Pharmacy Law: May a Database Be "Searched" for Evidence of Criminal Activity?

JANUARY 01, 2008
Joseph L. Fink III, BSPharm, JD

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.

Issue of the Case

The Commonwealth of Kentucky maintains an electronic database of prescribing and dispensing records pertaining to controlled substances in the state. May evidence gleaned from a computer search of this database be introduced into evidence at a criminal trial of a physician accused of "selling" prescriptions?

Facts of the Case

The Kentucky All Schedule Prescription Electronic Reporting (KASPER) System records and monitors the dispensing of controlled substances within the state. It has been so effective, it has been the model for a national effort to establish a countrywide system known as NASPER— National All Schedule Prescription Electronic Reporting System.

A jury convicted a physician on 4 counts of unlawfully prescribing a controlled substance. After being sentenced to imprisonment for 20 years, the defendant appealed. The appeal centered around various issues related to the law of search and seizure.

Some of the arguments addressed facets of the warrantless raid on the physician's office, whereas others related to whether statements the defendant made should be admissible at trial. The pivotal issue here, though, is whether a preliminary review of the defendant's prescribing activities and behavior as reflected in the electronic database maintained by the state government was a "search" for purposes of the Fourth Amendment to the US Constitution or the state constitution.

The Court's Ruling

The Supreme Court of Kentucky ruled that the examination of reports generated from the database did not constitute a search for Constitutional purposes.

The Court's Reasoning

The defendant?physician was basing his challenge to the KASPER system primarily on the Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The defendant argued that the state statute authorizing the KASPER system was unconstitutional "on its face." To succeed with this argument, the person must show that no circumstances exist under which the statute would be constitutionally valid, a very difficult burden to meet. The statute listed people and government entities authorized to receive data from the KASPER system, including professional licensure boards and law enforcement officials.

The court examined whether the person invoking the protection of the Fourth Amendment has a justifiable, legitimate, or reasonable expectation of privacy that the government has invaded. The justices concluded that "?examination of KASPER reports by authorized personnel pursuant to (the statute under review) does not constitute a ?search' under the Constitution, since citizens have no reasonable expectation of privacy in this limited examination of and access to their prescription records."

They cited as precedent a US Supreme Court case involving use of a "pen register" to record telephone numbers dialed from a phone under surveillance. In that case, only the phone number dialed, date, and time were captured, not the content of the conversation. In this case, the court emphasized that the KASPER report divulges only limited information to a restricted number of authorized persons. The report does not cover all medications— only controlled substances. It does not disclose the patient's health condition being treated or conversation between the patient and prescriber. And the KASPER data are not made available to the general public. Distribution of the information is limited to designated personnel conducting a bona fide investigation focusing on a designated person.

The court used the argument that a patient knows that information about prescriptions will be presented to several third parties, including other treating practitioners, dispensing pharmacists, and one's health insurer. The court added that pharmacy records have been available for review by law enforcement and state regulatory agencies for a long time.

The court acknowledged its responsibility to "jealously protect the well-recognized freedoms that are guaranteed" by the Constitution and the Bill of Rights. The justices emphasized that if this case presented a scenario where state officials were manipulating basic freedoms, they would reach an opposite conclusion.

A basic adjunct of the Fourth Amendment is the "Exclusionary Rule of Evidence," which states that evidence collected in a fashion that violates the rights of the accused may not be introduced at trial. The court concluded that the evidence was collected in a lawful fashion and, as a result, could be used by law enforcement officials and at trial.