New, Rare Case on Wiretaps, Prescription Databases, GPS Tracking Warrants and Wiretap Statutes
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.