The Drug Enforcement Agency (DEA) is charged with more than just policing international drug traffickers, street dealers, and other parties whom we generally think of when drug enforcement is mentioned. The DEA also has authority under the Controlled Substance Act (CSA) to inspect the records of all healthcare providers holding a license to prescribe chemical compounds listed as scheduled drugs under the CSA.
That means the DEA also polices how doctors write prescriptions, how pharmacies fill prescriptions, how well they keep records, and whether they are billing the federal government accurately for products and services being subsidized by U.S. government agencies and programs.
Under this authority, the DEA can seek and execute two kinds of search warrants. The first and most familiar warrant is a criminal search warrant. The second, less well-known type of search warrant is an administrative inspection warrant. This blog post explains the purpose of each warrant, how they differ, and what you should do if you are involved with any DEA action, whether civil or criminal.
If you receive a search warrant of any kind, whether federal or state, criminal or administrative, you should immediately contact an experienced, Board Certified criminal defense lawyer. At Stechschulte Nell, Attorneys at Law, we are ready to respond to your urgent needs 24 hours a day, 365 days a year.
Criminal Search Warrant
The Fourth Amendment of the U.S. Constitution provides that the people have a right to be free from unreasonable searches and seizures by government agents and that such searches are only permitted with a search warrant based on probable cause set out in a sworn affidavit and specifying the person and place to be searched and the persons or things to be seized.
Criminal search warrants are usually executed without prior notice to the person in control of the place or thing to be searched.
The purpose of the prior secrecy is to surprise the persons involved and to prevent them from moving, hiding, or destroying the evidence of crime described in the warrant.
Criminal search warrants are considered a serious intrusion into the private interests of the people whose property is targeted. To ensure that these warrants are executed lawfully, there are limits and requirements police must observe. If they violate these limits, then an experienced criminal defense lawyer will ask the court to suppress the evidence. The prosecution and its agents are not legally permitted to profit by convicting the defendant with illegally obtained evidence.
- Criminal warrants must be specific as to the person and place to be searched.
- The federal search warrant must be executed within 14 days.
- Affidavits supporting warrants must include facts from reliable sources made in good faith.
- Police may not unlawfully exceed the authority of the warrant by expanding a search beyond the limits specified in the warrant.
- Police must execute the warrant in daylight unless authorized to do so at night by the warrant.
- Police must “knock and announce” their presence before forcing entry unless the warrant is a so-called “no knock” warrant
- Police must inventory everything seized.
- The original warrant, affidavit, and inventory must be returned to the court.
A criminal search warrant can apply to physical locations and personal property, including electronic devices, hard drives, telephones, digital storage devices, and elsewhere.
Administrative Inspection Warrant
The administrative inspection warrant is sometimes referred to as an “audit.” The reason for this is its distinction from the previously described criminal search warrant. The DEA has the authority to oversee the proper prescription of controlled substances by those persons and businesses with a license to distribute these drugs. The agency is permitted to review records and documents kept by these licensees tracking the nature and volume of the controlled substances they receive and distribute or prescribe to patients.
And because virtually all doctors, pharmacies, and other healthcare providers’ products and services are paid in part by Medicare, Medicaid, the VA, or another federally funded program, the drug records, and the billing records should reflect the same information.
The DEA’s administrative inspection warrant even allows them access to patients’ records.
But searching the records of a party licensed to prescribe, store, or distribute controlled substances follows a very different process from that applied to criminal search warrants.
Notice of Inspection of Controlled Premises (Form 82)
When the DEA wants to inspect the records of a particular party, it must first issue a notice called a Notice of Inspection of Controlled Premises. The party to whom the notice is issued is not legally required to agree with the request to search.
However, when a person or business to whom a Form 82 notice was issued refuses access to the DEA, then the DEA can apply for an Administrative Inspection Warrant. The DEA cannot proceed without first getting the administrative warrant.
No probable cause is required for the DEA to obtain the administrative inspection warrant. The only information required is the nature of the investigation and a description of the items and information to be inspected. Once the DEA gets the administrative warrant and serves it on the controlled substance licensee, any further refusal by the licensee is unlawful and can result in arrest and criminal prosecution.
Note: A non-criminal administrative inspection warrant can lead DEA or other investigators to evidence of criminal activity. The fact that the inspection started as an administrative formality and initially indicated civil penalties might follow, the government is free to prosecute any crime it discovers during the inspection.
What Crimes Might Be Prosecuted After Either Type of DEA Warrant is Served?
There is a long list of possible crimes and regulatory violations DEA agents could discover during an administrative inspection of a controlled substance licensee’s premises and records.
- Distribution of Controlled Substances unlawfully by overprescribing scheduled drugs without medical grounds (pill mills),
- Filling fake or illegitimate prescriptions for scheduled drugs (pill mills),
- Falsifying claims for federal reimbursement (billing for products and services never provided, providing products and services without clinical need or basis,
- Improper record keeping not complying with CSA requirements and regulations.
Potential Penalties With DEA Criminal Search Warrant or Administrative Inspection Warrant
If you receive any DEA criminal warrant, administrative inspection warrant, or notice of inspection of controlled premises, you should consult with an experienced federal criminal defense lawyer immediately. Even if you have no reason to believe any impropriety exists in your records or any conduct could be construed as illegal, consulting with a qualified defense lawyer will provide you with the security of knowing what actions you can take and what you should not do.
Did You Receive a DEA Search Warrant?