United States Court of Appeals

For the First Circuit

No. 19-1243

UNITED STATES DEPARTMENT OF JUSTICE,

Petitioner, Appellee,

v.

MICHELLE RICCO JONAS,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Howard, Chief Judge,

and Thompson,* Circuit Judge.

Anthony J. Galdieri, Senior Assistant Attorney General, 

with whom Gordon J. MacDonald, Attorney General, and Lawrence M. 

Edelman, Assistant Attorney General, were on brief, for Appellant.

Seth R. Aframe, Assistant United States Attorney, with 

whom Scott W. Murray, United States Attorney, was on brief, for 

Appellee.

Nathan Freed Wessler, with whom Brett Max Kaufman and 

Jennifer Stisa Granick were on brief, for American Civil Liberties 

Union Foundation, amicus curiae.

Gilles R. Bissonnette and Henry Klementowicz, on brief 

* Judge Torruella heard oral argument in this matter and 

participated in the semble, but he did not participate in the 

issuance of the panel's opinion. The remaining two panelists 

therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
for ACLU of New Hampshire Foundation, amicus curiae.

Zachary L. Heiden and Emma E. Bond, on brief for American 

Civil Liberties Union of Maine, amicus curiae. 

Matthew R. Segal and Jessie J. Rossman, on brief for 

American Civil Liberties Union Foundation of Massachusetts, Inc., 

amicus curiae. 

William Ramírez, on brief for American Civil Liberties 

Union of Puerto Rico, amicus curiae. 

Robert B. Mann and Robert B. Mann Law Office, on brief 

for ACLU of Rhode Island, amicus curiae. 

January 27, 2022
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HOWARD, Chief Judge. Respondent-appellant Michelle 

Ricco Jonas ("Ricco Jonas"), the Program Manager for New 

Hampshire's Prescription Drug Monitoring Program (the "PDMP"), 

appeals from a district court judgment ordering compliance with an 

administrative subpoena issued to her by the United States Drug 

Enforcement Administration ("DEA") pursuant to 21 U.S.C. § 876, to 

produce the PDMP-kept prescription drug records of an individual.1 

On appeal, Ricco Jonas contends that the subpoena is unenforceable 

because, although it was issued to her and 21 U.S.C. § 876(c) 

authorizes the enforcement of a "subp[o]ena issued to any person,"

in her view, the subpoena really targeted the State of New 

Hampshire and states are not "person[s]" within the meaning of 

21 U.S.C. § 876(c) against whom administrative subpoenas may be 

issued and enforced. Additionally, she argues that, even

if 21 U.S.C. § 876(c) generally authorizes the enforcement of 

administrative subpoenas against a state, the Fourth Amendment 

still poses a bar to compliance because the subpoena-specified 

individual has a reasonable expectation of privacy in his 

prescription drug records, thereby allowing disclosure only after 

a finding of probable cause by a court. After careful 

1 During the pendency of this appeal, Ricco Jonas informed us 

that she is no longer the PDMP program manager. Nevertheless, 

neither party has suggested that the appeal is moot.
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consideration, we reject both of Ricco Jonas's contentions and 

affirm the district court judgment.

I. STATUTORY BACKGROUND

A. The Controlled Substances Act

In 1970, Congress enacted the Comprehensive Drug Abuse 

Prevention and Control Act (the "Act"), Pub. L. No. 91-513, 

84 Stat. 1236, to "consolidate various drug laws on the books into 

a comprehensive statute, provide meaningful regulation over 

legitimate sources of drugs to prevent diversion into illegal 

channels, and strengthen law enforcement tools against the traffic 

in illicit drugs." Gonzales v. Raich, 545 U.S. 1, 10 (2005). The 

main objectives of Title II of the Act, the Controlled Substances 

Act ("CSA"), 21 U.S.C. § 801 et seq., are "to conquer drug abuse 

and to control the legitimate and illegitimate traffic in 

controlled substances."2 Raich, 545 U.S. at 12; id. at 12-13 

("Congress was particularly concerned with the need to prevent the 

diversion of drugs from legitimate to illicit channels."). To 

achieve these goals, Congress established a "closed regulatory 

2 The CSA categorizes controlled substances into five 

schedules (I through V), based on the drugs' potential for abuse, 

accepted medical uses, and likelihood of causing psychological or 

physical dependency. 21 U.S.C. § 812. Drugs categorized in 

schedules II through V have "a currently accepted medical use in 

treatment in the United States" or "a currently accepted medical 

use with severe restrictions." Id. §§ 812(b)(2)-(5). Schedule I 

drugs do not have any accepted medical use. Id. § 812(b)(1).
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system" that makes it unlawful "to manufacture, distribute, 

dispense, or possess any controlled substance except as authorized 

by the CSA." Id. at 13 (citing 21 U.S.C. §§ 841(a)(1), 844(a)). 

As part of this regulatory system, "[t]he CSA requires 

manufacturers, physicians, pharmacies, and other handlers of 

controlled substances to comply with statutory and regulatory 

provisions mandating registration with the DEA, compliance with 

specific production quotas, security controls to guard against 

diversion, recordkeeping and reporting obligations, and 

prescription requirements." Id. at 27 (citing 21 U.S.C. §§ 821-

830; 21 C.F.R. § 1301 et seq. (2004)).

