dissenting.
Believing a reasonable expectation of privacy exists in the test results of a person’s blood analysis, I respectfully dissent.
I. The Fourth Amendment
As stated by the majority, the issue is whether the government’s acquisition of a written blood analysis violated appellee’s Fourth Amendment constitutional right to privacy.1 U.S. Const. amend. IV. Specifically, appellee contends that he had a reasonable expectation of privacy in medical records retained by the hospital such that the United States Constitution prohibited their unreasonable seizure. If a privacy right did exist, then the State could not initiate a warrantless seizure without both probable cause and an excuse for not obtaining a search warrant that would withstand constitutional scrutiny.
To invoke the protections of the Fourth Amendment, the State, or its agent, must engage in action which constitutes a seizure and/or a search. Appellee’s medical records have not been “seized” or “searched” under the Fourth Amendment, unless he had a legitimate expectation of privacy in them. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This determination compels a two-part inquiry: (1) whether appellee had a subjective expectation of privacy in his medical records and (2) whether this is an expectation that society is prepared to recognize as reasonable. California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988) (citations omitted).
II. Appellee’s Subjective Expectation
It is difficult to discern the nature of ap-pellee’s expectations, at least on the night of the accident. After the investigating officer arrived on the scene, appellee was transported by Life-Flight to the hospital. Because of his injuries, appellee’s active role in the events that took place after his arrival at the hospital is minimal. Appellee’s blood tests were conducted solely under the direction of his attending physician.2
The State argues that appellee had no subjective expectation of privacy in the results of his blood tests because the tests *528belong to the hospital, not appellee. The State also contends that this Court must utilize the rule that the issuance of a subpoena to a third party does not violate a defendant’s rights. Relying on United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 1624-1625, 48 L.Ed.2d 71 (1976), the State directs the Court’s attention to this general rule and explains that it applies “even if a criminal prosecution is contemplated at the time the subpoena is issued.” The State’s argument, however, oversimplifies the Supreme Court’s analysis in Miller. The Supreme Court, following the general rule that a subpoena directed to a third party does not implicate a defendant’s rights, concluded that there was no legitimate expectation of privacy in financial records maintained by a bank — viz., checks, deposit slips, financial statements and monthly statements. The Court focused on several factors in reaching this conclusion: (1) all the documents contained information that was voluntarily released to the bank; (2) checks are negotiable instruments intended for use in commercial transactions, not as confidential communications; and, (3) one stated purpose for enacting the federal law that requires banks to retain these records is “because they have a high degree of usefulness in criminal tax, and regulatory investigations and proceedings.” Id. at 443-44, 96 S.Ct. at 1624-25 (internal quotations omitted). These characteristics of financial records refuted the defendant’s claim that although they were in the possession of a third party, they were protected by a right of privacy that society would recognize as reasonable.
Medical records are not comparable to financial records. Medical tests are generally performed at the direction of the doctor and are necessary for effective diagnosis and treatment. While generated by and in the possession of a third party, unlike bank records, they are not documents intended to flow in the stream of commerce. Rather, they exist as part of the process of ensuring that a person receives adequate medical care. As recently explained by this Court, “that certain facts may be revealed in the necessarily candid process of diagnosis and treatment does not mean we no longer have a collective interest in insulating them from public scrutiny.” Richardson v. State, 865 S.W.2d 944, 952 (Tex.Crim.App.1993). When seeking medical treatment, patients assume that the information revealed to a doctor or nurse is private and shielded from disclosure. In fact, most people believe that the information contained in medical records is not accessible to even close family members. Therefore, it is fair to conclude that appellee harbored a subjective expectation of privacy in his medical records.3
. III. Society’s Expectation
The question, then, becomes whether society is willing to recognize appellee’s expectation as a reasonable one. The Fourth Amendment’s protections do not rest on views of the citizens of an individual state, but rather, on a broader societal perspective. Greenwood, 486 U.S. at 43, 108 S.Ct. at 1630. Reviewing the decisions of those states which have addressed this issue, however, fails to yield a societal consensus on the protection accorded to medical records. Outside of the criminal context, courts have held that an individual possesses a substantial privacy interest in his or her medical records. See McDonnell v. U.S., 4 F.3d 1227, 1253 (3rd Cir.1993) (recognizing privacy interest in medical records requested under Freedom of Information Act) and cases cited therein; Tarrant County Hosp. Dist. v. Hughes, 734 S.W.2d 675 (Tex.App.—Fort Worth 1987, no writ) (noting that medical records are within constitutionally protected zone of privacy). Courts reach different conclusions, however, when the same issue arises in a criminal proceeding.4 Judges’ votes are divided in *529Texas courts which have held there is no reasonable expectation of privacy in medical records. See Clark, 933 S.W.2d at 334 (Yanez, J., concurring); Thurman, 861 S.W.2d at 101 (Cohen, J., concurring & joined by the other two panel judges).
