Yes, in cases where the investigation has developed sufficient evidence to support the use of undercover operations and where the specific facts of the practice suggest that direct observation of the prescribing encounter would provide the most definitive evidence of prescribing outside the usual course of professional practice.
The DEA’s use of undercover agents who present as patients seeking controlled substance prescriptions is a documented and specifically authorized investigative technique. Undercover operations in DEA opioid investigations are not routine; they require supervisory approval, specific operational planning, and a factual foundation that justifies the technique’s use. But they are employed in a meaningful number of cases, and their evidentiary results, when the operation is successful, are among the most powerful evidence the government can present at trial.
How Undercover Operations Work
An undercover DEA agent or confidential informant under the agent’s direction presents at the target practice as a new or established patient, with a fabricated or enhanced medical history designed to test the practitioner’s prescribing decisions. The operation is structured to present the practitioner with circumstances that distinguish legitimate clinical practice from pill mill operation: the absence of documented prior medical history, the presentation of symptoms that a legitimate practitioner would investigate further before prescribing controlled substances, and requests for specific medications by name that are associated with drug-seeking behavior rather than legitimate pain management.
The clinical encounter is recorded, typically through a concealed recording device carried by the undercover agent. The recording captures the examination, or its absence; the discussion of the patient’s symptoms and history; the practitioner’s prescribing decision; and the prescription itself. If the practitioner issues a controlled substance prescription without conducting a physical examination, without reviewing prior medical records, without inquiring into the patient’s history of controlled substance use, or without documentation of the clinical basis for the prescription, the recording captures that absence.
The Legal Framework
Undercover operations are subject to both DEA internal policy requirements and constitutional limitations. The entrapment defense is available to a practitioner who can establish that the government induced them to commit an offense they were not otherwise predisposed to commit. The entrapment defense requires both a showing of government inducement and an absence of predisposition; a practitioner who routinely prescribes controlled substances without adequate clinical assessment is a practitioner whose predisposition the government will argue is established by the full prescribing record, not merely the undercover encounter.
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(212) 300-5196The undercover operation must be structured to observe the practitioner’s natural conduct, not to create criminal conduct that would not otherwise have occurred. An operation that involved high-pressure tactics, threats, or extraordinary circumstances not representative of the practice’s normal operations provides a stronger basis for an entrapment defense than an operation in which a patient presented normally and received a prescription the practitioner was predisposed to issue.
What a Successful Undercover Operation Proves
A successful undercover operation, in which an agent presents as a patient and receives a controlled substance prescription without a legitimate clinical assessment, proves one specific thing: that on one specific occasion, the practitioner issued a prescription without the clinical basis the law requires. The government will argue that this one documented occasion is representative of the broader prescribing pattern reflected in the prescribing data. The defense will argue that it is not representative and that the full clinical record demonstrates that the specific encounter was an aberration.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
The undercover operation is not a trap. It is a test. The practitioner who responds to a new patient presenting with pain complaints the same way they respond to every other patient, by conducting a thorough examination, documenting their findings, and making a clinical judgment based on that documentation, passes the test regardless of whether the patient was an undercover agent. The practitioner who responds by reaching for the prescription pad without examining the patient fails the test in a way that the recording will make unavoidable at trial.
Responding to the Discovery of an Undercover Operation
When an undercover operation is disclosed in discovery, the defense assessment of the recorded encounter is among the first tasks counsel undertakes. The recording is reviewed for the presence or absence of the clinical assessment elements that distinguish legitimate prescribing from diversion. The practitioner’s account of the encounter is compared against the recording. The physical examination finding, or the absence of it, is assessed against the prescribing decision. If the recording supports the defense’s clinical narrative, the undercover evidence may be less damaging than the government anticipated. If it does not, the defense must account for the recording in every aspect of the trial strategy.
