FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MYRON MOTLEY, 

Defendant-Appellant.

No. 21-10296 

D.C. Nos. 

3:19-cr-00026-

LRH-WGC-1 

3:19-cr-00026-

LRH-WGC 

OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued March 10, 2023

Submitted December 29, 2023

Las Vegas, Nevada

Filed December 29, 2023

Before: Susan P. Graber, Richard R. Clifton, and Mark J. 

Bennett, Circuit Judges.

Opinion by Judge Bennett;

Concurrence by Judge Graber
2 USA V. MOTLEY

SUMMARY*

Criminal Law

The panel affirmed (1) the district court’s order denying 

Myron Motley’s motion to suppress evidence obtained from 

two GPS tracking warrants, and (2) the district court’s 

determination that a wiretap warrant was supported by 

probable cause and was necessary, in a case in which Motley 

was convicted and sentenced arising from his involvement 

in a conspiracy to distribute controlled substances—

oxycodone and hydrocodone.

Given the government’s long-standing and pervasive 

regulation of opioids, the panel held that Motley had no 

reasonable expectation of privacy in his opioid records 

maintained in Nevada’s Prescription Monitoring Program 

database. Thus, Motley’s Fourth Amendment challenge to 

the resulting tracking warrants fails. The panel therefore 

affirmed the order denying the suppression motion.

Concerning the wiretap determination, the panel wrote 

that the affidavit supporting the warrant application 

contained more than sufficient evidence establishing 

probable cause that Motley was engaged in a conspiracy to 

illegally distribute prescription opioids, and also contained 

sufficient information for the court to reasonably conclude 

that a wiretap was necessary to identify the full scope of the 

conspiracy. 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. MOTLEY 3

The panel addressed Motley’s remaining arguments in a 

concurrently filed memorandum disposition.

Judge Graber concurred in the part of the opinion that 

rejects Motley’s challenges to the wiretap warrant, and 

concurred in the judgment. She did not join the part of the 

opinion that affirms the denial of the motion to suppress the 

evidence obtained as a result of the tracking warrants. She 

would uphold the denial of the motion to suppress on 

alternative grounds: the good-faith exception and 

harmlessness. She would not reach the substantial legal 

question of whether Motley had an objectively reasonable

expectation of privacy in the identity and dosage of his 

prescription medications.

COUNSEL

Ellesse Henderson (argued) and Aarin Kevorkian, Assistant 

Federal Public Defenders; Rene L. Valladares, Federal 

Public Defender; Las Vegas Federal Public Defender’s 

Office, Las Vegas, Nevada, for Defendant-Appellant.

Javier A. Sinha (argued), Attorney, Appellate Section, 

Criminal Division; Lisa H. Miller, Deputy Assistant 

Attorney General; Kenneth A. Polite, Jr., Assistant Attorney 

General; United States Department of Justice, Washington, 

D.C.; Robert L. Ellman, Assistant United States Attorney; 

Elizabeth O. White, Appellate Division Chief; Jason M. 

Frierson, United States Attorney; United States Attorney’s 

Office, District of Nevada, Reno, Nevada; for PlaintiffAppellee.
4 USA V. MOTLEY

OPINION

BENNETT, Circuit Judge:

Myron Motley appeals his conviction and sentence 

arising from his involvement in a conspiracy to distribute 

controlled substances—oxycodone and hydrocodone. In 

this opinion we address two issues: (1) whether the district 

court properly denied Motley’s motion to suppress evidence 

obtained from two tracking warrants because Motley had no 

reasonable expectation of privacy in his opioid prescription 

records maintained in Nevada’s Prescription Monitoring 

Program (“PMP”) database; and (2) whether the district 

court properly determined that the wiretap warrant was 

supported by probable cause and was necessary.1

We have jurisdiction under 28 U.S.C. § 1291. Given the

government’s long-standing and pervasive regulation of 

opioids, we hold that Motley had no reasonable expectation 

of privacy in his opioid prescription records maintained in 

Nevada’s PMP database. Thus, there was no Fourth 

Amendment violation, and we affirm the district court’s 

order denying suppression. We also affirm the district 

court’s determination that the wiretap warrant was supported 

by probable cause and was necessary.

1 We address Motley’s remaining arguments in a concurrently filed 

memorandum disposition. For reasons explained in the separate 

disposition, we affirm Motley’s conviction in full; we affirm in part and 

vacate in part the sentence; and we remand.
USA V. MOTLEY 5

I. BACKGROUND

A. Nevada’s PMP Database

Like in every other state,2 Nevada operates an electronic 

database that tracks filled prescriptions for controlled 

substances. Nev. Rev. Stat. § 453.162 (2023). Nevada’s 

database tracks drugs listed on Nevada’s Schedules II–V. Id. 

Oxycodone is a Schedule II drug, and tramadol is a Schedule 

IV drug. Nev. Admin. Code § 453.520(2)(a) (2023); id.

§ 453.540(3) (2023). Both are opioids. See United States v.

Flores, 725 F.3d 1028, 1032 n.2 (9th Cir. 2013) 

(“‘Oxycodone’ is a generic opioid pain reliever . . . .”); 

Schedules of Controlled Substances: Placement of Tramadol 

Into Schedule IV, 79 Fed. Reg. 37,623, 37,623 (July 2, 2014) 

(“Tramadol is a centrally acting opioid analgesic . . . .”). 

