McCormack, J.
Kimberly D. Wiedeman was charged and convicted of 10 counts of acquiring a controlled substance by fraud. The controlled substances were obtained pursuant to prescriptions written for chronic pain issues, but Wiedeman did not inform her medical providers that she was being prescribed similar medications elsewhere. Wiedeman argues that the fraudulent act was the singular failure to disclose to the other medical providers and that she should not be charged with multiple counts based on multiple prescriptions from the same doctor. Wiedeman also argues that her medical and prescription records were obtained in violation of her constitutional rights.
Wiedeman was charged with 10 counts of acquiring a controlled substance by fraud, in violation of Neb.Rev.Stat. § 28-418 (Reissue 2008), a Class IV felony. Wiedeman was charged with violating § 28-418 on or about April 1, 2010 (count I), April 14 (count II), May 3 (count III), May 24 (count IV), June 1 (count V), June 13 (count VI), June 21 (count VII), July 19 (count VIII), August 9 (count IX), and August 23 (count X).
Before trial, defense counsel made a plea in abatement, arguing that it was improper for the State to charge Wiedeman with 10 different counts of acquiring a controlled substance by fraud when there were merely 10 times Wiedeman filled prescriptions obtained through a single act of
Defense counsel next filed a motion to suppress Wiedeman's prescription records, because "[t]he search of [Wiedeman's] records was done without a warrant and was in violation of [Wiedeman's] rights under the Fourth and Fourteenth Amendments to the United States Constitution; Sects. 1, 3, and 7 of the Bill of Rights to the Nebraska Constitution." The Scotts Bluff County Attorney had obtained Wiedeman's pharmacy records after issuing subpoenas to the various pharmacies in Scotts Bluff County pursuant to Neb.Rev. Stat. § 86-2,112 (Reissue 2008).
At the hearing on the motion to suppress, the prosecution offered exhibit 2, which was a copy of its subpoena to the pharmacy at Walgreens. No other subpoena was offered into evidence. Defense counsel admitted during the hearing that the prosecution had provided him with copies of three or four other subpoenas for three or four other pharmacies, and the investigator testified that all the subpoenas were identical. Nevertheless, defense counsel argued that the prescription records should be suppressed not only because any search is presumptively unreasonable without a warrant, but also because there was only one subpoena in evidence.
Defense counsel also moved to suppress the medical records and all physical evidence seized during a search of Wiedeman, her home, and her vehicle, arguing that the warrants for those searches were invalid.
The trial court denied the motion to suppress. The court explained that § 86-2,112 and Neb.Rev.Stat. § 28-414 (Cum. Supp.2010) provided for the investigation of prescription records without a warrant. The court found that the warrants for medical records and other items seized were supported with probable cause and that the places to be searched and things to be seized were described with particularity. The case went to trial.
At trial, the evidence against Wiedeman consisted primarily of the prescription records and the testimony and records of her medical providers.
Wiedeman suffered from chronic pain associated with rheumatoid arthritis and spinal fusions performed in 2004 and 2009. In August 2009, Wiedeman saw neurologist Dr. Betty Ball for her neck issues. Wiedeman continued to see Ball until August 2010.
Separately, beginning sometime in 2009 and continuing until July 2010, Wiedeman was a patient of nurse practitioner Cheryl Laux at the Chimney Rock Medical Center in Bayard, Nebraska (Chimney Rock). On January 12, 2009, Wiedeman signed a pain contract with Chimney Rock, apparently in conjunction with pain management issues resulting from her 2009 spinal fusion surgery. In the contract, Wiedeman agreed to receive opioid medication only from Chimney Rock and not from any other source. Wiedeman further agreed to fill her prescriptions for opioid medications at only one pharmacy of her choosing, not at multiple pharmacies. Laux testified that she did not know Wiedeman had any other medical providers.
During this period, Wiedeman also went to Quick Care Medical Services from time to time. There, she saw nurse practitioner Jodene Burkhart and also, as can be surmised from the record, a "Dr. Harkins." In December 2009, Burkhart ran blood tests that indicated Wiedeman had rheumatoid arthritis. Burkhart prescribed hydrocodone and recommended Wiedeman see a rheumatologist. The nearest rheumatologists are located in Colorado.
