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THIRD DIVISION

November 25, 1998

No. 1-97-2504

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Defendant was charged with driving under the influence of alcohol (DUI). We review whethersubpoenas duces tecum for a defendant's medical records by the State's Attorney were properlyquashed by the trial court. We conclude that the subpoenas were not properly quashed andreverse.

On March 15, 1996, defendant Douglas Chengary and Debra Ruzich were involved in a caraccident. Ruzich was later charged with three offenses: leaving the scene of a personal injuryaccident; operating a vehicle without registration; and failing to yield the right of way. The Statesubpoenaed defendant to appear as complaining witness at Ruzich's trial. Before trial,defendant's mother phoned Assistant State's Attorney Leanna Rajk and gave several excuses whyher son could not appear, one of which was that he had been drinking before the accident. Rajkexplained that defendant had not been charged with a crime and that the State had no evidence tosupport criminal charges against him.

When defendant appeared for Ruzich's trial, assistant State's Attorney Rajk spoke with him. Defendant discussed his injuries but told Rajk that he was unable to identify Ruzich as the driverof the car that hit him. After defendant left the courtroom, Ruzich's attorney, Raymond Garza,told Rajk that he had evidence to support a DUI charge against defendant. A few days later,Garza sent Rajk a letter. Included were defendant's hospital records from the day of the accident,which revealed that defendant had a blood-alcohol concentration level of .24. Another assistantState's Attorney investigated the case further and later charged defendant with driving under theinfluence of alcohol. The State then issued subpoenas duces tecum to the Chicago firedepartment and St. Margaret's Hospital, where defendant had been treated after the accident. Thesubpoenas were returnable to the trial court.

Defendant moved to quash the subpoenas and to dismiss the complaint. At the court's directiondefendant relabeled the latter motion as a motion to quash arrest. Defendant argued, in part, thatthe State did not follow proper discovery procedures in issuing the subpeonas. The trial courtinitially denied defendant's motion to quash subpoenas. But after hearing testimony fromAssistant State's Attorney Rajk and arguments from counsel on defendant's other motions, thetrial court ruled that Garza had obtained defendant's medical records with an "improper"subpoena. The court did not elaborate on this finding. The trial court then granted defendant'smotion to quash subpoenas. The State filed a certificate of impairment and appealed.

The State essentially raises two issues on appeal: (1) the trial court's factual determination thatGarza improperly obtained the subpoenas is not supported by the evidence; and (2) even ifGarza's actions were improper, the State's subpoenas for the medical records were not.

In reviewing a motion to quash, we will not reverse a trial court's findings of fact unless they aremanifestly erroneous. See People v. Villarreal, 152 Ill. 2d 368, 373, 604 N.E.2d 923 (1992). Weagree with the State that the trial court's finding that Garza obtained defendant's medical recordswith an improper subpoena is not supported by evidence in the record. Garza did not testify, andthe record is silent on how he obtained the records he passed along to the State. Defendant asksus to presume, absent evidence to the contrary, that Garza obtained the medical recordsimproperly. The presumption shifts the burden of proof. On a motion to quash, the burden isinitially on defendant to establish the basis. Cf. People v. Vargas, 277 Ill. App. 3d 289, 294, 660N.E.2d 82 (1995).

We note that there are several circumstances under which an attorney may legally obtainmedical records without violating the healthcare provider/patient privilege. Section 8-802 of theCode of Civil Procedure directs that a healthcare practitioner may not disclose informationacquired while attending a patient, but lists 10 exceptions and states:

"In all instances where a patient or the patient's representative seeks damages for personalinjury, death, pain and suffering, or mental or emotional injury and where a written requestpursuant to Section 2-1003 has been made, then (1) the healthcare practitioner is authorizedto provide information regarding the patient to attorneys for any of the parties in pendingcivil, criminal, or administrative proceedings *** and (2) any attorney for any party in anycivil, criminal, or administrative action brought by or against a patient *** wherein thepatient's physical or mental condition is an issue may obtain in written or verbal form asdescribed in Section 2-1003 any information that any healthcare practitioner has acquiredin attending to the patient in a professional character." (Emphasis added.) 735 ILCS 5/8-802 (West 1996).

