A state-maintained Prescription Monitoring Program does not require a search warrant to access. Wiretaps are lawful so long as supported by probable cause and a showing of necessity. 

• Nevada’s Prescription Monitoring Program (“PMP”) 
• GPS tracking warrants 
• Wiretap warrants 
• California’s Controlled Substance Utilization and Review System (“CURES”) 

Providing opioid prescription information from Nevada’s Prescription Monitoring Program (PMP) to law enforcement without the necessity of a search warrant is constitutional. PMP information — which doesn’t enjoy the same expectation of privacy as personal medical records — may be used to support probable cause needed to obtain a GPS tracking warrant. Wiretaps are lawful as long as they are supported by probable cause and a showing of necessity. 

In July 2018, a reliable confidential informant (“C.I.”) told law enforcement that defendant Myron Motley was traveling between California, where Motley lived, and Reno, Nev., for the purpose of illegally obtaining and selling prescription opioids, i.e., oxycodone and tramadol. In investigating this information, law enforcement requested and obtained a report (without the benefit of a warrant) from Nevada’s “Prescription Monitoring Program” (“PMP”) database that showed that one Reno physician had prescribed Motley “279 morphine milligram equivalent” (“MME”) units per day over a period of several years. The amount prescribed to Motley suggested “opioid abuse or diversion” (i.e., distribution to unauthorized recipients). The CDC (Centers for Disease Control and Prevention) guidance at the time recommended avoiding or carefully justifying an increase in dosage equal to or greater than 90 MME per day, about a third of what defendant was receiving.  

It appeared to law enforcement that Motley must be illegally trafficking in opioids, as alleged by the C.I. As a result, law enforcement sought in September 2018, a global positioning system (“GPS”) tracking warrant from a Nevada state judge, proposing to attach a tracker to Motley’s vehicle. The affidavit in support of the warrant included the information from both the C.I. and the PMP database about Motley’s opioid prescription history. The court issued a tracking warrant, allowing law enforcement to place a tracking device on Motley’s vehicle for 90 days.  

In December 2018, after the first warrant had expired, law enforcement sought a second tracking warrant — this time from a federal magistrate — which was also granted. The affidavit in this second warrant repeated the information that supported the first warrant, including Motley’s opioid prescription history obtained from the PMP database. The affidavit explained that the PMP database records showed that a physician named Eric Math, based in Reno, wrote the prescriptions. It also included new information that law enforcement had obtained from the first tracking warrant. The federal magistrate judge issued the second warrant — later renewing it — allowing law enforcement to install a tracking device on Motley’s vehicle for a total of another 90 days.  

With information gleaned from the above plus one or more additional C.I.s, officers sought and obtained a federal wiretap warrant (with a 93-page affidavit) for Motley’s cellphone, as authorized per 18 U.S.C. § 2516. The wiretap resulted in the collection of more information related to Motley’s (and others’) illegal opioid distribution. Charged in federal court with multiple counts related to the illegal distribution and conspiracy to distribute oxycodone and hydrocodone, Motley’s motion to suppress was denied. Convicted on all counts following a jury trial and sentenced to 14 years and 11 months in prison, Motley appealed. 

The Ninth Circuit Court of Appeal affirmed.  

Two issues were litigated on appeal:  

(1) the legality of the warrantless collection and subsequent use of information from Nevada’s PMP, and  

(2) the legal sufficiency of the information used to support the issuance of a wiretap on Motley’s cellphone. 

Warrantless Collection and Use of Information from Nevada’s PMP 

The GPS tracking warrants were obtained from the two magistrates using as part of their probable cause the information law enforcement had obtained from Nevada’s PMP. The challenged information was obtained without a search warrant. Motley argued that this violated the Fourth Amendment’s warrant requirement. Noting that this was an issue of “first impression,” previously undecided by the Ninth Circuit, the majority of the court found that no warrant was necessary. A “concurring opinion” argued that this issue should not have been decided at all, noting that “good faith” and “harmless error” were instead sufficient to decide against the defendant.  

At least one other circuit court (the First Circuit) has considered this issue, however, where New Hampshire’s equivalent to Nevada’s PMP was the source of the probable cause for a warrant. (See United States Department of Justice v. Ricco Jonas (1st Cir. 2022) 24 F.4th 718.) The Ricco Jonas Court held that no warrant was necessary. The basic rule is that no warrant is necessary absent a defendant’s reasonable expectation of privacy in the information being sought. “[A] criminal defendant may invoke the protections of the Fourth Amendment only if he can show that he had a legitimate expectation of privacy in the place searched or the item seized.” (Italics in the original; United States v. Ziegler (9th Cir. 2007) 474 F.3rd 1184, 1189.) The First Circuit ruled in Ricco Jonas, and the Ninth Circuit agreed, that “in light of the intense government scrutiny to which prescription drug records are subject and the availability of those records for inspection without the need of court intervention under both state and federal law, a person does not have a reasonable expectation that the information contained in prescription drug records will be kept private and free of government intrusion.” (Ricco Jonas, supra, at 736-737.)  

