The Difference between DEA Search Warrants, Administrative Search Warrants, and Informed Consent
The freedom from unwarranted searches and seizures is at the bedrock of American liberty, enshrined in the Fourth Amendment to the Constitution of the United States of America.
But if you follow DEA raids on health care clinics and doctors as we do, you might be surprised to see just how many drug and fraud cases develop from investigations that begin without any warrant at all.
So can the DEA perform a search without a warrant? The answer to that depends on what you mean by “search.” As you might have guessed, the DEA has a great deal of power when it comes to inspecting facilities that prescribe or dispense controlled substances and it exercises that power aggressively.
In today’s article, we explain the DEA’s authority for conducting searches and seizures in the first place, how federal agents go about obtaining a warrant to search a medical clinic and the various situations in which the DEA can perform a “search” without any warrant at all.
As a General Rule, the DEA Does Need a Warrant to Search a Health Care Practice
Like any other federal agency, if the DEA wants to search private property, it must first obtain a warrant from a magistrate or judge. The legal standard for DEA search warrants is set forth in the Fourth Amendment, which reads as follows:
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.
The key phrase there is “probable cause.” In other words, to get a warrant, the government must be able to articulate a clear reason for believing their search will lead to the discovery of a crime (or evidence of a crime).
So if DEA agents want to raid your office, gather evidence, seize hard drives, or conduct a full-fledged search for the purposes of a criminal investigation, they will first need to go before a court and procure a search warrant.
Even if the agents get a warrant, they still won’t have authority to search whomever or wherever they want. Warrants must spell out the place to be searched and the items to be seized with specificity. Once the warrant is executed, the agents can’t expand its scope, no matter how convenient that might seem to them in the middle of a raid.
For this reason, agents usually try to gather at least some evidence before planning a formal search or seizure. By investigating beforehand, they can gather enough evidence to show probable cause for the warrant and get some idea of exactly where they should be searching and what they might want to take.
DEA search warrants is usually supported by sworn affidavits from the investigating agents who will explain to the court why they suspect that you or your office might be involved in Medicare fraud, narcotics diversion, or whatever the crime in question might be.
The Exception to the Rule: When Can the DEA Perform a Search Without a Warrant?
While the DEA does need a warrant to conduct a search when building a criminal case, it does not need a warrant to conduct audits or inspections even if the inspection is for the purpose of ensuring your practice’s compliance with the Controlled Substances Act.
The DEA might conduct an audit and inspection for any number of reasons, including:
- An initial inspection upon application for DEA registration
- Routine inspections
- To follow up on a tip from a patient, coworker, or informant
- Discrepancies in your patient or prescription patterns
DEA audits can happen at any time, with little to no warning, and are often unscheduled so that clinics cannot prepare for them in advance. Most practitioners are inspected at least once every three to five years, but some are inspected much more often than that.
These inspections can be done without a criminal search warrant. However, they do usually require your informed consent. In other words, the DEA must hand you written notice that the audit or inspection is about to begin and that any evidence found can be used against you.
There are some situations in which a DEA inspection can proceed with neither a warrant nor your informed consent, for example:
- If you have recently applied for DEA registration and have not yet been inspected; or
- If there is an imminent danger to the public health; or
- If the search is authorized by a subpoena (limited to the narrow confines of the subpoena).
Otherwise, if the DEA wants to proceed with its audit or inspection without your informed consent, it will need to obtain an administrative search warrant.
Like a criminal search warrant, an administrative search warrant must be authorized by a court (in this case, a federal district court). But an administrative search warrant is different in that it does not require a showing of probable cause. Without that important protection in place, the standard for issuing administrative search warrants is very low and the DEA typically has little to no difficulty in securing one.
DEA administrative search warrants are limited in scope, but the courts recently expanded them to include the seizure of patient records. That decision is currently being challenged on appeal. But in the meantime, health care providers should assume that the DEA could gain essentially unfettered access to their patient records at any time.
Call Our Health Care Criminal Defense Lawyers Immediately, Even in a Crisis
If you are facing a DEA audit, inspection, or search warrant, it is in your best interest to contact a health care criminal defense lawyer as soon as possible. The DEA will use anything and everything it can against you. Its agents are eager to bring charges against health care providers, and those cases usually begin with something small like a minor discrepancy uncovered during a routine audit.
Don’t face the DEA alone. Contact a law firm that has experience in standing up to powerful federal agencies. Call Oberheiden, P.C. right away: 866-603-4540.
Dallas Health Care Criminal Defense Lawyers Oberheiden, P.C. Primary Office in Dallas, TX.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.