Andrew Dollard v. Gary Whisenand

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 19-1602, 19-1604 & 19-1605

ANDREW J. DOLLARD, et al.,

Plaintiffs-Appellants,

v.

GARY WHISENAND, et al.,

Defendants-Appellees.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

Nos. 16-cv-01721 & 16-cv-01908 — Richard L. Young, Judge.

____________________

ARGUED NOVEMBER 5, 2019 — DECIDED DECEMBER 23, 2019

____________________

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.

FLAUM, Circuit Judge. In 2013, the Drug Enforcement Ad-

ministration (DEA) began investigating Dr. Larry Ley and his

opioid addiction treatment company, Drug Opiate Recovery

Network, Inc. (DORN), for dealing a controlled substance. Af-

ter conducting undercover surveillance, lead agent Gary

Whisenand decided Dr. Ley did not have a legitimate medical

purpose in prescribing Suboxone, a drug used to treat opioid

addiction.

2 Nos. 19-1602, 19-1604 & 19-1605

After finding probable cause, two Indiana courts issued a

series of warrants that culminated in twelve separate arrests

of five medical providers (four physicians and one nurse) and

seven non-provider DORN employees. In the ensuing prose-

cution, the Indiana courts quickly dismissed the charges

against all the non-providers and the nurse. The State eventu-

ally proceeded to a bench trial against Dr. Ley, where an In-

diana court ultimately acquitted him. Following this acquittal,

the State dismissed the rest of the charges against the three

remaining providers.

Together, DORN’s providers and non-provider employ-

ees sued the DEA agent and others in federal court alleging

false arrest, malicious prosecution, and civil conspiracy. The

district court entered summary judgment for the defendants

on all claims, holding probable cause supported the warrants

used to arrest the plaintiffs. We affirm the district court’s judg-

ment as to every plaintiff except Joseph Mackey. With respect

to Mackey, we reverse and remand the judgment because the

undisputed facts at the summary judgment stage do not es-

tablish that officers had probable cause to arrest Mackey or

even that reasonable officers could believe probable cause ex-

isted.

I. Background

Larry Ley graduated from medical school in 1971 and has

worked in a variety of medical positions across central Indi-

ana since. He is board-certified in addiction medicine by the

American Society of Addiction Medicine. In 2002, he founded

Living Life, an alcohol abuse treatment company. Dr. Ley ran

Living Life out of four offices in central Indiana: Centerville,

Noblesville, Muncie, and Kokomo.

Nos. 19-1602, 19-1604 & 19-1605 3

A. DORN

Shortly after starting Living Life, Dr. Ley began prescrib-

ing Suboxone, a drug commonly used to treat opioid addic-

tions. In 2007, Dr. Ley expanded his practice and renamed it

“DORN.” He opened a new office in Carmel, and continued

operations at the four existing satellite offices. Dr. Ley saw all

his patients for their initial consultations at the Carmel loca-

tion. He primarily worked out of that office, but he also spent

time in Noblesville and Muncie. 1

For follow-up appointments, patients went to the office

closest to their homes. Other physicians staffed these satellite

offices, including Dr. Ronald Vierk in Centerville, Dr. Luella

Bangura in Kokomo, and Dr. George Agapios in Carmel.

Yvonne Morgan is a registered nurse who directed the Cen-

terville clinic and assisted the Muncie and Carmel clinics. She

completed mostly clerical tasks for DORN, like answering the

phone, conducting drug screens, and handing patients their

prescriptions.

Several non-provider employees worked at the DORN

clinics, too:

• Derek Tislow was a part-time office assistant in No-

blesville.

• Eric Ley—Dr. Ley’s son—was a part-time office as-

sistant in Carmel and Kokomo.

• Felicia Reid was a receptionist in Carmel.

1 The Carmel clinic had a conference room and Dr. Ley’s office, but no

examination room and no medical equipment.

4 Nos. 19-1602, 19-1604 & 19-1605

• Joseph Mackey was a part-time parking lot at-

tendant in Kokomo.

• Jessica Callahan was the part-time office manager

in Muncie.

• Cassy Bratcher was the Carmel office manager.

• Andrew Dollard is an attorney and was the part-

time Noblesville office manager.

B. Controlled Substance Laws

Indiana, like all other states, criminalizes dealing a con-

trolled substance. Ind. Code § 35-48-4-2. Under state law, any

“person who: (1) knowingly or intentionally … (C) delivers;

or (D) finances the delivery of; a controlled substance … clas-

sified in schedule I, II, or III … commits dealing …, a level 6

felony.” Id. Buprenorphine, the primary drug component in

Suboxone, is a Schedule III controlled substance. Indiana ad-

ditionally proscribes conspiracies, id. § 35-41-5-2, and corrupt

business influence, id. § 35-45-6-2.

Medical practitioners may prescribe controlled sub-

stances, such as buprenorphine, but their authority is limited:

They must have a legitimate medical purpose to issue a rea-

sonable quantity in the usual course of business. 856 Ind. Ad-

min. Code 2-6-3(a). Those who prescribe controlled sub-

stances outside the scope of their practice or without a legiti-

mate purpose are subject to sanction under Indiana criminal

law. Id.; see also Alarcon v. State, 573 N.E.2d 477, 480 (Ind. Ct.

App. 1991) (holding Indiana’s controlled substance laws ap-

ply to licensed physicians who issue invalid prescriptions).

Nos. 19-1602, 19-1604 & 19-1605 5

Furthermore, medical doctors may not prescribe con-

trolled substances to a person whom they have never physi-

cally examined in person and diagnosed, unless it is a cross-

coverage situation (or another exception applies) where mul-

tiple professionals may see a patient during her treatment by

a practice group. 844 Ind. Admin. Code 5-4-1(a). Doctors must

also ordinarily sign and date prescriptions on the day they is-

sue them. 856 Ind. Admin. Code 2-6-4(a). To be sure, a secre-

tary (or another authorized agent) may prepare and com-

municate prescriptions, leaving the practitioner responsible—

indeed, liable—if the prescription does not conform to law or

regulation. Id. 2-6-4(b); Id. 2-6-2(b); see also Ind. Code § 16-42-

19-20(b). That is, unless the secretary (or other agent) knows

the prescription is invalid; then they could be culpable too.

856 Ind. Admin. Code 2-6-3(a).

The United States also regulates a physician’s ability to

prescribe controlled substances. Specifically, the Drug Addic-

tion Treatment Act of 2000 (DATA) caps the number of pa-

tients a physician may treat with buprenorphine for addic-

tion. See generally 21 U.S.C. § 823(g)(2)(B)(iii). In the beginning,

newly certified providers may treat thirty patients; after one

year, providers may treat up to 100 patients. Id. If a practi-

tioner meets certain requirements, the number is 275. Id.

§ 823(g)(2)(B)(iii)(II)(dd). This maximum number of patients,

however, only applies in the addiction context, meaning those

receiving treatment for an off-label use, like pain, do not count

toward the 100. See id. § 823(g)(1).

6 Nos. 19-1602, 19-1604 & 19-1605

C. Investigation

In 2013, the Madison County Deputy Coroner contacted

Officer Aaron Dietz of the Carmel Police Department to dis-

cuss the death of one of Dr. Ley’s former patients. 2 Officer

Dietz put the Deputy Coroner in touch with a sergeant, Marc

Klein, who learned that the deceased’s family expressed con-

cerns about the care Dr. Ley once provided to the deceased.

The Deputy Coroner also reached out to Adam Deitz, the di-

rector of the Hamilton and Boone County Drug Task Force,

regarding the death.

Both officers began investigating Dr. Ley and DORN

based on this information, leading to an interview with the

deceased’s family. In the interview, the family explained that

Dr. Ley treated the deceased for addiction over six years. They

identified the following concerns they had with Dr. Ley’s

medical care: The deceased rarely went into the doctor’s of-

fice; Dr. Ley was not personally seeing him; other family

members would pick up prescriptions for him; and he always

paid in cash.

