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

Dr. Fink is professor ofpharmacy law and policy atthe University of KentuckyCollege of Pharmacy,Lexington.

Issue of the Case

The Commonwealth of Kentuckymaintains an electronic database of prescribingand dispensing records pertainingto controlled substances in the state.May evidence gleaned from a computersearch of this database be introducedinto evidence at a criminal trial of a physicianaccused of "selling" prescriptions?

Facts of the Case

The Kentucky All Schedule PrescriptionElectronic Reporting (KASPER) Systemrecords and monitors the dispensing ofcontrolled substances within the state. Ithas been so effective, it has been themodel for a national effort to establish acountrywide system known as NASPER—National All Schedule Prescription ElectronicReporting System.

A jury convicted a physician on 4counts of unlawfully prescribing a controlledsubstance. After being sentencedto imprisonment for 20 years, the defendantappealed. The appeal centeredaround various issues related to the lawof search and seizure.

Some of the arguments addressedfacets of the warrantless raid on thephysician's office, whereas others relatedto whether statements the defendantmade should be admissible at trial. Thepivotal issue here, though, is whether apreliminary review of the defendant'sprescribing activities and behavior asreflected in the electronic database maintainedby the state government was a"search" for purposes of the FourthAmendment to the US Constitution or thestate constitution.

The Court's Ruling

The Supreme Court of Kentucky ruledthat the examination of reports generatedfrom the database did not constitutea search for Constitutional purposes.

The Court's Reasoning

The defendant?physician was basinghis challenge to the KASPER system primarilyon the Fourth Amendment to theUS Constitution:

The right of the people to besecure in their persons, houses,papers, and effects, againstunreasonable searches andseizures, shall not be violated,and no warrants shall issue, butupon probable cause, supportedby oath or affirmation, and particularlydescribing the place to besearched, and the persons orthings to be seized.

The defendant argued that the statestatute authorizing the KASPER systemwas unconstitutional "on its face." Tosucceed with this argument, the personmust show that no circumstances existunder which the statute would be constitutionallyvalid, a very difficult burden tomeet. The statute listed people and governmententities authorized to receivedata from the KASPER system, includingprofessional licensure boards and lawenforcement officials.

The court examined whether the personinvoking the protection of the FourthAmendment has a justifiable, legitimate,or reasonable expectation of privacythat the government has invaded. Thejustices concluded that "?examinationof KASPER reports by authorized personnelpursuant to (the statute under review)does not constitute a ?search' under theConstitution, since citizens have no reasonableexpectation of privacy in this limitedexamination of and access to theirprescription records."

They cited as precedent a US SupremeCourt case involving use of a "pen register"to record telephone numbers dialedfrom a phone under surveillance. In thatcase, only the phone number dialed,date, and time were captured, not thecontent of the conversation. In this case,the court emphasized that the KASPERreport divulges only limited informationto a restricted number of authorized persons.The report does not cover all medications—only controlled substances. Itdoes not disclose the patient's healthcondition being treated or conversationbetween the patient and prescriber. Andthe KASPER data are not made availableto the general public. Distribution of theinformation is limited to designated personnelconducting a bona fide investigationfocusing on a designated person.

The court used the argument that apatient knows that information aboutprescriptions will be presented to severalthird parties, including other treatingpractitioners, dispensing pharmacists,and one's health insurer. The courtadded that pharmacy records have beenavailable for review by law enforcementand state regulatory agencies for a longtime.

The court acknowledged its responsibilityto "jealously protect the well-recognizedfreedoms that are guaranteed" bythe Constitution and the Bill of Rights.The justices emphasized that if this casepresented a scenario where state officialswere manipulating basic freedoms,they would reach an opposite conclusion.

A basic adjunct of the Fourth Amendmentis the "Exclusionary Rule of Evidence,"which states that evidence collectedin a fashion that violates the rightsof the accused may not be introduced attrial. The court concluded that the evidencewas collected in a lawful fashionand, as a result, could be used by lawenforcement officials and at trial.