As noted, the federal government has a similar set of statutes, having regulated opioids under what’s known federally as the Controlled Substances Act (“CSA”). Under the CSA, registered dispensers of controlled substances must maintain records of each substance dispensed and make those records available for inspection and copying by the attorney general for at least two years. (21 U.S.C. § 827(a)(3), (b)) Since the CSA’s inception, the attorney general has had the statutory authority to obtain these records without a warrant when investigating crimes related to the misuse of controlled substance prescriptions. Per 21 U.S.C. § 876(a): “[T]he attorney general may...require the production of any records...which the attorney general finds relevant or material to [an] investigation [related to controlled substances].”  

The court noted here that Nevada’s PMP requirements “track the CSA’s close, extensive regulation of opioid prescriptions.” It was also noted that, “(t)he (Nevada) state entities in control of the database have always had the (statutory) obligation to report suspected illegal activity to law enforcement and to give law enforcement relevant information from the PMP database.” (Nev. Rev. Stat. § 453.164(3)(a)) Also per statute, Nevada law enforcement agency employees can also access the PMP database without a warrant to “[i]nvestigate a crime related to prescription drugs.” (Nev. Rev. Stat. § 453.165(4)(a))  

The bottom line is that opioid use and prescriptions have been subject to well-established and extensive regulation for more than 50 years. This includes the disclosure of opioid records to law enforcement without a warrant. On this undisputed historical record, society’s expectation has been that law enforcement would closely monitor and have access to opioid prescription records, thus negating any expectation of privacy a defendant otherwise might have had in such records.  

In this case, Motley argued, however, that despite the above, his subjective expectation of privacy was objectively reasonable because society has recognized as reasonable patients’ expectations of privacy in their personal medical records. Following the thinking of the First Circuit as expressed in Ricco Jonas, the court here declined to equate prescription drug records with all other medical records. Opioid prescription records, the court held, are only a “subset of medical records...[that] do not generally or necessarily contain the more personal and intimate information that other medical records do.” (See Ricco Jonas, at p. 736; noting that “general medical records contain ‘sensitive medical history and other information, including about mental illnesses, learning disabilities, birth defects, illicit drug use, pregnancy terminations, domestic violence history,’ patients’ complaints and symptoms, and ‘the patients’ family members,’ among others.” (Quoting Eil v. U.S. DEA (1st Cir. 2017) 878 F.3rd 392, 396.) Additionally, “unlike prescription [opioid] records, (one’s personal) medical records are not subject to pervasive regulatory disclosures under both federal and state law.”  

The court noted that “(t)hese crucial differences justify treating opioid prescription records differently from general medical records for Fourth Amendment purposes.” As such, Motley did not have a reasonable expectation of privacy in the records obtained and used in this case to support the issuance of the two GPS tracking warrants. Motley’s motion on this issue, the court ruled, was properly denied by the trial court.  

The Wiretap Warrant 

Federal law allows for the use of wiretaps in limited circumstances. In this case, after tracking Motley with GPS that had been approved by warrants, law enforcement sought a wiretap warrant on Motley’s cellphone under authority of Title 18 U.S.C. § 2516. 

A 93-page affidavit reiterated the information contained in the two tracking warrant applications, as well as defendant’s opioid prescription history obtained from the PMP database. The affidavit also described information from other C.I.s and surveillance indicating that Motley was a part of an extensive drug trafficking organization involving several people. The affidavit culminated in detailed reasons why a wiretap was necessary to achieve the ultimate goals of the investigation, “including to identify the (other) members (of the trafficking organization) and the scope of the conspiracy.”  

Motley challenged the legality of the wiretap warrant, arguing that  

(a) the affiant failed to establish probable cause and  

(b) that the wiretap was unnecessary.  

The trial court denied the defendant’s motion to suppress the results of the wiretap warrant. The Ninth Circuit agreed.  

Probable Cause 

As a prerequisite to the issuance of a wiretap warrant, the magistrate must first be satisfied that “there is probable cause for belief that an individual is committing, has committed, or is about to commit” certain offenses. (18 U.S.C. § 2518(3)(a)). (Note: This same requirement can be found in California’s wiretap statutes under Pen. Code § 629.52(a)(1).)  

