For years, police across the country have had little trouble gaining records of prescription drugs used by individuals they suspect of committing a crime. In February, a U.S. court in Oregon ruled for the first time that federal agents need a warrant to search that state's prescription-drug database. Last year, Rhode Island raised the barrier of entry to its database, and legislators in Florida and Pennsylvania are considering new limits on law-enforcement access to the records in those states.
But some courts and legislators are starting to restrict the data, citing privacy concerns. Judge Eugene Hyman opines that most people expect their pharmacy records to have the same privacy protection as their medical records.
Judge Hyman posits an example involving a state that has a tracking system, and that system turns up an individual who has been getting OxyContin from several different pharmacies using several different physicians. That might provide probable cause for law enforcement officers to obtain warrants for the pharmacy records and for the individual’s medical records, to demonstrate criminal abuse. Absent such a system, an attempt to get the records based on a hunch does not satisfy the Fourth Amendment’s probable cause requirement.
Judge Hyman notes that there is not presently a Supreme Court opinion on point. Seventeen states currently require a warrant to obtain the record. But a majority of states either have no requirement or require only an allegation by a law enforcement officer that an ongoing investigation exists. “Until the U.S. Supreme Court has a case in front of it, it depends on what state you live in.”
There is presently no case on pharmacy records before the Court. However, it has decided several privacy cases lately, including one involving GPS tracking. A disagreement between two U.S. Circuit Courts of Appeal could give rise to a case that the Court could consider to decide the issue.
Judge Eugene M. Hyman is a retired judge of the Superior Court, Santa Clara County, California. He has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel. The Legal Broadcast Network is a featured network of the Sequence Media Group