United States v. Motley

89 F.4th 777

UNITED STATES of America, Plaintiff-Appellee, v. Myron MOTLEY, Defendant-Appellant.

No. 21-10296

United States Court of Appeals, Ninth Circuit

Argued March 10, 2023

Submitted December 29, 2023 Las Vegas, Nevada

Filed December 29, 2023

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding, D.C. Nos. 3:19-cr-00026-LRH-WGC-1, 3:19-cr-00026-LRH-WGC

Ellesse Henderson (argued) and Aarin Kevorkian, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Las Vegas Federal Public Defender's Office, Las Vegas, Nevada, for Defendant-Appellant.

Javier A. Sinha (argued), Attorney, Appellate Section, Criminal Division; Lisa H. Miller, Deputy Assistant Attorney General; Kenneth A. Polite, Jr., Assistant Attorney General; United States Department of Justice, Washington, D.C.; Robert L. Ellman, Assistant United States Attorney; Elizabeth O. White, Appellate Division Chief; Jason M. Frierson, United States Attorney; United States Attorney's Office, District of Nevada, Reno, Nevada; for Plaintiff-Appellee.

Before: Susan P. Graber, Richard R. Clifton, and Mark J. Bennett, Circuit Judges.

Opinion by Judge Bennett;

Concurrence by Judge Graber

OPINION

BENNETT, Circuit Judge:

Myron Motley appeals his conviction and sentence arising from his involvement in a conspiracy to distribute controlled substances—oxycodone and hydrocodone. In this opinion we address two issues: (1) whether the district court properly denied Motley's motion to suppress evidence obtained from two tracking warrants because Motley had no reasonable expectation of privacy in his opioid prescription records maintained in Nevada's Prescription Monitoring Program ("PMP") database; and (2) whether the district court properly determined that the wiretap warrant was supported by probable cause and was necessary.¹

We have jurisdiction under 28 U.S.C. § 1291. Given the government's long-standing and pervasive regulation of opioids, we hold that Motley had no reasonable expectation of privacy in his opioid prescription records maintained in Nevada's PMP database. Thus, there was no Fourth Amendment violation, and we affirm the district court's order denying suppression. We also affirm the district court's determination that the wiretap warrant was supported by probable cause and was necessary.

I. BACKGROUND

A. Nevada's PMP Database

Like in every other state,² Nevada operates an electronic database that tracks filled prescriptions for controlled substances. Nev. Rev. Stat. § 453.162 (2023). Nevada's database tracks drugs listed on Nevada's Schedules II-V. Id. Oxycodone is a Schedule II drug, and tramadol is a Schedule IV drug. Nev. Admin. Code § 453.520(2)(a) (2023); id. § 453.540(3) (2023). Both are opioids. See United States v. Flores, 725 F.3d 1028, 1032 n.2 (9th Cir. 2013) (" 'Oxycodone' is a generic opioid pain reliever . . . ."); Schedules of Controlled Substances: Placement of Tramadol Into Schedule IV, 79 Fed. Reg. 37,623, 37,623 (July 2, 2014) ("Tramadol is a centrally acting opioid analgesic . . . .").

With exceptions not relevant here, pharmacies that dispense covered controlled substances must input certain information into Nevada's PMP database, such as the name and address of the individual prescribed the controlled substance, the prescribed controlled substance, the quantity dispensed, and the appropriate "ICD-10 Code" that identifies the diagnosis for which the substance was prescribed. Nev. Admin. Code § 639.926 (2023). Pharmacies must retain all prescriptions for at least two years, Nev. Rev. Stat. § 639.236(1) (2023), and keep all "[f]iles of prescriptions . . . open to inspection by members, inspectors and investigators of the [State] Board [of Pharmacy] and by inspectors of the Food and Drug Administration and agents of the Investigation Division of the Department of Public Safety," id. § 639.236(3).