With exceptions not relevant here, pharmacies that 

dispense covered controlled substances must input certain 

information into Nevada’s PMP database, such as the name 

and address of the individual prescribed the controlled 

substance, the prescribed controlled substance, the quantity

dispensed, and the appropriate “ICD-10 Code” that identifies 

the diagnosis for which the substance was prescribed. Nev. 

Admin. Code § 639.926 (2023). Pharmacies must retain all 

prescriptions for at least two years, Nev. Rev. Stat. 

§ 639.236(1) (2023), and keep all “[f]iles of

prescriptions . . . open to inspection by members, inspectors

and investigators of the [State] Board [of Pharmacy] and by

inspectors of the Food and Drug Administration and agents

2 “As of February 2018, 50 states, the District of Columbia, and two 

territories (Guam and Puerto Rico) had operational [prescription drug 

monitoring programs (PDMPs)] within their borders.” Lisa N. Sacco et 

al., Cong. Rsch. Serv., R42593, Prescription Drug Monitoring 

Programs 4 (2018).
6 USA V. MOTLEY

of the Investigation Division of the Department of Public

Safety,” id. § 639.236(3).

The Nevada Legislature has mandated that the PMP 

database be designed to, among other things, provide 

information on “[t]he inappropriate use by a patient of 

controlled substances listed in schedules II, III, IV or V 

to . . . appropriate state and local governmental agencies, 

including, without limitation, law enforcement 

agencies . . . , to prevent the improper or illegal use of those 

controlled substances.” Nev. Rev. Stat. § 453.162(1)(a)(1). 

The state entities responsible for developing the PMP 

database “shall report any activity [they] reasonably 

suspect[] may . . . [i]ndicate . . . inappropriate activity related 

to the prescribing, dispensing or use of a controlled 

substance to the appropriate law enforcement agency . . . and 

provide the law enforcement agency . . . with the relevant 

information obtained from the program for further 

investigation.” Id. § 453.164(3)(a) (2023); see also id.

§ 453.162(1). Certain law enforcement officers can access

the PMP database without a warrant but only to 

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

information related to an investigation. Id. § 453.165(4)

(2023).

3

B. Facts and Procedural History

1. First Tracking Warrant

In July 2018, law enforcement began investigating 

Motley because of information from a confidential 

3 Motley does not challenge the constitutionality of Nevada’s laws 

establishing and governing the PMP database, and so we do not reach 

that question. Thus, the concurrence’s concern with the constitutionality 

of Nevada’s statute is irrelevant. 
USA V. MOTLEY 7

informant (“CI”) who had proven reliable in a past, unrelated

controlled purchase. The CI disclosed that Motley, who 

lives in California, regularly traveled to Reno, Nevada, to 

illegally obtain and sell prescription drugs.

4 As part of their 

investigation, law enforcement obtained a report from 

Nevada’s PMP database that showed a certain physician had 

prescribed Motley opioids—oxycodone and tramadol—

averaging 279 morphine milligram equivalent (“MME”) per 

day over a several-year period. The amount prescribed

suggested opioid abuse or diversion, as CDC guidance at the 

time recommended avoiding or carefully justifying an 

increase in dosage to greater than or equal to 90 MME per 

day.5

In September 2018, law enforcement filed in Nevada 

state court an application for a warrant to install a global 

positioning system (“GPS”) tracking device on Motley’s 

vehicle. The affidavit in support included the information 

from the CI as well as the PMP database information about

Motley’s opioid prescription history. The state court issued 

the search warrant, allowing law enforcement to place a 

tracking device on Motley’s vehicle for ninety days.

4 Specifically, an officer explained: 

The CI told me that [Motley] comes from California 

and meets with a physician . . . approximately every 

30 days. [Motley] then meets this physician and the 

physician writes Motley a prescription for Oxycodone. 

In addition, the physician gives [Motley] a stack of 

prescriptions in other people’s names for [Motley] to 

sell to those people. 

5 CDC, CDC Guideline for Prescribing Opioids for Chronic Pain—

United States, 2016 (Mar. 15, 2016), 

https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm.
8 USA V. MOTLEY

2. Second Tracking Warrant

In December 2018, after the first warrant expired, law 

enforcement sought a second tracking warrant in the United 

States District Court for the District of Nevada. The 

supporting affidavit repeated the information that supported 

the first warrant, including Motley’s opioid prescription 

history obtained from the PMP database. The affidavit also 

explained that the PMP database records showed that Dr. 

Eric Math was the physician who wrote the prescriptions,

and the affidavit included new information that law 

enforcement had obtained from the first tracking warrant. A 

magistrate judge issued the second warrant, and later 

renewed it, allowing law enforcement to install a tracking 

device on Motley’s vehicle for a total of another ninety days.

3. Wiretap Warrant

Law enforcement later sought a wiretap warrant on 

Motley’s cell phone under 18 U.S.C. § 2516. The 93-page 

affidavit reiterated the information contained in the two 

tracking warrant applications, including Motley’s opioid 

prescription history obtained from the PMP database. The 

affidavit explained that other PMP database records showed 

that Dr. Math was also prescribing large amounts of opioids 

to coconspirators of Motley’s. The affidavit included 

information establishing that Motley was well-acquainted 

and in frequent contact with those individuals. Some of this 

information was obtained through the GPS tracker on 

Motley’s vehicle and his phone records.

