Editor's note: The illicit drug trade is undergoing a seismic shift, with Utah in the middle of the deadly impact of opioids. This is another in an ongoing series of stories about this modern-day plague.
SALT LAKE CITY — Candy Holmes and Russell Smithey both have criminal histories, including drug abuse, so when Vernal police officer Ben Murray first showed up at the couple’s home in 2011 and told them he had been assigned to perform a “pill count,” they didn’t suspect anything.
But then Murray kept coming back — at least 30 times, according to Smithey. When he visited, the couple began to notice that some of their prescription opioids would go missing.
Fed up and afraid to confront the officer, Smithey, then age 41, purchased a $12 video camera from the thrift store where he worked. He set it up in the living room and awaited Murray’s next visit.
The incriminating video shows Murray entering the room in a ‘business-as-usual’ manner. He’s not in uniform but wears a badge around his neck.
“How’s things going?” Murray asks nonchalantly as he takes a seat on the couch. The officer pulls on a pair of rubber gloves and asks Smithey to retrieve his medications. As he counts the drugs and chats with Smithey and his family, he repeatedly slips pills into his pocket.
The incident became a flashpoint in a legislative tug-of-war over use of the controlled substance database, which tracks the dispensing of all prescription drugs in Utah. The database is a little known but controversial resource that both doctors and law enforcement officers say is a crucial tool in fighting the state’s opioid crisis.
For 20 years, police had unfettered access to the data and used it as one of their main resources in combating abuse of prescription pain pills. But after the Vernal case and other violations raised serious privacy concerns, lawmakers decided to crack down on potential misuse by requiring police to get a search warrant in 2015. The move was in line with a national trend toward these state databases being used more as health care tools than as law enforcement tools.
But at a time when opioid addiction is worse than ever before, many law enforcement officers feel their ability to help has been unfairly restricted.
Even Utah Rep. Brad Daw, who helped sponsor the bill, admits, "We may have swung the pendulum a little too far."
The search warrant requirement has resulted in a dramatic decrease in the number of prescription fraud cases filed across the state, police say. In the two years prior to the law coming into effect in May 2015, there was an average of around 21 prescription fraud cases per month statewide. In the two years following the change, the number of these cases has dropped to about 11 a month.
These numbers support police claims, although there are likely multiple factors driving the trend — including doctors' increased awareness of the prescription drug problem.
The total number of times the database is accessed has also fallen sharply. Right after the law came into effect, use decreased by 95 percent.
While privacy advocates say that's because the police were using the database recklessly and without reason prior to the change, police say decreased access means more prescription pills are potentially being diverted to the streets, and the results can be dire.
“I’m sensitive to the reasons why these issues came forward and why people believe this is in their best interest,” said Tom Ross, president of the Utah Chiefs of Police Association. “But at the end of the day, I wish they could spend some time in our shoes.
“There are people out there suffering and dying."
As legislators, health care professionals and families scramble for solutions to the snowballing opioid epidemic, use of the prescription drug database has come into sharp focus. With law enforcement pushing for more access, and privacy advocates encouraging lawmakers to hold the line, key legislators hope to find an equilibrium between privacy and protection, with the ultimate goal of saving lives.
Utah’s controlled substance database was created in 1995 and is administered by the Department of Professional Licensing (DOPL). It includes detailed information on all prescriptions filled in the state, including the name of the prescribing practitioner, the quantity and type of drug, the pharmacy where it was dispensed, and the name of the patient — in addition to the dates of these transactions.
Doctors and pharmacists can check the database anytime if they feel a patient is withholding information and are required to check the database in specific circumstances, such as when they are prescribing a schedule II drug for the first time.
Medical examiners, probation and parole officers, state health insurance employees, workers compensation specialists and mental health professionals can access the data for their individual needs. And prior to 2015, police also had the capacity to view the sensitive information in this database by simply logging in with their name and a case number.
