CA1: Third-party doctrine applies to prescription drug monitoring program

This is an action to enforce a DEA administrative subpoena to the New Hampshire Prescription Drug Monitoring Program for specific prescriptions. The court declines to equate prescription records with other medical records because the pharmacy industry is closely regulated. It also declines to find Carpenter applies and that the third party doctrine should not apply. United States DOJ v. Jonas, 2022 U.S. App. LEXIS 2549 (1st Cir. Jan. 27, 2022):

In sum, an analysis of the two rationales underlying the third-party doctrine lead us to conclude that the third-party doctrine applies to this case. See Gayden, 977 F.3d at 1152 (holding that “prescription records are third-party material” that may be obtained by law enforcement without a warrant). As the Court noted in Carpenter, “society’s expectation has been that law enforcement agents … would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Carpenter, 138 S. Ct. at 2217 (quotation marks omitted). In the Court’s view, allowing the government to benefit from “seismic shifts in digital technology” that now makes possible the “tireless and absolute surveillance” of individuals “at practically no expense” would contravene that expectation. Id. at 2218-19.

Here, in contrast, there is no “powerful new tool,” id. at 2223, that makes possible for law enforcement to now do what it could not do before. Although it may be easier and cheaper for law enforcement to obtain prescription drug records from the PDMP than from individual pharmacies, society’s expectation has been for decades that law enforcement would have access to prescription drug records and would closely monitor the prescription and use of controlled substances.

Notably, the court, for “prudential reasons” declines to decide standing of the program administrator and go to the merits.

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