The DEA’s administrative subpoena for prescription records is enforced. While circuit law shows some privacy interest of persons named in the records, the DEA’s ability to get it overcomes that. United States v. Saxton, 2021 U.S. Dist. LEXIS 150296 (E.D.Cal. Aug. 10, 2021):
Regardless of whether Fourth Amendment rights can be asserted vicariously, Ninth Circuit case law appears to allow for giving consideration to the privacy rights of third parties in connection with the enforcement of administrative subpoenas. See United States v. Golden Valley Elec. Ass’n, 689 F.3d 1108, 1116 (9th Cir. 2012) (“Depending on the circumstances or the type of information, a company’s guarantee to its customers that it will safeguard the privacy of their records might suffice to justify resisting an administrative subpoena.”); U.S. E.E.O.C. v. McLane Co., 804 F.3d 1051, 1058 (9th Cir. 2015), vacated on other grounds and remanded sub nom. McLane Co. v. E.E.O.C., 137 S. Ct. 1159 (2017), as revised (Apr. 3, 2017) (weighing privacy of employee social security numbers in motion brought by the Equal Employment Opportunity Commission to enforce administrative subpoena in discrimination investigation); see also, In re Gimbel, 77 F.3d 593, 599 (2d Cir. 1996) (stating that “non-parties will generally be accorded more protection from sweeping administrative subpoenas”); In re McVane, 44 F.3d 1127, 1137 (2d Cir. 1995) (“Concern for [] privacy rights has at times caused this court to be more reluctant to enforce subpoenas when agencies have sought records of third parties who were not targets of the agency’s investigation.”). Thus, the Court cannot disregard the privacy rights of Respondent’s patients in deciding this motion.
That said, courts have consistently found that privacy rights involving medical and other personal records are outweighed by public interest in law enforcement, such as the DEA’s interest here in policing controlled substances. See, e.g., United States v. California, 2019 WL 2498318, at 1-2 (S.D. Cal. Mar. 26, 2019), reconsideration denied, 2019 WL 2498312 (S.D. Cal. May 9, 2019) (enforcing administrative subpoena for “sensitive patient information including the records of all prescriptions for controlled substances” in connection with “investigation into the possible diversion of fentanyl” under the federal Controlled Substances Act); Becker v. Kroll, 494 F.3d 904, 916-17 (10th Cir. 2007) (administrative subpoena for medical records of neurologist’s patients “not unreasonable under the Fourth Amendment” in investigation of Medicaid fraud); In re Subpoena Duces Tecum, 228 F.3d 341, 351 (4th Cir. 2000) (finding that government interest in “identifying illegal activity and in deterring future misconduct” outweighed “the privacy rights of those whose [medical] records were turned over to the government”); see also, Univ. of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189-92 (1990) (denying protection to tenure-review materials for five faculty members in connection with discrimination investigation); Whalen v. Roe, 429 U.S. 589, 592-93, 600 (1977) (upholding state law collecting names and addresses of patients who received prescriptions for certain controlled substances); Williams v. Superior Ct., 3 Cal. 5th 531, 554-55 (2017) (stating that a “complete bans on disclosure to vindicate privacy interests … may significantly hamper the ability of aggrieved [*5] employees, deputized by the state, to assist in broad and effective enforcement of the labor laws”). The Court sees no material distinction between the records at issue here and the records at issue in cases finding that disclosure of third-party data was warranted, and thus, the Court will adopt the magistrate judge’s recommendation that the DEA’s petition to enforce administrative subpoena R9-19-179200 be granted.
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)