Dr. Michelle Cheloha became Wiedeman's treating family practice physician in April 2010. Cheloha explained that Wiedeman needed to see a rheumatologist for a more definitive diagnosis and better treatment of her arthritis, but Cheloha tried to address the issues relating to Wiedeman's condition until a rheumatologist could do so. Cheloha was aware of urgent care visits to the clinic where Cheloha worked and explained that it looked like Wiedeman needed to establish routine medical care.
Cheloha was also aware of Wiedeman's past treatment with Ball and of the arthritis test results. It does not appear, however, that Cheloha knew Wiedeman was still regularly seeing Ball when Cheloha accepted Wiedeman as a patient. Nor, apparently, was Cheloha aware of Wiedeman's treatment by Laux at Chimney Rock, or of the visits to Quick Care Medical Services. Cheloha admitted she did not specifically ask Wiedeman if she was seeing other physicians. But Cheloha did specifically recall discussing with Wiedeman what medications she had previously tried. Cheloha mistakenly concluded from that conversation, and from reviewing her records, that Wiedeman had last been prescribed a narcotic in 2008.
Wiedeman told Cheloha that she had been taking tremendous amounts of over-the-counter ibuprofen for her pain. Wiedeman also told Cheloha that she had "tried" her mother's narcotic medications relating to rheumatoid arthritis. Wiedeman did not disclose any other past or present prescriptions relating to her chronic pain issues.
Wiedeman saw Cheloha monthly. Cheloha began prescribing hydrocodone. She stated that the maximum dosage was 6 pills per day, or 180 pills per month. Cheloha started with a plan of 90 pills per month. By May 3, 2010, Cheloha increased the prescription to the maximum dosage of 180 pills per month. Cheloha eventually switched Wiedeman to oxycodone when the maximum dosage of hydrocodone was still failing to address Wiedeman's pain issues. Cheloha told Wiedeman not to mix hydrocodone with oxycodone. The maximum monthly dosage of oxycodone is also 180 pills.
On April 14, 2010, Cheloha represcribed 90 pills of hydrocodone after Wiedeman told Cheloha that her husband had accidentally taken her pills out of town. On June 1, Wiedeman told Cheloha that she had an allergic reaction to the oxycodone and that she had flushed the pills down the toilet. Cheloha rewrote a prescription for 180 hydrocodone pills, with one permitted refill. This was the only prescription written by Cheloha that allowed a refill, and the record is unclear whether this was intentional.
The State entered into evidence Wiedeman's prescription records from five different pharmacies for the period of August 1, 2009, to August 27, 2010. The prescription records reflect that in August 2009, Ball prescribed 30 pills of oxycodone and the prescription was filled at the Community Pharmacy at Regional West Medical Center. No other prescriptions for controlled substances were filled in August.
In September 2009, Wiedeman was prescribed a total of 120 hydrocodone pills and 100 oxycodone pills. Ball prescribed 60 oxycodone pills, filled at the Community Pharmacy. Harkins at Quick Care Medical Services prescribed a total of 40 oxycodone and 120 hydrocodone pills on several different occasions, and those were filled at the pharmacy at Kmart.
In October 2009, Wiedeman filled prescriptions for a total of 40 oxycodone pills
In November 2009, Wiedeman filled prescriptions totaling 60 oxycodone pills and 75 hydrocodone pills. One prescription was for 60 oxycodone pills from Ball through Community Pharmacy. One was for 40 hydrocodone pills from Harkins, filled at Kmart. Two smaller hydrocodone prescriptions were written by "Ernst, C.," and "Keralis, M.," respectively, and were filled at Walgreens.
In December 2009, Wiedeman obtained 120 oxycodone pills and 40 hydrocodone pills. She filled her regular 60-pill oxycodone prescription from Ball at Community Pharmacy. She filled a 60-pill oxycodone prescription from Laux at the Co-op Plaza Pharmacy and a 40-pill hydrocodone prescription from Burkhart at Kmart.
In January 2010, Wiedeman filled prescriptions totaling 60 oxycodone pills and 220 hydrocodone pills. The oxycodone prescription was from Ball, the hydrocodone prescriptions were all from Burkhart. Wiedeman filled prescriptions from Burkhart for 40 hydrocodone pills on January 2, 90 pills on January 16, and 90 pills on January 29.
