STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A23-0516

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                               Anthony Richard Smeby,
                                     Appellant.

                                 Filed March 4, 2024
                                       Affirmed
                                     Reyes, Judge

                            Hennepin County District Court
                              File No. 27-CR-21-18490

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Zachary Stephenson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,

Judge. ∗

SYLLABUS

       Under 

, subd. 1(d) (2020), the physician-patient evidentiary

privilege does not apply to communications between paramedics and patients.




∗
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

OPINION

REYES, Judge

          In this direct appeal from his conviction of first-degree driving while impaired by a

controlled substance (DWI), appellant argues that (1) the physician-patient privilege barred

admission of appellant’s statements to the paramedics and (2) the police relied on an

unconstitutionally overbroad search warrant to obtain appellant’s medical records. We

affirm.

                                            FACTS

          On August 4, 2021, a Crystal police officer responded to a report of a car crash in

Brooklyn Park involving appellant Anthony Richard Smeby. Appellant’s car had rear-

ended the vehicle in front of him, which in turn caused that vehicle to crash into the vehicle

in front of it. The officer went to the vehicles to ensure that the occupants were unharmed.

Appellant had suffered no obvious trauma but was unresponsive when the officer

performed a sternum rub 1 to try to wake him. Appellant’s airbags had deployed, and his

vehicle was still in gear. The officer did not smell any alcoholic beverage but observed

that appellant had pinpoint pupils and very shallow breathing. The officer suspected

appellant was impaired by a controlled substance, so he administered Narcan, which

reverses the effects of opiates, to appellant. By this point, additional officers had arrived,

one of whom used a bag-valve mask to assist appellant with his breathing. The first dose




1
  The officer testified that a sternum rub is a painful stimulus to wake unresponsive
individuals.

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of Narcan was not effective, so the officer administered a second dose. A few minutes

after the second dose, appellant started to wake and began to speak with the officers.

       When the paramedics arrived, appellant was still “breathing very slowly.” The

paramedics transported him to the hospital. Appellant initially denied that he had used any

drugs, but later admitted to paramedics that he had snorted “too much” heroin. During

transport, appellant’s cognitive awareness improved, and by the time they arrived at the

hospital, appellant correctly answered questions about the date and time.

       At the hospital, the emergency-room nurse determined that appellant had no

abrasions or broken bones. The nurse testified that appellant did not tell her what drug he

had used. She also testified that at some point, appellant’s girlfriend entered the exam

room and told the nurse that appellant had used heroin.

       Appellant left the hospital before law enforcement obtained a search warrant for a

blood sample. On September 28, 2021, police sought and obtained a search warrant for

appellant’s medical records from the day of the crash. One week later, respondent State of

Minnesota charged appellant with DWI in violation of Minn. Stat. § 169A.20, subd. 1(2)

(Supp. 2021). Prior to trial, appellant moved to suppress his medical records and any

evidence obtained through his medical records. The district court determined that the

search warrant had been sufficiently particular and did not violate appellant’s Fourth

Amendment rights. The district court also determined that, while the physician-patient

privilege applied to appellant’s medical records, it did not apply to statements appellant

made to the paramedics, statements appellant made in the presence of his girlfriend, or

statements made by appellant’s girlfriend. As a result, the district court determined that


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appellant’s statements made to the paramedics and statements made by appellant’s

girlfriend were admissible but suppressed the remainder of appellant’s medical records.

       A jury found appellant guilty, and the district court sentenced him to 66 months in

prison. This appeal follows.

                                          ISSUES

       I.     Did the district court err by determining that appellant’s statements to the

paramedics are not protected under the physician-patient privilege?

       II.    Did the district court err by not suppressing all evidence obtained through

the search warrant?

                                       ANALYSIS

I.     Statements appellant made to the paramedics are not protected under the
       physician-patient privilege.

       Appellant argues that the district court erred by not suppressing the statements he

made to the paramedics under the physician-patient privilege. We disagree.

       Whether an evidentiary privilege applies is a question of law that appellate courts

review de novo. State v. Expose, 

 (Minn. 2015). Appellate courts

review the interpretation of a statute de novo. State v. Defatte, 

 (Minn.

2019). The first step in statutory interpretation is to determine whether a statute is

ambiguous, and if the statute is unambiguous, appellate courts interpret the statute based

on its plain meaning. State v. Riggs, 

 (Minn. 2015).

       Minnesota Statutes section 595.02, subdivision 1 (2020), contains a list of

evidentiary privileges, such as the marital privilege, the attorney-client privilege, and the



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clergy-penitent privilege. The physician-patient privilege is included on the list, 

, subd. 1(d), and is “solely a creature of statute.” State v. Atwood, 

 (Minn. 2019). The physician-patient privilege is construed narrowly. 

(quotation omitted). The statute provides:

                     A licensed physician or surgeon, dentist, or chiropractor
              shall not, without the consent of the patient, be allowed to
              disclose any information or any opinion based thereon which
              the professional acquired in attending the patient in a
              professional capacity, and which was necessary to enable the
              professional to act in that capacity.

, subd. 1(d). A separate subdivision in the statute covers registered

nurses, psychologists, and licensed social workers.       

 subd. 1(g).    The plain and

unambiguous language of the statute explicitly lists the medical professionals who are

prohibited from sharing information without the consent of their patient. Paramedics are

not among the listed professionals, and it is impermissible for courts “to add words or

phrases to an unambiguous statute.” State v. Hensel, 

 (Minn. 2017)

(quotation omitted). We hold that, under the plain language of 

, subd.

