CA11: Carpenter doesn’t require SW for prescription drug monitoring program records

In this pill mill case, Carpenter provides no protection for third party records and information in the Florida Prescription Drug Monitoring Program (PDMP). United States v. Gayden, 2020 U.S. App. LEXIS 32030 (11th Cir. Oct. 9, 2020):

However, Carpenter reiterates that two primary rationales underlie the third-party doctrine: the nature of the information sought and the voluntariness of the exposure to third parties. Id. at 2219-20. We consider Gayden’s argument through this lens.

First, Gayden maintains no special privacy interest in his prescribing records. Gayden attempts to vicariously assert a privacy interest here based on the sensitive and confidential nature of his patients’ medical records. Although individual patients might arguably have a stronger basis to assert such a privacy interest in their own medical information, Gayden in his role as the prescriber does not have a similar privacy interest in the prescription records of his patients. “[T]he Fourth Amendment’s ultimate touchstone is reasonableness.” Brigham City, Utah v. Stuart, 547 U.S. 398, 398 (2006) (internal quotation marks omitted). Gayden cannot reasonably assert a privacy interest in his prescribing records that is solely derived from other people’s interest in the confidential nature of their own medical information which they choose to disclose to a pharmacist to get filled.

Second, Gayden’s disclosure of his prescribing records to third parties was voluntary. Gayden was not required to participate in the PDMP system. Instead, Gayden volunteered by enrolling as a participant in the automated system, which was specifically designed to share his prescription records between health care providers and pharmacies to combat the statewide opioid crisis. Moreover, the third-party doctrine applies “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Miller, 425 U.S. at 443. It is true that Gayden disclosed his prescribing records on a limited basis, but that does not make the disclosure involuntary. Indeed, the prescriptions Gayden wrote for his patients were, by their very nature, intended to be revealed to others when they were disclosed by the physician and the patients to the pharmacies which filled them.

Because on this record Gayden did not have a reasonable expectation of privacy in the prescriptions he wrote for his patients, and because Gayden voluntarily disclosed those prescription records to others through his participation in the computerized tracking system, he fails to establish why Carpenter’s rationale should extend to shield from state public health and law enforcement authorities his patient prescription records. Instead, the prescription records are third-party material and the district court did not err in denying his motion to suppress the evidence obtained without a warrant from the PDMP system.

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