What Should I Do When the DEA Shows Up at My Pharmacy
The DEA’s appearance at a pharmacy is not an event for which improvisation is an adequate response. The decisions made in the first minutes of the encounter establish the framework for everything that follows.
DEA diversion investigators and special agents appear at pharmacies in two distinct capacities. The first is the regulatory inspection: a visit by a diversion investigator exercising the DEA’s authority under the Controlled Substances Act to inspect a registrant’s records, audit controlled substance inventories, and assess compliance with the Act’s requirements. The second is the criminal investigation: a visit by special agents, with or without a search warrant, in connection with a criminal investigation of the pharmacy or its personnel. The two types of visit look similar from the outside. They have different legal implications and require different responses.
Identifying the Nature of the Visit
When DEA personnel appear at the pharmacy, the first step is to identify who they are and the authority under which they are visiting. Diversion investigators carry credentials identifying them as such. Special agents carry credentials identifying them as special agents of the DEA. Both categories of personnel should present their credentials upon request, and the pharmacy owner or manager should ask to see credentials before any interaction with the visiting personnel proceeds.
If the visit is a regulatory inspection, the investigators will typically indicate that they are there for an inspection and may present a notice of inspection. The pharmacy owner or manager has the right to review the notice before the inspection begins and to request the opportunity to contact counsel. The regulatory inspection does not require the pharmacy’s consent in the same way a warrantless search does, because the Controlled Substances Act authorizes administrative inspections of DEA registrants as a condition of registration. However, the scope of the authorized inspection is defined by the Act, and activity that exceeds that scope may be challenged.
If the visit involves a search warrant, the agents will present the warrant upon arrival. A search warrant must be executed in the manner it specifies, and the pharmacy’s personnel have the right to read the warrant before the search begins. The warrant’s description of the places to be searched and the items to be seized defines the scope of the authorized search.
Contacting Counsel Immediately
Regardless of the nature of the visit, the pharmacy owner or manager should contact counsel as soon as the DEA personnel identify themselves and before any substantive interaction with the investigators occurs. Most experienced healthcare and pharmacy law attorneys are available by phone for urgent matters, and the time required to place a call and receive guidance is time well spent before the interaction with investigators proceeds.
Counsel reached by phone during a DEA visit can advise on what to permit, what to decline, and how to document the visit in real time. Counsel who cannot be reached immediately should be notified as soon as possible, and a message should be left that clearly identifies the nature of the visit and requests an urgent callback. The documentation of the attempt to contact counsel before the inspection proceeded is itself a record worth creating.
What Pharmacy Personnel Should and Should Not Do
Pharmacy personnel present during a DEA inspection or investigation should be instructed not to speak with investigators without counsel present, not to provide access to records or systems beyond what the inspection authority or search warrant specifically authorizes, and not to attempt to remove, hide, or alter any records or controlled substance inventory before or during the visit.
Need Help With Your Case?
Don't face criminal charges alone. Our experienced defense attorneys are ready to fight for your rights and freedom.
- 100% Confidential
- Response Within 1 Hour
- No Obligation Consultation
Or call us directly:
(212) 300-5196The instruction not to speak without counsel is the most important instruction and the one most frequently not followed. Pharmacy technicians, pharmacists on duty, and administrative staff who speak with DEA investigators in response to questions about the pharmacy’s operations, about specific prescriptions, or about specific practitioners whose prescriptions the pharmacy filled are providing statements that may become evidence. Those statements are made without the benefit of counsel’s guidance about what can safely be said and what should not be said, and without an understanding of the investigation’s current state or its theory.
The pharmacist who explains to investigators how the pharmacy evaluated controlled substance prescriptions from a specific practitioner has potentially provided information that corroborates the government’s theory, identified witnesses the investigation had not yet located, or admitted to knowledge of prescribing irregularities that the pharmacy nevertheless filled. None of that serves the pharmacy’s interests.
Documenting the Visit
The pharmacy owner or manager should document every aspect of the DEA visit as thoroughly as possible: the names and badge numbers of the personnel who appeared, the time of arrival and departure, the specific records or systems the investigators accessed, the items seized if the visit involved a search warrant, and any statements made by investigators about the purpose or scope of the visit. This documentation is the pharmacy’s contemporaneous record of what occurred and may be relevant in any subsequent administrative or criminal proceeding.
The receipt for seized items, which agents are required to provide when executing a search warrant, should be reviewed carefully and any discrepancies between the seized items and the items listed in the receipt should be noted immediately. Items seized outside the warrant’s scope may be subject to a motion for return of property.
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 DEA visit that occurred without counsel present is a visit that will be reconstructed from memory, from the investigators’ notes, and from the FD-302 or diversion investigator report that documents what was said and what was found. The pharmacy whose personnel spoke extensively with investigators during the visit will discover, when they review the government’s account of that conversation, that their recollection and the investigators’ record are not identical. They are never identical.
After the Visit
The hours immediately following a DEA visit are the hours in which the pharmacy’s legal strategy is most productively developed. Counsel should be engaged fully, the nature of the visit should be described in detail, all personnel who interacted with the investigators should be interviewed by counsel before they speak with each other about what was said, and the pharmacy’s prescription records and controlled substance inventory should be reviewed to identify any issues that the investigators may have observed.
The pharmacy that responds to a DEA visit by immediately engaging experienced counsel and conducting a privileged internal review of its compliance posture is the pharmacy best positioned to address whatever the visit portends. The pharmacy that responds by hoping the visit was routine and taking no further action is the pharmacy that will be least prepared when the visit’s significance becomes clear.
