Are Opioid Related DEA Search Warrants of Pharmacies and Physician Offices Common
They are more common than practitioners believe before one is executed at their location and less common than the coverage of individual cases suggests.
The DEA executes search warrants at pharmacies and physician offices in connection with opioid investigations with sufficient regularity that the procedure is well-developed within the agency and the outcomes are well-documented in the legal and public health literature. The warrant is not an exceptional investigative tool reserved for the most egregious suspected violations. It is a standard component of the DEA’s investigative toolkit in opioid diversion cases, employed when the investigation has developed probable cause that evidence will be found at the specific location and when the agent in charge determines that warrant execution will advance the investigation.
Frequency in the Current Enforcement Environment
The DEA’s Tactical Diversion Squads, which concentrate investigative resources in geographic areas with high rates of controlled substance diversion, execute search warrants at pharmacies and medical practices as a routine matter. In the years since the DEA established these squads and expanded its diversion enforcement capacity, the number of search warrants executed in connection with opioid investigations has increased substantially. The Department of Justice’s annual statistics on healthcare fraud enforcement reflect hundreds of search warrants executed in connection with controlled substance investigations each year.
The geographic concentration of warrant executions reflects the geographic concentration of DEA enforcement activity. States with the highest rates of opioid diversion and overdose deaths have historically seen the highest rates of search warrant execution, but the enforcement has spread to every region of the country as the DEA’s investigative capacity and data analytics programs have expanded.
What Triggers a Warrant Rather Than a Subpoena
The DEA chooses between administrative subpoenas and search warrants based on the specific investigative goals and the risk that the target will destroy evidence if notified of the subpoena before the records are produced. An administrative subpoena provides the target with advance notice and an opportunity to prepare the response, including the opportunity to identify and withhold privileged materials or to challenge the subpoena’s scope. A search warrant is executed without advance notice and permits the seizure of records and evidence before the target has any opportunity to review or respond.
When the investigating agents believe that the practice has a history of document manipulation, that records are likely to be altered or destroyed if the practitioner receives advance notice of the subpoena, or that the investigation’s specific needs require simultaneous access to multiple locations or to computer systems that would be accessible to the target if advance notice were provided, the warrant is the instrument that serves those needs. The decision to seek a warrant rather than a subpoena is itself a signal about the investigation’s state of development and the government’s assessment of the target’s likely response to advance notice.
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(212) 300-5196Simultaneous Warrant Executions
In cases involving multiple practitioners, multiple pharmacies, or a practice with multiple locations, the DEA may execute simultaneous warrants at each location to prevent the communication of the investigation’s existence from one location to another. The coordination required for simultaneous execution across multiple locations reflects investigative planning that has been underway for extended periods before the execution date.
Practitioners who are part of a larger practice, a pharmacy network, or a professional association with multiple members should be aware that a DEA search warrant executed at a colleague’s location may be part of a simultaneous or sequential investigation that includes their own premises. The execution of a warrant at a neighboring practice is not a coincidence. It is information.
The Experience of the Warrant Execution
The execution of a DEA search warrant at a pharmacy or physician office is a disruptive and frightening experience for the personnel present. Agents arrive in number, with law enforcement credentials and in some cases with local law enforcement support. They secure the premises, instruct personnel to remain in a designated area, and begin systematically collecting the records and equipment described in the warrant. Patients present at the time of the execution may be asked to leave. The execution typically takes several hours.
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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 practitioner who has been preparing for the possibility of a DEA search warrant, who has retained counsel, who has conducted internal compliance reviews, and who has ensured that personnel understand their rights during a search is the practitioner who will respond most effectively when the agents arrive. The practitioner who has done none of those things will make decisions under pressure that would have been better made in advance.
After the Warrant Is Executed
The immediate aftermath of a search warrant execution is the period in which the investigation’s direction becomes most visible. The items seized, the agents’ questions during the execution, and the presence of any grand jury subpoenas that accompany the warrant all provide information about the government’s theory and the evidence it has assembled. That information should be communicated to counsel immediately.
The practice whose records have been seized faces immediate operational challenges: patient records that are in government custody may be needed for ongoing patient care, billing records that are seized may disrupt the practice’s revenue cycle, and computer equipment that is seized may make the practice’s electronic systems inaccessible. Counsel can address each of these practical consequences by working with the government to obtain copies of records needed for ongoing patient care and by pursuing the return of items that are not relevant to the investigation.