In February 2010, Wiedeman received 40 oxycodone pills and 150 hydrocodone pills. February was the only month Ball wrote prescriptions for both oxycodone and hydrocodone, for 40 and 30 pills respectively, filled at Community Pharmacy. Burkhart wrote a 90-pill prescription for hydrocodone, filled at Kmart. An "Agarwal, V.," prescribed 30 hydrocodone pills, filled at Walgreens.
In March 2010, Wiedeman received 80 oxycodone pills and 120 hydrocodone pills. Ball prescribed her regular dosage of 60 oxycodone pills, filled at Community Pharmacy, while Burkhart prescribed a total of 120 hydrocodone pills, filled at Kmart. A "Hadden/Keena" prescribed 20 oxycodone pills, filled at the Co-op Plaza Pharmacy.
In April 2010, Wiedeman filled prescriptions totaling 60 oxycodone pills and 320 hydrocodone pills. On April 1 (count I), Wiedeman filled a prescription for 90 hydrocodone pills from Cheloha at Walmart. On April 5, she filled a prescription from Burkhart for 30 hydrocodone pills at Kmart. On April 7, she filled a 60-pill oxycodone prescription from a "Zimmerman" at Community Pharmacy. On April 14 (count II), Wiedeman filled another prescription from Cheloha for 90 hydrocodone pills at Walmart. Wiedeman filled two prescriptions for hydrocodone from Harkins on April 17 and 19, each for 25 pills, at Kmart. On April 27, Wiedeman filled another hydrocodone prescription from Burkhart for 60 pills, also at Kmart.
In May 2010, Wiedeman filled prescriptions totaling 250 oxycodone pills and 230 hydrocodone pills. On May 3 (count III), at Walmart, she filled a 180-pill hydrocodone prescription from Cheloha. On May 10, at Kmart, Wiedeman filled a prescription from Burkhart for 50 hydrocodone pills. The next day, on May 11, she filled a 30-pill oxycodone prescription from Ball at Community Pharmacy. On May 14, Wiedeman filled an oxycodone prescription from Burkhart for 30 pills at Co-op Plaza Pharmacy. On May 24 (count IV), she filled another prescription from Cheloha for 180 oxycodone pills at Walgreens. Wiedeman filled a small prescription for 10 oxycodone pills at Walgreens, prescribed by "Hill, B.," on May 30.
In June 2010, Wiedeman filled prescriptions totaling 30 oxycodone pills from Ball and 540 hydrocodone pills from
In July 2010, Wiedeman obtained 80 oxycodone pills and 240 hydrocodone pills. She filled a prescription from "Voth-Mueller, C.," for 20 oxycodone at Walgreens on July 5. She filled a 30-pill hydrocodone prescriptions from "Lacey, Trish," at Co-op Plaza Pharmacy on July 9. Wiedeman filled a prescription for 60 oxycodone pills from Ball at Community Pharmacy on July 6. She filled another 30-pill hydrocodone prescription from "Lacey, Trish," at Co-op Plaza Pharmacy on July 15. Finally, she filled a prescription on July 19 (count VIII) from Cheloha for 180 hydrocodone pills at Kmart.
In August 2010, Wiedeman obtained 180 oxycodone pills and 120 hydrocodone pills. On August 4, she filled her monthly prescription of 60 oxycodone pills from Ball at Community Pharmacy. On August 9 (count IX), Wiedeman filled her 120-pill oxycodone prescription from Cheloha at Walgreens. On August 23 (count X), she filled her prescription for 120 hydrocodone pills from Cheloha at Kmart.
These prescriptions came to an end when, sometime in August 2010, Wiedeman went to Chimney Rock to see Laux. Nurse practitioner Kevin Harriger saw Wiedeman because Laux was on medical leave. Wiedeman complained of pain associated with her rheumatoid arthritis and past neck surgeries. Harriger prescribed oxycodone, but became suspicious after Wiedeman left the clinic. After confirming with several pharmacies that Wiedeman was filling narcotic prescriptions from multiple doctors and multiple pharmacies, Harriger called the police, who began their investigation of Wiedeman.
Investigator James Jackson testified as to a recorded interview with Wiedeman conducted as part of his investigation. Wiedeman admitted in the interview that she took the narcotic medications for both pain and addiction. Wiedeman said she was taking up to 18 hydrocodone a day, on an "as-needed basis." In the interview, Wiedeman admitted that she knew that Cheloha would not have written all the prescriptions for her had Wiedeman told Cheloha about the other medical providers she was seeing and her other prescriptions.
