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)