Petition for Writ of Certiorari — Myron Motley, Petitioner v. United States

No. _______

In the

Supreme Court of the United States

Myron Motley,

Petitioner,

v.

United States of America,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Petition for Writ of Certiorari

Rene Valladares

Federal Public Defender, District of Nevada

*Ellesse Henderson

Wendi Overmyer

Assistant Federal Public Defenders

Office of the Federal Public Defender

411 E. Bonneville Ave., Ste. 250

Las Vegas, NV 89101

(702) 388-6577

Ellesse_Henderson@fd.org

Wendi_Overmyer@fd.org

*Counsel for Petitioner

Question Presented for Review

“It is familiar history that indiscriminate searches and seizures conducted

under the authority of ‘general warrants’ were the immediate evils that motivated

the framing and adoption of the Fourth Amendment.” Payton v. New York, 445 U.S.

573, 583 (1980). Nevada allows such indiscriminate searches, providing law

enforcement access to patients’ prescription histories. In a published opinion, a

panel majority approved this statute, deepening a jurisdictional split and departing

from this Court’s precedent, to hold that prescription drug information is not

private. United States v. Motley, 89 F.4th 777, 783–86 (9th Cir. 2023); Appx. A, pp.

1–13.

The question presented is:

Whether patients hold a reasonable expectation of privacy under the Fourth

Amendment in prescription medication records, which can reveal a wealth of

private medical information.

i

Related Proceedings

The prior proceedings for this case are found at:

United States v. Motley, 89 F.4th 777, 783–86 (9th Cir. 2023),

United States v. Motley, No. 21-10296, 2023 WL 9014457 (9th Cir. Dec. 29,

2023),

United States v. Motley, 443 F. Supp. 3d 1203 (D. Nev. 2020).

ii

Table of Contents

Question Presented for Review ...................................................................................... i

Related Proceedings....................................................................................................... ii

Table of Contents .......................................................................................................... iii

Table of Authorities ...................................................................................................... iv

Petition for Writ of Certiorari ....................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional and Statutory Provisions ...................................................................... 1

Introduction ................................................................................................................... 3

Statement of the Case ................................................................................................... 3

Reasons for Granting the Petition ................................................................................ 5

I.

The Ninth Circuit’s decision deepens a jurisdictional split on privacy rights

for prescription medical records. ........................................................................ 5

A.

Most jurisdictions to consider the question hold the Fourth Amendment

protects prescription drug information. ......................................................... 6

B.

The Ninth Circuit joined the First Circuit with the minority view that

prescription medical records are not private. ................................................ 8

II.

The Ninth Circuit’s decision conflicts with this Court’s precedent and other

circuits’ decisions on the closely-regulated-industry exception. ..................... 10

III.

This case presents a good vehicle to decide an issue of exceptional

importance. ........................................................................................................ 12

Conclusion .................................................................................................................... 14

iii

Table of Authorities

Federal Cases

Anobile v. Pelligrino,

303 F.3d 107 (2d Cir. 2001) .................................................................................. 12

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ................................................................................................. 10

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ......................................................................................... 10, 11

Doe v. Att’y Gen. of U.S.,

941 F.2d 780 (9th Cir. 1991) ................................................................................... 7

Doe v. Southeastern Pennsylvania Transp. Auth.,

72 F.3d 1133 (3d Cir. 1995) .................................................................................... 6

Douglas v. Dobbs,

419 F.3d 1097 (10th Cir. 2005) ......................................................................... 6, 13

Ferguson v. City of Charleston,

532 U.S. 67 (2001) .................................................................................... 5, 8, 10, 11

Jaffee v. Redmond,

518 U.S. 1 (1996) ..................................................................................................... 7

