Opposition Brief — Myron Motley, Petitioner v. United States

No. 24-5107

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

MYRON MOTLEY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

JAVIER A. SINHA

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

Fourth

law-enforcement

Amendment

rights

by

officers

violated

petitioner’s

obtaining

opioid

prescription

information from a state database containing information provided

by pharmacies that filled prescriptions.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 24-5107

MYRON MOTLEY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinions of the court of appeals (Pet. App. 1-13, 14-17)

are published and unpublished and are available at 89 F.4th 777

and 2023 WL 9014457.

The opinion of the district court (Pet. App.

19-31) is reported at 443 F. Supp. 3d 1203.

JURISDICTION

The judgment of the court of appeals was entered on December

29, 2023.

A petition for rehearing was denied on April 18, 2024

(Pet. App. 18).

The petition for a writ of certiorari was filed

(I)

2

on July 16, 2024.

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the District of Nevada, petitioner was convicted on one count

of

conspiring

to

possess

with

intent

to

distribute

and

to

distribute oxycodone and hydrocodone, in violation of 21 U.S.C.

841(a)(1) and 846; four counts of distributing oxycodone, in

violation of 21 U.S.C. 841(a); and one count of distributing

hydrocodone, in violation of 21 U.S.C. 841(a).

Judgment 1-2.

The

district court sentenced petitioner to 179 months of imprisonment,

to be followed by five years of supervised release.

Judgment 3-

4. The court of appeals affirmed the convictions, vacated the

conditions of supervised release, and remanded for resentencing.

Pet. App. 16.

1.

Math,

In 2018, petitioner conspired to pay a physician, Eric

to

write

oxycodone

and

hydrocodone

petitioner and other coconspirators.

1036, 1043-1044, 1050, 1055.

prescriptions

for

C.A. E.R. 1031-1032, 1035-

From January 2018 to May 2019, Math

frequently wrote prescriptions for the coconspirators, without any

medical examination, id. at 1031, 1039-1040, and petitioner paid

Math between $600 to $800 per prescription, id. at 1044, 1050.

In total, Math prescribed petitioner and his coconspirators

over 6000 oxycodone and hydrocodone pills.

C.A. E.R. 1039.

After

3

filling

the

prescriptions,

petitioner

and

his

co-conspirators

would sell the pills to others, including other distributors.

Id.

at 941-950, 960-974, 1113-1123, 1127-1128. 1208-1221, 1231-1232,

1392-1396.

2.

a.

In July 2018, a confidential informant informed

law-enforcement agents that petitioner, “who lives in California,

regularly traveled to Reno, Nevada, to illegally obtain and sell

prescription drugs.”

Pet. App. 4.

The informant reported that

petitioner would meet with a doctor in Nevada who would provide

petitioner with “a prescription for Oxycodone” and “a stack of

prescriptions in other people’s names for [petitioner] to sell.”

C.A. E.R. 574; Pet. App. 4, 23.

The informant also told law

enforcement that petitioner filled most of the prescriptions at a

local pharmacy in Reno.

that

his

wife

had

C.A. E.R. 100, 574.

received

one

of

these

The informant stated

prescriptions

from

petitioner, although she had never met the prescribing doctor.

Id. at 574.

Officers then accessed the Nevada Prescription Monitoring

Program, a computer database that tracks “each prescription for a

controlled substance” dispensed by a registered pharmacist.

Nev.

Rev. Stat. § 453.162.1; C.A. E.R. 574-575; Pet. App. 3. 1

Each

registered dispenser must report the name, address, and phone

number

of

any

individual

to

whom

a

controlled

substance

is

All references in this brief to the Nevada Revised Statutes

or the Nevada Administrative Code are to current law.

1

4

prescribed, as well as the name of the individual who prescribed

it.