At trial, Wiedeman testified that she always took her medications as directed. She said that she never obtained a prescription when she already had one. Wiedeman testified that most of her prescriptions were written for 12 pills a day and "then it went up." She was sure she never took in more than the largest number prescribed per day, and she did not think she had ever taken more than 15 in one day. Wiedeman testified that she never took hydrocodone and oxycodone on the same day. She explained that she went to different medical providers and filled her prescriptions at different pharmacies simply because she traveled a lot for work.
Defense counsel's motions for directed verdict were overruled. The jury found Wiedeman guilty of all 10 counts. She appeals.
Wiedeman assigns that the trial court erred in (1) failing to direct a verdict when the State failed to prove Wiedeman obtained a prescription by fraud, deception, subterfuge, or misrepresentation; (2) failing to sustain the motion to suppress pharmacy records when they were seized without
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, we apply a two-part standard of review. Regarding historical facts, we review the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination.
In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
We first address Wiedeman's arguments that the manner in which the State obtained her pharmacy records and offered those records into evidence violated her 4th and 14th Amendment rights. Section 28-414(3)(a) provides that prescriptions for all controlled substances listed in Schedule II shall be kept in a separate file by the dispensing practitioner and that the practitioner "shall make all such files readily available to the department and law enforcement for inspection without a search warrant." Without challenging the statute itself, Wiedeman argues that law enforcement violated her rights under the 4th and 14th Amendments to the U.S. Constitution and article I, § 7, of the Nebraska Constitution by obtaining her prescription records without a warrant. Alternatively, she argues those rights required that the State obtain her records by means of something "in between a subpoena and a warrant" and that it demonstrate at trial the prescription records were obtained "in a proper manner."
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.
Virtually every governmental action interferes with personal privacy to some degree.
We find the U.S. Supreme Court opinion in Whalen v. Roe
The Court found that the reporting and monitoring of prescription records was a rational exercise of the state's broad police powers and that it is "well settled that the State has broad police powers in regulating the administration of drugs by the health professions."
The Court then concluded that the program did not "pose a sufficiently grievous threat to either [14th Amendment privacy] interest to establish a constitutional violation."
As for the privacy interest of independence in making certain kinds of important decisions, the Court held that the recording program did not deprive patients of their right to decide independently, with the advice of a physician, to use the medication.
In sum, the prescription recordkeeping scheme considered in Whalen provided "proper concern with, and protection of, the individual's interest in privacy."
Nebraska does not have a centralized database for prescription records, but instead mandates that such records be kept by the pharmacies for a period of 5 years.
Weighing the State's significant interest in the regulation of potentially dangerous and addictive narcotic drugs against the minimal interference with one's ability to make medical decisions and the protections from broader dissemination to the general public, we find the State did not violate Wiedeman's 14th Amendment privacy rights through its warrantless, investigatory access to her prescription records pursuant to § 28-414. Other courts have explained that patients' substantive 14th Amendment privacy interests in prescription records are "limited to the right not to have the information disclosed to the general public."
We next address Wiedeman's claims under the Fourth Amendment. The U.S. Supreme Court has said a "search" under the Fourth Amendment occurs whenever an "expectation of privacy that society is prepared to consider reasonable is infringed."
The investigatory inquiry into prescription records is distinguishable from the invasion of the "person" that occurs during drug or alcohol testing.
In State v. Cody,
We generally ask whether the defendant owned the premises, property, place, or space, and whether the defendant had dominion or control over such things or places based on permission from the owner.
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.
While the state cannot take away an established societal expectation of privacy through the mere passage of a law,
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.
Thus, there is no reasonable expectation of privacy in situations such as the numerical information conveyed to a telephone company of the numbers dialed,
In Whalen,
The desire for medical care will not negate the voluntariness of the disclosure to third-party pharmacies.
The court in Williams v. Com.
The court in Williams opined that it would be "mindful" of its duty to jealously protect the freedoms of the Fourth Amendment and would hold differently if it "perceived some sort of manipulation of these well-recognized freedoms by the state."
We agree that an investigatory inquiry into prescription records in the possession of a pharmacy is not a search pertaining to the pharmacy patient. A patient who has given his or her prescription to a pharmacy in order to fill it has no legitimate expectation that governmental inquiries will not occur.
