CA9: DEA admin. subpoena not overbroad nor violation of Fourth Amendment

The Fourth Amendment’s third party records rule permits the use of a DEA administrative subpoena rather than a grand jury subpoena for electric records. The subpoena was not too broad for the Fourth Amendment under Walling, and it was relevant to an inquiry. United States v. Golden Valley Electric Assn., 11-35195 (9th Cir. August 7, 2012):

[6] An administrative subpoena may not be “too indefinite or broad.” Peters v. United States, 853 F.2d 692, 699 (9th Cir. 1988). “The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation.” EEOC v. Children’s Hosp. Med. Ctr. of N. Cal., 719 F.2d 1426, 1428 (9th Cir. 1983) (en banc), overruled on other grounds as recognized in Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994). Even if other criteria are satisfied, “a Fourth Amendment ‘reasonableness’ inquiry must also be satisfied.” See Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 444 n.5 (9th Cir. 1994). The scope of judicial review in an administrative subpoena enforcement proceeding is “quite narrow.” Children’s Hosp. Med. Ctr., 719 F.2d at 1428.

Golden Valley makes four principal arguments on appeal. First, it argues that the subpoenaed records are irrelevant to the DEA’s investigation. Second, it argues that the Attorney General did not verify the existence of a pending drug investigation involving the three residences prior to issuing the subpoena. Third, it argues that the subpoena was an overly broad “John Doe” subpoena. Fourth, it argues that issuance of the subpoena violated the Fourth Amendment because the government should have obtained a search warrant or a grand jury subpoena. We take each argument in turn.

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[11] “[I]n the context of an administrative [subpoena], the Fourth Amendment’s restrictions are limited.” Mont. Sulphur, 32 F.3d at 448. We have described the scope of protection:

[I]t is sufficient [for Fourth Amendment purposes] if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.

Id. (quoting United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950)) (internal quotation marks omitted; alterations in original). An administrative subpoena is consistent with the Fourth Amendment if “the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.” Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946). “Beyond this[,] the requirement of reasonableness … comes down to [whether] specification of the documents to be produced [is] adequate, but not excessive, for the purposes of the relevant inquiry.” Id. A “subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome.” Children’s Hosp., 719 F.2d at 1428 (citing Okla. Press, 327 U.S. at 217; Morton Salt Co., 338 U.S. at 653).

Golden Valley contends that the Government should have to meet a higher standard than that just described. Golden Valley notes that the government normally obtains evidence in a criminal investigation through a search warrant, which requires probable cause and prior judicial review, or a grand jury subpoena, which requires the presentation of evidence and grand jury approval.