Around this time, the DEA began receiving complaints

about DORN, which focused on the lack of medical care at the

clinics and the ease with which patients could procure pre-

scriptions for Suboxone without being seen by a physician.

2 Officer Dietz—a Carmel Police Department Officer and Director of

the Hamilton/Boone County Drug Task Force—was the local point of con-

tact for the ensuing federal investigation. Although Officer Dietz is a de-

fendant in this lawsuit, his personal involvement does not end up being

germane to our disposition on appeal. See infra Part II-D.

Nos. 19-1602, 19-1604 & 19-1605 7

Based on these complaints and the interview with the de-

ceased’s family, the DEA opened an investigation into Dr. Ley

and DORN, which was assigned to Agent Gary Whisenand.

Agent Whisenand began his inquiry by looking into past

complaints about DORN from practitioners, pharmacists, and

former patients. 3 Most of the complaints criticized Dr. Ley

and DORN for not providing any medical treatment to their

patients and simply handing out prescriptions for Suboxone.

The principal concern was that Dr. Ley was admitting people

into his program without first conducting a full medical eval-

uation. The accusations related not only to Dr. Ley but also to

DORN’s satellite offices and other practitioners. 4

These complaints led Agent Whisenand to research

DORN on INSPECT, an online database that allows law en-

forcement to monitor controlled substance prescriptions. The

data showed that each DORN physician issued a high num-

ber of Suboxone prescriptions in 2011, 2012, and 2013. 5 Agent

Whisenand consequently interviewed patients and surveilled

all four DORN offices. One then-current DORN patient de-

scribed the Kokomo clinic parking lot as a place where people

conducted drug deals and talked about how they planned to

sell their medications. The patient also noted how no doctors

3 Some of DORN’s competitors submitted complaints. Former pa-

tients included those who had dropped out or been kicked out of the pro-

gram.

4 There were eight regulatory inspections of DORN clinics before the

arrests in this case.

5 For instance, in 2012 and 2013, Dr. Agapios wrote Suboxone pre-

scriptions for over 680 and 750 patients, respectively.

8 Nos. 19-1602, 19-1604 & 19-1605

saw any addicts; instead, patients obtained pre-signed pre-

scriptions from the front desk. DEA surveillance confirmed

that no doctors administered any physical exams at the clin-

ics.

D. Undercover Agents and Experts

The state prosecutor assigned to the investigation, Andre

Miksha, recommended Agent Whisenand enlist undercover

officers to provide a firsthand account from the insides of the

clinics. On March 25, 2014, two DEA special agents posed as

new patients at the Carmel clinic. Cassy Bratcher, the office

manager, greeted the agents and instructed them to fill out

some paperwork. 6 She then showed the agents into a confer-

ence room where they met with Dr. Ley and discussed addic-

tion treatment for about one hour.

Then, for another hour, Dr. Ley questioned the prospec-

tive patients about what types of drugs they were taking, in

what doses, and whether they had any conditions causing

pain. At the end of the second hour, Dr. Ley prescribed Sub-

oxone for “chronic pain/pain management” and directed the

agents to the front to pick up their prescriptions. DORN ulti-

mately charged the agents a $300 program fee at their initial

sessions. Dr. Ley gave them the contact number for “Andrew”

and assigned the agents to the Noblesville office for all future

appointments.

6 The agents, like all DORN patients, had to sign a pledge to take the

prescribed medication only in the dosage and on the “taper schedule” set

by the program. They also agreed to consume no other narcotics. No agent

ever reported that a DORN doctor increased their prescription upon re-

quest.

Nos. 19-1602, 19-1604 & 19-1605 9

The use of undercover agents for initial visits continued at

the Carmel clinic, following the pattern set by the first: Dr. Ley

led a two-hour group discussion; he did not conduct a physi-

cal or meet with any patient one-on-one; and each patient left

the clinic with a prescription of Suboxone after paying a $300

program fee. 7 Each of the agents’ prescriptions (and corre-

sponding taper schedules) were different and individualized

to them, based on their reported drug histories.

The undercover agents reported to the various clinics for

their follow-up appointments and corroborated many of their

earlier findings: The appointments generally lasted a few

minutes; the agents received their Suboxone prescriptions

without a doctor assessing them (they submitted to urine

screening 8); and many prescriptions were pre-signed because

there was often no doctor present at the facility.9 On the pre-

scriptions, the reasons for additional medication often

changed without explanation; so, one agent received a Subox-

one prescription for “dependency” even though his initial

prescription was for “pain management.”

7 This price never changed, regardless of the number of appointments

or the amount of medication prescribed. As a general matter, it cost $300

to enter the program at the initial session, and then it was $40 per week

thereafter. The weekly charge covered all the program’s services, meaning

there were no separate DORN fees for prescriptions, in-person appoint-

ments, or telephone consultations.

8 DORN expelled many patients for failed drug screens, including Un-

dercover Officer Richardson, because his two previous urine drug screens

tested negative for Suboxone. DORN booted another undercover agent,

Officer Katt, because he refused a drug screen.

9At follow-up appointments, receptionists and office assistants often

did not request identification or medical records from patients.

10 Nos. 19-1602, 19-1604 & 19-1605

The DEA retained two medical doctors to opine on Dr. Ley

and DORN. First, Dr. Tim E. King, a pain expert and practic-

ing anesthesiologist, stated that it was unrealistic for a physi-

cian to treat 80–100 patients in a three-hour period and highly

unconventional to assume that one person could perform an

initial pain or addiction evaluation (not in any actual exami-

nation room) and then assign the patient to another provider

for exclusive treatment. Dr. King felt like Dr. Ley was running

DORN as a “pill mill” because Dr. King thought Dr. Ley was

not issuing prescriptions for controlled substances in the

usual course of practice or for a legitimate medical purpose.

Second, Dr. R. Andrew Chambers, an associate professor

of psychiatry at Indiana University School of Medicine and a

practicing addiction treatment doctor, echoed Dr. King.

Dr. Chambers believed it was unusual for Dr. Ley to care for

that many patients in that short of time. Dr. Chambers, like

Dr. King, found it abnormal for one doctor to conduct an ini-

tial examination and then “farm out” the subsequent ones.

Dr. Chambers ultimately shared Dr. King’s conclusion that

DORN was an illegal dealing operation and the physicians in-

volved “conspired to use their professional authorities and

reputations, and the cover of medical practice an authority to

maximize financial gains at the expense of clinical stand-

ards.” 10

10The investigation did not find any DORN patient who was not ac-

tually an addict, making these individuals otherwise eligible for medical

care. Similarly, it found that no DORN patient was ever hospitalized or

treated for an overdose. The DEA determined that DORN never pre-

scribed anything more than a therapeutic dose of Suboxone to its patients.

Nos. 19-1602, 19-1604 & 19-1605 11

E. Probable Cause Affidavit and Arrests

Agent Whisenand prepared a probable cause affidavit to

support the arrests of all DORN staff and the search and sei-

zure of certain property. 11 Relevant here, the allegations

against the non-provider employees 12 were:

• Two undercover agents and one former patient re-

ceived suspected pre-signed prescriptions (suspected

because the patients did not observe doctors on the

premises) for continued treatment from Jessica Calla-

han at the Muncie office on at least three separate oc-

casions. Two investigators surveilled Callahan at the

Muncie office two other times.

• Investigators surveilled Eric Ley or his vehicle at

the Carmel and Kokomo offices eight different times.

They also observed him printing prescriptions for

11Dietz did not participate in the drafting of the affidavit; in fact, he

only read it after it was submitted to the courts.

12 We are not going to exhaustively restate the contents of the probable

cause affidavit in this opinion. Instead, we include the allegations against

the non-provider employees because it is those that will ultimately be

most relevant to our analysis. We do, however, think it is important to

include the accusations against one provider, Yvonne Morgan, and we do

so below:

Investigators believed Yvonne Morgan (or another employee), a

registered nurse, issued pre-signed prescriptions at the Center-

ville and Muncie offices seven different times. They additionally

observed her at the Muncie office on two other occasions. The of-

ficers learned Morgan operated a 2012 Ford Edge. One under-

cover agent received her phone number because she was suppos-

edly the Centerville office point-of-contact; another agent was

given her and Jessica Callahan’s names as the Muncie office leads.

