DEA can access New Hampshire drug database without a warrant, court rules

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A Drug Enforcement Agency agent in Fort Lauderdale, Florida, U.S. November 22, 2021. REUTERS/Marco Bello

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  • 1st Circuit rejects arguments patients have privacy interest
  • Other courts have ruled in favor of DEA in similar cases

(Reuters) - The U.S. Drug Enforcement Administration can gain access to records in a database the state of New Hampshire maintains of opioids and other drugs prescribed to patients statewide without a search warrant, a federal appeals court has ruled.

The 1st U.S. Circuit Court of Appeals in Boston on Thursday said the DEA could obtain information from the database after concluding that patients have no reasonable expectation that their prescription drug records would remain private.

Chief U.S. Circuit Judge Jeffrey Howard noted federal and state laws already allow law enforcement to access the same type of prescription information for controlled substances by inspecting pharmacy records without warrants.

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Howard, writing for a three-judge panel, said the fact that it is cheaper and easier for the DEA to obtain information from the database rather than inspecting individual pharmacies does not change the calculus.

"Society's expectation has been for decades that law enforcement would have access to prescription drug records and would closely monitor the prescription and use of controlled substances," Howard wrote.

New Hampshire U.S. Attorney John Farley in a statement said the ruling "will assist our efforts to investigate and prosecute those who are fueling the opioid crisis by unlawfully diverting prescription drugs."

Nathan Wessler, an American Civil Liberties Union lawyer who argued in support of New Hampshire, said the ruling "undervalues the sensitivity of people's prescription records in the state's public health database."

New Hampshire Attorney General John Formella's office did not respond to requests for comment.

In 2018, while investigating an unnamed individual, the DEA issued an administrative subpoena to an official who managed a New Hampshire Board of Pharmacy database containing records pharmacies submit of controlled substances prescriptions.

The database is similar to ones 48 other states and the District of Columbia maintain and contains patient information including their names and prescription history.

New Hampshire argued the subpoena could not be enforced against a state and that it ran afoul of patients' privacy rights under the U.S. Constitution's Fourth Amendment.

But the 1st Circuit, in upholding lower-court rulings, said the DEA was not seeking to enforce the subpoena against New Hampshire but an individual, and even if it did, the Controlled Substances Act treats states as "persons" who can be subpoenaed.

The DEA has won similar cases. In 2017, the 9th U.S. Circuit Court of Appeals overturned a ruling that blocked it from using subpoenas to obtain records from Oregon's database. Federal judges in Utah and Colorado have ruled for the DEA.

The case is U.S. Department of Justice v. Jonas, 1st U.S. Circuit Court of Appeals, No. 19-1243.

For the United States: Seth Aframe of the U.S. Attorney's Office for the District of New Hampshire

For Jonas: Anthony Galdieri of the New Hampshire Attorney General's Office

For the ACLU: Nathan Wessler of the American Civil Liberties Union Foundation

(Editor's Note: This story has been updated with a comment from New Hampshire U.S. Attorney John Farley.)

Read more:

New Hampshire fights DEA bid to access drug database without a warrant

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.