In re Search Warrant for Medical Records of W.M.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0032, In re Search Warrant for Medical
Records of W.M., the court on December 23, 2016, issued the
following order:

Having considered the State’s brief, the memorandum filed by W.M.,
the amicus curiae brief filed by the Appellate Defender Program, the State’s
reply brief, and the record submitted on appeal, we conclude that oral
argument is unnecessary in this case. See Sup. Ct. R. 18(1). We reverse.

The State appeals the order of the Circuit Court (Carroll, J.) denying its
request for a search warrant to obtain hospital records of W.M., arguing that
the court erred in concluding that the State failed to demonstrate probable
cause and “essential need” for the records.

An objective determination of probable cause by a neutral and detached
magistrate is a prerequisite to the issuance of a search warrant. State v.
Canelo, 139 N.H. 376, 380 (1995). “To establish probable cause, the affiant
need only present the magistrate with sufficient facts and circumstances to
demonstrate a substantial likelihood that the evidence or contraband sought
will be found in the place to be searched.” State v. Zwicker, 151 N.H. 179, 185
(2004). However, when the State seeks records protected by the physician-
patient privilege, it also “must demonstrate ‘essential need’ for the information
contained in the record, i.e., the State must prove both that the information is
unavailable from another source and that there is a compelling justification for
its disclosure.” In re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 226
(2010).

The record shows that on August 11, 2015, Officer Glidden applied for a
search warrant for W.M.’s Concord Hospital medical records from July 27,
2015 to July 29, 2015. In his supporting affidavit, Glidden stated that on July
27, 2015, he responded to the site of a motor vehicle accident, where he
observed a single, abandoned pick-up truck with substantial driver-side
damage and a missing front left wheel. Glidden spoke to an eyewitness who,
after observing the accident, saw a man removing a case of beer from the
vehicle. The witness asked the man if he was okay, and the man answered,
“[W]e’re fine,” before running into the woods. Officer Sullivan contacted the
owner of the truck, who informed the officer that he had allowed W.M. to
borrow the truck to purchase beer, and that W.M. drove away in the truck with
a passenger.
 Glidden then reported to W.M.’s residence. On arrival, W.M.’s father told
the officer that he did not know where his son was, and that he would have to
locate his cell phone to call him. After looking for the cell phone, the father
returned and said, “[H]ere he is,” inviting the officer into the living room, where
W.M. was lying in a recliner under a blanket. W.M. denied driving the truck or
being involved in the accident.

Two days after the accident, the truck owner informed Glidden that he
had reported the accident to his insurance company, and that his insurance
agent informed him that someone in W.M.’s residence advised the agent that
W.M. was brought to the hospital for a back injury. The passenger’s roommate
informed the officer that W.M.’s mother had picked them up after the accident,
that W.M. had injured his back in the accident, and that W.M. was brought to
Concord Hospital. Glidden contacted W.M.’s mother, who told him that she
found W.M. lying on the floor of their house on the night of the accident but
could provide no further information.

Based upon this affidavit, the trial court granted the search warrant
application. Following the procedure set forth in In re Search Warrant, the
court ordered the hospital to provide the records to the court under seal and
notified W.M. that the records had been delivered to the court for potential in
camera review. See In re Search Warrant, 160 N.H. at 226. W.M. objected to
the disclosure on the basis of the physician-patient privilege, and the court
held a hearing. Glidden’s hearing testimony was consistent with his affidavit.

After the hearing, the court denied the request for the medical records
“based upon the paucity of evidence supporting probable cause as to serious
bodily injury for the seizure of the medical records.” The State moved to
reconsider, arguing that the court had already found probable cause, and that
the remaining issue for determination was whether the State had demonstrated
“essential need” for the records. See In re Search Warrant, 160 N.H. at 226. In
ruling on the State’s motion, the court found that the evidence “did not provide
a compelling reason to invade the confidentiality of the patient,” ruling that
“[t]he attenuated presentation as to the probability of serious bodily injury is
such that the Court denies the State’s request.”

As an initial matter, we conclude that the State established probable
cause to obtain the medical records. Glidden provided sufficient facts and
circumstances to demonstrate a substantial likelihood that the Concord
Hospital records include evidence of W.M.’s injuries resulting from the
accident. See Zwicker, 151 N.H. at 185. In addition, we conclude that the
State demonstrated “essential need” for the records by proving both that the
information is unavailable from other sources and that there is a compelling
justification for its disclosure. See In re Search Warrant, 160 N.H. at 226.

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 The State seeks the medical records to establish an element of a felony
criminal offense: failure to report after an accident, see RSA 264:25 (2014),
which is a class B felony when bodily injury occurs, see RSA 264:29 (2014).
The investigation of felonies and the search for relevant evidence constitute a
compelling justification to support invasion of the physician-patient privilege.
In re Grand Jury Subpoena (Medical Records of Payne), 150 N.H. 436, 442
(2004).

In determining whether the information is available from other sources,
we consider whether the alternative evidence would be admissible at trial,
whether it would be sufficient to overcome a motion for directed verdict, and
whether the State has made adequate efforts to investigate alternative sources.
In re Grand Jury Subpoena, 150 N.H. at 442-43. The police learned of W.M.’s
injuries from third parties, whose hearsay statements would likely be
inadmissible at trial, thereby leaving the State’s case vulnerable to a motion for
directed verdict. See id. at 443 (noting that to survive a motion for directed
verdict, evidence must be sufficient to support a finding of guilt beyond a
reasonable doubt). The police made efforts to obtain evidence of W.M.’s
injuries from W.M. and his family, but they were uncooperative. Accordingly,
we conclude that the State proved that the information is unavailable from
other sources and that the trial court erred in denying the State access to the
medical records. See In re Search Warrant, 160 N.H. at 226.

Reversed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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