12 Nos. 19-1602, 19-1604 & 19-1605

Dr. Agapios to sign in person those days, without first

seeing the actual patients on four separate occasions.

The officers confirmed Ley resided with his father, Dr.

Larry Ley, in Noblesville.

• Investigators and agents observed Felicia Reid or

her vehicle at the Kokomo office four times. In one in-

stance, an undercover agent received a Suboxone pre-

scription from Reid signed by Dr. Bangura, who was in

the office but did not meet with the agent. Reid also

answered DORN’s phone when an investigator called

on one occasion.

• Investigators and agents observed Joseph Mackey

at the Kokomo office five times. The officers generally

saw Mackey walk in and out of the office with a clip-

board, taking people’s names down and arranging

them outside, and interacting with vehicles in the park-

ing lot.

• Investigators surveilled Derek Tislow entering the

Noblesville office on five separate occasions. They also

observed him attend a business meeting with Andrew

Dollard at a local restaurant. One undercover agent

met with him for a drug screen in the clinic. The agents

referred to him as the “office assistant,” although he

called himself the assistant office manager on his

LinkedIn page. Tislow took $80 from the agents five

times and told them that their prescriptions would be

phoned in later that day. During these encounters, the

undercover agents observed multiple prescriptions on

his desk. Separately, two agents received pre-signed

prescriptions from Tislow for “chronic pain and sec-

ondary opiate dependency” in exchange for $160 cash.

Nos. 19-1602, 19-1604 & 19-1605 13

The agents reported that Tislow had to sort through

multiple prescriptions to find the correct ones, and in

fact, one agent observed Dr. Ley hand several pre-

signed prescriptions to Tislow, including the one he

eventually left with, before ever meeting with any pa-

tient.

• Surveillance teams observed Cassy Bratcher at the

Carmel and Kokomo offices meeting with patients and

speaking with people many times (even making a bank

deposit once), regardless of whether there were pro-

viders onsite or not. The investigators described

Bratcher as the Carmel office manager and Dr. Ley de-

scribed her as the point-of-contact for both the Carmel

and Kokomo clinics. One time, she interrupted a meet-

ing between Dr. Ley and an undercover agent so Dr.

Ley could sign prescriptions for people he did not see

while he was in the meeting. On two other occasions,

Bratcher handed prescriptions to agents even though

the physician never met with the agents. Undercover

agents also observed her print prescriptions for Dr.

Agapios to sign and give to the agents on three other

dates. In one instance, Bratcher informed an agent he

had to take a drug screen, and in another, she told the

agent that he had to exit the program because his

screens showed no buprenorphine in his system.

• Former patients stated that they would pay An-

drew Dollard, Dr. Ley’s attorney and the Noblesville

office director, $80 in return for Dollard filling out and

handing the patient a pre-signed prescription when no

doctor was present. Investigators surveilled Dollard

entering the Noblesville clinic on five dates; they also

14 Nos. 19-1602, 19-1604 & 19-1605

observed him at his law office and two restaurants, one

of which was for a business meeting in which he

pitched a potential DORN expansion to an unidenti-

fied male. The undercover agents eventually learned

where Dollard lived and that he was the Noblesville

point-of-contact. In four instances, Dollard called in

prescriptions for undercover agents; on three days he

was observed in the Noblesville clinic and on one day

he was not.

After examining these accusations and all others con-

tained in the affidavit, state prosecutors agreed with Agent

Whisenand that the affidavit supported probable cause to

charge all DORN employees. 13 The lead prosecutor charged

the non-provider employees because of their business roles

and his belief that it would have been obvious to them under

the circumstances that they were engaged in an illegal prac-

tice. Two state courts reviewed the affidavit and found prob-

able cause existed to charge all DORN employees with con-

spiracy to commit dealing in a controlled substance and cor-

rupt business influence. Police officers arrested the DORN

employees on July 24, 2014.

F. Indiana’s Criminal Prosecution of DORN

Early on in their criminal cases, each then-defendant (now

plaintiff) moved to dismiss the charges against them, arguing

that the evidence was insufficient as a matter of law to support

13 Federal prosecutors hadalready declined prosecution because they

believed there was not probable cause to arrest and prosecute the DORN

employees, at least under federal controlled substance laws.

Nos. 19-1602, 19-1604 & 19-1605 15

any potential convictions. 14 One state court granted the non-

providers’ motions. At the same time, that court denied the

providers’ motions to dismiss (except for Yvonne Morgan).

Another state court granted Morgan’s (the nurse and point-

of-contact for Centerville and Muncie) motion, although a

state appellate court ultimately reversed that judgment. State

v. Y.M., 60 N.E.3d 1121, 1128 (Ind. Ct. App. 2016).

The State eventually proceeded to a bench trial against Dr.

Ley. After denying Dr. Ley’s motion based on the insuffi-

ciency of the evidence, the court ultimately acquitted Dr. Ley

of all charges. The court found that the State had not proved

a knowing and intentional violation of a standard of profes-

sional conduct. It followed, then, that the State did not prove

beyond a reasonable doubt that Dr. Ley issued the prescrip-

tions outside the usual course of professional medical prac-

tice. After Dr. Ley’s acquittal, the State dismissed the charges

against the remaining DORN doctors.

G. This Federal Civil Rights Case

All the DORN employees then sued the lead investigator,

Agent Whisenand, and other defendants in federal court,

claiming they violated their constitutional rights by conspir-

ing to falsely arrest and maliciously prosecute them. The dis-

trict court granted the defendants’ motion for summary judg-

ment, holding that law enforcement had probable cause to ar-

rest and charge all twelve DORN employees under Indiana

law. Even in the absence of probable cause, the district court

14 We intentionally use the plural noun, “cases,” because the State

charged the then-defendants in the counties where their alleged criminal

conduct occurred.

16 Nos. 19-1602, 19-1604 & 19-1605

reasoned, the defendants had “arguable probable cause,” en-

titling them to qualified immunity.

This appeal followed.

II. Discussion

We review the district court’s entry of summary judgment

de novo, looking at the record in the light most favorable to

the non-moving plaintiffs and construing all reasonable infer-

ences from the evidence in their favor. See Martin v. Marinez,

934 F.3d 594, 597 (7th Cir. 2019). Summary judgment is appro-

priate when there are no genuine disputes of material fact, en-

titling the movant to judgment as a matter of law. Fed. R. Civ.

P. 56(a).

“Factual disputes are genuine ‘only if there is sufficient ev-

idence for a reasonable jury to return a verdict in favor of the

non-moving party on the evidence presented,’ and they are

material only if their resolution might change the suit’s out-

come under the governing law.” Maniscalco v. Simon, 712 F.3d

1139, 1143 (7th Cir. 2013) (quoting Stokes v. Bd. of Educ. of the

City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010)).

On appeal, the DORN plaintiffs argue that probable cause

did not exist to arrest them. Additionally, they assert that ar-

guable probable cause did not support the warrants either,

meaning qualified immunity does not shield the defendants

from suit. The lead DEA investigator and other defendants

contend that there was probable cause to support criminal

charges against the DORN employees, and even if there was

not, they had an objectively reasonable basis to believe there

was probable cause, which entitles them to qualified immun-

ity. We address each issue in turn.

Nos. 19-1602, 19-1604 & 19-1605 17

A. False Arrest

“Probable cause is an absolute bar to a claim of false arrest

asserted under the Fourth Amendment and section 1983.”

Muhammad v. Pearson, 900 F.3d 898, 907 (7th Cir. 2018) (cita-

tion omitted). “Probable cause exists to arrest a suspect if at

the time of arrest the facts and circumstances within the ar-

resting officer’s knowledge and of which he has reasonably

trustworthy information would warrant a prudent person in

believing that the suspect had committed or was committing

an offense.” Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019)

(citation omitted).