The affidavit included information supporting law 

enforcement’s contention that Motley was part of a drug 

trafficking organization. Information from several 

confidential sources (including the original CI) showed that 

Motley bought prescriptions for himself and others and then 
USA V. MOTLEY 9

sold the prescribed pills, including to another coconspirator, 

Michael Slater, who would resell the pills. Law enforcement 

observed Motley and his coconspirators engage in the 

following conduct “on multiple occasions”: Motley and 

Joseph Jeannette traveled to a pharmacy where Jeannette 

obtained an item from the pharmacy. Afterward, Motley

drove to Slater’s apartment, and Motley and Slater appeared 

to conduct an exchange from Motley’s vehicle. Law 

enforcement conducted several controlled buys: a 

confidential source bought oxycodone from Motley three 

times, and another confidential source bought oxycodone 

pills from Slater once.

The affidavit contained detailed reasons why a wiretap 

was necessary to achieve the goals of the investigation, 

including to identify the members and scope of the 

conspiracy. It explained that, although the confidential 

sources had provided useful information, they would 

probably be unable to obtain more details about the scope of 

the conspiracy without raising suspicion, given their limited 

relationships with Motley and Slater. The affidavit added 

that officers had evaluated other potential cooperators but 

ultimately determined that approaching such individuals 

would likely compromise the investigation.

The affidavit discussed the following investigative 

methods and explained, using case-specific details, why they 

would fail: more controlled purchases, undercover 

investigations, physical surveillance, search warrants, 

witness interviews, grand jury subpoenas, pole cameras, 

tracking warrants, GPS tracking warrants on cell phones, 
10 USA V. MOTLEY

telephone toll analysis, covert recording devices, trash 

searches, financial investigations, and mail covers.6

The district court granted the application for a wiretap on 

Motley’s cell phone.

4. Relevant District Court Proceedings

A grand jury indicted Motley and his six coconspirators. 

Motley was charged with (and went to trial on) one count of 

conspiracy to possess with intent to distribute, and to 

distribute, oxycodone and hydrocodone, in violation of 21 

U.S.C. §§ 841(a)(1), 846; four counts of distribution of 

oxycodone, in violation of 21 U.S.C. § 841(a)(1); and one 

count of distribution of hydrocodone, in violation of 21 

U.S.C. § 841(a)(1).7 

Motley moved to suppress the evidence obtained from 

the two tracking warrants, arguing that they rested on an 

unconstitutional warrantless search of his PMP database

records. He also argued that the wiretap warrant was invalid

because the supporting affidavit failed to show that there was 

probable cause to believe that he was a member of a drug 

trafficking organization and failed to show the required 

necessity for electronic surveillance.

The district court denied the motion to suppress. It 

determined that the search of the PMP database without a 

6 Mail cover is the process by which a nonconsensual 

record is made of any data appearing on the outside 

cover of any sealed or unsealed class of mail matter, 

or by which a record is made of the contents of any 

unsealed class of mail matter as allowed by law . . . .

39 C.F.R. § 233.3(c)(1).

7 Motley was also charged with distribution of methamphetamine, but 

that count was dismissed.
USA V. MOTLEY 11

warrant did not violate Motley’s Fourth Amendment rights 

because he had no reasonable expectation of privacy in the 

challenged PMP database information.

8

The district court also rejected Motley’s challenges to the 

wiretap warrant. The court found probable cause, as the 

affidavit established that “(1) the six codefendants were 

well-acquainted with each other[,] (2) Motley and Jeannette 

were regularly obtaining large quantities of opioids from

Math, and (3) Motley was regularly selling opioids to Slater 

and other individuals, including confidential sources.” The 

court determined that that information established probable 

cause to believe that Motley was engaged in a drug 

trafficking conspiracy. The district court found the wiretap 

8 Because it is unnecessary, we do not address the district court’s 

alternative determination that, even if the search violated Motley’s 

Fourth Amendment rights, the good-faith exception to the exclusionary 

rule barred suppression of the evidence obtained pursuant to the warrant. 

We also need not decide whether any error was harmless. The 

concurrence takes issue with our approach. But the issue—whether law 

enforcement may search opioid prescription records maintained in 

Nevada’s PMP database—was squarely presented below, the district 

court decided it, and the parties fully briefed it on appeal. We believe 

that guidance is needed, as the parties request, on this important issue, 

particularly given the government’s recent attempts to access 

prescription databases without warrants, which is likely to persist due to 

the existing opioid crises. See Sacco, supra note 2, at 26 (“In recent 

years, to investigate violations of the federal Controlled Substances Act 

(CSA), the DEA has demanded access to certain PDMP data without a 

court order or search warrant . . . .”); U.S. Dep’t of Just., Civ. Div., 

Opioid Enforcement Effort (Mar. 22, 2023), 

https://www.justice.gov/civil/consumer-protection-branch/opioid 

(“With more than 84,000 Americans dying annually from prescription 

drug and synthetic opioid overdoses, the Department of Justice is 

committed to using every available tool to prevent overdose deaths and 

hold accountable those responsible for the opioid crisis.” (footnote 

omitted)).
12 USA V. MOTLEY

necessary because the affidavit showed that officers 

considered less intrusive methods and reasonably 

determined that they would have been ineffective.

A jury convicted Motley on all counts. The court 

sentenced him to 179 months’ imprisonment on each count, 

to be served concurrently, and to be followed by five years 

of supervised release. Motley timely appealed his 

conviction and sentence, raising several issues. In this 

opinion, we address Motley’s challenges to the district 

court’s denial of his motion to suppress evidence obtained 

from the tracking warrants and the court’s determination that 

the wiretap warrant was both necessary and supported by 

probable cause.

II. STANDARD OF REVIEW

We review de novo the denial of a motion to suppress. 

United States v. Magdirila, 962 F.3d 1152, 1156 (9th Cir. 

