What Is Required for the DEA to Obtain a Search Warrant
A search warrant requires probable cause. Probable cause in a DEA opioid investigation is established more readily than most practitioners assume.
The Fourth Amendment requires that search warrants be issued only upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. In practice, the warrant is issued by a federal magistrate judge upon the application of a DEA special agent who submits an affidavit establishing that there is probable cause to believe that evidence of a crime will be found in the place described. The magistrate’s role is to review the affidavit and determine whether the facts presented establish probable cause. The practitioner whose premises are to be searched is not notified of or present for this review.
The Probable Cause Standard
Probable cause for a DEA opioid search warrant requires a showing that there is a fair probability that evidence of controlled substance distribution outside the usual course of professional practice will be found at the location to be searched. The standard is not proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. It is a practical, common-sense determination based on the totality of the circumstances known to the investigating agents at the time of the warrant application.
In the opioid prescribing context, probable cause is typically established through the agent’s affidavit describing the prescribing data that generated the investigation: the volume of opioid prescriptions relative to the prescriber’s peers, the patient population characteristics that are inconsistent with legitimate pain management, the cash payment rates, the geographic distribution of patients who traveled significant distances to the clinic, and any specific observations from patient interviews or undercover operations that corroborate the government’s theory.
The affidavit may also include information from a cooperating witness, a former patient, or a former employee who has provided accounts of the practice’s operations that support the probable cause finding. The identity of a confidential informant whose information contributed to the probable cause showing is generally not disclosed in the warrant application, and the practitioner whose premises are searched typically does not learn the informant’s identity until the criminal case reaches discovery.
Particularity Requirements
The warrant must describe the place to be searched with sufficient particularity to permit the executing agents to identify the specific location without exercising excessive discretion. A warrant that describes the premises as a specific address, including the suite or office number if the address contains multiple occupants, satisfies the particularity requirement for the place to be searched. A warrant that describes the address of a medical office building without specifying which office is to be searched is potentially deficient.
The warrant must also describe the items to be seized with sufficient particularity to limit the search to evidence relevant to the investigation. In opioid prescribing cases, the items described typically include patient medical records, prescription records, billing records, financial records, computers and electronic storage media, and controlled substance inventories. The description is broad but generally specific enough to survive a particularity challenge.
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(212) 300-5196The particularity requirement limits the scope of the search to the items described. Evidence observed in plain view during the execution of a valid warrant may also be seized even if not specifically described, but the agents may not rummage through the premises in search of evidence beyond what the warrant authorizes. A search that exceeds the warrant’s scope is an unconstitutional search, and the evidence obtained through the excess may be subject to suppression.
The Staleness Doctrine
Probable cause must be based on information that is sufficiently current to support the belief that evidence will still be found at the location at the time the warrant is executed. Information that is months or years old may be considered stale, depending on the nature of the evidence and the likelihood that it has been moved or destroyed in the interim. Medical practice records, which are typically maintained for extended periods and which are unlikely to have been moved from the practice location, are subject to a more forgiving staleness analysis than evidence that is more transitory in character.
The staleness doctrine has been litigated in opioid prescribing cases where the warrant application relied on prescribing data from an extended time period. The courts have generally found that medical practice records are the type of evidence likely to remain at the practice location over extended periods, and that the ongoing character of the alleged prescribing scheme supports the inference that evidence of the scheme will continue to be present at the searched location.
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 warrant application that produced the search of a medical practice was prepared by an agent who spent months assembling the prescribing data, patient interview accounts, and other evidence that the affidavit describes. By the time the warrant is executed, the government’s investigation of the practice is more mature than the warrant’s existence suggests. The search is not the beginning of the investigation. It is a milestone in an investigation that began before the practitioner had any notice of it.
Challenging the Warrant After Execution
A practitioner whose premises have been searched pursuant to a warrant has the right to challenge the warrant’s validity in a subsequent criminal proceeding. The challenge may argue that the affidavit did not establish probable cause, that the affidavit contained false or misleading statements made knowingly or recklessly, or that the search exceeded the warrant’s scope. A successful challenge results in the suppression of the evidence obtained through the unlawful search.
The Franks v. Delaware challenge, which argues that the warrant affidavit contained false statements made intentionally or with reckless disregard for the truth, is the most significant post-execution warrant challenge available. If the practitioner can demonstrate that the affidavit contained material false statements and that the warrant would not have been issued without those statements, the warrant is invalid and the evidence obtained through the search is suppressed. Franks challenges succeed rarely but with consequential results when they do.