Lane v. Pena,

518 U.S. 187 (1996) ................................................................................................. 7

New York v. Burger,

482 U.S. 691 (1987) ............................................................................... 9, 10, 11, 12

Norman-Bloodsaw v. Lawrence Berkeley Laboratory,

135 F.3d 1260 (9th Cir. 1998) ................................................................................. 7

Payton v. New York,

445 U.S. 573 (1980) .................................................................................................. i

Smith v. City of Salem, Ohio,

378 F.3d 566 (6th Cir. 2004) ................................................................................... 7

Tucson Woman’s Clinic v. Eden,

iv

379 F.3d 531 (9th Cir. 2004) ................................................................................... 7

U.S. Dep’t of Just. v. Ricco Jonas,

24 F.4th 718 (1st Cir. 2022) .................................................................... 4, 8, 11, 13

United States v. Biswell,

406 U.S. 311 (1972) ............................................................................................... 12

United States v. Herrera,

444 F.3d 1238 (10th Cir. 2006) ............................................................................. 12

United States v. Motley,

89 F.4th 777 (9th Cir. 2023) ........................................................ i, ii, 1, 4, 5, 10, 13

United States v. Motley,

443 F. Supp. 3d 1203 (D. Nev. 2020) .................................................................. ii, 1

United States v. Motley,

No. 21-10296, 2023 WL 9014457 (9th Cir. Dec. 29, 2023) ..................................... ii

United States v. Seslar,

996 F.2d 1058 (10th Cir. 1993) ............................................................................. 12

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ..................................................................................... 7, 10, 11

Webb v. Smart Doc. Sols., L.L.C.,

499 F.3d 1078 (9th Cir. 2007) ............................................................................... 12

Whalen v. Roe,

429 U.S. 589 (1977) ................................................................................................. 8

State Cases

Gates v. State,

896 S.E.2d 536 (Ga. 2023) ...................................................................................... 8

King v. State,

535 S.E.2d 492 (Ga. 2000) .................................................................................. 7–8

State v. Skinner,

10 So. 3d 1212 (La. 2009) ........................................................................................ 7

Federal Statutes

5 U.S.C. § 552 ............................................................................................................. 12

v

21 U.S.C. § 876 ......................................................................................................... 8, 9

28 U.S.C. § 1254 ........................................................................................................... 1

State Statutes

Nev. Rev. Stat. § 49.225 ............................................................................................. 13

Nev. Rev. Stat. § 453.165 ......................................................................... 1, 3, 4, 10, 13

State Regulations

Nev. Admin. Code § 453.510 ........................................................................................ 5

Nev. Admin. Code § 453.520 ........................................................................................ 5

Nev. Admin. Code § 453.530 ........................................................................................ 5

Nev. Admin. Code § 453.540 ........................................................................................ 5

Nev. Admin. Code § 453.550 ........................................................................................ 5

Supreme Court Rules

Sup. Ct. R. 10 ............................................................................................................. 10

Sup. Ct. R. 13.1 ............................................................................................................ 1

Other Sources

Hippocratic Oath. Clinton DeWitt & Charles Thomas, Privileged Communications

Between Physician and Patient,

37 Tex. L. Rev. 806 (1959) .................................................................................... 12

vi

Petition for Writ of Certiorari

Myron Motley petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit.

Opinions Below

The Ninth Circuit’s decision is published in the Federal Reporter at United

States v. Motley, 89 F.4th 777, 783–86 (9th Cir. 2023). Appx. A, pp. 1–13.

The order of the district court is published in the Federal Supplement at

United States v. Motley, 443 F. Supp. 3d 1203 (D. Nev. 2020). Appx. D, pp. 19–31.

Jurisdiction

The Ninth Circuit entered its final order denying panel or en banc rehearing

on April 18, 2024. Appx. C, p. 18. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(a). This petition is timely per Sup. Ct. R. 13.1.

Constitutional and Statutory Provisions

U.S. Const. amend IV:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

Nev. Rev. Stat. § 453.165 (2018):

Access to database for certain employees of law enforcement

agencies; certification; requirements for access; access for

unauthorized purpose prohibited; monitoring; authority of

Board or Division to terminate access.