Nev. Admin. Code § 639.926.1; Nev. Rev. Stat. § 453.163.1;

Pet. App. 3-4.

report

The state board that operates the program must

“activity

it

reasonably

suspects

may”

be

unlawful

controlled-substance activity “to the appropriate law enforcement

agency,” and disclose “relevant information obtained from the

program.”

Nev. Rev. Stat. § 453.164.3(a); see id. § 453.031.

And

certain law-enforcement officers have “access to the” program to

“[i]nvestigate a crime related to prescription drugs.”

Id. §

453.165.4(a); Pet. App. 4.

Here, the database informed the officers that petitioner had

regularly filled opioid prescriptions at a pharmacy in Reno, C.A.

E.R. 574-575, and that a “particular physician” had prescribed

petitioner “a combination of Oxycodone and Tramadol” in extremely

high doses, id. at 575; Pet. App. 4.

b.

In September 2018, law enforcement sought and obtained

a warrant to place a tracking device on petitioner’s car.

C.A.

E.R. 581-583; Pet. App. 4.

The supporting affidavit recounted the information disclosed

by the confidential informant -- namely, that petitioner “was

selling illegal prescription narcotics throughout the Reno/Sparks

area.”

explained

C.A. E.R. 574; Pet. App. 4.

that

the

informant

had

The affidavit further

previously

“proven

during the course of a controlled drug purchase.”

reliable

C.A. E.R. 574.

5

It additionally stated that petitioner did not live in Nevada and

that his car was registered in California.

Id. at 575-576.

It

noted that officers determined that petitioner had a history of

drug trafficking, id. at 101, 576-577, and had “been the subject

of a DEA initiated case,” id. at 577.

And it recounted that on

August 14, 2018, the informant informed law enforcement that

petitioner was staying at a resort in Nevada, id. at 575, and that

petitioner was then spotted in that resort, id. at 576.

The

affidavit also described the information in Nevada’s Prescription

Monitoring Program database, which revealed that petitioner was

prescribed Oxycodone and Tramadol in extremely high doses.

Id. at

575; Pet. App. 4.

In

December

2018,

after

the

first

warrant

expired,

law

enforcement sought and obtained a second tracking warrant, which

allowed law enforcement to place a tracking device on petitioner’s

vehicle for another 90 days.

3.

Pet. App. 4.

A federal grand jury in the District of Nevada charged

petitioner with one count of conspiring to possess with intent to

distribute

and

violation

of

to

21

distribute

U.S.C.

oxycodone

841(a)(1)

and

and

hydrocodone,

in

846;

four

of

counts

distributing oxycodone, in violation of 21 U.S.C. 841(a); and one

count of distributing hydrocodone, in violation of 21 U.S.C.

841(a).

Judgment 1-2. 2

Petitioner moved to suppress the evidence

Petitioner was also charged with distribution of

methamphetamine, but that count was dismissed. Pet. App. 12, n.7.

2

6

discovered as a result of the two tracking warrants, on the theory

that the warrants rested on an unconstitutional search of Nevada’s

prescription database.

Pet. App. 5.

The district court denied the motion.

Pet. App. 19-31.

The

court found it “unclear” whether petitioner “had a subjective

expectation of privacy” in the prescription records.

Id. at 26.

But the court found that any such “expectation was not reasonable,”

because the database was “maintained by a governmental entity

* * *

outside of [petitioner’s] control”; petitioner “voluntarily

released

his

“individuals

reasonable

information

who

receive

expectation

to

prescription

of

prescription drug industry.”

court

found

that

“[e]ven

multiple

privacy

in

third

drugs

the

Id. at 26-27.

if

do

[petitioner]

parties”;

and

not

any

highly

have

regulated

Alternatively, the

had

a

reasonable

expectation of privacy” in the database, the officers’ database

query “is subject to the good faith exception” because Nevada law

authorized law-enforcement officers to search the database.

Id.

at 28.

A jury found petitioner guilty on all counts.

The

district

court

sentenced

petitioner

to

179

Pet. App. 5.

months

of

imprisonment on each count, to be served concurrently, and to be

followed by five years of supervised release.