It is logical to suppose that society might find reasonable an expectation of privacy in those matters of a personal nature as opposed to more public matters. The information that is disclosed through blood analysis is highly personal. It may contain such information as test results revealing that the patient is afflicted with a socially stigmatized disease, and graphic details of symptoms described by the patient in an effort to assist in obtaining an accurate diagnosis. Blood testing may disclose serious medical conditions or genetic disorders. As such, doctors understand the importance of maintaining the confidentiality of their patients’ medical records. In addition, Section 5.08 of the Texas Medical Practice Act has only been repealed in the context of judicial proceedings. Tex. Rev.Civ. Stat. Ann. art. 4495b § 5.08 (Vernon Supp.1997). Thus, in Texas, “physicians still have a duty of confidentiality, enforced, subject to certain enumerated exceptions, by statute.” Richardson, 865 S.W.2d at 953 n. 7. Appellee, however, need not rely on any statutory indication that his medical records are confidential in order to show a societal willingness to accept his expectations as reasonable. He can simply rely on “understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 99 S.Ct. 421, 439 n. 12, 58 L.Ed.2d 387 (1978). As if reflective of society’s expectations, physicians make affirmative efforts to ensure the confidentiality of those records. As we stated in Richardson, “[ejven if doctor confidentiality is not enforced by law, medical ethics demand it. And in any event, it is doubtful the tattling physician would retain his clientele for long.” 865 S.W.2d at 953 n. 7 citations omitted). Thus, I would hold that appellee has a constitutionally protected right to privacy in his medical records.5
IV. The Search
This conclusion, however, does not end the inquiry. Now, it is necessary to determine if a grand jury subpoena involves action by a *530governmental actor, as constitutional prohibitions do not apply to actions of private citizens. U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 86 (1984). In other words, state action equivalent to a search or seizure must be involved to trigger the protection of the Fourth Amendment. A grand jury subpoena plainly constitutes state action. Boyle v. State, 820 S.W.2d 122, 129-30 (Tex.Crim.App.1989). This leads to the further question of whether the state’s use of a grand jury subpoena is conduct tantamount to a search or seizure of appellee’s medical records.
Despite being given broad powers to investigate, the power of the grand jury is not without limits. U.S. v. R. Enterprises, Inc., 498 U.S. 292, 297 & 299, 111 S.Ct. 722, 725-26 & 727, 112 L.Ed.2d 795 (1991). The mere issuance of a grand jury subpoena is- not “some talisman that dissolves all constitutional protections.” United States v. Dionisio, 410 U.S. 1, 11, 93 S.Ct. 764, 770, 35 L.Ed.2d 67 (1973). Unlike the instant ease, most cases upholding the broad inquisitive rights of grand juries involve business records or tax-related documents. LaFave, 2 Search and Seizure: A Treatise on the Fourth Amendment § 4.13(e) (1987), at 383. The Supreme Court has noted the corporate character of these documents when conducting its Fourth Amendment analysis. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Additionally, the Court has stated that “corporations can claim no equality with individuals in the enjoyment of a right to privacy.” LaFave at 383, citing United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950).
