United States v. Motley — Amicus Brief

On April 5, 2024, the ACLU and its Nevada affiliate filed an amicus brief in United States v. Motley, a case that concerns law enforcement access to the prescription drug monitoring program databases that almost every state uses to monitor the prescription of controlled substances. The brief urges the Ninth Circuit Court of Appeals to reconsider a ruling by a three-judge panel of the same court which, if it is left standing, threatens to erode the privacy of our prescription drug records for all controlled substances—even though the three-judge panel purported to limit its holding to opioids.

While some states require a warrant or a showing of probable cause before law enforcement personnel can access records in PMP databases, Nevada allows police to log into its PMP database directly and rummage around at their whim. That’s exactly what occurred in this case: In the course of a criminal investigation targeting an individual, police accessed records held by Nevada’s PMP with no warrant and no showing of probable cause, ultimately charging the defendant with conspiracy to distribute controlled substances.

The defendant challenged the police’s warrantless access of his prescription records as a violation of his Fourth Amendment rights. But on appeal, the Ninth Circuit panel held that patients have no expectation of privacy—and thus, no Fourth Amendment interest—in their prescription records for medications that are classified as controlled substances. Even though the panel tried to cabin its ruling to opioids, its reasoning threatens the privacy of prescription records for all controlled substances, including for many commonly prescribed medications for serious medical conditions. The ruling raises the prospect of unrestrained law enforcement access to private medical information capable of revealing a person’s diagnoses, confidential medical advice from their physician, chosen course of treatment, and even the stage or severity of their disorder or disease. This outcome not only can have devastating effects for innocent people, such as wrongful prosecutions and undermining the public health system, but it is also in tension with Supreme Court precedent subjecting some sensitive records to the warrant requirement even though they are held by third parties.

The panel based its rationale on a narrow exception in Fourth Amendment law that allows for warrantless administrative inspections of business records, products, or premises in industries that are heavily regulated by the government. Specifically, the panel reasoned that the government’s “pervasive” regulation of prescription drugs like opioids takes away a patient’s expectation of privacy in their prescription records. But the exception the panel relied on is premised on the government’s need make unannounced inspections in order to effectively administer regulation in some specific industries, like the liquor and firearm industries. Unlike patients receiving prescriptions from a health-care provider, proprietors in these closely regulated industries conduct their business knowing that it is subject to effective inspection. The panel departed from the rationales underlying the pervasively regulated industry exception when it extended that exception beyond administrative inspections of businesses to criminal searches of patients’ private prescription records for the purposes of criminal prosecution.