Judgment 3-4.

7

4.

The court of appeals affirmed petitioner’s convictions,

affirmed his sentence in part and vacated his sentence in part,

and remanded for resentencing.

a.

Pet. App. 14-17.

The court of appeals rejected petitioner’s suppression

claim because it determined that he lacked a reasonable expectation

of privacy in the prescription information maintained in Nevada’s

database.

Pet. App. 3.

Like the district court, the court of appeals recognized that

even assuming petitioner had a subjective expectation of privacy

in his opioid prescription records, that expectation was not

reasonable “[g]iven the long-standing and pervasive regulation of

opioids as a controlled substance and regulatory disclosure of

opioid prescription records.”

court

explained

that

Pet. App. 7; see id. at 6-87.

opioid

prescriptions

regulated at both the federal and state level.

are

The

extensively

Id. at 6-7.

And

the court observed that “[f]or over half a century, the federal

government has regulated opioids,” and that “Nevada’s laws track

[federal

law’s]

prescriptions.”

close,

extensive

regulation

of

opioid

Ibid.

The court of appeals “declined to equate prescription drug

records to all other medical records.”

noted

that

“[p]rescription

opioid

Pet. App. 7.

records

are

The court

unlike

general

medical records” because they “are only a ‘subset of medical

records

. . .

[that] do not generally or necessarily contain the

8

more personal and intimate information that other medical records

do,’” and because general medical records “‘are not subject to

pervasive regulatory disclosures under both federal and state

law.’”

Ibid. (quoting United States v. Ricco Jonas, 24 F.4th 718,

736 (1st Cir.), cert. denied, 143 S. Ct. 207 (2022)).

While it affirmed the convictions, the court of appeals

remanded

for

limited

supervised release.

b.

judgment.

resentencing

as

to

the

conditions

of

Pet. App. 16.

Judge Graber concurred in part and concurred in the

Pet. App. 8-11.

Judge Graber opined that she would not

have reached the question whether petitioner has “an objectively

reasonable expectation of privacy in the identity and dosage of

his prescription medications” because “[t]wo alternative grounds

support the district court’s conclusion:

and harmlessness.”

Id. at 9.

the good-faith exception

First, Judge Graber observed that

“the good-faith exception applies here” because “[t]he Nevada

statute clearly authorized the officer’s access to the database,

and the officer acted ‘in objectively reasonable reliance” on the

statute.”

Ibid. (quoting Illinois v. Krull, 480 U.S. 340, 349

(1987)).

Second, Judge Graber explained that “any error here was

harmless” because “[e]ven assuming that the information from the

prescription

database

should

have

been

excluded”

from

the

affidavit for the GPS tracker, “the remaining assertions in the

affidavit” -- which relied on the information provided by the

9

confidential informant -- independently “provided probable cause.”

Ibid.

ARGUMENT

Petitioner

enforcement

renews

officers

his

contention

violated

his

(Pet.

Fourth

5-13)

Amendment

that

law-

rights

obtaining information from Nevada’s prescription database.

by

The

court of appeals correctly rejected petitioner’s contention, and

its decision does not conflict with any decision of this Court or

of another court of appeals.

In addition, this case would be a

poor vehicle in which to consider the question presented, because

the decision below could be affirmed on multiple alternative

grounds.

1.

The petition for a writ of certiorari should be denied.

The

court

of

appeals

correctly

petitioner’s suppression claim lacks merit.

recognized

that

Pet. App. 6-7.

The Fourth Amendment prohibits “unreasonable searches and

seizures.”

U.S. Const. Amend. IV.

Absent the existence of

recognized property rights capable of invasion through “physical

intrusion,” Florida v. Jardines, 569 U.S. 1, 5 (2013) (citation

omitted), a search occurs only “when the government violates a

subjective

expectation

of

privacy

that

society

recognizes

as

reasonable,” Kyllo v. United States, 533 U.S. 27, 33 (2001); see

United States v. Jones, 565 U.S. 400, 405-406 (2012).