The Supreme Court has yet to determine whether a grand jury subpoena for medical records invades a person’s reasonable expectation of privacy and would constitute a search and, therefore, be subject to the same scrutiny — under the Fourth Amendment— that a search warrant is. Several courts, including the Supreme Court, which have examined the constitutionality of a grand jury subpoena ordering a defendant to provide a blood sample consistently hold that such a directive does involve a Fourth Amendment search. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)6; In re Grand Jury Proceedings (T.S.), 816 F.Supp. 1196 (W.D.Ky.1993); Henry v. Ryan, 775 F.Supp. 247 (N.D.Ill.1991); People v. Marquez, 152 Ill.2d 381, 178 Ill.Dec. 406, 604 N.E.2d 929 (1992); Woolverton v. Multi-County Grand Jury, 859 P.2d 1112 (Okla.Crim.App.1993).
Certain other physical evidence, on the other hand, may be constitutionally obtained through a grand jury subpoena. In the context of subpoenas for a handwriting or voice exemplar, the Supreme Court determined that the Fourth Amendment offers “no protection for what ‘a person knowingly exposes to the public’ ... No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.” Dionisio, 410 U.S. at 14, 93 S.Ct. at 771-72 (citations omitted). Dionisio and its companion case, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), held, respectively, that subpoenas for a voice exemplar or a handwriting exemplar did not rise to a search under the Fourth Amendment because there was no reasonable expectation of privacy in a person’s voice or handwriting.
Here, the governmental invasion was less intrusive than a subpoena for a blood sample — the subpoena required the hospital to release medical records containing the results of appellee’s blood tests. Appellee was not forced to provide a blood sample, nor was the subsequent blood analysis performed at the behest of the State. However, the rationales of the blood sample cases, which held that a subpoena did constitute a search, more logically extend to appellee’s situation than the rationales of the exemplar eases. Medical records containing the results of a blood analysis are not commensurate with physical characteristics knowingly exposed to the public. One’s physical traits are generally *531exposed to the public upon leaving one’s home. Medical records, in contrast, contain information which could rarely be gleaned by simply observing a person’s outward appearance. A person does voluntarily submit to a medical exam, or is in such a serious medical condition that an affirmative statement of submission is unobtainable and presumed, but, this information is acquired and used solely for diagnosis and treatment. It is voluntary only in the sense that it is necessary to receive, what may often be, life-sustaining treatment. Once obtained, it may not be browsed through as if it were public record or generally observed by the passerby on the street. The fact that medical records are retained by a doctor or hospital, and are not solely within the appellee’s control, should not erode the privacy protections of the Fourth Amendment. Because of the personal and intimate nature of information contained in medical records, I would hold that a grand jury subpoena for such documents intrudes on a reasonable expectation of privacy and constitutes a search under the Fourth Amendment.
V. Reasonableness
The final constitutional question remains: Was this “search” reasonable under the Fourth Amendment? Here, the grand jury did not obtain a warrant, supported by probable cause and issued by a neutral magistrate, to “search” appellee’s medical records. Absent an arrest, the minimum constitutional requirements for a warrantless search are (1) probable cause that incriminating evidence will be uncovered and (2) exigent circumstances justifying the search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). This case presents no exigent circumstances. There is little danger that appellee would destroy the evidence or that a delay in obtaining a search warrant would impede the grand jury’s investigation. Medical records, unlike alcohol in one’s blood, does not dissipate over time and justify an immediate search. See Schmerber, 384 U.S. at 770-71, 86 S.Ct. at 1835-36. Additionally, it is unclear from the present record whether probable cause existed prior to the subpoena of appellee’s medical records.7 Absent this preliminary showing of probable cause, a grand jury subpoena for medical records fails to satisfy the requirements of the Fourth Amendment. Since no constitutionally acceptable excuse was proffered precluding the procurement of a warrant, I would hold that the grand jury subpoena was an unreasonable search of appellee’s medical records, thus violating his constitutional rights emanating from the Fourth Amendment.
I would reverse the judgment of the court of appeals and affirm the trial court’s decision to grant appellee’s motion to suppress. Because the majority holds otherwise, I dissent.
BAIRD, OVERSTREET and MEYERS, JJ. join.. Because the court of appeals’ arguments are based solely on the Fourth Amendment of the United States Constitution, this opinion omits any discussion of the Texas Constitution.
