We issued a writ of certiorari to the Court of Appeals to determine the extent, if any, to which the statutory exemption of “private papers” from the purview of a search warrant applies to a search warrant issued for medical records maintained by a hospital. OCGA § 17-5-21a5. See King v. State , 276 Ga. 126 577 SE2d 764 2003. See also Sears v. State , 262 Ga. 805 426 SE2d 553 1993. The statute provides that a judicial officer may issue a search warrant, upon a showing of probable cause and the inclusion of particular descriptions of the place to be searched and the items to be seized, for the seizure of “5 Any item, substance, object, thing, or matter, other than the private papers of any person , which is tangible evidence of the commission of the crime for which probable cause is sought.” Emphasis supplied.1 The Court of Appeals affirmed the trial court’s denial of appellant’s motion to suppress the medical records that had been obtained by means of a search warrant, finding Brogdon’s reliance on the statutory “private papers” exemption to be unavailing and determining that our decision in King v. State , supra, 276 Ga. 126, was controlling. Brogdon v. State , 299 Ga. App. 547, 550-551 683 SE2d 99 2009. Appellant was involved in a vehicular collision in which the vehicle he was driving ran into the rear of the car in front of him. The responding police officer arrived at the scene in time to smell alcohol in the ambulance where appellant was being treated, to notice appellant’s belligerent behavior, and to find evidence of alcohol consumption in the cab and bed of appellant’s truck. While at the scene of the collision, the officer did not ask appellant to submit to a blood-alcohol test, and the officer was unable to continue his investigation at the hospital to which appellant was taken because appellant was receiving medical treatment. Five months later, the Gwinnett solicitor general’s office obtained and served upon the hospital a search warrant for Brogdon’s medical records for the date on which Brogdon had been treated at the hospital following the vehicular collision. The hospital provided the records, and the trial court denied Brogdon’s motion to suppress the medical records as “private papers” under OCGA § 17-5-21 a 5. In a bench trial, the trial court considered the content of the medical records and found Brogdon guilty of driving under the influence.
1. While both King v. State , supra, 276 Ga. 126, and the case at bar involve efforts to suppress a defendant’s medical records obtained from a hospital pursuant to a search warrant, our holding in King does not control the outcome of this case because King did not resolve the issue presented by appellant Brogdon. In King , we held that the defendant’s state constitutional right to privacy in his personal medical records was not violated when the State obtained the medical records through a search warrant that was issued without a hearing or notice to the defendant because the constitutional and statutory provisions for obtaining a search warrant contained procedural safeguards that limit the State’s ability to obtain a defendant’s private records. Id., at 128.