The touchstone of that inquiry is an affirmative showing that

the defendant had a “legitimate expectation of privacy in the

10

invaded place.”

Minnesota v. Olson, 495 U.S. 91, 95 (1990)

(citation omitted); see Rawlings v. Kentucky, 448 U.S. 98, 104

(1980) (recognizing that a defendant “bears the burden of proving

* * *

that he had a legitimate expectation of privacy”).

For a

“subjective expectation of privacy” to be “legitimate,” it must be

“‘one that society is prepared to recognize as reasonable.’”

Olson, 495 U.S. at 95-96 (citations omitted); see Katz v. United

States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

That

is, it must be “one that has ‘a source outside of the Fourth

Amendment, either by reference to concepts of real or personal

property law or to understandings that are recognized and permitted

by

society.’”

Minnesota

v.

Carter,

525

U.S.

83,

88

(1998)

(citation omitted).

The court of appeals correctly recognized that petitioner

lacked a legitimate expectation of privacy in the database records,

which contain information that he shared with third parties and is

subject to a pervasive regulatory scheme.

has

long

recognized

a

diminished

Pet. App. 7.

expectation

of

This Court

privacy

in

information that is subject to pervasive regulation, inspection,

and disclosure.

(1987)

See, e.g., New York v. Burger, 482 U.S. 691, 702

(explaining

that

“[b]ecause

the

owner

or

operator

of

commercial premises in a ‘closely regulated’ industry has a reduced

expectation of privacy,” administrative searches and warrantless

inspections “may well be reasonable within the meaning of the

11

Fourth Amendment”); New York v. Class, 475 U.S. 106, 112-113 (1986)

(noting that individuals have “a lesser expectation of privacy in

a motor vehicle” in part because vehicles “are subject to pervasive

and continuing governmental regulation and controls, including

periodic

inspection

and

licensing

requirements”)

(citations

omitted); Donovan v. Dewey, 452 U.S. 594, 600 (1981) (explaining

that in a pervasively regulated business, “the federal regulatory

presence is sufficiently comprehensive and defined that the owner

of commercial property cannot help but be aware that his property

will be subject to periodic inspections undertaken for specific

purposes”).

As the court of appeals observed, opioid prescriptions have

long “been subject to well established and extensive regulation,

including disclosure of opioid records to law enforcement without

a warrant.”

Pet. App. 7.

“On the undisputed historical record,

for more than fifty years, society’s expectation has been that law

enforcement

would

closely

prescription records.”

monitor

Ibid.

and

have

access

to

opioid

Indeed, both Nevada law and federal

law regulate controlled substances by requiring pharmacies to

maintain prescription records and make those records available for

law-enforcement inspection.

Specifically,

Nevada’s

Id. at 6.

Prescription

Monitoring

Program

requires that each registered dispenser upload to a database the

name of each individual prescribed a controlled substance, the

12

associated prescriber information, and the quantity and type of

controlled substance prescribed.

Nev. Rev. Stat. § 453.163.1.

Nev. Admin. Code § 639.926.1;

The state board that operates the

program must report “activity it reasonably suspects may” be

unlawful controlled-substance activity “to the appropriate law

enforcement agency” and provide law enforcement “with the relevant

information

obtained

from

the

program.”

§ 453.164.3(a); see id. § 453.031.

Nev.

Rev.

Stat.

And certain law-enforcement

officers have “access” to the database to “[i]nvestigate a crime

related to prescription drugs.”

Id. § 453.165.4(a).

Nevada law also requires pharmacies to retain, for at least

two years, records of “[a]ll prescriptions filled.”

Stat. § 639.236.1; see id. § 639.0125.2.

Nev. Rev.