. At the suppression hearing, the investigating officer testified that he did not go to the hospital on the evening of the accident, nor did he order any blood tests to be performed.
. Noticeably absent from the majority opinion is any discussion concerning appellee’s subjective expectation of privacy. Because the majority focuses solely on society’s objective view, I presume that the majority found appellee possessed a subjective expectation of privacy.
. See Pollard v. State, 439 N.E.2d 177, 183 (Ind.Ct.App.1982) (admitting evidence of blood tests results because: (1) no physician/patient privilege, (2) police had probable cause, and (3) no state action in obtaining the blood); People v. Perlos, 436 Mich. 305, 462 N.W.2d 310, 316 (1990) (determining no reasonable expectation of privacy in medical records involving DWI inves*529tigation); State v. Copeland, 680 S.W.2d 327, 330 (Mo.App.1984) (holding defendant had a reasonable expectation of privacy in blood sample drawn by hospital); State v. Dyal, 97 N.J. 229, 478 A.2d 390, 391 (1984); (holding that a subpoena for medical records may be issued only on a reasonable basis, thus implying a privacy interest); Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135, 139 (1994) (finding a reasonable expectation of privacy in medical records); State v. Fears, 659 S.W.2d 370, 376 (Tenn.Crim.App.1983) (finding no Fourth Amendment protected privacy interest in medical records kept by health center); State v. Conrad, CR-T1-97-23-133, slip, op. (Tex.App.—Houston [14th Dist.] delivered May 22, 1997, no pet. h.) (determining that reasonable expectation of privacy does exist in medical records), but see Knapp v. State, 942 S.W.2d 176 (Tex.App.—Beaumont 1997, no pet. h.) (relying on recent courts of appeals’ opinions to find no state action in grand jury subpoena and no privacy right in medical records because of repeal of physician/patient privilege); Clark v. State, 933 S.W.2d 332 (Tex.App.—Corpus Christi 1996, no. pet.) (finding no state action and no physician/patient privilege); Corpus v. State, 931 S.W.2d 30 (Tex.App.—Austin 1996, pet. granted) (declaring that repeal of physician/patient privilege eliminated privacy interest in medical records); Thurman v. State, 861 S.W.2d 96 (Tex.App.—Houston [1st Dist.] 1993, no pet.) (explaining that this Court’s rejection of physician/patient privilege is evidence that society finds no reasonable expectation of privacy in medical records); State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d 109, 113 (1977) (holding no reasonable expectation of privacy in medical records because of statutory exception to physician/patient privilege in homicide trials).
. The majority concludes that society would not find a reasonable expectation of privacy in blood test results "taken by hospital personnel solely for medical purposes after a traffic accident.” Maj. Slip Op. at 518. Judge Keller supports this conclusion by comparing the present situation to those situations covered by "implied consent” laws. It is true that those laws are "some evidence” that the results of blood tests are not always private, but "implied consent” statutes are narrowly drafted to apply to specific situations. In Texas, for example, the "implied consent” statute authorizes the involuntary taking of a blood sample only if the person is under arrest for operating a motor vehicle involved in an accident in which a person has died or will die as a result of the accident. See Tex. Transp. Code Ann. §§ 724.011—724.064 (Vernon 1997) (emphasis added). If legislatures desired for "implied consent” laws to extend to the circumstances of the present case, they could have acted. Because they did not, the majority should not take it upon themselves to do so.
. The Supreme Court held that the compelled warrantless extraction of blood is reasonable when probable cause to arrest exists and exigent circumstances are present. Schmerber, 384 U.S. at 768-69, 86 S.Ct. at 1834-35 (emphasis added).
. In its findings, the trial court stated that the investigating officer “formed the opinion that [appellee] was intoxicated." The record reveals that the officer formed this opinion on the night of the accident. Nevertheless, the officer did not arrest appellee until after he reviewed appellee's medical records. At the suppression hearing, the trial judge prohibited discussion on the issue of probable cause. Accordingly, the existence of probable cause was not fully litigated and is not apparent on the face of this record.