Pubdate: Thu, 02 Jul 2015
Source: Salt Lake Tribune (UT)
Copyright: 2015 The Salt Lake Tribune
Author: Robert Gehrke


Privacy Concerns - DEA Says Utah Officials Are Obstructing 
Investigations; State Says Feds Have No Right to Trample Privacy Protections.

The U.S. Drug Enforcement Administration may take the state of Utah 
to court over a law that took effect earlier this year aimed at 
protecting the privacy of information in the state's 
controlled-substance database.

After discovering that law enforcement had abused the database, Sen. 
Todd Weiler, R-Woods Cross, sponsored the bill that required police 
agencies to get a warrant from a judge before searching the registry.

But the DEA contends that it should be able to access the records 
with a simple administrative subpoena - essentially a demand for 
information that the law enforcement agency can issue itself, without 
judicial review.

On June 17, DEA investigator Robert Churchwell sent a subpoena for 
information to Marvin Sims, administrator of the state database, 
demanding he provide contact information and a full prescription 
history for the target of a DEA investigation.

Assistant Attorney General David Wolf refused the request, arguing 
that Sims could not comply with the subpoena without violating state law.

"The DEA has not provided a valid search warrant accompanying its 
subpoena," Wolf wrote in response. For Sims to provide information 
without such a warrant would be a third-degree felony.

"Accordingly, Sims is unable to comply with the subpoena without 
violating Utah law and subjecting himself to criminal penalties," 
Wolf wrote in a letter The Tribune obtained through an open-records request.

Now the department is anticipating a legal challenge from the federal 
government over the state's attempts to restrict access to the data.

Melodie Rydalch, a spokeswoman with the U.S. Attorney's Office in 
Utah, said that the federal government is "evaluating the legal 
avenues for DEA to obtain the information it is seeking from the 
State of Utah."

Weiler isn't happy about the pushback.

"I think it's very disappointing that the federal government thinks 
they're somehow exempt from the 4th Amendment," Weiler said, 
referring to the constitutional amendment protecting citizens' rights 
against unreasonable searches.

"I mean the 4th Amendment was designed to keep the government out of 
people's private business unless they can show probable cause," he 
said. "I think it's disgusting that this is what it's come to, that 
the federal government thinks they have a right to see whatever they 
want and the 4th Amendment means nothing."

Nicki Hollmann, assistant supervising agent in charge of the Salt 
Lake City office of the DEA, said requiring investigators to get a 
warrant from a judge "will significantly hamper our mission and is 
contrary to the authorities we have from the [U.S.] Attorney General."

Hollmann said Utah is ranked fifth in the nation for drug overdoses, 
something her agency is focused on addressing.

"We are steadfast in our commitment to conducting criminal 
investigations and regulatory investigations under our authorities 
and mission," she said. "This is a significant problem in the state 
of Utah and we're committed to addressing what we consider a 
public-health epidemic."

Weiler said he doesn't believe getting a warrant burdens law 
enforcement, since a state judge can issue warrants electronically in 
just a few hours.

The Legislature created the state's Controlled Substance Database in 
1995 to track prescriptions issued by doctors to identify potential 
cases of misuse or over-prescribing and track the dissemination of 
controlled substances across the state.

"It is a little bit offensive. We created this database under state 
law," Weiler said. "This database only exists because the Legislature 
created it, and for the DEA to come in and now say, 'We don't have to 
follow any of your rules or the 4th Amendment to access the database 
you created,' is ludicrous."

It's not the first time federal law enforcement has clashed with a 
state that sought to limit access to its drug database. Last year, 
Oregon won a lawsuit against the DEA amid a similar dispute, after 
that state passed a law requiring a warrant to access the records. 
The DEA has appealed the ruling and it is still pending.

Weiler sponsored the change in the database law in response to abuse 
of the prescription inventory by the Cottonwood Heights Police Department.

After prescription drugs were disappearing from ambulances, a 
Cottonwood Heights officer investigating the disappearance ran 
searches on all 480 employees of the Unified Fire Authority. The 
investigator flagged assistant fire chief Marlon Jones, because he 
had received prescriptions from three doctors and Jones was 
eventually charged with 14 felonies.

They were all dismissed after his doctors testified he did not have a 
drug problem and, in April, Jones sued Cottonwood Heights. The 
lawsuit is pending.

In another case, two Vernal residents sued the city in federal court 
after a police officer used the database to identify prescriptions 
they had received and to steal pills from them. A federal judge 
dismissed that case.
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MAP posted-by: Jay Bergstrom