Pharmacists must keep

“records of all controlled substances” dispensed, including the

“[n]ame of the patient,” the “[n]ame, strength and quantity of the

controlled substance,” the “[d]ate the controlled substance was

dispensed,” and the “[n]ame of the prescribing practitioner.” Nev.

Admin. Code §§ 453.410.1(a) and (b), 453.480.

Pharmacies must

allow certain state and federal officials, including “[a] member,

inspector or investigator of

* * *

Safety,” to inspect these files.

Federal

law

likewise

the Department of Public

Nev. Rev. Stat. § 639.238.1(d).

requires

“handlers

of

controlled

substances to comply with statutory and regulatory provisions

mandating

* * *

recordkeeping and reporting obligations, and

13

prescription requirements.”

(2005).

Gonzales v. Raich, 545 U.S. 1, 27

Under federal law, dispensers must maintain a record of

each controlled substance “received, sold, delivered, or otherwise

disposed of.”

21 U.S.C. 827(a)(3); 21 C.F.R. 1304.03, 1304.04(h),

1304.21(a), 1304.22.

Those records must be kept for at least two

years “for inspection and copying by officers or employees of the

United States authorized by the Attorney General.”

827(b); see also 21 C.F.R. 1304.04(a) and (h).

21 U.S.C.

Dispensers must

“identify” and “notify” the Drug Enforcement Administration “upon

discovering a suspicious order.”

21 U.S.C. 832(a).

Particularly

in light of that regulatory and historical backdrop, it would not

be legitimate or reasonable to expect that prescription records in

the possession of a third party will remain private.

2.

Contrary to petitioner’s contention (Pet. 5-10), the

decision below does not conflict with any decision of this Court

or another court of appeals.

a.

Petitioner asserts (Pet. 10-11) that the decision below

“unreasonably extends” this Court’s precedents addressing other

pervasively regulated contexts to opioid prescription records.

But nothing suggests that those precedents are irrelevant in this

context. Petitioner contends (Pet. 11-12) that the diminished

expectation of privacy that they describe is limited to a business

owner, but it would be unreasonable for anyone in the opioid

prescription

chain

--

the

prescriber,

the

pharmacy,

or

the

14

recipient -- to expect opioid prescription records to remain

private.

Petitioner’s assertion (Pet. 10-11) that the decision below

conflicts

with

this

Court’s

decision

in

Ferguson

Charleston, 532 U.S. 67 (2001), lacks merit.

v.

City

of

There, it was not

disputed by the parties that the state hospital’s test of a

patient’s urine for drugs was a search.

See id. at 76 & n.9.

And

the Court rejected the lower court’s view that the search was

reasonable under the “special needs” doctrine, pursuant to which

a warrantless search may be justified, in certain circumstances,

if designed to serve non-law—enforcement ends. Id. at 83-84. This

case

--

which

does

not

involve

state

agents

conducting

an

“intrusive search of the body,” id. at 83 n.21 (citation omitted),

in order “to obtain evidence of a patient’s criminal conduct for

law

enforcement

purposes,”

id.

at

69,

without

the

patient’s

consent, id. at 70 -- differs on the threshold issue of whether an

individual’s Fourth Amendment rights were violated.

Among other

things, as the court of appeals explained, opioid prescription

records cannot be “equate[d]” to other medical records for Fourth

Amendment purposes because they do not “‘generally or necessarily

contain the more personal and intimate information that other

medical records do,’” and other medical records are not “‘subject

to pervasive regulatory disclosures under both federal and state

law.’”

Pet. App. 7 (citations omitted).

15

b.

Nor is there any circuit conflict.

In United States v.

Ricco Jonas, 24 F.4th 718, cert. denied, 143 S. Ct. 207 (2022),

cert. denied, 546 U.S. 1138 (1006), the First Circuit recently

addressed an analogous issue concerning New Hampshire’s database

of prescription information and reached a decision in accord with

the court of appeals’ decision here.