Despite raising this as a potential issue, Motley did not argue on appeal that the government failed to establish probable cause. But the court noted that even if he had argued this issue, his argument would have failed. The wiretap affidavit established that defendant, and several others who were in frequent contact with defendant, were all obtaining large amounts of prescription opioids from the same Reno physician; that defendant was buying the prescriptions for himself and others; and that he and at least one other coconspirator were selling the prescribed pills in Nevada.  

This evidence thus provided a “substantial basis” for the district court’s finding that there was probable cause to believe that Motley was engaging in a conspiracy to illegally distribute prescription opioids.  

The Inadequacy of Normal Investigative Procedures 

Wiretaps are considered to be a last-ditch option in any criminal investigation. As such, federal statutory law requires that before a magistrate can approve a wiretap warrant, it must be shown that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” (18 U.S.C § 2518(3)(c)). (Note: See Pen. Code § 629.52(d), for California’s reiteration of this same requirement.)  

The trial court determined that the government had met its burden on this issue, and the Ninth Circuit again agreed. In determining whether the government has shown the required necessity, a court is required to employ a “common sense approach,” using “a standard of reasonableness to evaluate the government’s good faith effort to use alternative investigative means or its failure to do so because of danger or low probability of success.” (Citing United States v. Blackmon (9th Cir. 2001) 273 F.3rd 1204, 1207.)  

In this case, the court found that the government’s affidavit explained, in specific detail, law enforcement’s investigative methods, why those methods had been exhausted, and why other methods would likely be ineffective in identifying the members and the scope of the conspiracy.  

Specifically, the affidavit explained how it would not be feasible to introduce an undercover law enforcement agent into the already established drug trafficking organization at a level high enough to accomplish the goals of the investigation, and how in any attempt to do so would raise suspicions sufficient to render such an undercover operation unsuccessful. As such, the court ruled that the trial court did not abuse its discretion in finding that a wiretap was necessary.  

The court also rejected Motley’s argument that the government had all the evidence they needed without using a wiretap. The court rejected this argument, noting that it has “consistently upheld findings of necessity where traditional investigative techniques lead only to apprehension and prosecution of the main conspirators, but not to apprehension and prosecution of...other satellite conspirators.” (See United States v. Torres (9th Cir. 1990) 908 F.2nd 1417, 1422.) (Note: I have myself consistently objected to this argument, submitting to a trial court that it is not up to the defendant to dictate how much evidence is necessary for the prosecution to obtain a conviction when it is undisputed that the defense intends to consistently attempt to negate whatever evidence the prosecution has. The court here came close to recognizing the truth of this argument, ruling that “(t)he government’s need for a wiretap is not negated simply because it managed to obtain some evidence of a conspiracy without a wiretap.”) Having shown “necessity,” the court held that the issuance of a wiretap warrant was justified. 

We don’t get many wiretap appellate court decisions, what with actual wiretaps being few and far between. My office sent me to a wiretap class some years ago for the purpose of qualifying me as a wiretap expert, only to leave me mumbling to myself that that stuff was far too complicated and time consuming to ever actually do one. But it’s good to have a little law on wiretap issues occasionally, illustrating the very restrictive legal requirements for obtaining such a warrant. Note that California’s wiretap statutes (not at issue in this case, but which are very similar to, if maybe a bit more restrictive than, the federal rules) can be found at Pen. Code §§ 629.50 through 629.98, with other very restrictive “eavesdropping” rules at Pen. Code §§ 632 through 633.5.  

As for Nevada’s PMP, the court notes in a footnote (fn. 2) that all 50 states, the District of Columbia, and two territories (Guam and Puerto Rico), have similar prescription drug monitoring programs. (See Lisa N. Sacco et al., Cong. Rsch. Serv., R42593, Prescription Drug Monitoring Programs 4 (2018).) 

California’s prescription drug monitoring program is known as “CURES,” for “Controlled Substance Utilization and Review System.” (Health & Safety Code §§ 11165 to 11166) Similar to Nevada’s statutes, CURES provides a database and regulates Schedule II, III, IV, and V controlled substance prescriptions dispensed in California, while serving the public health and regulatory oversight agencies, along with law enforcement in general. CURES, as noted by the legislature, is committed to the reduction of prescription drug abuse and diversion without affecting legitimate medical practice or patient care.  

Note that there are currently no case decisions discussing the “expectation of privacy” issues as it might relate to CURES. But it would seem that the rules of United States v. Motley, as described above, would apply here as well.