2020). In reviewing the district court’s probable cause 

determination as to the wiretap, we look “only to the four 

corners of the wiretap application” and “will uphold the 

wiretap if there is a ‘substantial basis’ for . . . findings of 

probable cause.” United States v. Meling, 47 F.3d 1546, 

1552 (9th Cir. 1995) (quoting United States v. Stanert, 762 

F.2d 775, 779 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 

1985)). We review for abuse of discretion the district court’s 

decision that the wiretap was necessary. United States v.

Blackmon, 273 F.3d 1204, 1207 (9th Cir. 2001).

III. DISCUSSION

A. Tracking Warrants

Motley argues that law enforcement’s warrantless search 

of his opioid prescription records in the PMP database 

violated the Fourth Amendment, and without that illegally 
USA V. MOTLEY 13

obtained information, the evidence was insufficient to 

support issuance of the tracking warrants.

9 Thus, according 

to Motley, the district court erred in denying his motion to 

suppress evidence obtained from the tracking warrants. We 

reject Motley’s argument, as we agree with the district court 

that there was no Fourth Amendment violation because 

Motley had no legitimate expectation of privacy in his opioid 

prescription records maintained in the PMP database.10

“[A] criminal defendant may invoke the protections of 

the Fourth Amendment only if he can show that he had 

a legitimate expectation of privacy in the place searched or 

the item seized.” United States v. Ziegler, 474 F.3d 1184, 

1189 (9th Cir. 2007). “This expectation is established where 

9 Motley does not argue that the affidavits supporting the tracking 

warrants were insufficient if his opioid prescription records are 

considered. His challenge therefore depends on whether law 

enforcement’s search of his opioid prescription records violated the 

Fourth Amendment.

10 We also reject Motley’s argument that the affidavit’s statement that 

his 279 MME/day “prescription pattern can be an indicator for opioid 

abuse or diversion” was unsupported. The statement was supported by 

CDC guidance at the time, which explained that most experts agree that 

dosages greater than 50 MME/day “increases overdose risk without 

necessarily adding benefits for pain control or function,” and dosages 

should not be increased to greater than 90 MME/day “without careful 

justification based on diagnosis and on individualized assessment of 

benefits and risks.” CDC, CDC Guideline for Prescribing Opioids for 

Chronic Pain—United States, 2016 (Mar. 15, 2016), 

https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm.

Motley also contends that the district court erred in denying his request 

for an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 

(1978). But he waived this challenge, as he mentions it only in passing 

in his briefs and does not provide any supporting arguments. See United 

States v. Stoterau, 524 F.3d 988, 1003 n.7 (9th Cir. 2008).
14 USA V. MOTLEY

the claimant can show: (1) a subjective expectation of 

privacy; and (2) an objectively reasonable expectation of 

privacy.” Id. “An expectation of privacy is legitimate if it 

is one which society accepts as objectively reasonable.” 

United States v. Thomas, 447 F.3d 1191, 1196 (9th Cir. 

2006). 

Assuming, as the district court did, that Motley had a 

subjective expectation of privacy in his opioid prescription 

records, the question is whether that expectation was 

objectively reasonable. While this is an issue of first 

impression for our court, the First Circuit recently addressed 

it in United States Department of Justice v. Ricco Jonas, 24 

F.4th 718 (1st Cir.), cert. denied sub nom. Program

Administrator of the New Hampshire Controlled Drug

Prescription Health & Safety Program v. Department of

Justice, 143 S. Ct. 207 (2022). 

The First Circuit held that individuals do not have a 

reasonable expectation of privacy in prescription drug 

records maintained in New Hampshire’s Prescription Drug 

Monitoring Program (“PDMP”) database. Id. at 736–37. 

The court focused on the closely regulated nature of 

prescription drugs under both federal and New Hampshire 

law. Under the Controlled Substances Act (“CSA”), “every 

registered dispenser of a controlled substance must maintain 

a complete and accurate record of each such substance 

disposed of,” id. at 735, and keep those records for at least 

two years “for inspection and copying by officers or 

employees of the United States authorized by the Attorney 

General,” id. (quoting 21 U.S.C. § 827(b)). Similarly, New 

Hampshire’s laws require practitioners to maintain records 

on all controlled drugs and keep such records “open for 

inspection to federal, state, county and municipal law 

enforcement officers and others whose duty it is to enforce 
USA V. MOTLEY 15

the laws of New Hampshire or of the United States relating 

to controlled drugs.” Id. (cleaned up) (quoting N.H. Rev. 

Stat. Ann. § 318-B:12(II)). New Hampshire also requires

the “report[ing] to the PDMP information about the 

dispensed drug, including the patient’s name and address, 

the drug and quantity dispensed, and the date of dispensing.” 

Id. 

The court concluded:

[I]n 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 736–37. 

This analysis is persuasive. For over half a century, the 

federal government has regulated opioids under the CSA.

Pub. L. No. 91-513, Tit. II, 84 Stat. 1236, 1250 (1970)

(codified at 21 U.S.C. § 812) (classifying as Schedule II 

drugs any opiate produced “by extraction from substances of 

vegetable origin, or independently by means of chemical 

synthesis”). As the First Circuit recognized, under the CSA, 

registered dispensers of controlled substances must maintain 

records of each substance dispensed and make those records 

available for inspection and copying by the Attorney General 

for at least two years. Ricco Jonas, 24 F.4th at 735; see also 

21 U.S.C. § 827(a)(3), (b). And since the CSA’s inception, 

the Attorney General has had the authority to obtain these
16 USA V. MOTLEY

records without a warrant when investigating crimes related 

to controlled substances. Pub. L. No. 91-513, Tit. II, 84 Stat. 

