes “would have the highly oppressive effect

of chilling the decision of any and all Georgians to seek medical

treatment[,]” the King I Court declined to adopt such a

construction.11 Id. at 792-93 (1). However, the Court made clear that

its holding applied only to the ex parte subpoena process used in

that case and “should not be construed as applicable to the

prosecution’s use of any procedural device other than an ex parte

subpoena to obtain an accused’s medical records.” Id. at 794 (1).

      In King II, we considered whether a search warrant to obtain

medical    records     violated    a    defendant’s    right    to   privacy.

Differentiating the search warrant from the subpoena in King I, we

held that “[b]ecause a search warrant requires a neutral judicial

officer to find probable cause that a crime has been committed, . . .


      11 Some of us question parts of King I’s analysis, which mixed language

sounding in both substantive and procedural due process borrowed from
federal law. But its holding was clear enough: obtaining King’s medical records
through an ex parte subpoena violated King’s rights under the Due Process
Clause of the Georgia Constitution. See 272 Ga. at 793 (1).
                                       11
a defendant’s constitutional right to privacy is not violated when the

State obtains private medical records through a search warrant

without notice to the defendant or a hearing on the request.” King

II, 276 Ga. at 126. See also id. at 129 (2) (“Since the magistrate had

a substantial basis for concluding that probable cause existed . . .

the trial court correctly denied [the defendant’s] motion to suppress

the results of the hospital’s blood test.”).

     We apply King I and King II’s analysis here. Although King I

limited its decision to an ex parte subpoena, its reasoning applies

equally to this case, which involves an ex parte court order. Like its

predecessor statute, OCGA § 24-12-1 authorizes hospitals to release

medical information pursuant to an “appropriate” court order but

does not define what an “appropriate” court order is. Also, OCGA §

24-12-1 lacks “any express limits” on the use of an ex parte court

order to obtain an accused’s medical records for prosecutorial

purposes. See King I, 272 Ga. at 792 (1). And unlike the search

warrant in King II, there is no evidence in the appellate record

showing that the ex parte court order was based on probable cause

                                   12
to justify the search, or that the order fully complied with the

statutory requirements for the issuance of a search warrant. See

OCGA §§ 17-5-20 to 17-5-32 (governing searches pursuant to

warrants).

     Accordingly, we conclude that the State’s use of an ex parte

court order to obtain Gates’s medical records, including his BAC test

results, is not materially different from the use of the ex parte

subpoena that we struck down in King I, as opposed to the search

warrant that we upheld in King II, and hold that the trial court erred

in denying Gates’s motion to suppress. See King I, 272 Ga. at 794 (2)

(defendant’s medical records were excluded from evidence after

Court reversed the denial of her motion to quash the State’s

subpoena).

     Judgment reversed. All the Justices concur.




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