When a judge authorizes an arrest, as one did here, “we

presume the validity of [the] warrant and the information of-

fered to support it.” Id. (citation and internal quotation marks

omitted). The presumption must give way, however, “if the

warrant application was ‘so lacking in indicia of probable

cause as to render official belief in its existence unreasona-

ble.’” Edwards v. Jolliff-Blake, 907 F.3d 1052, 1060 (7th Cir. 2018)

(quoting Junkert v. Massey, 610 F.3d 364, 369 (7th Cir. 2010)

(quoting Malley v. Briggs, 475 U.S. 335, 345 (1986))). “Under

these circumstances, even a facially valid arrest warrant does

not shield otherwise unreasonable conduct.” Williamson v.

Curran, 714 F.3d 432, 444 (7th Cir. 2013) (citation omitted).

“An officer faces personal liability only if ‘courts have

clearly held that a materially similar affidavit previously

failed to establish probable cause under facts that were indis-

tinguishable from those presented in the case at hand’ or if

‘the affidavit is so plainly deficient that any reasonably well-

trained officer would have known that his affidavit failed to

establish probable cause and that he should not have applied

for the warrant.’” Edwards, 907 F.3d at 1060 (quoting United

18 Nos. 19-1602, 19-1604 & 19-1605

States v. Koerth, 312 F.3d 862, 870 (7th Cir. 2002)); see also

Brunson v. Murray, 843 F.3d 698, 709 (7th Cir. 2016).

B. Probable Cause

We agree with the district court’s conclusion that the affi-

davit established probable cause to arrest the DORN plaintiffs

with a few notable exceptions. It is undisputed that one of Dr.

Ley’s former patients died and that individual’s family ex-

pressed concerns about Dr. Ley’s prior treatment of him.

Other doctors voiced their worries, too, accusing Dr. Ley of

prescribing Suboxone for pain to avoid the 100-patient limit

and ultimately bring in more revenue.

At least one pharmacy refused to fill prescriptions for

DORN, and several former patients reported that they re-

ceived their prescriptions without undergoing any type of

physical exam. INSPECT records showed that DORN physi-

cians prescribed an unusually high amount of Suboxone and

accordingly made a substantial income. Two expert doctors,

retained by the DEA, opined that the DORN physicians were

not prescribing Suboxone for a legitimate medical purpose in

the usual course of medical practice.

The investigators’ surveillance and undercover recordings

corroborate many of those observations. Dr. Ley saw prospec-

tive patients for an initial consultation in a conference room

for two hours. At the end of that meeting, the patients would

receive a Suboxone prescription after paying $300. Dr. Ley did

not conduct any physical examinations and all patients paid

for their prescriptions in cash. At many follow-up appoint-

ments, patients received their prescriptions without ever be-

ing seen by a doctor. Some of those appointments lasted just

a few minutes. At times, DORN’s non-provider employees

Nos. 19-1602, 19-1604 & 19-1605 19

handed out prescriptions when no provider was present. In

fact, the providers pre-signed a lot of those prescriptions.

Considering the totality of the circumstances, a reasonable

officer could believe that most DORN employees were con-

spiring to deal in a controlled substance because they were

knowingly issuing invalid Suboxone prescriptions; in other

words, they were prescribing a controlled substance without

a legitimate medical purpose and outside the usual course of

medical practice. Most of the DORN plaintiffs’ points to the

contrary are unavailing. We will begin with the medical pro-

viders and end with the nonmedical providers.

1. Medical Providers

First, the medical providers maintain that Agent

Whisenand should have identified and evaluated exculpatory

evidence in his probable cause affidavit, namely, whether the

physicians had a legitimate medical purpose in prescribing

Suboxone. The plaintiffs insist that: DORN patients filled out

medical histories; addiction treatment does not necessarily

entail physical examination; each patient received an appro-

priate dose of Suboxone and corresponding tapering sched-

ules; and all patients—including the undercover agents—

signed paperwork promising to attend counseling. This evi-

dence, the district court reasoned, went toward their defense

but did not defeat probable cause. See Alarcon, 573 N.E.2d at

480 (“[T]he writing of a valid prescription by a licensed phy-

sician is an absolute defense to a charge of dealing in a con-

trolled substance.”).

Plaintiffs’ argument confuses the matter somewhat. The

use of a valid prescription as a defense to possessing—or here,

20 Nos. 19-1602, 19-1604 & 19-1605

dealing—a controlled substance is a type of affirmative de-

fense, while a defense that the intent element is lacking is not.

Using the terminology of Professors LaFave and Robinson, a

prescription’s validity is an “offense modification defense,”

not a “failure of proof defense.” Wayne R. LaFave, Subst.

Crim. L. § 9.1(a)(1)–(2) (3d ed. 2000); see also Paul H. Robinson,

Crim. L. Def. § 23 (1st ed. 1984) (explaining that an offense

modification defense means that “while the actor has appar-

ently satisfied all elements of the offense charged, he has not

in fact caused the harm or evil sought to be prevented by the

statute defining the offense,” and identifying as a “typical …

offense modification[] … the use of a valid prescription as a

defense to possessing a controlled substance”).

The distinction is meaningful in the probable cause con-

text. On the one hand, an officer “‘may not ignore conclu-

sively established evidence of the existence of an affirmative

defense,’ [but] the Fourth Amendment imposes no duty to in-

vestigate whether a defense is valid.” McBride v. Grice, 576

F.3d 703, 707 (7th Cir. 2009) (quoting Hodgkins ex rel. Hodgkins

v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004)). On the other

hand, although a police officer must have “some evidence” on

an intent element to demonstrate probable cause, BeVier v.

Hucal, 806 F.2d 123, 126 (7th Cir. 1986), an officer need not

have “the same type of specific evidence of each element of

the offense as would be needed to support a conviction.”

Hawkins v. Mitchell, 756 F.3d 983, 994–95 (7th Cir. 2014) (quot-

ing Adams v. Williams, 407 U.S. 143, 149 (1972).

Viewing a prescription’s validity as an affirmative de-

fense, which the district court appropriately did, we cannot

say that the plaintiffs’ proffered evidence “conclusively estab-

lished” the affirmative defense. McBride, 576 F.3d at 707. Even

Nos. 19-1602, 19-1604 & 19-1605 21

if it did, “there is a meaningful distinction between disregard-

ing potentially exculpatory information and disbelieving it.”

Mahnke v. Garrigan, 428 F. App’x 630, 635 (7th Cir. 2011). Most

importantly, the district court did not exclude the evidence

from its probable cause analysis; instead, it decided that law

enforcement still showed probable cause existed based on a

host of other facts.

In total, Dr. Ley was prescribing Suboxone without ad-

ministering physical examinations; all DORN physicians

were prescribing a usual amount of Suboxone in return for

quite a lot of money; and patients received many pre-signed

prescriptions without seeing doctors at follow-up appoint-

ments. The officers therefore had enough information to rea-

sonably suspect that the DORN physicians were either issu-

ing prescriptions without a legitimate purpose or outside the

usual course of professional practice. 15 See United States v.

Chaney, 921 F.3d 572, 591 (6th Cir. 2019) (“Evidence of the cir-

cumstances surrounding a prescription allows juries to infer

that a physician’s purpose was something other than legiti-

mate medical treatment.”), cert. denied, 140 S. Ct. 301 (2019),

and cert. denied, 140 S. Ct. 271 (2019).

This evidence accords with our and our sister circuits’ case

law concerning other “pill mill” prosecutions of physicians

for dealing controlled substances. See United States v.

15 It is incorrect for the plaintiffs to claim that this conclusion means

that every doctor who writes a prescription for a controlled substance is

vulnerable to lawful arrest and prosecution. Quite the contrary, only a

doctor who writes prescriptions in such unorthodox and inappropriate

circumstances opens themselves up to criminal liability. See United States

v. Kohli, 847 F.3d 483, 491 (7th Cir. 2017), reh’g and suggestion for reh’g en

banc denied (Mar. 27, 2017), cert. denied, 138 S. Ct. 204 (2017).