Issuance of a subpoena to a third party to obtain records does not violate the rights of a defendant about whom the records pertain, even if a criminal prosecution is contemplated at the time the subpoena
Wiedeman lacks standing to challenge the manner of the State's inquiry into the prescription records or the constitutional or statutory adequacy of the subpoenas offered and not offered into evidence. There is no argument on appeal that there is insufficient foundation for the prescription records or that the prescription records are not what they purport to be. We find no merit to Wiedeman's assertion that the admission of the pharmacy records violated her constitutional or statutory rights.
Next, Wiedeman argues that her medical records should have been suppressed because the warrant for her medical records lacked probable cause. In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a "totality of the circumstances" test.
Aside from the argument that the prescription records should have been stricken — an argument we conclude has no merit due to our analysis above — Wiedeman asserts that the probable cause affidavit was insufficient because it failed to disclose information about any false or misleading statement made by her. In the affidavit, Jackson explained that Harriger, a nurse practitioner, had contacted him with concerns that Wiedeman was abusing prescription drugs. Harriger had become suspicious that Wiedeman was traveling a significant distance to the clinic. Harriger contacted a couple of pharmacies that confirmed Wiedeman was seeing several doctors and filling multiple narcotics prescriptions at different pharmacies. This information, combined with the prescription records that revealed Wiedeman was filling multiple prescriptions at multiple pharmacies for an extraordinary number of pills, established probable cause. We find no merit to this assignment of error.
Lastly, Wiedeman challenges the sufficiency of the evidence to support her conviction of 10 counts of violating § 28-418. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
We find no merit to Wiedeman's argument that filling multiple prescriptions obtained by virtue of a single misrepresentation or act of deception is but a single violation. The statute plainly states that a violation occurs upon the act of acquiring or obtaining. Section 28-418 does not state that each act of acquiring or obtaining must be accompanied by a new act of misrepresentation or deception. When the act of obtaining the prescription was facilitated by a continuing deception based on a single conversation or other event, the statute is satisfied.
The court did not err in concluding that Wiedeman committed multiple violations of § 28-418 each time she obtained and filled a prescription from Cheloha. Each prescription from Cheloha would not have been written but for Wiedeman's failure to disclose that she was already taking narcotics through prescriptions from other providers.
We also find no merit to Wiedeman's claim that she never affirmatively acted in a way that could violate § 28-418, because she did not "affirmatively" provide fraudulent or false information to anyone. Pointing out dictionary definitions of "misrepresentation," "fraud," "deception," and "subterfuge," Wiedeman argues that in order to violate § 28-418, there must be "[s]ome word or deed that hides or misleads the one who relies upon the act or deed."
Even accepting Wiedeman's definitions, we find the record more than adequate to support the trial court's findings. It is apparent that Wiedeman affirmatively misrepresented her medical history. Particularly, Wiedeman told Cheloha she had once "tried" her mother's narcotic medications, but otherwise relied on over-the-counter ibuprofen for her pain. In fact, at the time of her first visit to Cheloha, Wiedeman had been averaging 200 pills per month since September 2009, more than the maximum dosage. With the addition of the prescriptions by Cheloha, Wiedeman was able to obtain an average of over 400 pills per month. Wiedeman admitted to Jackson that she knew Cheloha would not have written all the prescriptions for her had she told Cheloha about the other medical providers and her other prescriptions. The pain contract Wiedeman signed with Laux in January 2009 is further evidence of such knowledge. We find the evidence sufficient to support the convictions.
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED.
Cassel, J., not participating.
Connolly, J., dissenting.
The Fourth Amendment forbids a government agent's intrusion into a person's legitimate expectation of privacy to search for evidence of a crime without judicial oversight and probable cause. Such searches are per se unreasonable, subject only to a few well-defined exceptions.
I believe that this decision will have far-reaching effects for citizens' Fourth Amendment protections. Information that citizens normally considered private will not be protected by the Fourth Amendment if it is held by a third party that is subject to extensive regulation. And as we know, many human activities are subject to extensive federal and state regulations: e.g., banking, investing, attending school, or seeking medical or psychiatric care. But if an individual is suspected of a crime and his personal information is held by a third party that is subject to regulation, the majority would permit the state — without probable cause or court order — to invade by subpoena a citizen's protected zone of privacy.