1. Except as otherwise provided in this section, the Board shall

allow an employee of a law enforcement agency to have Internet

1

access to the database of the computerized program developed

pursuant to NRS 453.162 if:

(a) The employee has been approved by his or her employer to

have such access;

(b) The employee has completed the course of training

developed pursuant to subsection 5 of NRS 453.164; and

(c) The law enforcement agency has submitted the

certification required pursuant to subsection 2 to the Board.

2. Before an employee of a law enforcement agency may be given

access to the database pursuant to subsection 1, the law

enforcement agency must certify to the Board that the employee

has been approved to be given such access and meets the

requirements of subsection 1. Such certification must be made on

a form provided by the Board and renewed annually.

3. When an employee of a law enforcement agency accesses the

database of the computerized program pursuant to this section,

the employee must enter a unique user name assigned to the

employee and, if applicable, the case number corresponding to the

investigation pursuant to which the employee is accessing the

database.

4. An employee of a law enforcement agency who is given access

to the database of the computerized program pursuant to

subsection 1 may access the database for no other purpose than

to:

(a) Investigate a crime related to prescription drugs; or

(b) Upload information to the database pursuant to NRS

453.1635.

5. A law enforcement agency whose employees are provided

access to the database of the computerized program pursuant to

this section shall monitor the use of the database by the

employees of the law enforcement agency and establish

appropriate disciplinary action to take against an employee who

violates the provisions of this section.

6. The Board or the Division may suspend or terminate access to

the database of the computerized program pursuant to this

section if a law enforcement agency or employee thereof violates

any provision of this section.

2

Introduction

Nevada law allows state law enforcement unfettered access to the state’s

prescription monitoring database, expressly to “investigate a crime related to

prescription drugs.” Nev. Rev. Stat. § 453.165. Police are not limited by probable

cause. And police are not limited to accessing information about drugs of abuse.

Instead, police can access prescriptions for any medication on Nevada’s four

prescription drug schedules, for anyone in the state, including minors and public

officials. Such broad indiscriminate access will undoubtedly reveal information this

Court has held is private. For example, this private information may include

whether a patient is: (1) receiving hormone treatment; (2) experiencing symptoms

from AIDS; (3) having difficulty conceiving; or (4) suffering from mental illness.

The statute allowing this unrestricted, warrantless access is the broadest in

the nation. And the Ninth Circuit’s majority decision provides a constitutional

rubber stamp to similar statutes in other states. To prevent erosion of medical

privacy and Fourth Amendment protections, both within and outside the criminal

context, this Court’s review is required.

Statement of the Case

In 2015, the Nevada Legislature passed Nevada Revised Statute § 453.165,

which allows “an employee of a law enforcement agency” access to Nevada’s

Prescription Monitoring Program (PMP) database to “investigate a crime related to

prescription drugs.” The statute requires only that the law enforcement employee

complete a training on the database, obtain approval from his or her employer, and

submit a certificate. Id. at § 453.165(1). After gaining access, the employee—

3

without a warrant or administrative subpoena—can review the controlled

prescription history for anyone in the state. Although the statute limits the

purposes for which a law enforcement employee can access the database, id. at §

453.165(4), it provides no external oversight or enforcement mechanism.

In September 2018, law enforcement officers in Reno, Nevada, used this

statute to review years of Myron Motley’s prescription drug purchases, then used

the warrants obtained with this information to track Motley’s movements and

wiretap his phone. Following the government’s surveillance, Motley was prosecuted

for seven federal drug offenses. After an unsuccessful motion to suppress, Motley

was convicted on six of those counts and sentenced to 179 months’ imprisonment.

