CA10: Defs did not violate clearly established 4A law by accessing the Utah Controlled Substance Database on plaintiffs’ prescriptions

Defendants did not violate clearly established Fourth Amendment law by accessing the Utah Controlled Substance Database on plaintiffs’ prescriptions (and the Fourth Amendment claim goes undecided). Pyle v. Woods, 2017 U.S. App. LEXIS 21713 (10th Cir. Nov. 1, 2017):

“The touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy.” California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (quotation omitted). Both Plaintiffs assert they had a reasonable expectation of privacy in their prescription drug records and, thus, the warrantless search of the Database conducted by Detective Woods necessarily violated their Fourth Amendment rights. According to Plaintiffs, the issue of whether they had a reasonable expectation of privacy is beyond debate because it was definitively decided by this court in Douglas. 419 F.3d at 1099.

In Douglas, the plaintiff brought suit under 42 U.S.C. § 1983, alleging her civil rights were violated when defendants conducted a search of her pharmacy records pursuant to a warrant issued by a magistrate. Id. at 1099-1100. The Douglas plaintiff claimed the Assistant District Attorney violated her Fourth Amendment rights “by authorizing the submission of the Motion and proposed Order to the magistrate judge to obtain approval” to conduct the search. Id. at 1100. Relying on the Supreme Court’s opinion in Whalen v. Roe, this court held that the right to privacy protecting the disclosure of medical information extended to an individual’s prescription drug records. Id. at 1102; see also Whalen v. Roe, 429 U.S. 589, 599-600, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977) (considering whether a state’s assembling of prescription information into a database violated the privacy rights of doctors and patients). The Douglas court, however, made it clear that a plaintiff alleging a Fourth Amendment violation is not entitled to relief “merely upon identifying an abstract right to privacy protected by the Fourth Amendment.” Douglas, 419 F.3d at 1103. A plaintiff must also show that the defendant’s actions violated the right at issue. Id. at 1102-03.

Here, Plaintiffs allege Detective Woods violated their Fourth Amendment rights by searching the Database for their prescription drug information without a warrant. Plaintiffs concede that this court has never directly addressed whether a warrantless search by law enforcement of a patient’s prescription records in a state database violates the Fourth Amendment but they are correct that “a case directly on point” is not required. Al-Kidd, 563 U.S. at 741. Plaintiffs must only identify existing precedent that “place[s] the … constitutional question beyond debate.” Id. They assert two legal propositions, taken together, provided a clear answer to the Fourth Amendment question at the time Woods conducted the warrantless search of the Database, namely: (1) individuals have a constitutionally protected privacy right in their prescription drug records and (2) warrantless searches violate the Fourth Amendment absent an exception. This argument is unavailing.

In Douglas, this court stated that any right to privacy in prescription drug records “is not absolute … as it is well settled that the State has broad police powers in regulating the administration of drugs by the health professions.” 419 F.3d at 1102 n.3 (quotation omitted). It is uncontested that Detective Woods accessed the Database as part of an investigation into the theft of narcotics from UFA vehicles. More than ten years ago, this court recognized that “[w]hether a warrant is required to conduct an investigatory search of prescription records . . . is an issue that has not been settled.” Id. at 1103. Because, as we have held, the right to privacy in prescription drug records is not absolute, Plaintiffs’ two-part paradigm does not provide an answer to the constitutional question. Instead, resolution of the issue will involve a determination of the scope of the constitutionally protected privacy right. At the time Detective Woods accessed the Database to search Plaintiffs’ records, no court had conducted the necessary analysis and no judicial opinion held that a warrantless search of a prescription drug database by state law enforcement officials is unconstitutional.

Our precedent makes clear that any right to privacy in prescription drug records is not absolute under the circumstances present here. Neither Plaintiffs’ two-part paradigm nor existing precedent places the Fourth Amendment question beyond debate. Accordingly, Plaintiffs cannot show Detective Woods acted contrary to clearly established law and Woods is entitled to qualified immunity on the claim he violated Plaintiffs’ Fourth Amendment rights by accessing the Database without a warrant.

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