If You Work in Health Care, the Right Response to DEA Agents Can Make All the Difference
It’s a horrific image for anyone in health care: DEA agents knocking on your front door, holding a search and seizure warrant with your address on it. They’re looking for evidence of Controlled Substances Act violations and/or health care fraud, and their search so far has led them to you.
It can happen at your office; it can happen at your home.
So what do you do? How do you respond to DEA search warrants so as to protect yourself and your business from legal trouble (including prison sentences)?
It’s a question worth thinking about now, because when they’re actually at your door you’ll be in no state of mind for clear thinking. Federal agents adopt different strategies in different cases, so they might show up as your “friendly neighborhood inspector” or as a veritable army of the federal police. Either way, those three letters DEA are enough to strike fear in the heart of any health care provider, as well they should. DEA agents wield tremendous power.
It’s a good idea to have a plan of action to fall back on. After all, agents don’t always warn you that a search is on the horizon.
Below, we’ll talk about the different types of DEA searches. In a routine inspection, they may not even need a warrant. In criminal matters, they’ll likely already have one, so you’ll be powerless to stop their entry. Either way, you probably had no idea they were coming. DEA agents are very good at investigating health care practices in secrecy and then showing up on “search day” quite abruptly.
Expect to be surprised and plan accordingly. The things you do and say (or don’t do and say) in response to DEA search warrants can make all the difference in the end result.
Notice of Inspection vs. Administrative Warrant vs. Probable Cause Warrant: Know the Differences
The Drug Enforcement Administration is a unique federal agency. It is responsible for administration, regulation, and law enforcement pertaining to controlled substances (i.e. prescription medications and illicit drugs).
Given that the same agency has so many parts to play, it’s easy for health care providers to be confused by the nature of their interaction with the DEA. Routine compliance inspections, for example, might be mistaken for a search pertaining to allegations of drug trafficking or Medicare fraud (or vice versa).
It is best to always assume that any contact with the DEA has potential criminal and/or career-ending implications. Even if their visit is only for a routine inspection, it doesn’t take much for a casual encounter to evolve into something more invasive.
When agents arrive for routine inspections, they must present a Notice of Inspection (DEA Form 82). Even at this “lower-level” of search, the notice itself makes the danger clear: anything the agents hear, observe, or find during their investigation can be used against you and may form the basis of civil and/or criminal action against you or your practice. Furthermore, the DEA Form 82 is sometimes used when the DEA is responding to a tip or a patient complaint, which means their suspicion is already aroused. You might never know the true reason for the inspection.
With a few exceptions, you must consent to an inspection by signing DEA Form 82. If you refuse, the agents will have to ask a federal district court for an administrative search warrant, which they almost always get. The court’s standard for issuing an administrative warrant is fairly low.
If your investigation is of a criminal nature, and especially if the DEA is working with other law enforcement agencies, then they may arrive with a probable cause search and seizure warrant. While all DEA search warrants are serious, a probable cause warrant is a red-alert scenario. These warrants are never granted as the first step in an investigation, as they require some prior indication of a probable crime (or evidence thereof). So if the agents have a criminal search warrant, they have already been investigating you for some time you just didn’t know it. They may already have undercover testimony, video, etc.
The final type of DEA warrant we want to discuss is the arrest warrant, which means the agency already has enough evidence against you to take you into custody. The government might arrive with either a search warrant or an arrest warrant or in some cases, both at the same time.
How to Respond to DEA Search Warrants: 6 Steps to Commit to Memory
The six steps that follow are general guidelines for responding wisely to DEA search warrants.
- Cooperate. If the agents have only a Notice of Inspection, you usually have the choice of refusing consent (ask your attorney if this is a good idea or whether the DEA might have authority to enter without your consent, given the circumstances). But if they have a warrant, trying to stop an inspection or investigation won’t do you any good. In fact, refusing to cooperate is likely to get you arrested.
- Don’t make statements. Cooperation is not the same thing as self-incrimination. Say as little as possible to federal agents. Do not answer their questions other than identifying yourself. DEA officers are trained to make their questions sound innocent or casual, but these questions are designed to elicit information that will be used to charge you with a crime.
- Tell others not to make statements either. If you have employees or business partners present during the search, instruct them to cooperate with the agents. However, you should also calmly remind them to speak with an attorney before answering any questions from an investigator. Getting statements during a raid in one of the DEA’s top priorities but your statements almost certainly cannot help you.
- Call a DEA defense attorney IMMEDIATELY. If you don’t have a cell phone on you, ask the DEA agents for access to a telephone. Politely but firmly tell them you want to speak with an attorney and will not answer any questions until you do. We recommend that you store our phone number in your contacts now. That way, you’ll have us on speed dial if agents turn up at your door: 866-603-4540.
- Do not sign a voluntary surrender unless your DEA defense attorney has advised you to. The feds may try to persuade you that a voluntary surrender is in your best interest but in most cases, it is not. Do not let agents talk you into acting against your self-interest. They may tell you that “attorneys only complicate matters.” Do not believe them. The feds are not on your side.
- Stay calm. DEA search warrants are terrifying. You will be rattled. Remember to take a deep breath and try to calm yourself as much as possible. Resist the impulse to respond emotionally. This isn’t the end of the story. Let your defense lawyers handle things from here.
Contact Oberheiden, P.C for Urgent or Proactive Legal Advice
Concerned about DEA search warrants Has your medical practice already been the subject of an audit, search, or seizure The DEA defense attorneys at Oberheiden, P.C. have extensive experience in protecting medical providers from federal agents. Please call us right away: 866-603-4540.
Dallas DEA 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.