The Ninth Circuit affirmed the district court’s denial of the motion to

suppress, but the judges disagreed in their reasoning. Relying heavily on a case out

of the First Circuit, U.S. Dep’t of Just. v. Ricco Jonas, 24 F.4th 718 (1st Cir. 2022),

the majority held Motley lacked a reasonable expectation of privacy in his

prescription records. Motley, 89 F.4th at 783–86; Appx. A, pp. 5–7. Although Ricco

Jonas concerned administrative subpoenas, the majority adopted its reasoning that

the “closely regulated nature of prescription drugs” provided an exception to the

warrant requirement for government searches. Motley, 89 F.4th at 784–85; Appx. A,

p. 6. The majority also agreed with the First Circuit that prescription records differ

from “all other medical records.” Id. at 786; Appx. A, p. 7. The majority did so

largely because “[p]rescription opioid records are unlike general medical records,”

id. (emphasis added)—despite the dozens of non-opioid medications subject to

4

warrantless disclosure under the Nevada statute. See Nev. Admin. Code §§

453.510–453.540.

In her concurrence, Judge Graber expressed concerns with the majority’s

reasoning. 1 Id. at 788–91 (Graber, J., concurring); Appx. A, pp. 8–11. The

concurrence noted the general principle, under both Ninth Circuit and Supreme

Court precedent, that “people reasonably expect privacy in their personal medical

records.” Id. at 790 (Graber, J., concurring); Appx. A, p. 10. Because “[p]rescription

records are a subset of medical records,” they “are entitled to some measure of

privacy.” Id. (Graber, J., concurring). And, just like other medical records,

“prescription records can be extremely revealing.” Id. (Graber, J., concurring). Thus,

“[t]he Supreme Court’s observation about medical records generally applies with

equal force to prescriptions specifically: ‘an intrusion on [an expectation of privacy

in prescription records] may have adverse consequences because it may deter

patients from receiving needed medica[tions].’” Id. (Graber, J., concurring)

(alteration in original) (quoting Ferguson v. City of Charleston, 532 U.S. 67, 78

(2001)).

Reasons for Granting the Petition

I.

The Ninth Circuit’s decision deepens a jurisdictional split on

privacy rights for prescription medical records.

The panel majority held that patients lack a reasonable expectation of

privacy in prescription medical records. Motley, 89 F.4th at 783–86; Appx. A, pp. 5–

1 Judge Graber would have affirmed on other grounds. Motley, 89 F.4th at

788–90 (Graber, J., concurring); Appx. A, pp. 8–11.

5

7. This holding deepens a jurisdictional split, with at least three courts disagreeing

with the Ninth Circuit’s reasoning, and none going as far as the majority decision

here.

A.

Most jurisdictions to consider the question hold the Fourth

Amendment protects prescription drug information.

Two of the three circuits to consider the question, the Tenth Circuit and the

Third Circuit, hold the Fourth Amendment protects an individual’s prescription

drug records. In Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005), the Tenth

Circuit had “no difficulty concluding” that prescription drug information was

private and protected. 2 The court explained, “protection of a right to privacy in a

person’s prescription drug records, which contain intimate facts of a personal

nature, is sufficiently similar to other areas already protected within the ambit of

privacy.” Id. Similarly, in Doe v. Southeastern Pennsylvania Transp. Auth., 72 F.3d

1133, 1137–38 (3d Cir. 1995), the Third Circuit concluded “a person’s medical

prescription record is within the ambit of information protected by the

Constitution.” Both cases emphasized the personal nature of prescription drug

records, which can reveal “illnesses, or even . . . such private facts as whether a

woman is attempting to conceive a child through the use of fertility drugs.” Id. at

1138; see Douglas, 419 F.3d at 1102.

2 Despite concluding the plaintiff had a privacy right to her prescription

records, the court rejected her Fourth Amendment claim on qualified immunity

grounds not relevant here. Douglas, 419 F.3d at 1102–03.

6

At least one state supreme court is in accord. In State v. Skinner, 10 So. 3d

1212, 1215–18 (La. 2009), the Supreme Court of Louisiana concluded “the right to

privacy in one’s medical and prescription records is an expectation of privacy that

society is prepared to recognize as reasonable.” The court cited the majority of the

federal courts of appeal, which “have concluded the constitutional right to privacy

extends to medical and/or prescription records.” Id. at 1217. And the court

concluded that, “absent the narrowly drawn exceptions permitting warrantless

searches, . . . a warrant is required to conduct an investigatory search of medical

and/or prescription records.” Id. at 1218 (emphasis added).