22 Nos. 19-1602, 19-1604 & 19-1605

Pellmann, 668 F.3d 918, 924–25 (7th Cir. 2012); Gatzimos v. Gar-

rett, 431 F. App’x 497, 501–02 (7th Cir. 2011); United States v.

Joseph, 709 F.3d 1082, 1099, 1102 (11th Cir. 2013); see also United

States v. Garrison, 888 F.3d 1057, 1064–65 (9th Cir. 2018); United

States v. Evans, 892 F.3d 692, 706–07 (5th Cir. 2018), as revised

(July 6, 2018); United States v. Oti, 872 F.3d 678, 688–89, 698

(5th Cir. 2017), cert. denied sub nom. Iwuoha v. United States, 138

S. Ct. 1988 (2018), and cert. denied sub nom. Okechuku v. United

States, 138 S. Ct. 1990 (2018); United States v. Elliott, 876 F.3d

855, 865–66 (6th Cir. 2017), cert. denied sub nom. Frial-Carrasco

v. United States, 138 S. Ct. 1314 (2018); United States v. Votrobek,

847 F.3d 1335, 1342–43 (11th Cir. 2017); United States v. Azmat,

805 F.3d 1018, 1035–36 (11th Cir. 2015).

Second, the plaintiffs contend that the follow-up clinic vis-

its either met or exceeded established medical standards. As-

suming for the sake of argument that they are correct, this ev-

idence still goes to their prescription validity defense, and

does nothing to change the fact that probable cause exists in-

dependent of the follow-up appointments. Granted, an excep-

tion is just as much a part of a statute as the rule itself is. Agent

Whisenand should not have omitted the statutory exception

to the physical exam rule for cross-coverage situations from

the probable cause affidavit. But that error is harmless here

because many patients received pre-signed prescriptions

without a doctor ever being present. The DORN plaintiffs do

not address this point.

What is more, taking the plaintiffs at their word, all the

propriety of the follow-up visits means is that the doctors

were operating within the usual course of professional prac-

tice. Agent Whisenand and his team could still have reasona-

Nos. 19-1602, 19-1604 & 19-1605 23

bly believed that the physicians were not issuing the Subox-

one prescriptions for a legitimate medical purpose because of

the number of pre-signed prescriptions. Again, this is par for

the course under the controlled substance laws. See Joseph, 709

F.3d at 1102 (holding evidence of providing pre-signed and

pre-dated prescriptions is sufficient to support federal crimi-

nal convictions under Controlled Substances Act); Chaney, 921

F.3d at 578, 592; Garrison, 888 F.3d at 1061, 1064–65; Evans, 892

F.3d at 698; United States v. DeLia, 906 F.3d 1212, 1215 (10th

Cir. 2018) (“While at the clinic, investigators confiscated 5,625

blank pre-signed prescriptions and a sign-out log showing

that the clinic’s staff had already used 4,330 pre-signed pre-

scriptions between March 1, 2010 and November 3, 2010.”).

Just as one might expect a reasonable doctor to have a

gauge on prescription authority, so too with a registered

nurse. Like her physician counterparts, the DEA could have

reasonably thought that Yvonne Morgan knew that it was un-

lawful to distribute pre-signed prescriptions. See Joseph, 709

F.3d at 1091, 1102 (recounting expert testimony that “a rea-

sonable doctor and physician’s assistant would know that it

is unlawful to distribute pre-signed prescriptions.”); United

States v. King, 898 F.3d 797, 803, 806 (8th Cir. 2018) (observing

in another pill mill prosecution that clinical nurses had direct

knowledge of standard operating procedures, including its

reliance on pre-signed prescriptions); United States v. Single-

ton, 626 F. App’x 589, 592 (6th Cir. 2015) (stating that a nurse

accused the defendant doctor of running a pill mill and telling

him that he “cannot do this”); United States v. Guzman, 571 F.

App’x 356, 363 (6th Cir. 2014) (noting that physicians tried to

modify the prescribing practices of a nurse practitioner who

consequently quit). Indeed, that is exactly what Agent

24 Nos. 19-1602, 19-1604 & 19-1605

Whisenand testified to. When questioned why a nonphysi-

cian would know that something was amiss at DORN, Agent

Whisenand specifically brought up Morgan but neglected to

explain why any of the other support staff would have

known.

That conclusion also mirrors the Indiana appellate court’s

finding in the State’s appeal in her criminal case. See Y.M., 60

N.E.3d at 1127 (reasoning that “a person of ordinary intelli-

gence would easily understand that agreeing with or assisting

a physician to distribute prescriptions for controlled sub-

stances—prescriptions that person knows to be invalid—is

proscribed conduct.”). The probable cause affidavit was ac-

cordingly on solid ground as applied to the providers.

2. Non-provider Employees

Ending with the non-provider employees, the probable

cause affidavit tells a different story about some of them. At

the start, let us focus on the non-providers that are just more

of the same. The affidavit—as it relates to Callahan, Tislow,

Bratcher, and Dollard—is sufficient to show that probable

cause existed to arrest those four individuals. The allegations

critical to this probable cause finding are that multiple under-

cover agents and former patients received pre-signed pre-

scriptions from all four on various occasions.

Obviously this was not the only evidence that Agent

Whisenand and his team had compiled; however, it is key be-

cause at least one court of appeals has held that evidence that

a layperson knew of a clinic’s use of pre-signed prescriptions

paired with the fact that she sometimes distributed them her-

self is sufficient to support a federal criminal conviction for

conspiracy to distribute controlled substances. See Chaney, 921

Nos. 19-1602, 19-1604 & 19-1605 25

F.3d at 592. Combined with the other facts unearthed by the

investigation, there was probable cause to arrest Callahan,

Tislow, Bratcher, and Dollard for conspiracy and corrupt

business influence.

As to Eric Ley, Reid, and Mackey, the affidavit did not es-

tablish probable cause to arrest these three non-provider em-

ployees. The key distinction here is that intent (or lack

thereof) is now the issue, not an affirmative defense. The clos-

est the affidavit comes to reaching probable cause for two of

the three (Ley and Reid) are the allegations that they handed

out prescriptions from doctors who had just signed them

without examining the patients. In Reid’s case, there was a

single report from an undercover agent that he received a

Suboxone prescription from Reid signed by Dr. Bangura, who

was in the office but did not personally meet with the agent.

In Mackey’s, though, all investigators and agents observed

Mackey do is walk in and out of the office with a clipboard,

taking people’s names down and arranging them outside, on

top of interacting with vehicles in the parking lot.

There is a wealth of authority that suggests evidence of

physicians who spend little to no time with patients is rele-

vant in a pill mill prosecution. See United States v. Stegawski,

687 F. App’x 509, 513 (6th Cir. 2017), cert. denied, 138 S. Ct. 282

(2017); Votrobek, 847 F.3d at 1342–43; Elliott, 876 F.3d at 865–

66; Oti, 872 F.3d at 684–85, 688, 698; Evans, 892 F.3d at 707;

Azmat, 805 F.3d at 1035–36; United States v. Singleton, 626 F.

App’x 589, 597 (6th Cir. 2015) (collecting cases); United States

v. Kincaid, 631 F. App’x 276, 280, 282 (6th Cir. 2015); United

States v. Dileo, 625 F. App’x 464, 475–76 (11th Cir. 2015); United

States v. Sawaf, 129 F. App’x 136, 142 (6th Cir. 2005).

26 Nos. 19-1602, 19-1604 & 19-1605

But only one of those cases concerned a physician who did

not examine patients at follow-up appointments when the physi-

cian re-prescribed opioids. See Stegawski, 687 F. App’x at 513. Ad-

ditionally, agents and officers in those cases always had addi-

tional evidence of wrongdoing, not just the fact that some-

body may have been aware that a doctor conducted little-to-

no physical exams.