The Nevada Legislature has mandated that the PMP database be designed to, among other things, provide information on "[t]he inappropriate use by a patient of controlled substances listed in schedules II, III, IV or V to . . . appropriate state and local governmental agencies, including, without limitation, law enforcement agencies . . . , to prevent the improper or illegal use of those controlled substances." Nev. Rev. Stat. § 453.162(1)(a)(1). The state entities responsible for developing the PMP database "shall report any activity [they] reasonably suspect[ ] may . . . [i]ndicate . . . inappropriate activity related to the prescribing, dispensing or use of a controlled substance to the appropriate law enforcement agency . . . and provide the law enforcement agency . . . with the relevant information obtained from the program for further investigation." Id. § 453.164(3)(a) (2023); see also id. § 453.162(1). Certain law enforcement officers can access the PMP database without a warrant but only to "[i]nvestigate a crime related to prescription drugs" or to log information related to an investigation. Id. § 453.165(4) (2023).³

B. Facts and Procedural History

1. First Tracking Warrant

In July 2018, law enforcement began investigating Motley because of information from a confidential informant ("CI") who had proven reliable in a past, unrelated controlled purchase. The CI disclosed that Motley, who lives in California, regularly traveled to Reno, Nevada, to illegally obtain and sell prescription drugs.⁴ As part of their investigation, law enforcement obtained a report from Nevada's PMP database that showed a certain physician had prescribed Motley opioids—oxycodone and tramadol—averaging 279 morphine milligram equivalent ("MME") per day over a several-year period. The amount prescribed suggested opioid abuse or diversion, as CDC guidance at the time recommended avoiding or carefully justifying an increase in dosage to greater than or equal to 90 MME per day.⁵

In September 2018, law enforcement filed in Nevada state court an application for a warrant to install a global positioning system ("GPS") tracking device on Motley's vehicle. The affidavit in support included the information from the CI as well as the PMP database information about Motley's opioid prescription history. The state court issued the search warrant, allowing law enforcement to place a tracking device on Motley's vehicle for ninety days.

2. Second Tracking Warrant

In December 2018, after the first warrant expired, law enforcement sought a second tracking warrant in the United States District Court for the District of Nevada. The supporting affidavit repeated the information that supported the first warrant, including Motley's opioid prescription history obtained from the PMP database. The affidavit also explained that the PMP database records showed that Dr. Eric Math was the physician who wrote the prescriptions, and the affidavit included new information that law enforcement had obtained from the first tracking warrant. A magistrate judge issued the second warrant, and later renewed it, allowing law enforcement to install a tracking device on Motley's vehicle for a total of another ninety days.

3. Wiretap Warrant

Law enforcement later sought a wiretap warrant on Motley's cell phone under 18 U.S.C. § 2516. The 93-page affidavit reiterated the information contained in the two tracking warrant applications, including Motley's opioid prescription history obtained from the PMP database. The affidavit explained that other PMP database records showed that Dr. Math was also prescribing large amounts of opioids to coconspirators of Motley's. The affidavit included information establishing that Motley was well-acquainted and in frequent contact with those individuals. Some of this information was obtained through the GPS tracker on Motley's vehicle and his phone records.

The affidavit included information supporting law enforcement's contention that Motley was part of a drug trafficking organization. Information from several confidential sources (including the original CI) showed that Motley bought prescriptions for himself and others and then sold the prescribed pills, including to another coconspirator, Michael Slater, who would resell the pills. Law enforcement observed Motley and his coconspirators engage in the following conduct "on multiple occasions": Motley and Joseph Jeannette traveled to a pharmacy where Jeannette obtained an item from the pharmacy. Afterward, Motley drove to Slater's apartment, and Motley and Slater appeared to conduct an exchange from Motley's vehicle. Law enforcement conducted several controlled buys: a confidential source bought oxycodone from Motley three times, and another confidential source bought oxycodone pills from Slater once.

The affidavit contained detailed reasons why a wiretap was necessary to achieve the goals of the investigation, including to identify the members and scope of the conspiracy. It explained that, although the confidential sources had provided useful information, they would probably be unable to obtain more details about the scope of the conspiracy without raising suspicion, given their limited relationships with Motley and Slater. The affidavit added that officers had evaluated other potential cooperators but ultimately determined that approaching such individuals would likely compromise the investigation.

The affidavit discussed the following investigative methods and explained, using case-specific details, why they would fail: more controlled purchases, undercover investigations, physical surveillance, search warrants, witness interviews, grand jury subpoenas, pole cameras, tracking warrants, GPS tracking warrants on cell phones, telephone toll analysis, covert recording devices, trash searches, financial investigations, and mail covers.⁶

The district court granted the application for a wiretap on Motley's cell phone.

4. Relevant District Court Proceedings

A grand jury indicted Motley and his six coconspirators. Motley was charged with (and went to trial...