According to the majority opinion, because Wiedeman gave her prescriptions to a pharmacist, she voluntarily disclosed this information and had no expectation of privacy in her personal medical information. This "voluntarily disclosed" rationale will not be limited to narcotic prescriptions. It necessarily means that if a citizen presents a prescription to a pharmacist, he or she has voluntarily disclosed any medical information disclosed by the prescription. Nor will the "voluntarily disclosed" rationale be limited to prescription orders. And I do not believe this result is required by or consistent with the U.S. Supreme Court's decision in Whalen v. Roe.
The majority opinion misinterprets the Court's decision in Whalen. It did not hold that citizens have no reasonable expectation of privacy in their prescription records. There, the plaintiffs were physicians and patients who challenged a state statutory scheme that required doctors and pharmacists to report prescriptions for narcotic drugs to a state agency. The plaintiffs challenged the act as an invasion of the patients' privacy interests; i.e., its potential to disclose their private medical information would have a chilling effect on a patient's or a doctor's medical decisions.
Notably, the Court did not disturb the lower court's ruling that the doctor-patient relationship is one of the "zones of privacy" accorded constitutional protection
Instead, the Court held that the act did not violate patients' privacy interests under the 14th Amendment because its safeguards
The Whalen Court stated that a public disclosure of a patient's medical information could only occur in three circumstances: (1) if a state official violated the law and deliberately or negligently disclosed the information; (2) if the state accused a doctor or patient of violating the law and offered the data as evidence in a judicial proceeding; and (3) if a doctor, pharmacist, or patient "voluntarily reveal[ed] information on a prescription form."
Obviously, a prescription must be revealed to a pharmacist. But the Court did not consider the mere act of presenting a prescription order to a pharmacist to be a public disclosure of medical information that negates a person's expectation of privacy in the information. The Court's reasoning in Whalen shows that the majority opinion's reliance on the Court's earlier decision in United States v. Miller
Equally important, if the plaintiff patients had no expectation of privacy in their prescription records, the Court in Whalen would not have decided whether the information was adequately protected. So, contrary to the majority's conclusion, federal appellate courts have specifically interpreted Whalen as recognizing a right of privacy in a person's prescription records and medical information.
The Court stated that the remote possibility of inadequate judicial supervision of the information, if used as evidence, was not a reason for invalidating the entire program.
In short, Whalen is not persuasive authority that a state agent's subpoena of a person's prescription records for a criminal investigation does not violate the Fourth Amendment. This issue was simply not presented. The majority opinion mistakenly concludes that the Court persuasively addressed the Fourth Amendment issue in
The Court's statement that the Fourth Amendment cannot be translated into a general right to privacy under the Constitution was not a new pronouncement.
It is true that "`[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'"
But the U.S. Supreme Court has rejected the majority's cheapening of nonpossessory privacy interests: "[O]nce it is recognized that the Fourth Amendment protects people — and not simply `areas' — against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure."
And in Whalen, the Court clearly recognized that individuals have a legitimate expectation of privacy in their prescription records. Other courts have also recognized this expectation, under both federal law and state law.
Obviously, many states have statutes that allow state agents to inspect a pharmacy's prescription records without a warrant. These statutes exist because agency officials or law enforcement officers can conduct warrantless administrative inspections of highly regulated businesses only if the state has an authorizing statute.
Unlike administrative inspections of pharmacies, the Fourth Amendment's warrant and probable cause exceptions cannot apply to targeted criminal investigations into a person's prescription records. First, probable cause is not required for administrative inspections because they are "neither personal in nature nor aimed at the discovery of evidence of crime."
In Ferguson v. Charleston,
I believe that the same reasoning must apply here:
If state agents had discovered evidence of Wiedeman's crime during a valid administrative inspection of pharmacy records, I would agree that she had no reason to complain.
In short, targeted criminal investigations are distinct from other types of government searches. And once a court recognizes that citizens have legitimate expectations of privacy in their prescription records, which many courts have done, the Fourth Amendment requires probable cause and a warrant before intruding on that interest. Because I believe that Wiedeman had a legitimate expectation of privacy in her prescription records, she was entitled to challenge the search of these records without a warrant and her challenge had merit.
The Fourth Amendment does not prevent law enforcement agents from searching private information for a criminal investigation if the agents comply with its procedural protections of that information.
