NE: The third-party doctrine makes pharmacy records open to process less than a SW; REP not absolute

The third-party doctrine makes pharmacy records open to process less than a search warrant. The expectation of privacy, while reasonable, is not absolute. State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013) [See Chapter 5 of the Fifth Edition of this Treatise due out in October for a criticism of the third-party doctrine and informational privacy.]:

If the expectation of privacy in a pharmacy’s prescription records is not based in the four items listed in the Fourth Amendment, or in concepts of real or personal property law, then it can only be reasonable if so recognized and permitted by society. Societal expectations as to prescription records were aptly described by the Washington Court of Appeals:

When a patient brings a prescription to a pharmacist, the patient has a right to expect that his or her use of a particular drug will not be disclosed arbitrarily or randomly. But a reasonable patient buying narcotic prescription drugs knows or should know that the State, which outlaws the distribution and use of such drugs without a prescription, will keep careful watch over the flow of such drugs from pharmacies to patients.

While the state cannot take away an established societal expectation of privacy through the mere passage of a law, there is a long history of governmental scrutiny in the area of narcotics and other controlled substances. All states highly regulate prescription narcotics, and many state statutes specifically allow for law enforcement investigatory access to those records without a warrant. This well-known and long-established regulatory history significantly diminishes any societal expectation of privacy against governmental investigation of narcotics prescriptions.

Furthermore, the U.S. Supreme Court has repeatedly said there is no reasonable expectation of privacy in personal information a defendant knowingly exposes to third parties. This is true even when the information revealed to the third party is revealed on the assumption that it will be used only for a limited purpose and on the assumption that the confidence in the third party will not be betrayed.

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The desire for medical care will not negate the voluntariness of the disclosure to third-party pharmacies. The desire to have a checking account or credit card, to use a telephone, or to mail a letter does not negate the voluntariness of the disclosure to the entities necessary for those important services. Indeed, the Court in Whalen suggested that there is no right to narcotic drugs at all; the state would be within its power to prohibit access to such drugs altogether. While there is a trust relationship between the pharmacy and the patient, cases such as Smith v. Maryland, United States v. Miller, Couch v. United States, and Kenny hold that disclosure, even on the assumption that the confidence in the third party will not be betrayed, negates any expectation of privacy cognizable under the Fourth Amendment.

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