1236, 1272 (1970) (codified at 21 U.S.C. § 876(a)) (“[T]he 

Attorney General may . . . require the production of any 

records . . . which the Attorney General finds relevant or 

material to [an] investigation [related to controlled 

substances].”); see also Ricco Jonas, 24 F.4th at 735 (“Both 

federal and New Hampshire laws regulate controlled 

substances by requiring pharmacies . . . to maintain 

prescription drug records and keep them open for inspection 

by law enforcement officers without the need of a warrant.”).

Nevada’s laws track the CSA’s close, extensive

regulation of opioid prescriptions. See Nev. Rev. Stat. 

§ 453.162 (establishing the PMP database); Nev. Admin. 

Code § 453.520(2)(a) (classifying “opium and opiate” as a 

Schedule II drug). In general, all prescription records must 

be kept for at least two years and are open to inspection by 

the “[State Board of Pharmacy] and by inspectors of the

Food and Drug Administration and agents of the

Investigation Division of the Department of Public Safety.” 

Nev. Rev. Stat. § 639.236(1), (3). Nevada established the 

PMP database nearly thirty years ago to prevent the illegal 

use of controlled substances. See 1995 Nev. Stat. 1433

(“The [PMP] program must . . . [b]e designed to provide 

information regarding the inappropriate use of controlled 

substances . . . to . . . appropriate state agencies in order to 

prevent the improper or illegal use of such controlled 

substances.”). The state entities in control of the database 

have always had the obligation to report suspected illegal 

activity to law enforcement and to give law enforcement 

relevant information from the PMP database. Id.; Nev. Rev. 

Stat. § 453.164(3)(a). Certain law enforcement agency 

employees can also access the PMP database without a 
USA V. MOTLEY 17

warrant to “[i]nvestigate a crime related to prescription 

drugs.” Nev. Rev. Stat. § 453.165(4)(a). 

Opioid use and prescriptions have thus been subject to 

well established and extensive regulation, including

disclosure of opioid records to law enforcement without a 

warrant. On the undisputed historical record, for more than 

fifty years, society’s expectation has been that law 

enforcement would closely monitor and have access to 

opioid prescription records. See Ricco Jonas, 24 F.4th at 739 

(“[S]ociety’s expectation has been for decades that law 

enforcement would have access to prescription drug records 

and would closely monitor the prescription and use of 

controlled substances.”).

11

11 The concurrence asserts that the statutory record-keeping requirements 

and laws that allow law enforcement officers to access such records

without a warrant “do[] not answer the constitutional question.” 

Concurrence at 28. We disagree. While such laws may not be 

dispositive, we agree with the First Circuit that such laws inform the 

analysis of whether an expectation of privacy is objectively reasonable. 

See Ricco Jonas, 24 F.4th at 734–35.

The concurrence also points to two cases that reached conclusions 

contrary to Ricco Jonas. Concurrence at 28–29. We find those cases 

unpersuasive. In State v. Skinner, the Supreme Court of Louisiana based 

its holding on “federal jurisprudence and Louisiana’s constitutional 

requirement of a heightened privacy interest for its citizens.” 10 So. 3d 

1212, 1218 (La. 2009) (emphasis added); see also id. at 1215 (“Louisiana 

provides protection not only against unreasonable searches and seizures,

but [its] Constitution explicitly protects against unreasonable invasions 

of privacy.”). Here, Motley points to no similar heightened privacy 

protection under Nevada’s constitution.

We also find unpersuasive the analysis in Oregon Prescription Drug 

Monitoring Program v. U.S. Drug Enforcement Administration, as the 

district court’s holding rested on the view that prescription records 
18 USA V. MOTLEY

Motley argues that we should nonetheless find that his 

subjective expectation of privacy was objectively reasonable 

because society has recognized as reasonable, patients’

expectations of privacy in their medical records. The First 

Circuit declined to equate prescription drug records to all 

other medical records, and we again find its analysis 

persuasive. Id. at 735–36. Prescription opioid records are 

unlike general medical records. Opioid prescription records 

are only a “subset of medical records . . . [that] do not 

generally or necessarily contain the more personal and 

intimate information that other medical records do.” Id. at 

736 (noting that general medical records contain “‘sensitive 

medical history and other information, including about 

mental illnesses, learning disabilities, birth defects, illicit 

drug use, pregnancy terminations, domestic-violence 

history,’ patients’ complaints and symptoms, and ‘the 

patients’ family members,’ among others” (quoting Eil v. 

U.S. DEA, 878 F.3d 392, 396 (1st Cir. 2017)). Additionally, 

“unlike prescription [opioid] records, medical records are 

not subject to pervasive regulatory disclosures under both 

federal and state law.” Id. These crucial differences justify 

treating opioid prescription records differently from general 

medical records for Fourth Amendment purposes.

12

should be treated the same as all other medical records. 998 F. Supp. 2d 

957, 966 (D. Or. 2014), rev’d on other grounds, 860 F.3d 1228, 1231 

(9th Cir. 2017). As discussed below, we reject that view.

12 We express no view as to the extent patients have a reasonable 

expectation of privacy in other types of medical or prescription records. 