In this case, all Agent Whisenand had to go on was that

doctors signed prescriptions and handed them to Ley and

Reid to give to the patients. There is no evidence that Ley and

Reid were “intimately involved with the schedules and pre-

scribing practices of [the] physicians.” Singleton, 626 F. App’x

at 597. They did not “pressure[] doctors to see large numbers

of patients,” or “ensure[] that patients receive[] the drugs they

wanted.” Id. (citing United States v. Johnson, 831 F.2d 124, 128–

29 (6th Cir. 1987) (explaining a clinic manager “was intimately

involved in virtually every facet of administrating the clinic,

including the hiring and firing of the doctors and staff, the re-

cording of the receipts and the prescriptions, and the supervi-

sion of the employees who actually handed out the prescrip-

tions and received the payments”)).

It is not as if these clerical employees filled out the pre-

scriptions themselves. Cf. Kincaid, 631 F. App’x at 280, 283;

Garrison, 888 F.3d at 1061 (detailing how a receptionist re-

ceived directives from the clinic’s operators to prescribe the

highest strength OxyContin to all patients regardless of ne-

cessity). The undisputed facts developed at summary judg-

ment do not show that Ley and Reid knew that the prescrip-

tions they were passing along were potentially invalid, espe-

cially when “cross-coverage situations” do not require inde-

pendent physical exams for prescription renewals. 844 Ind.

Nos. 19-1602, 19-1604 & 19-1605 27

Admin. Code 5-4-1. Agent Whisenand and his expert wit-

nesses acknowledged as much when they testified that the

law did not require an evaluation at each appointment.

The probable cause affidavit was lacking even more re-

garding Mackey. Again, the DEA essentially accused Mackey

of being a glorified valet, situating people and cars in the

parking lot. True, in some pill mill investigations, there is a

security guard that patrols the premises with a firearm. See,

e.g., Oti, 872 F.3d at 689. In Kincaid, for example, the security

guard: collected cash payments; issued receipts; allegedly

gave someone a pill; maintained a book of accounts; held onto

pharmacy contracts (one of which he signed); had multiple

pill bottles in his home when investigators searched it; and

possessed tens of thousands of dollars in a safe-deposit box.

631 F. App’x at 283. As it happened, that defendant was much

more than just a security guard.

Likewise, in Elliott, the security guard prevented investi-

gators from uncovering the truth behind the clinic’s practice.

876 F.3d at 863. He “chas[ed] away those who would watch

the property[,] … he warned patients of [investigators’] pres-

ence, [and he] shuttled bags of prescriptions back and forth to

a doctor for signature.” Id. It was this— “his work in facilitat-

ing … prescriptions, and his warnings about government sur-

veillance”—that transformed Elliott from innocent bystander

into coconspirator. Id. at 864.

Here, however, there were no facts alleged in the affidavit

that Mackey was ever armed, impeding investigations, han-

dling money, or possessing narcotics. On the face of the affi-

davit, it seems as if Mackey did not have much more than a

slight connection to the conspiracy. He was certainly not a

28 Nos. 19-1602, 19-1604 & 19-1605

major actor in it. Indeed, Agent Whisenand did not summa-

rize his individual criminal liability (or Reid’s or Dr. Ban-

gura’s) like he did for all the other DORN employees. Reading

the affidavit thus leaves the unmistakable impression that

Mackey, along with Ley and Reid, were caught in the cross-

hairs of the conspiracy.

“The concept of guilt by association is repugnant to our

notion of elemental justice and fair play.” Driebel v. City of Mil-

waukee, 298 F.3d 622, 651 (7th Cir. 2002) (citation omitted); see

also United States v. Jones, 713 F.3d 336, 352 (7th Cir. 2013) (col-

lecting cases); Boim v. Quranic Literacy Inst. & Holy Land Found.

For Relief & Dev., 291 F.3d 1000, 1022 (7th Cir. 2002) (same).

That is why, generally speaking, “it is necessary to establish

that the group possessed unlawful goals and that the individ-

ual held a specific intent to further those illegal aims.” Boim,

291 F.2d at 1022 (citations omitted).

On intent, while probable cause does not “require the

same type of specific evidence of each element of the offense

as would be needed to support a conviction,” Adams, 407 U.S.

at 149, it does require police to marshal “some evidence” of the

requisite mental state. BeVier, 806 F.2d at 126 (holding that the

police “needed some evidence” of intent to establish probable

cause under a statute proscribing knowing or willful conduct)

(emphasis added); see also Jordan v. Mosley, 487 F.3d 1350, 1355

(11th Cir. 2007) (concluding that a police officer needed “some

evidence” of intent to arrest an individual).

In this case, there is nothing in the probable cause affidavit

indicating the intent of Ley, Reid, or Mackey. What is more,

Agent Whisenand did not testify that he believed his investi-

gation had revealed that these three individuals intended to

Nos. 19-1602, 19-1604 & 19-1605 29

deal controlled substances. Agent Whisenand needed to ob-

tain some evidence that Ley, Reid, or Mackey acted knowingly

before he pursued them on charges of conspiracy to deal con-

trolled substances and corrupt business influence. There is

nothing in the record to show that he had any such evidence,

that he attempted to obtain it, or that he in any way directed

his investigation toward the elements of the crimes he ar-

rested Ley, Reid, and Mackey for committing.

We should further emphasize the points we have just

made about elements and investigations. First, one of the es-

sential elements of a conspiracy is the specific intent to com-

mit the underlying felony; in this case, dealing controlled sub-

stances. See Ind. Code Ann. § 35-41-5-2; Lawrence v. State, 665

N.E.2d 589, 592 (Ind. Ct. App. 1996); see also United States v.

Moore, 641 F.3d 812, 825 (7th Cir. 2011) (“The evidence was

directed toward Moore’s intent and knowledge in distrib-

uting drugs, which are crucial considerations in establishing

the intent necessary for conspiracy to distribute drugs.”);

United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007). So, too,

with corrupt business influence in Indiana, which implicitly

entails a specific intent to commit the underlying racketeering

acts. See Ind. Code Ann. § 35-45-6-2(3). Many predicate of-

fenses require specific intent themselves. Cf. Ritchie v. Taylor,

701 F. App’x 45, 47 (2d Cir. 2017) (“The various RICO predi-

cate acts Ritchie proposes all require specific intent.”).

When it comes to specific intent crimes, the need for prob-

able cause on the intent element is particularly acute. See Jor-

dan, 487 F.3d at 1355–56 (collecting cases). This is especially so

in the context of long, drawn-out investigations where officers

do not have to “definitively resolve difficult mens rea questions

in the few moments in which officers have to decide whether

30 Nos. 19-1602, 19-1604 & 19-1605

to make an arrest.” Wesby, 816 F.3d at 107–08 (Kavanaugh, J.,

dissenting from denial of rehearing en banc) (collecting

cases). Because officers must typically think on their feet, we

usually allow an inference of specific intent from the defend-

ant’s conduct. See United States v. Schwanke, 694 F.3d 894, 896–

97 (7th Cir. 2012) (collecting cases); Neiman v. Keane, 232 F.3d

577, 580 (7th Cir. 2000) (endorsing circumstantial evidence of

criminal motive); Stefani v. City of Grovetown, 780 F. App'x 842,

849 (11th Cir. 2019).

Moreover, we have “repeatedly held that it is up to the

courts, not police officers, to determine a suspect’s mental

state.” Shea v. Muensterman, 2 F. App’x 528, 529 (7th Cir. 2001)

(collecting cases). On the ground, it is not a police function to

“sort[] out conflicting testimony and asses[] the credibility of

putative victims and witnesses ….” Beauchamp v. City of No-

blesville, Ind., 320 F.3d 733, 745 (7th Cir. 2003) (collecting

cases); see also Hebron v. Touhy, 18 F.3d 421, 423 (7th Cir. 1994)

(“Police have a hard time evaluating competing claims about

motive; they are entitled to act on the basis of observable

events and let courts resolve conflicts about mental states.”);

Marks v. Carmody, 234 F.3d 1006, 1009 (7th Cir. 2000).