Like the decision below, the

First Circuit’s decision in Ricco Jonas recognized that “in light

of the intense government scrutiny to which prescription drug

records are subject and the availability of those records for

inspection without the need of court intervention under both state

and federal law, a person does not have a reasonable expectation

that the information contained in prescription drug records will

be kept private and free of government intrusion.”

Id. at 736-

737; see Pet. App. 6 (citing Ricco Jonas approvingly).

No court of appeals has held to the contrary.

Petitioner

cites (Pet. 6) Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005),

but Dobbs does not support his claim.

In Dobbs, the Tenth Circuit

held that qualified immunity protected a district attorney who had

authorized a proposed search order, but the court declined to

decide whether a warrant or probable cause “is required to conduct

an investigatory search of prescription records.”

see id. at 1102-1103 nn.3-4.

Id. at 1103;

And the court noted that “the right

to privacy is not absolute,” and that “state law can operate to

16

diminish the privacy expectation in prescription drug records.”

Id. at 1102 n.3.

Petitioner

likewise

errs

in

relying

(Pet.

6)

on

Doe

v.

Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133

(3d Cir. 1995), cert. denied, 519 U.S. 808 (1996).

Third

Circuit

considered

“an

employee’s

In Doe, the

conditional

right

to

privacy” in prescription drug records monitored “for fraud, drug

abuse and excessive costs” in the context of a damages suit under

42 U.S.C. 1983.

72 F.3d at 1134-1135.

“that

a

there

is

constitutional

While the court concluded

right

to

privacy

in

one’s

prescription records,” it did not address a regulatory scheme like

Nevada’s; framed the discussion solely in Fourteenth Amendment

terms, see id. at 1137; and did not even cite the Fourth Amendment

at

all.

Furthermore,

the

court

emphasized

that

that

the

plaintiff’s privacy right “[wa]s not absolute,” but instead “must

be balanced against important competing interests.”

Id. at 1138.

And it ultimately ordered judgment as a matter of law on the ground

that such interests overcame privacy rights.

Id. at 1143.

The

decision does not adopt the argument that petitioner has raised

here.

Petitioner also cites (Pet. 7) State v. Skinner, 10 So. 3d

1212 (La. 2009).

But as the court of appeals here noted (see Pet.

App. 13 n.11), Skinner was largely premised on state law -specifically,

“Louisiana’s

constitutional

requirement

of

a

17

heightened privacy interest for its citizens.” 10 So. 3d. at 1218.

Finally,

petitioner

cites

(Pet.

7-8)

a

handful

of

cases

recognizing, under various doctrines, that an individual may have

a privacy interest in her medical records and medical information.

But as the decision below illustrates, medical and prescription

records need not be treated the same way.

The court of appeals

emphasized that “[p]rescription opioid records are unlike general

medical records” in their general level of intimacy and their

degree of regulation, Pet. App. 7, and expressly declined to

address

“the

extent”

to

which

“patients

have

a

reasonable

expectation of privacy in other types of medical or prescription

records,” beyond the “opioid prescription records maintained in

Nevada’s” database that were directly at issue, id. at 13 n.12.

3.

At all events, three alternative grounds for affirmance

make this case an unsuitable vehicle to consider the question

presented.

See Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 38

(1989) (“[A] prevailing party may, of course, ‘defend its judgment

on any ground properly raised below whether or not that ground was

relied upon, rejected, or even considered by the District Court or

the Court of Appeals.”’) (citation omitted).

a.

he

First, petitioner’s suppression claim is unsound because

voluntarily

revealed

database to a third party.

the

information

in

See Pet. App. 26-27.

the

prescription

18

This Court “has held repeatedly that the Fourth Amendment

does not prohibit the obtaining of information revealed to a third

party and conveyed by him to Government authorities.”

Smith v.

Maryland, 442 U.S. 735, 744 (1979) (quoting United States v.

Miller, 425 U.S. 435, 443 (1976)).