We only decide that Motley had no objectively reasonable expectation 

of privacy in his opioid prescription records maintained in Nevada’s 

PMP database, given the long-standing and pervasive regulation of 

opioids as a controlled substance and regulatory disclosure of opioid 
USA V. MOTLEY 19

Given the long-standing and pervasive regulation of 

opioids as a controlled substance and regulatory disclosure 

of opioid prescription records, Motley had no objectively 

reasonable expectation of privacy in his prescription opioid 

records maintained in Nevada’s PMP database, and thus his 

Fourth Amendment challenge to the tracking warrants fails. 

We therefore affirm the district court’s order denying 

suppression of the evidence obtained from the two tracking 

warrants.

B. Wiretap Warrant

Motley also challenges the district court’s determination 

that the wiretap warrant was necessary and was supported by 

probable cause. To authorize a wiretap warrant under 18 

U.S.C. § 2516, the judge must find, as relevant here, that 

“there is probable cause for belief that an individual is 

committing, has committed, or is about to commit” certain 

offenses. 18 U.S.C. § 2518(3)(a).13 “Probable cause” means 

a “fair probability.” Illinois v. Gates, 462 U.S. 213, 238 

(1983). The judge must also find that “normal investigative 

procedures have been tried and have failed or reasonably 

appear to be unlikely to succeed if tried or to be too 

dangerous.” 18 U.S.C. § 2518(3)(c). In determining 

whether the government has shown necessity, we employ a 

“common sense approach,” using “a standard of 

reasonableness to evaluate the government’s good faith 

effort to use alternative investigative means or its failure to 

prescription records. Thus, the concurrence is simply wrong in stating 

that our holding applies to “any prescription record.” Concurrence at 28.

13 Motley does not challenge the other probable cause requirements 

under § 2518. See 18 U.S.C. § 2518(3)(b), (d). 
20 USA V. MOTLEY

do so because of danger or low probability of success.” 

Blackmon, 273 F.3d at 1207.

Motley’s probable cause challenge fails because his 

suppression motion fails. Motley makes no alternative “lack 

of probable cause” argument. But even if Motley had made 

such an argument, it too would have failed. The wiretap 

affidavit established that Motley and several others, who 

were in frequent contact with Motley, were all obtaining 

large amounts of prescription opioids from the same 

physician; that Motley was buying the prescriptions for 

himself and others; and that Motley and at least one other 

coconspirator were selling the prescribed pills. This 

evidence provided a “substantial basis” for the district 

court’s finding that there was probable cause that Motley 

was engaged in a conspiracy to illegally distribute 

prescription opioids. Meling, 47 F.3d at 1552. 

Turning to necessity, the affidavit explained, in specific 

detail, law enforcement’s investigative methods, why those 

methods had been exhausted, and why other methods would 

likely be ineffective in identifying the members and scope of 

the conspiracy. As just one example, the affidavit explained 

that it would not be “feasible in the Reno area to introduce a 

UC [undercover law enforcement agent] into a DTO [drug 

trafficking organization] . . . at a level high enough to 

accomplish the goals of the investigation,” and “[g]iven the 

relatively low-level contact [the confidential source] has had 

with Motley in recent months, it also would likely raise 

suspicion that [the confidential source] is introducing a UC 

to Motley, who is a stranger to Motley.” Given those and 

other facts, the affidavit explained that “Motley [would be]

unlikely to reveal the inner workings of his DTO with the 

UC” and thus undercover operations would likely be 

unsuccessful. Based on the information in the affidavit, the 
USA V. MOTLEY 21

district court did not abuse its discretion in finding that the 

wiretap was necessary. See Blackmon, 273 F.3d at 1207.

Motley’s counterarguments are unpersuasive. He claims 

that the government had all the evidence it needed “to 

prosecute [him] on the drug distribution counts.” Even if 

that were true, it would not negate necessity, because we 

have “consistently upheld findings of necessity where 

traditional investigative techniques lead only to 

apprehension and prosecution of the main conspirators, but 

not to apprehension and prosecution of . . . other satellite 

conspirators.” United States v. Torres, 908 F.2d 1417, 1422 

(9th Cir. 1990).

Motley also argues that the government could have 

employed other methods. But, as noted above, the affidavit

explained why all the alternative methods identified by 

Motley would probably be ineffective or were tried and had 

failed. 

We are also unconvinced by Motley’s claim that the 

government “manufacture[d] necessity” because it had 

identified some conspirators and knew that Dr. Math was

their source. The government’s need for a wiretap is not 

negated simply because it managed to obtain some evidence 

of a conspiracy without a wiretap. See United States v.

McGuire, 307 F.3d 1192, 1199 (9th Cir. 2002) (“[T]here [is]

a powerful government interest in identifying all

conspirators and the full scope of the conspiracy.”

(emphasis added)); see also id. at 1198 (“Because the 

government has a duty to extirpate conspiracy beyond its 

duty to prevent the mere commission of specific substantive 

offenses, . . . the government is entitled to more leeway in its 

investigative methods when it pursues a conspiracy.”

(footnote and citation omitted)).
22 USA V. MOTLEY

In sum, the district court did not err in determining that 

the wiretap was supported by probable cause and was 

necessary, as the detailed, case-specific information in the 

affidavit established probable cause and showed that other 

investigative methods would likely have been unsuccessful 

in identifying the full scope of the conspiracy.

IV. CONCLUSION

We affirm the district court’s order denying the motion 

to suppress because Motley had no reasonable expectation 

of privacy in his opioid prescription records maintained in 

Nevada’s PMP database. We also affirm the district court’s 

determination that the wiretap warrant was supported by 

probable cause and was necessary. The supporting affidavit 

contained more than sufficient evidence establishing

probable cause that Motley was engaged in a conspiracy to 

illegally distribute prescription opioids. It also contained 

sufficient information for the court to reasonably conclude

that a wiretap was necessary to identify the full scope of the 

conspiracy.