Agent Whisenand’s task was not to resolve credibility con-

flicts in a spur-of-the-moment judgment call. Quite the con-

trary, he led a yearlong investigation that amassed an array of

evidence. The trouble here is that there were no “competing

claims about motive” or “conflicts about mental states,” let

alone “observable events” on which to support probable

cause to arrest Ley, Reid, and Mackey. Hebron, 18 F.3d at 423.

Knowledge is a crucial element of the offenses Agent

Whisenand arrested these DORN employees for committing.

Nos. 19-1602, 19-1604 & 19-1605 31

Probable cause did not require Agent Whisenand to have cer-

tainty of their knowledge, but it did require some evidence—

enough to confer on him a reasonable belief that they had

committed criminal offenses—demonstrating that they had

that knowledge. What Agent Whisenand knew at the time he

arrested them was insufficient as a matter of law to establish

probable cause as to their mental states.

Second, “[r]easonable avenues of investigation must be

pursued especially when, as here, it is unclear whether a

crime had even taken place.” BeVier, 806 F.2d at 128. It is not

enough for an officer to choose not to explore further when

doing so would undoubtedly shed light on the situation. Cf.

Driebel, 298 F.3d at 644 (concluding that the police department

“conducted a legally adequate inquiry by interviewing the

victim … as well as numerous witnesses who gave sufficient

corroborating testimony ….”).

In these circumstances, without asking Ley, Reid, or

Mackey (or any non-provider employee) a single question

about DORN during the yearlong investigation—coupled

with his lack of any other information as to what they might

observed—Agent Whisenand had no “reasonably trustwor-

thy information” as to what they knew about potential crimi-

nal activity. Hunter v. Bryant, 502 U.S. 224, 228 (1991). This in-

formation, frankly, should not be that hard to come by in pill

mill prosecutions. See DeLia, 906 F.3d at 1215 (investigators

questioned the clinic staff); Chaney, 906 F.3d at 578 (officers

interviewed clinic employees). Without more, with the record

developed to date, the undisputed facts did not give Agent

Whisenand a reasonable basis to determine that they know-

ingly conspired to deal controlled substances and knowingly

corrupt business influence. We cannot draw any inferences

32 Nos. 19-1602, 19-1604 & 19-1605

from the absence of this information from the record now,

which means Agent Whisenand lacked a reasonable basis to

believe critical elements of the crimes existed then.

In sum, Agent Whisenand had to have some information

from which a reasonable officer could conclude that Ley,

Reid, and Mackey knowingly conspired to deal controlled

substances and knowingly corrupted business influence. But

there was no evidence introduced at summary judgment from

which Agent Whisenand could have inferred what those

DORN employees knew—an indispensable element of the of-

fenses. Some evidence of that knowledge is necessary to es-

tablish probable cause that the DORN employees committed

crimes. To hold otherwise would leave vulnerable to arrest

any individual who unknowingly worked at a pill mill, no

matter how innocent they are.16 The Constitution prohibits

such a result.

C. Qualified Immunity

The question remains whether “a reasonable officer would

have known that the evidence provided to support the war-

rant failed to establish probable cause.” Brunson, 843 F.3d at

709 (citing Williamson, 714 F.3d at 442); see also White v. City of

Chicago, 829 F.3d 837, 842 (7th Cir. 2016). Agent Whisenand

faces personal liability only if “‘courts have clearly held that a

16We reject the DORN employees’ theory that ill will or malice moti-

vated Agent Whisenand and his investigation. See Gerald M. v. Conneely,

858 F.2d 378, 381 (7th Cir. 1988) (“If probable cause exists, an arrest is not

tainted because a police officer may dislike one of the actors in the under-

lying dispute, unless this is shown to be an important factor in the deci-

sion.”). The DORN employees merely speculate on this point.

Nos. 19-1602, 19-1604 & 19-1605 33

materially similar affidavit previously failed to establish

probable cause under facts that were indistinguishable from

those presented in the case at hand’ or if ‘the affidavit is so

plainly deficient that any reasonably well-trained officer

would have known that his affidavit failed to establish prob-

able cause and that he should not have applied for the war-

rant.’” Edwards, 907 F.3d at 1060 (quoting Koerth, 312 F.3d at

870).

Courts have not held that a materially indistinguishable

affidavit previously failed to support probable cause. The

analysis thus turns to whether the affidavit was so clearly de-

ficient that any reasonable officer would have known that

there was no probable cause and that an officer should not

have applied for the warrant. We conclude that Agent

Whisenand could have reasonably believed there was proba-

ble cause to attest that Ley and Reid—but not Mackey—had

the requisite criminal mens rea to commit the crimes with

which they were charged.

There is a dearth of Indiana case law touching on intent in

drug conspiracy and racketeering cases, not to mention pill

mill prosecutions. Conspiracy and racketeering statutes are

broad by design. Of course, lack of intent will always be a

defense to a charged crime and therefore a potential defect in

a probable cause affidavit. But, on that score, the caselaw

leaves a lot to be desired. It is clear, though, that many federal

investigations have homed in on physical examination prac-

tices in so-called pill mills. Because the law in this area re-

mains undeveloped, officers of reasonable competence could

disagree on whether arrest warrants should have issued

based on Ley and Reid’s minimal knowledge of DORN’s

34 Nos. 19-1602, 19-1604 & 19-1605

physical exam practices. Cf. Whitlock, 596 F.3d at 413. Quali-

fied immunity therefore protects Agent Whisenand from Ley

and Reid’s lawsuits.

Conversely, a reasonably competent officer should have

known that there was no probable cause to believe that

Mackey had the intent vital to the offenses that the warrant

issued to arrest him for committing. See Belcher v. Norton, 497

F.3d 742, 749 (7th Cir. 2007), as amended (Nov. 19, 2007); see also

Malley, 475 U.S. at 345; Whiteley v. Warden, Wyo. State Peniten-

tiary, 401 U.S. 560, 565 (1971). Since at least 1986, it has been

clear to reasonable officers in this Circuit that they must har-

bor “some evidence” of a crime’s mens rea to support proba-

ble cause to arrest. See BeVier, 806 F.2d at 126; see also Belcher,

497 F.3d at 748–50; Juriss, 957 F.2d at 349–50. 17 We think that

is especially true in a case like this one: a yearlong investiga-

tion that culminated in an arrest warrant application based on

specific intent crimes.

Here, there was no evidence that Mackey ever dealt with

the medical providers, let alone knew of their alleged miscon-

duct. When confronted with how a lay employee would know

that DORN was debatably violating a civil regulation, Agent

Whisenand answered: “I would say to that the judge obvi-

ously agreed with that. They didn’t know. They wouldn’t know.

That’s why their charges were dismissed.” Then, when spe-

cifically asked about Mackey’s knowledge (or lack thereof) of

DORN’s medical exams in his deposition, Agent Whisenand

initially replied that Yvonne Morgan, the nurse, would have

known about it. The attorney then pressed Agent Whisenand

17

We are certainly not alone in acknowledging this unexceptional

proposition of law. See Jordan, 487 F.3d at 1355.

Nos. 19-1602, 19-1604 & 19-1605 35

to respond to how Mackey would have known this, and

Agent Whisenand said: “I don’t know. I don’t know how to

answer that. I don’t know.”

When questioned later whether any of the low-level cleri-

cal staff or the parking lot attendant (Mackey) knew that doc-

tors were prescribing medication without a legitimate pur-

pose, Agent Whisenand stated: “I don’t know. I can say that,

you know, ultimately the charges – the State determines the

charges, who gets charged and what they’re being charged

for.”