In United States v. Miller,

the Court held that law enforcement’s acquisition of banking

records associated with the defendant, under a subpoena issued to

various banks, did not impair any Fourth Amendment interest of the

defendant.

See 425 U.S. at 437-443.

The Court rejected the

defendant’s argument that he had “a Fourth Amendment interest in

the records kept by the banks because they [were] merely copies of

personal records that were made available to the banks for a

limited purpose.”

Id. at 442; see id. at 443.

The Court explained

that individuals lack a “legitimate ‘expectation of privacy’” in

documents that “contain only information voluntarily conveyed to

the banks and exposed to their employees in the ordinary course of

business.”

Id. at 442 (citation omitted).

The Court observed

that “[t]he depositor takes the risk, in revealing his affairs to

another, that the information will be conveyed by that person to

the Government.”

Id. at 443.

This Court applied the same principle in Smith v. Maryland,

where it held that the use of a pen register to record phone

numbers dialed from the defendant’s telephone did not constitute

a search for purposes of the Fourth Amendment.

442 U.S. at 742-

19

744.

The Court observed that the defendant lacked a subjective

expectation of privacy in the numbers dialed from his phone because

“[a]ll telephone users realize that they must ‘convey’ phone

numbers to the telephone company, since it is through telephone

company switching equipment that their calls are completed.”

at 742.

Id.

And the Court explained that any such expectation of

privacy would be unreasonable because “a person has no legitimate

expectation of privacy in information he voluntarily turns over to

third

parties.”

“voluntarily

Id.

conveyed

at

743-744.

numerical

Thus,

when

the

defendant

to

the

telephone

information

company and ‘exposed’ that information to its equipment in the

ordinary course of business,” he “assumed the risk that the company

would reveal to the police the numbers he dialed.”

Id. at 744.

The principles set forth in Miller and Smith apply with equal

force here.

Petitioner filled prescriptions for opioids, and in

doing so disclosed the prescription-related information to thirdparty pharmacies, which maintained the information in the regular

course of business and shared it with the prescription database.

“[T]he prescriptions

* * *

were, by their very nature, intended

to be revealed to others when they were disclosed by the physician

and the patients to the pharmacies which filled them.”

United

States v. Gayden, 977 F.3d 1146, 1152 (11th Cir. 2020), cert.

denied,

142

S.

Ct.

128

(2021).

Petitioner

thus

lacked

any

reasonable expectation of privacy in the prescription information.

20

b.

Second,

suppression

is

as

also

Judge

Graber

unwarranted

recognized,

because

Pet.

the

App.

9,

law-enforcement

officers acted in good faith in searching the database.

The exclusionary rule is a “‘judicially created remedy’” that

is “designed to deter police misconduct rather than to punish the

errors of judges and magistrates.”

U.S.

897,

906,

suppression,

a

916

(1984)

case

must

United States v. Leon, 468

(citation

involve

omitted).

police

To

conduct

justify

that

is

“sufficiently deliberate that exclusion can meaningfully deter it,

and sufficiently culpable that such deterrence is worth the price

paid by the justice system” in suppressing evidence.

United States, 555 U.S. 135, 144 (2009).

justified

only

“[w]hen

the

police

Herring v.

Suppression may be

exhibit

‘deliberate,’

‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment

rights.”

Davis

v.

(citation omitted).

United

States,

564

U.S.

229,

238

(2011)

“But when the police act with an objectively

reasonable good-faith belief that their conduct is lawful,

* * *

the deterrence rationale loses much of its force, and exclusion

cannot pay its way.” Ibid. (citations and internal quotation marks

omitted).

The

“‘good-faith

inquiry

is

confined

to

the

objectively

ascertainable question whether a reasonably well trained officer

would have known that the search was illegal’ in light of ‘all of

the circumstances.’”

Herring, 555 U.S. at 145-146.

Good-faith

21

searches include “searches conducted in reasonable reliance on

* * *

statutes” and in reasonable reliance on binding appellate

precedent.