AFFIRMED.
USA V. MOTLEY 23

GRABER, Circuit Judge, concurring in part and concurring 

in the judgment:

I concur in Part III-B of the opinion, which correctly 

rejects Defendant’s challenges to the wiretap warrant. But I 

do not join Part III-A of the opinion, which affirms the 

district court’s denial of Defendant’s motion to suppress the 

evidence obtained as a result of two tracking warrants. Two 

alternative grounds support the district court’s conclusion: 

the good-faith exception and harmlessness. I therefore 

concur in the judgment. The majority opinion declines to 

reach either of those alternative grounds and, instead, holds 

that Defendant did not have an objectively reasonable 

expectation of privacy in the identity and dosage of his 

prescription medications. We need not and, in my view, 

should not reach that substantial legal question in this case.

A. The Good-Faith Exception Applies, and Any Error 

Was Harmless.

As the district court held, the good-faith exception 

applies here. The Nevada statute clearly authorized the 

officer’s access to the database, and the officer acted “in 

objectively reasonable reliance” on the statute. Illinois v. 

Krull, 480 U.S. 340, 349 (1987); see also Davis v. United 

States, 564 U.S. 229, 239 (2011) (citing Krull for the rule 

that the good-faith exception extends “to searches conducted 

in reasonable reliance on subsequently invalidated 

statutes”). Whatever doubts one may have about the 

constitutionality of the Nevada statute, the fact that both of 

my colleagues and a unanimous panel of the First Circuit 

have held that persons lack a pertinent reasonable 

expectation of privacy means that, at a minimum, the statute 

is not “clearly unconstitutional.” Krull, 480 U.S. at 349. 

“Unless a statute is clearly unconstitutional, an officer 
24 USA V. MOTLEY

cannot be expected to question the judgment of the 

legislature that passed the law.” Id. at 349–50.

In addition, any error here was harmless. Even assuming 

that the information from the prescription database should 

have been excluded from Detective Johnson’s affidavit, the 

remaining assertions in the affidavit provided probable 

cause. See, e.g., United States v. Nora, 765 F.3d 1049, 1058 

(9th Cir. 2014) (holding that 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” (citation and internal 

quotation marks omitted)).

A confidential informant (“CI”) who had proved reliable 

during an earlier controlled drug purchase explained, in 

some detail, Defendant’s scheme. Detective Johnson 

reported:

The CI told me that [Defendant] comes from 

California and meets with a physician at [a 

specific office] approximately every 30 days. 

[Defendant] then meets this physician and the 

physician writes [Defendant] a prescription 

for Oxycodone. In addition, the physician 

gives [Defendant] a stack of prescriptions in 

other people’s names for [Defendant] to sell 

to those people. . . . The CI’s wife has 

received a prescription in her name from the 

physician via [Defendant], but has never 

actually seen the physician personally. The 
USA V. MOTLEY 25

CI also stated that [Defendant] fills most [of] 

his prescriptions [at a specific pharmacy].

Detective Johnson verified some of the information 

given by the informant. For example, Detective Johnson 

determined that Defendant’s car was registered in California. 

Similarly, the informant told Detective Johnson that 

Defendant was staying at a specific hotel in town, and 

officers saw Defendant at that hotel the next day. Finally, 

Detective Johnson reported that Defendant’s criminal 

history, including a series of arrests for drug trafficking and 

possession, was consistent with the informant’s information.

In sum, an informant—known to be reliable—described 

in detail a criminal scheme in which the informant’s wife had 

participated personally; officers confirmed some aspects of 

the informant’s description; and officers confirmed that 

Defendant’s criminal history was consistent with the 

scheme. Accordingly, independent of the information 

derived from the prescription database, the affidavit 

supported a finding that there was a “fair probability” that 

the tracking device would yield evidence of a crime. United

States v. Kvashuk, 29 F.4th 1077, 1085 (9th Cir. 2022), cert. 

denied, 143 S. Ct. 310 (2022); see, e.g., Nora, 765 F.3d at 

1059 (“[C]riminal history can be helpful in establishing 

probable cause, especially where the previous arrest or 

conviction involves a crime of the same general nature as the 

one the warrant is seeking to uncover.” (citation and internal 

quotation marks omitted)); United States v. Rowland, 464 

F.3d 899, 907 (9th Cir. 2006) (“[A] known informant’s tip is 

thought to be more reliable than an anonymous informant’s 

tip.”); id. at 908 (“[A]n informant with a proven track record 

of reliability is considered more reliable than an unproven 

informant.”); id. (“[An] informant’s tip is considered more 
26 USA V. MOTLEY

reliable if the informant reveals the basis of knowledge of 

the tip—how the informant came to know the 

information.”); id. (“[A] tip that provides detailed predictive 

information about future events that is corroborated by 

police observation may be considered reliable.”).

I would uphold the denial of the motion to suppress on 

those alternative grounds: the good-faith exception and 

harmlessness.

B. Whether a Person Has an Objectively Reasonable 

Expectation of Privacy in Prescription Records is a 

Significant and Debatable Legal Question that We 

Ought Not Reach. 

The majority opinion decides that Defendant lacked an 

objectively reasonable expectation of privacy in his 

prescription records. Because it is unnecessary to reach that 

significant legal issue, and because I have doubts about the 

majority opinion’s conclusion, I would not reach that issue.