Even more jurisdictions, including this Court, agree that the type of

information revealed by Nevada’s PMP database is private. Patients are entitled to

privacy for various diagnoses and medical conditions, including: mental illness,

Jaffee v. Redmond, 518 U.S. 1, 10 (1996); HIV and AIDS, Doe v. Att’y Gen. of U.S.,

941 F.2d 780, 795–96 (9th Cir. 1991), disapproved of on other grounds by Lane v.

Pena, 518 U.S. 187 (1996); sexually transmitted diseases and pregnancy, NormanBloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998); and

gender dysmorphia, Smith v. City of Salem, Ohio, 378 F.3d 566, 568–69, 575 (6th

Cir. 2004). See also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995)

(distinguishing urinalysis for drugs from urinalysis to determine “whether the

student is, for example, epileptic, pregnant, or diabetic”); Tucson Woman’s Clinic v.

Eden, 379 F.3d 531, 550–51 (9th Cir. 2004) (striking down regulation allowing

warrantless searches of an abortion clinic and explaining patients have a

“heightened” expectation of privacy in medical offices (emphasis in original)); King v.

7

State, 535 S.E.2d 492, 495 (Ga. 2000) (“[A] patient’s medical information . . . is

certainly a matter which a reasonable person would consider to be private” and, in

fact, is “entitled to more privacy than bank records or phone records.”). And the

Georgia Supreme Court recently suppressed use of a defendant’s medical records

obtained without probable cause by the state due to “a constitutional right to

privacy in his medical records.” Gates v. State, 896 S.E.2d 536, 539–41 (Ga. 2023).

B.

The Ninth Circuit joined the First Circuit with the

minority view that prescription medical records are not

private.

The Ninth Circuit relied heavily on a First Circuit decision, which held for

the first time that prescription records are distinguishable from other private

medical records. 3 Appx. A, pp. 6–7. In Ricco Jonas, 24 F.4th at 721–24, the First

Circuit considered the Federal Controlled Substances Act (CSA) at 21 U.S.C. § 876,

which provides for administrative subpoenas to investigate “illicit drug activity.”

The DEA, under this authority, issued an administrative subpoena for information

stored in New Hampshire’s Prescription Drug Monitoring Program. Id. at 724.

The First Circuit affirmed issuance of the administrative subpoena,

concluding patients lacked a reasonable expectation of privacy in their prescription

records. Id. at 733–40. The court explained “that there is a diminished expectation

3 This Court’s decision in Whalen v. Roe, 429 U.S. 589, 597–604 (1977), is

distinguishable. In Whalen, this Court concluded that New York’s prescription

monitoring program did not impermissibly invade the privacy interests of New York

residents. But this Court explicitly distinguished cases, like this one, involving

“affirmative, unannounced, narrowly focused intrusions into individual privacy

during the course of criminal investigations.” Id. at 603–04 n.32; see Ferguson, 532

U.S. at 76–86.

8

of privacy for materials that are maintained by a business that is subject to

pervasive regulation and inspection.” Id. at 734. Because prescription medication is

subject to “pervasive regulation and inspection,” the court concluded patients lacked

a reasonable expectation of privacy in prescription records. Id. at 734–35. And the

court “reject[ed] Ricco Jonas’s invitation to equate prescription drug records to all

other medical records,” reasoning that “prescription drug records do not generally or

necessarily contain the more personal and intimate information that other medical

records do.” Id. at 735–36.

