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.
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)