1(d), the physician-patient evidentiary privilege does not apply to communications

between paramedics and patients. 2

       Appellant cites State v. Staat, in which the Minnesota Supreme Court evaluated

whether “a confidential physician-patient relationship existed between defendant and the


2
  We previously reached the same conclusion in a nonprecedential opinion. Jondro v.
Comm’r of Pub. Safety, No. C2-95-330, 

, at *2 (Minn. App. Aug. 29,
1995) (“The legislature has not extended the statutory physician-patient privilege to
paramedics.”). We are not bound by nonprecedential opinions and cite to Jondro only for
its persuasive value. Minn. R. Civ. App. P. 136.01, subd. 1(c).

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hospital physicians and other persons participating in defendant’s examination and

treatment.” 

 (Minn. 1971). Appellant argues that this language

extends the statutory physician-patient privilege to cover communications between

paramedics and patients. In Staat, however, the Minnesota Supreme Court noted a

limitation from caselaw on the physician-patient privilege to “nurses or attendants who are

employees or acting under the direction of the physician examining or treating the patient.”

 (quotation omitted). The paramedics who transported appellant to the hospital were not

“under the direction” of the emergency-room physician who treated him, so we conclude

that Staat does not support appellant’s argument.

       We therefore conclude that the district court did not err by refusing to suppress

appellant’s statements to the paramedics because they were not privileged.

II.    The district court did not err by allowing the admission of evidence that was
       not protected by the physician-patient privilege.

       Appellant argues that the district court erred by failing to suppress his medical

records as the fruit of an unconstitutionally overbroad search warrant that also sought

privileged information. We disagree.

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

[appellate courts] review the district court’s factual findings under a clearly erroneous

standard and the district court’s legal determinations de novo.” State v. Gauster, 

 (Minn. 2008) (quotation omitted).

       Both the U.S. and Minnesota Constitutions require a search warrant to describe with

particularity the items to be seized. U.S. Const. amend. IV; Minn. Const. art. I, § 10. This



                                             6
requirement prohibits exploratory searches by law enforcement. State v. Fawcett, 

 (Minn. 2016). “[W]hen determining whether a clause in a search warrant

is sufficiently particular, the circumstances of the case must be considered, as well as the

nature of the crime under investigation and whether a more precise description is possible

under the circumstances.” State v. Miller, 

 (Minn. 2003).

       The warrant for appellant’s medical records was sufficiently particular because it

authorized a search for appellant’s medical and ambulance records and was limited to the

date of the accident and to the hospital at which appellant was treated. Because the warrant

restricted the contents, time, and location of the records sought, we conclude that the

district court did not err by refusing to suppress the medical records obtained through the

warrant. 3

       Not only was the warrant itself sufficiently particular, but the district court also

properly limited the state to presenting evidence that was not protected by the physician-

patient privilege. To determine whether the physician-patient privilege applies, courts

apply a four-element test and must find that: (1) a “confidential physician-patient

relationship existed;” (2) the information acquired by the physician was of the type

contemplated by the statute; (3) the information was acquired while the physician treated



3
  Appellant relies primarily on a nonprecedential case from this court to argue that the
search warrant for his medical records was not sufficiently particular. State v. Haugen, No.
C7-99-1739, 

 (Minn. App. June 27, 2000). In addition to being a
nonprecedential case that is not binding, Haugen did not fully analyze whether a search
warrant seeking medical records is overbroad and instead concluded that the inevitable-
discovery exception applied, so the evidence was properly admitted. 

 We do not find
the analysis in Haugen persuasive here.

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the patient; and (4) the information was necessary for medical treatment. Atwood, 

 (quoting Staat, 

). After considering these four elements,

the district court determined that only “statements made by [appellant] to paramedics” and

“by [appellant’s] girlfriend herself” were admissible.

       Both of these legal determinations were correct. First, statements to paramedics are

not protected by the physician-patient privilege, as we concluded above. Second, the

statements appellant’s girlfriend made to the nurse are not protected by the physician-

patient privilege. “The presence of a third party during consultation or treatment renders

statements a patient makes to a physician nonprivileged if the third party is not a necessary

and customary participant in the consultation or treatment.” State v. Gillespie, 

 (Minn. App. 2006), rev. denied (Minn. May 16, 2006). In Gillespie, the patient’s

sister was present during the consultation with the physician, and we concluded that the

sister was not a necessary and customary participant in treatment. 

 The same logic

applies here. Appellant’s girlfriend was not necessary to appellant’s treatment because

appellant was conscious and interacting with staff. Any statements appellant’s girlfriend

made to the nurse were therefore not protected by the physician-patient privilege.

       In sum, the district court carefully analyzed appellant’s motion and suppressed all

information protected by the physician-patient privilege, while permitting the state to

introduce evidence that was not privileged. We therefore conclude that the district court

did not err by not suppressing appellant’s unprotected medical records obtained through

the warrant.




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                                        DECISION

       We hold that, under 

, subd. 1(d), the physician-patient

evidentiary privilege does not apply to communications between paramedics and patients.

As a result, appellant’s statements to the paramedics were not protected by the physician-

patient privilege. We also conclude that, because the search warrant was sufficiently

particular, the district court did not err by not suppressing appellant’s unprotected medical

records.

       Affirmed.




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