Despite the breadth of the First Circuit’s conclusion in Ricco Jonas, it is

limited in two ways that the Ninth Circuit’s decision is not. First, the CSA’s

requirement that law enforcement obtain an administrative subpoena before

accessing records ensures oversight and approval by a detached magistrate. See 21

U.S.C. § 876(a). Nevada’s statute, in contrast, grants law enforcement personal

access to the PMP database, with no external approval required and without

external oversight. Second, the CSA provides an opportunity for pre-compliance

review in federal court. 21 U.S.C. § 876(c). In Nevada, patients will learn that law

enforcement accessed their personal medical records only when those records are

used against them in court.

Thus, the CSA has some safeguards this Court requires to exempt closely

regulated industries from the Fourth Amendment’s warrant requirement. See New

York v. Burger, 482 U.S. 691, 703 (1987). Because the Nevada statute lacks those

safeguards, the Ninth Circuit’s decision to adopt the First Circuit’s reasoning will

9

even more greatly erode medical privacy. To prevent this erosion and realign the

Ninth Circuit with the majority view, this Court should grant the petition.

II.

The Ninth Circuit’s decision conflicts with this Court’s

precedent and other circuits’ decisions on the closely-regulatedindustry exception.

The majority decision relied on an exception to the Fourth Amendment’s

warrant requirement for closely regulated industries. Motley, 89 F.4th at 784–86;

Appx. A, pp. 6–7; see Burger, 482 U.S. at 693 (describing exception to warrant

requirement “for administrative inspections of pervasively regulated industries”).

But the majority decision unreasonably extends the narrow contours of this

exception, creating a conflict with this Court’s precedent. This Court’s review is

thus appropriate. See Sup. Ct. R. 10(c).

Crucially, other courts limit the exception to administrative searches. But the

Nevada statute allows law enforcement full access to the PMP database specifically

to look for evidence of a crime. See Nev. Rev. Stat. § 453.165(4) (allowing PMP

access for express purpose of “investigat[ing] a crime related to prescription drugs”).

As this Court explains, warrantless search regimes are unconstitutional when the

“primary purpose is ultimately indistinguishable from the general interest in crime

control.” City of Indianapolis v. Edmond, 531 U.S. 32, 41–44 (2000); see City of Los

Angeles v. Patel, 576 U.S. 409, 420 (2015) (distinguishing administrative searches

from criminal investigations); Vernonia Sch. Dist. 47J, 515 U.S. at 658 (similar).

This Court’s decision in Ferguson, 532 U.S. at 69–70, is instructive, which

addressed the constitutionality of a state hospital’s warrantless drug screens of

pregnant patients. This Court noted it had approved random drug tests in other

10

circumstances. Id. at 77 (citing Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602

(1989), Treasury Employees v. Von Raab, 489 U.S. 656 (1989), and Vernonia School

Dist. 47J, 515 U.S. at 646). But this Court reached a different conclusion in

Ferguson because the records at issue were not turned over to any third party—they

were turned over to law enforcement. Ferguson, 532 U.S. at 80–81. Because the

purpose of the warrantless search was “ultimately indistinguishable from the

general interest in crime control,” this Court concluded the search could not

withstand Fourth Amendment scrutiny. Id. at 81–86 (citation omitted).

The Ninth Circuit’s majority decision’s use of the closely-regulated-industry

exception conflicts with this Court’s precedent in two additional ways. First, this

Court limits the exception to administrative regimes that provide a “constitutionally

adequate substitute for a warrant” that “limit[s] the discretion of the inspecting

officers.” Burger, 482 U.S. at 703 (quoting Donovan v. Dewey, 452 U.S. 594, 603

(1981)). The majority decision does not consider these requirements, and the

Nevada statute has no such safeguards. There is no limitation on time, place, or

scope. Burger, 482 U.S. at 703. There is no limitation on the subject of the search.

See Patel, 576 U.S. at 427–28. And there is no opportunity for the subject of the

search “to obtain precompliance review before a neutral decisionmaker.” Id. at 420–

23; contra Ricco Jonas, 24 F.4th at 721–25, 733–40 (reviewing constitutionality of

administrative scheme before affirming issuance of subpoena).