Then came a series of incidents that fueled fears about the potential for privacy violations. In addition to the Vernal case, in 2013, morphine, versed and fentanyl started disappearing from ambulances in Cottonwood Heights, prompting a detective to run 480 firefighters’ names through the system. As a result, two firefighters were wrongly charged with prescription drug fraud simply because they had multiple painkiller prescriptions from multiple doctors.
After these incidents came to light, the firefighters union, American Civil Liberties Union (ACLU), Equality Utah, Libertas and the Utah Eagle Forum lobbied to limit police access to the database, arguing that unrestricted access to personal medical information is a violation of the Fourth Amendment. State Sen. Todd Weiler and Daw sponsored the bill. The Utah State Police Chiefs Association lobbied against it.
In the privacy vs. protection debate that ensued, privacy won out — with just one senator and 17 House members voting against the bill.
Then the Drug Enforcement Agency (DEA) sued. In July, the DEA won back its right to use the database without going through a judge. But local and state police are still beholden to the rule.
“If law enforcement wanted to come into your home and look in your medicine cabinet, they would need a warrant to do that," said Marina Lowe, an attorney with the ACLU. "Just because we are now keeping the records online in a virtual medicine cabinet doesn’t give them the right to do so.
“The point of the Constitution is not to make it easy for law enforcement. It is to protect us from overreach by the government,” she added.
Ayres said that the issue first came to his attention when he was defending DUI cases. He said officers would pull people over and run their prescription history while they did a warrant check. In the nearly 5,000 cases he represented, Ayres said he saw this behavior often.
“The officers would come back and say have you taken your ‘x’? And they would know exactly what they were taking,” said Ayres.
According to Ayres, it wasn’t until the Vernal case that he realized what a big deal this was.
Proponents of the law point to the fact that after the law was changed, the total number of times the database was accessed — including physician and pharmacist use — immediately decreased by 95 percent, according to DOPL data. They claim this demonstrates how often police were accessing the database without a valid reason to do so.
In the year prior to the law change, the database was searched 2,851 times by 391 different law enforcement officers. In the six months following the change, just 71 warrants were obtained for access by 45 different officers, an auditor analysis of DOPL data revealed.
But police contend that the numbers are not evidence of a lack of need, but of how much more difficult it is to obtain a search warrant. Despite the fact that e-warrants submitted online have significantly expedited the process, police still have to collect enough evidence to show probable cause in order to get a judge’s approval. In many cases, that takes more time than the warrant is worth.
“With the restrictions on us with DOPL, it makes it very difficult. It makes it difficult to the point where you can’t even open that investigation up because you don’t have enough probable cause to get it,” said Springville Police Department patrol Lt. Warren Foster. “The investigation is a moot point at that juncture.”
A valuable resource
Chief Ross of the Bountiful Police Department said curtailing access to the database has impeded the ability of law enforcement to help the public.
In extreme cases, he said families will call in begging police to arrest their loved one in order to save them from a prescription drug overdose.
Because of a lack of accessible treatment options and the fact that many addicts won’t seek treatment themselves, these individuals see the criminal justice system as their family members’ only chance of survival.
“At least they know they will be alive the next day, even if it’s in jail,” Ross said.
The state’s controlled substance database used to be law enforcement’s first resource in cases like these, according to local police officers.
When a family member or provider made a complaint about suspected prescription abuse, the database was an easy way for police to make an initial determination about what evidence there might be and where to look.
Now with the requirement of a search warrant, more of these reports go uninvestigated because a mere phone call is not enough to establish probable cause, according to Ross.
“A warrant takes a significant amount of time for an officer or a detective, and when you’re already overloaded, you tend to work the cases you are most likely to move forward on,” Ross said.
According to police, the controlled substance database is not only used for prescription fraud, but is also used to investigate deaths, burglaries, unlawful possession and other crimes.
“We might come across someone in possession of a controlled substance who claims they have a prescription,” said Foster. “When we all had access to DOPL, we could check that. Now it takes a warrant. … It’s almost not worth the time.”