Federal courts have “no talisman that determines in all 

cases those privacy expectations that society is prepared to 

accept as reasonable.” O’Connor v. Ortega, 480 U.S. 709, 

715 (1987) (plurality opinion). “[T]he reasonableness of an 

expectation of privacy . . . differ[s] according to context.” 

Id. In concluding that persons lack a reasonable expectation 

of privacy in their prescription records, the majority opinion 

offers a plausible assessment of several relevant factors. But 

an alternative approach, described below, might yield a 

different result.

As a general matter, people reasonably expect privacy in 

their personal medical records. See, e.g., Norman-Bloodsaw 

v. Lawrence Berkeley Lab’y, 135 F.3d 1260, 1269 (9th Cir. 

1998) (“The constitutionally protected privacy interest in 
USA V. MOTLEY 27

avoiding disclosure of personal matters clearly encompasses 

medical information and its confidentiality.”); see also

Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) 

(“The reasonable expectation of privacy enjoyed by the 

typical patient undergoing diagnostic tests in a hospital is 

that the results of those tests will not be shared with 

nonmedical personnel without her consent.”). As the 

Supreme Court has noted, “an intrusion on that expectation 

may have adverse consequences because it may deter 

patients from receiving needed medical care.” Ferguson, 

532 U.S. at 78 n.14.

Prescription records are a subset of medical records and, 

accordingly, are entitled to some measure of privacy. 

Prescription records may not disclose as much information 

as a person’s entire hospital chart might. But prescription 

records can be extremely revealing, nonetheless. A 

knowledgeable person could tell, from prescriptions alone, 

that a person was undergoing treatment for a sensitive, 

private ailment, such as low testosterone or delayed puberty; 

weight loss associated with AIDS or chemotherapy; 

difficulty with conceiving; anxiety and panic disorders; or 

alcohol withdrawal or opioid use. The Supreme Court’s 

observation about medical records generally applies with 

equal force to prescriptions specifically: “an intrusion on [an 

expectation of privacy in prescription records] may have 

adverse consequences because it may deter patients from 

receiving needed medica[tions].” Id.

Nor is Nevada’s statute tailored in any way to opioids or 

to those drugs with the most potential for abuse. The statute 

applies broadly to all drugs on Schedules II-V. (Schedule I 

drugs have no medical use.) A more narrowly tailored 

statute—for example, a law that permitted warrantless 

searches of only the most dangerous prescription drugs, 
28 USA V. MOTLEY

coupled with a requirement that persons filling those specific 

prescriptions be warned that their prescription data could be 

subject to search—likely would pass constitutional muster. 

But Nevada’s law indiscriminately allows warrantless 

searches of any and all prescriptions, even those drugs with 

no history of abuse or resale, and even those drugs that reveal 

specific medical histories. The majority opinion at times 

focuses its analysis on opioids, but its holding is broad: 

persons have no reasonable expectation of privacy in any

prescription record.

Finally, the other laws cited by the majority opinion do 

not fully establish that persons lack a reasonable expectation 

of privacy. Congress and state legislatures permissibly may 

impose a record-keeping obligation on medical providers, 

but those laws do not answer the question relevant here: 

does the Constitution permit law enforcement officers to 

rifle through those records solely in search of evidence of a 

crime? Similarly, the fact that Congress granted the 

Attorney General a wide subpoena power to “require the 

production of any records (including books, papers, 

documents, and other tangible things which constitute or 

contain evidence) which the Attorney General finds relevant 

or material,” 21 U.S.C. § 876(a), does not answer the 

constitutional question. That subpoena power—like the 

searching authority granted by state law—is limited by the 

Fourth Amendment’s protection against unreasonable 

searches.

Some jurisdictions have concluded, contrary to the 

majority opinion’s conclusion, that persons do have a 

reasonable expectation of privacy in their prescription 

medications. For example, the Supreme Court of Louisiana 

has held that a warrant is required for an investigative search 

of prescription records, because “the right to privacy in one’s 
USA V. MOTLEY 29

medical and prescription records is an expectation of privacy 

that society is prepared to recognize as reasonable.” State v. 

Skinner, 10 So. 3d 1212, 1218 (La. 2009) (emphasis added). 

Closer to home, the federal district court for the District of 

Oregon agreed, concluding in a well-reasoned opinion 

concerning Oregon’s analogue to Nevada’s prescription 

database that the intervenors’ “subjective expectation of 

privacy in their prescription information is objectively 

reasonable.” Or. Prescription Drug Monitoring Program v. 

U.S. DEA (Or. PDMP), 998 F. Supp. 2d 957, 966 (D. Or. 

2014), rev’d on other grounds, 860 F.3d 1228 (9th Cir. 

2017). On appeal, we held that the intervenors lacked 

standing, and we therefore did not reach the pertinent Fourth 

Amendment question. Or. PDMP, 860 F.3d at 1234–35. But 

we recognized the weightiness of the issue:

We acknowledge the particularly private 

nature of the medical information at issue 

here and thus do not question the seriousness 

of Intervenors’ fear of disclosure. Nor do we 

imply that this concern is unreasonable.

Id. at 1235.

In sum, the majority opinion reaches an important issue 

that has divided courts: whether a person has a reasonable 

expectation of privacy in prescription records. Because I 

have doubts about the correctness of the majority opinion’s 

conclusion, I would choose not to reach the issue; we should 

wait for a case in which the result matters to the outcome. 

For those reasons, I concur in the opinion only in part, but I 

concur in the judgment in full.