In asking us to presume that Garza violated defendant's healthcare practitioner/patient privilege,defendant ignores circumstances where the records could have been legally subpoenaed in a civilcase between Ruzich and defendant or in the criminal case pending against Ruzich. See 735ILCS 5/8-802 (West 1996).

Even if we assumed that Garza improperly obtained the medical records, the State did notimproperly issue its subpoenas. The trial court concluded, without explanation, that Garza'sactions (whatever they might have been) justified quashing the State's subpoenas. The Stateargues this was error because even if we assume Garza acted improperly, the State discovered therecords from an "independent source" or the records would have been "inevitably discovered." See Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984). Defendantresponds that the medical records would not have been discovered without the information Garzasent, and so the records are the "fruit of a poisonous tree."

The "fruit of a poisonous tree," "inevitable discovery," and "independent source" rules do not fitthe facts of this case. These rules apply when a defendant moves to exclude evidence obtainedthrough illegal government conduct. See United States v. Bulgier, 618 F.2d 472, 478 (7th Cir.1980) (search by private airport personnel not in violation of fourth amendment). Defendantalleges no facts to support an inference that the State acted illegally. The State is allowed tosubpoena medical records under section 8-802 of the Code of Civil Procedure (735 ILCS 5/8-802(West 1996)) and section 11-501.4 of the Illinois Vehicle Code (625 ILCS 5/11-501.4 (West1996)).

The exclusionary rule deters government officials from violating constitutional rights. UnitedStates v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571 94 S. Ct. 613, 620 (1974). Theconduct of private individuals, even if illegal, is not within the scope of fourth amendmentprotection against unreasonable searches and seizures. Burdeau v. McDowell, 256 U.S. 465, 475,65 L. Ed. 1048, 1051, 41 S. Ct. 574, 576 (1921). As an example: in People v. Sellars, 93 Ill.App. 3d 744, 417 N.E.2d 877 (1981), an informant told police that, while burglarizing thedefendant's house, he took property stolen by someone else in an earlier burglary. We held thatthe informant's tip supported probable cause to search defendant's apartment and did not runafoul of the fourth amendment. We held that "'evidence which would be inadmissible if seizedby the police is admissible if seized by some nonpolice related third-party.'" Sellars, 93 Ill. App.3d at 748, quoting People v. Nunn, 55 Ill. 2d 344, 353, 304 N.E.2d 81 (1973).

Defendant does not argue that Garza acted as an agent of the State. Garza, without prompting bya government official, gave incriminating medical records to the State's Attorney. See Coolidgev. New Hampshire, 403 U.S. 443, 486-89, 29 L. Ed. 564, 594-96, 91 S. Ct. 2022, 2048-49 (1971)(woman who gave police the defendant's guns was not an agent where there was no evidence thatpolice coerced her assistance).

Defendant also argues that under People v. Walley, 215 Ill. App. 3d 971, 575 N.E.2d 596 (1991),People v. Hart, 194 Ill. App. 3d 997, 552 N.E.2d 1 (1990), and Village of Arlington Heights v.Bartelt, 211 Ill. App. 3d 747, 570 N.E.2d 668 (1991), the State did not follow proper proceduresfor obtaining the medical records. Defendant does not tell us what "procedures" the State failedto follow. In Walley and Hart the State obtained subpoenaed material before it was judiciallyreviewed. In Bartelt, we upheld the quash of an arrest based on information a police officerobtained from hospital personnel without following discovery rules. Unlike Bartelt, the Statehere did not attempt to circumvent discovery rules. And unlike Walley and Hart, the subpoenashere directed the hospital and fire department to comply either by appearing in court or bymailing the records to the court.

Defendant finally argues that the complaint should be dismissed because "charging [defendant]with DUI by the State after eliciting from him information as a prosecution witness wasimproper, absent admonition to him of possible self-incrimination and the need for counsel." Defendant cites section 3-3.2(b) of the American Bar Association Standards for Criminal Justice:

"Whenever a prosecutor knows or has reason to believe that the conduct of a witness to beinterviewed may be the subject of a criminal prosecution, the prosecutor or the prosecutor'sinvestigator should advise the witness concerning possible self-incrimination and thepossible need for counsel." ABA Standards for Criminal Justice,