Lt. Sean Horton, commander of the Davis Metro Narcotics Strike Force, said he would like to see the law go back to what it was before, noting that even before the change, officers who misused the database could be criminally prosecuted.
“The benefit we had far outweighed the evidence that it was being abused,” Horton said.
A national view
Every state except Missouri has some kind of prescription drug monitoring program. Utah’s controlled substance database laws are relatively restrictive regarding access for law enforcement, but more open regarding access for other qualified professionals such as pharmacy technicians, Medicare and Medicaid employees, mental health professionals and others.
Patrick Knue, director of the national training and technical assistance center for prescription drug monitoring programs, said that there has been a national shift from these state databases being used as law enforcement tools to them being used primarily as health care tools.
“Originally, monitoring programs were all established for the benefit of law enforcement investigating crimes,” said Knue. “As the focus has shifted, law enforcement access has been restricted in a number of states.”
Recent court rulings have added to the complexity of the debate on a federal level. When the DEA sued the state in response to the 2015 legislation, for example, District of Utah Chief Judge David Nuffer ruled in the agency's favor, and wrote in his opinion that because prescription drugs are a highly regulated industry, doctors and patients do not have a reasonable expectation of privacy.
A 9th Circuit Court suit, Oregon v. DEA, produced a similar ruling based on reasoning that the Controlled Substance Act, which was created in part to strengthen law enforcement action against drug-trafficking, preempts state law in this respect and allows the DEA to access the database with an administrative subpoena.
Lowe said that these rulings are problematic because the database does not just reveal what prescription drugs you are taking; it also reveals the conditions you are suffering from by connection.
"A lot of us would say that is highly private information," she said. It is not fair to tell patients that they must consent to have that information shared with the DEA when they take a controlled substance, she said.
"If you are going to see a doctor for a life-threatening condition, are you supposed to be making that consideration?" asked Lowe. "That doesn’t seem like a voluntary choice for most people."
Possible middle ground
Utah Rep. Daw, a software engineer by profession who represents Orem, considers privacy a paramount issue. He was the House sponsor for the 2015 bill to limit police access and felt compelled by the stories of individuals who were victims of police misuse.
But now Daw admits there might be room for a more nuanced approach. “Maybe there can be exceptions for certain people,” he said. "For example, a drug diversion investigator."
“We do everything to such an extreme,” said Chief Ross. “We correct so far to the other side, we end up doing as much or more harm, and that’s exactly what’s happened here.”
Already, the law has been corrected to allow access for parole officers, and both Daw and Ross see room for creating new legislation that allows police officers who have a defined responsibility within a police department to have some narrowly tailored access.
That way, police who need it can use the database, and the public can be assured their prescription history won’t be checked during a traffic stop.
Ross suggests that designated officers within a department undergo specialized training.
“We’re not saying it has to go back to the way it was. We understand that we’re past there,” said Ross. “But all we’re doing at the end of the day is hurting those who need us to investigate and incarcerate people committing crimes.”
In 2002, Michael Bennett, then superintendent of Iron County Schools, pleaded guilty to doctor shopping after police used the controlled substance database to find evidence that he was abusing painkillers.
Although the misdemeanor left its mark on his reputation and career, it was also a chance for him to turn his life around.
“That was clearly a wake-up call,” said Bennett. “I had to come face to face with it eventually somehow, or it wasn't going to change.”
In a few weeks, Bennett will get his criminal record expunged.
For Bennett, the debate about law enforcement access to the database should focus on the fact that police are trained to find crimes and not to think of addiction as a mental health or physical issue.
“I feel strongly that addiction is a serious and widespread epidemic, but I hope it is treated as a mental and physical problem much more often than a criminal act,” said Bennett.
Ross agrees. “I’m standing next to the person saying we need to help and treat people. We want to do that outside the criminal justice system if possible, but today that option doesn’t exist.”