Analyzing Agent Whisenand’s testimony alongside the

rest of the evidence in the record, we conclude that the undis-

puted facts do not demonstrate that a reasonably well-trained

officer would have known that this affidavit established prob-

able cause to arrest Mackey. There was no evidence admitted

at summary judgment that Mackey had knowledge of

whether the prescriptions handed out at the clinic were illegal

or not. Because the affidavit was “so lacking in indicia of prob-

able cause as to render official belief in its existence unreason-

able,” Agent Whisenand should have known that he should

not have applied for the warrant to arrest Mackey. Malley, 475

U.S. at 345.

At oral argument, we questioned counsel for Agent

Whisenand about our concerns surrounding the non-pro-

vider employees. Counsel responded:

So, if you look at the facts of the probable cause affida-

vit, and um, also these undercover videos, you would

see that, what you deem the ‘clerical employees’ were

mainly office managers, meaning they were running

36 Nos. 19-1602, 19-1604 & 19-1605

the office. They were printing off prescriptions, hand-

ing them to the patients; sometimes, they were the only

employee that the patient ever saw.

And so, while the appellants have tried to deem the

non-medical employees as having very little involve-

ment, in fact they were the central—in many cases—

they were running the office. They, they were the only

person with whom a patient ever had an interaction.

Tailoring our inquiry to Mackey, we asked again but this

time only about him. Counsel for Agent Whisenand replied:

Again, your Honor, we would point you to the proba-

ble cause affidavit and, and, the undercover visits. The

plaintiffs have called Mr. Mackey the ‘parking lot at-

tendant.’ He was hired initially to be—to control the

traffic—and to make sure no violent acts or drug deals

were going on in the parking lots. He took on a larger

role later. Um, he was bringing patients in, he was in-

volved in—you are correct, the Kokomo office—um,

his involvement became more extensive as time went

on.

We cannot square these answers, however, with the alle-

gations Agent Whisenand included in the probable cause af-

fidavit. It is worth noting that Agent Whisenand referred to

Mackey five times in his fifty-six-page affidavit. Mackey ap-

pears on pages 26, 43, 46, 48, and 51. We will walk through

each identification one-by-one:

• Page 26: Seen entering the DORN Kokomo office

was on this date [November 13, 2013] was Eric Ley.

This office had a person (identified as Joseph Mackey)

Nos. 19-1602, 19-1604 & 19-1605 37

located outside the office in the paring lot with a clip-

board taking names and arranging people.

• Page 43: On April 16, 2014, TFO [Task Force Officer]

Davie Richardson acting in an undercover capacity

traveled to the assigned DORN office located 38217

South LaFountain Street, Kokomo, Indiana, and met

with Joseph Mackey, Felicia Reid, and Cassy Bratcher.

At the conclusion of the visit, TFO Richardson received

a Suboxone prescription for “dependency” signed by

Dr. Bangura in exchange for $80.00 cash. TFO Richard-

son received his prescription from Bratcher as she

handed out prescriptions to several other unknown pa-

tients in the DORN waiting room.

• Page 46: On May 14, 2014, TFO Dave Richardson

acting in an undercover capacity traveled to his as-

signed DORN office located at 3827 South LaFountain

Street, Kokomo, Indiana, and met with Joseph Mackey

and office assistant Felicia Reid. After submitting a

urine screen (due to being an insurance patient) and

paying $160 cash, TFO Richardson received a Subox-

one prescription for “dependency” from Reid that was

signed by Dr. Bangura.

• Page 48: On June 11, 2014, TFO Dave Richardson

acting in an undercover capacity traveled to his as-

signed DORN office at 3827 South LaFountain Street,

Kokomo, Indiana, where he met with Joseph Mackey,

Felicia Reid, and Cassy Bratcher. TFO Richardson re-

ceived a two week prescription for Suboxone signed by

Dr. Bangura but never met with Dr. Bangura. TFO

Richardson was told by Cassy Bratcher that TFO Rich-

ardson had to “exit” from the program due to TFO

38 Nos. 19-1602, 19-1604 & 19-1605

Richardson’s urine drug screens failing to show bu-

prenorphine in his system.

• Page 51: On July 19, 2014, TFO Tonda Cockrell and

TFO David Richardson conducted surveillance on the

DORN office at 3827 S. Lafountain Street, Kokomo, In-

diana in an attempt to identify the parking lot “ar-

ranger” known as “Joe.” TFO Cockrell observed Dr.

Bangura, Cassy Bratcher, Felicia Reid, and “Joe” at the

premises. “Joe” was seen going in and out of the build-

ing and interacting with persons and vehicles in the

parking lot … “Joe” was observed leaving around 7:17

p.m. in a Chevy Suburban. He was stopped by Ko-

komo Police Sgt. David Foster for a traffic violation. He

was identified by Sgt. Foster as Joseph A. Mackey.

Agent Whisenand seemingly faults the plaintiffs for call-

ing Mackey the “parking lot attendant,” when Agent

Whisenand views Mackey’s role as remarkable. The problem

with that theory is that Agent Whisenand himself referred to

Mackey as the “parking lot arranger.” More importantly, it

apparently took the investigators nine months to identify

Mackey, a man they surveilled “taking names and arranging

people” on one occasion and “going in and out of the building

and interacting with persons and vehicles in the parking lot”

on another. The other remaining entries in the affidavit

merely state an officer “met” with Mackey and others at the

Kokomo office on three different dates. Crucially, the officer

never described Mackey’s participation in or awareness of the

prescription transactions.

We are therefore left with a lack of evidence—either in

Agent Whisenand’s affidavit or the record more generally—

giving him probable cause to arrest Mackey for intentional

Nos. 19-1602, 19-1604 & 19-1605 39

criminal conduct. Maybe that is why Agent Whisenand ne-

glected to summarize Mackey’s individual criminal liability

in the affidavit. Mackey was not, as Agent Whisenand’s coun-

sel described many non-provider employees, an “office man-

ager[] … running the office.” He was never “the only person

with whom a patient ever had an interaction.”

Contrary to counsel’s contention, the record currently be-

fore us indicates he did not take “on a larger role later.” Per-

haps there is evidence that Mackey took on a larger role later,

but that evidence was not so clear and undisputed that it was

included in the motion for summary judgment. According to

the affidavit, he was not “bringing patients in”; as a matter of

fact, he was “arranging people” and “interacting with persons

and vehicles in the parking lot.” That is far from the formida-

ble, “extensive” involvement that counsel sees in Mackey’s

file. Hence, these allegations simply cannot add up to proba-

ble cause to arrest Mackey.

One cannot be oblivious to the ongoing opioid epidemic.

Indiana itself is no stranger to a recent outbreak of overdoses.

See, e.g., Press Release, U.S. Dep’t of Justice, Justice Dep’t

Awards More Than $333 Million to Fight Opioid Crisis:

$2,446,664 will support efforts to combat drugs and crime in

the S. Dist. of Ind., (Dec. 13, 2019), https://www.justice.gov

/usao-sdin/pr/justice-department-awards-more-333-million-

fight-opioid-crisis. We recognize the important part the police

must play in responding to this public health crisis, and that

physician-run pill mills perpetuate this plague. On the record

before us, however, we cannot sustain Mackey’s arrest under

the Fourth Amendment’s Warrant Clause.

40 Nos. 19-1602, 19-1604 & 19-1605

D. Remaining Issues

As to the other arguments raised by the parties in their

briefs, we can leave those in the capable hands of the district

court to address in the first instance. The district court’s deci-

sion rested on probable cause, and in the alternative, arguable

probable cause, so it never had occasion to analyze malicious

prosecution and false arrest claims under state law (if the

plaintiffs so pleaded); Aaron Dietz and the City of Carmel’s

level of participation in the plaintiffs’ arrests; the United

States’ amenability to suit; and any relevant defenses,

whether they be forfeiture, immunity, or lack of notice. Our

disposition on appeal—grounded in probable cause and qual-

ified immunity—leaves only Mackey’s claim(s) still live, so

that should streamline these matters on remand.

III. Conclusion

For the reasons stated above, we AFFIRM the district

court’s judgment in all respects except as to Joseph Mackey.

As the judgment pertains to him, we REVERSE AND REMAND it

for further proceedings consistent with this opinion.