Second, cases applying this exception do so when analyzing the privacy rights

of the business owner, not the customer. When a business owner “chooses to engage

in [a] pervasively regulated business,” the owner does so “with the knowledge” that

11

the business “will be subject to effective inspection.” United States v. Biswell, 406

U.S. 311, 316 (1972). The owner therefore has a reduced expectation of privacy. Id.;

Burger, 482 U.S. at 701–02. The same cannot be said for customers of that business

(or, in this case, patients). See United States v. Seslar, 996 F.2d 1058, 1063 (10th

Cir. 1993) (“[T]he closely regulated industry line of cases does not justify the

warrantless search of unregulated persons.”); see also United States v. Herrera, 444

F.3d 1238, 1245–47 (10th Cir. 2006); Anobile v. Pelligrino, 303 F.3d 107, 121 (2d

Cir. 2001).

Because the majority decision represents an unwarranted expansion of a

limited exception to the Fourth Amendment’s warrant requirement—conflicting

with Supreme Court precedent—this Court should grant the petition.

III.

This case presents a good vehicle to decide an issue of

exceptional importance.

The Ninth Circuit in its published opinion deepened a jurisdictional split on

an issue of exceptional importance—privacy in prescription medical records. The

concept of medical privacy goes back centuries, at least to the time of the original

Hippocratic Oath. Clinton DeWitt & Charles Thomas, Privileged Communications

Between Physician and Patient, 37 Tex. L. Rev. 806, 806–07 & n.1 (1959). Congress

recognized the importance of medical privacy when it passed the Health Insurance

Portability and Accountability Act (HIPAA) in 1996. See Webb v. Smart Doc. Sols.,

L.L.C., 499 F.3d 1078, 1084 (9th Cir. 2007); see also 5 U.S.C. § 552(b)(6) (exempting

“medical files” from Freedom of Information Act). And Nevada, like most states and

12

the District of Columbia, codified the doctor-patient privilege at Nev. Rev. Stat. §

49.225, which the Ninth Circuit’s opinion and Nev. Rev. Stat. § 453.165 eliminate.

The protective rules and statutes exist for a reason—medical records can

reveal intensely personal details about a patient’s life. See Douglas, 419 F.3d at

1102. Records in Nevada’s PMP database can disclose information about patients’

gender identity, sexuality, sexually transmitted infections, mental health, and

pregnancy status. The majority decision allows the government to access this

private information—not for medical or public health purposes—but to search for

evidence of a crime. And no external controls prevent abuses of this privilege by law

enforcement.

As the concurrence notes, alternatives to this broad statute exist. Motley, 89

F.4th at 790 (Graber, J., concurring); Appx. A, p. 10. For example, Nevada could

limit access to “only the most dangerous prescription drugs, coupled with a

requirement that persons filling those specific prescriptions be warned that their

prescription data could be subject to search.” Id. Or Nevada could allow for

administrative subpoenas on suspicion less than probable cause, but allowing some

external review. See Ricco Jonas, 24 F.4th at 721–24. Whether these statutes would

pass constitutional muster would be a closer question. But instead “Nevada’s law

indiscriminately allows warrantless searches of any and all prescriptions, even

those drugs with no history of abuse or resale, and even those drugs that reveal

specific medical histories.” Motley, 89 F.4th at 790–91 (Graber, J., concurring);

Appx. A, p. 10. To prevent Nevada’s law from eroding medical privacy and

13

constitutional protections for everyone in the state, this Court should grant Motley’s

petition.

Conclusion

Because the panel decision deepens a jurisdictional split and conflicts with

this Court’s precedent in an area of exceptional importance—privacy of prescription

medication records—this Court should grant the petition for writ of certiorari.

Dated this 16th day of July, 2024.

Respectfully submitted,

Rene L. Valladares

Federal Public Defender

/s/ Ellesse Henderson

Ellesse Henderson

Counsel of Record

Assistant Federal Public Defender

/s/ Wendi Overmyer

Wendi Overmyer

Assistant Federal Public Defender

14