The DEA, via authority of the AG, issued an administrative subpoena under 21 U.S.C. § 876(a) to the Utah prescription drug database for information on a particular user. Utah statute required a search warrant. The state and intervenors showed standing under Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 198 L. Ed. 2d 64 (2017). The information is already under government control, albeit under state control. The search warrant v. administrative subpoena is resolved by the Supremacy Clause. The information is not subject to a reasonable expectation of privacy, and the use of an administrative subpoena is reasonable under the Fourth Amendment. The subpoena will not be difficult or time consuming to respond to. United States DOJ, DEA v. Utah Dept. of Commerce, 2017 U.S. Dist. LEXIS 118470 (D. Utah July 27, 2017)
Although a proper exercise of national power preempts and invalidates a conflicting exercise of state power, federal supremacy power is not absolute. “[T]he Supremacy Clause enshrines as the supreme Law of the Land only those Federal Acts that accord with the constitutional design.” “Appeal to the Supremacy Clause merely raises the question whether a law is a valid exercise of the national power.” The Respondents do not dispute the theoretical supremacy of the CSA over the Database Act; instead, they contend that the CSA is not a valid exercise of national power because the Fourth Amendment requires a valid search warrant, not an administrative subpoena alone, to access the Database. Determining whether the Subpoena is a valid exercise of national power requires scrutiny under the Fourth Amendment.
The Fourth Amendment’s Protections Depend on a Reasonable Expectation of Privacy.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court “uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.” In Smith v. Maryland, the Supreme Court applied this test in two steps. First, the Court assessed “the nature of the state activity that is challenged” to determine whether an expectation of privacy existed. Second, the Court analyzed whether, assuming an expectation of privacy, that expectation is “one that society is prepared to recognize as reasonable.”
In this case, the state activity at issue is the DEA’s Subpoena, an administrative subpoena issued without a warrant seeking prescription drug records maintained in the Database. Under the Tenth Circuit’s decision in Becker v. Kroll, the Fourth Amendment requires only that an administrative subpoena satisfy a “reasonable relevance test.” Moreover, any expectation of privacy that patients or prescribers may have in the Database is not reasonable. The prescription drug industry is highly regulated. For these reasons, the Subpoena does not offend the Fourth Amendment.
The Subpoena Satisfies the Reasonable Relevance Test.
To determine that the Subpoena does not violate the Fourth Amendment’s protections against unreasonable search and seizure, the R&R employed the reasonable relevance test. This is the test articulated in the Tenth Circuit’s decision in Becker v. Kroll. Under the reasonable relevance test, “the Fourth Amendment requires only that a subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” The Tenth Circuit applied the reasonable relevance test to an administrative subpoena under similar circumstances in Becker. Relying on a line of Supreme Court cases applying the reasonable relevance test, the Tenth Circuit concluded that “an investigatory or administrative subpoena is not subject to the same probable cause requirements as a search warrant.”
Applying the elements of the reasonable relevance test to the Subpoena in this case is straightforward. The Subpoena is limited in scope. The DEA requested records for one specific physician for a limited time period. The Subpoena is relevant in purpose. The DEA had an ongoing investigation into the physician who is the subject of the Subpoena at the time of service. And the Subpoena is specific in directive so that compliance will not be unreasonably burdensome. The DEA seeks a single search of the Database by DOPL personnel, which the State has not claimed to be an extraordinarily time-consuming endeavor. (footnotes omitted)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)