Davis, 564 U.S. at 232; see id. at 239.

Suppression

is not justified when the police misconduct that led to discovery

of the illegally obtained evidence is itself subject to the goodfaith exception.

See Herring, 555 U.S. at 145; United States v.

Artis, 919 F.3d 1123, 1133 (9th Cir. 2019).

Here,

as

both

the

district

court

and

the

concurrence

recognized, Pet. App. 9-10, 29, the officers acted in good faith

in

accessing

information

authorized by Nevada law.

in

the

prescription

database,

See Nev. Rev. Stat. § 453.165.

as

As this

Court has explained, “[t]he application of the exclusionary rule

to suppress evidence obtained by an officer acting in objectively

reasonable reliance on a statute would have as little deterrent

effect on the officer’s actions as would the exclusion of evidence

when an officer acts in objectively reasonable reliance on a

warrant. Unless a statute is clearly unconstitutional, an officer

cannot be expected to question the judgment of the legislature

that passed the law.”

Illinois v. Krull, 480 U.S. 340, 349-350

(1987). And “[p]enalizing the officer for the legislature’s error,

rather than his own, cannot logically contribute to the deterrence

of Fourth Amendment violations.” Id. at 350 (brackets and citation

omitted).

Suppression is accordingly unjustified.

22

c.

Third, any error was harmless because the affidavits

rested on sufficient probable cause even without the information

from the prescription database.

See Pet. App. 9 (Graber, J.,

concurring in part and concurring in the judgment). A “warrant

remains

valid

if,

after

excising

the

tainted

evidence,

the

affidavit’s ‘remaining untainted evidence would provide a neutral

magistrate with probable cause to issue a warrant.’” United States

v. Nora, 765 F.3d 1049, 1058 (9th Cir. 2014) (citation omitted);

see generally Murray v. United States, 487 U.S. 533, 538–539

(1987).

Even

And that was the case here.

without

the

prescription-database

information,

the

affidavits related that the confidential informant had informed

officers that petitioner would drive from California to obtain

narcotics prescriptions for him and others from a certain doctor,

and petitioner would then sell those narcotics.

C.A. E.R. 574.

The informant explained that the source of information was the

informant’s spouse, who had received one of these prescriptions.

Ibid.; see, e.g., United States v. Rowland, 464 F.3d 899, 908 (9th

Cir. 2006) (noting that “the informant’s tip is considered more

reliable if the informant reveals the basis of knowledge”). The

informant

also

explained

that

petitioner

prescriptions at a local Walgreens.

filled

most

of

his

C.A. E.R. 100, 574.

The affidavits noted that the informant had previously proved

reliable during a controlled drug purchase.

C.A. E.R. 574; see

23

Rowland, 464 F.3d at 908 (“[A]n informant with a proven track

record of reliability is considered more reliable than an unproven

informant.”).

And the affidavits explained that law enforcement

had verified some of the information the informant provided:

petitioner’s car was registered in California and petitioner was

seen in a resort where the informant said he would be found.

C.A.

E.R. 575-576; United States v. Bishop, 264 F.3d 919, 925 (2001)

(recognizing that an informant’s reliability “may be demonstrated

through independent police corroboration”); Rowland, 464 F.3d at

908 (recognizing that “a tip that provides detailed predictive

information about future events that is corroborated by police

observation may be considered reliable”).

The affidavit also recounted petitioner’s “criminal history

consistent with being involved in a criminal [drug] enterprise,”

including multiple arrests and investigations for possessing and

trafficking in controlled substances.

576-577.

C.A. E.R. 576; see id. at

That criminal history further “establish[ed] probable

cause, especially where the previous arrest or conviction involves

a crime of the same general nature,’” Nora, 765 F.3d at 1059

(citation

omitted),

even

without

the

prescription

database

information.

CONCLUSION

The petition for a writ of certiorari should be denied.

24

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

JAVIER A. SINHA

Attorney

OCTOBER 2024