The CSA authorizes the Attorney General to issue 

administrative subpoenas to investigate suspected illicit drug 

activity. See 21 U.S.C. § 876. Specifically, § 876(a) of the 

statute provides in relevant part that,

In any investigation . . . with respect to controlled 

substances . . . the Attorney General may subpe[o]na 

witnesses, compel the attendance and testimony of 

witnesses, and 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 to the 

investigation. The attendance of witnesses and the 

production of records may be required from any place in 

any State or in any territory or other place subject to 

the jurisdiction of the United States . . . .

 

Id. § 876(a). The Attorney General has delegated this authority 

to the DEA. See id. § 878(a)(2); 28 C.F.R. §§ 0.100, 0.104, 

Appendix to Subpart R, Section 4.
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Section 876(c) of the CSA provides for judicial 

enforcement of subpoenas issued under § 876(a). It states that,

In the case of contumacy by or refusal to obey a 

subp[o]ena issued to any person, the Attorney General 

may invoke the aid of any court of the United States 

within the jurisdiction of which the investigation is 

carried on or of which the subp[o]enaed person is an 

inhabitant, or in which he carries on business or may be 

found, to compel compliance with the subp[o]ena. The 

court may issue an order requiring the subp[o]enaed 

person to appear before the Attorney General to produce 

records, if so ordered, or to give testimony touching 

the matter under investigation. Any failure to obey the 

order of the court may be punished by the court as a 

contempt thereof. All process in any such case may be 

served in any judicial district in which such person may 

be found.

21 U.S.C. § 876(c). The CSA provides that state law is preempted 

whenever "there is a positive conflict between [a] provision of 

th[e] [CSA] and [a] State law so that the two cannot consistently 

stand together." Id. § 903.

B. The PDMP and New Hampshire Law

In 2012, the New Hampshire legislature established the 

PDMP to "enhanc[e] patient care, curtail[] the misuse and abuse of 

controlled substances, combat[] illegal trade in and diversion of 

controlled substances, and enabl[e] access to prescription 

information by practitioners, dispensers, and other authorized 

individuals and agencies."3 New Hampshire PDMP, 

https://www.newhampshirepdmp.com/ (last visited Jan. 27, 2022).

3 The PDMP is currently administered by the New Hampshire 

Department of Health and Human Services. N.H. Rev. Stat. Ann. 
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The PDMP operates an electronic system that

"facilitate[s] the confidential sharing of information relating to 

the prescribing and dispensing of schedule II-IV controlled 

substances" within the State. N.H. Rev. Stat. Ann. § 126-A:90. 

Every dispenser -- "a person or entity who is lawfully authorized 

to deliver a schedule II-IV controlled substance" -- must report 

certain information each time a schedule II-IV drug is dispensed, 

including: dispenser's DEA registration number; prescriber's DEA 

registration number; patient's name, address, and date of birth; 

National Drug Code4 of drug dispensed; quantity dispensed; date of 

dispensing; number of refills granted; whether the prescription is 

new or a refill; and, source of payment, among others. Id. §§ 126-

A:89(VI), 126-A:91(VI)(a)-(o). This information is then stored in 

the PDMP database.5

New Hampshire state law provides that all information 

contained in or obtained from the PDMP "is confidential," and "is 

§§ 126-A:89-:96. The PDMP has been previously administered by the 

New Hampshire Office of Professional Licensure and Certification 

and the New Hampshire Board of Pharmacy.

4 National Drug Codes are unique, three-segment numbers which 

serve as identifiers for drugs. U.S. Food and Drug Administration, 

National Drug Code Directory, https://www.fda.gov/drugs/drugapprovals-and-databases/national-drug-code-directory (last 

visited Jan. 27, 2022).

5 The information is deleted from the database three years 

"after the initial prescription was dispensed." N.H. Rev. Stat.

Ann. § 126-A:90(III).
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not subject to discovery, subpoena, or other means of legal 

compulsion for release."6 Id. § 126-A:92(I). Law enforcement may 

request information from the PDMP "on a case-by-case basis for the 

purpose of investigation and prosecution of a criminal offense 

when presented with a court order based on probable cause." Id.

§ 126-A:93(I)(b)(3). However, "[n]o law enforcement agency or 

official shall have direct access to query program information." 

Id.

In addition to the state-kept PDMP database, New 

Hampshire also requires practitioners -- including physicians, 

pharmacists, and hospitals -- to maintain their own, similar 

records "to show the receipt and disposition of all controlled 

drugs." Id. § 318-B:12(I). These practitioners' records must 

"meet the requirements of the department of health and human 

services and federal laws and regulations," and "shall indicate at 

least the name, dosage form, strength, and quantity of the 

controlled drug; the name and address of any person to whom the 

drug was administered, dispensed, sold or transferred and the date 

of any and all transactions involved with the controlled drug." 

Id. Unlike PDMP data, law enforcement officials may access a 

6 The Department of Health and Human Services "may use and 

release information and reports from the program for program 

analysis and evaluation, statistical analysis, public research, 

public policy, and educational purposes, provided that the data 

are aggregated or otherwise de-identified at all levels of use." 

Id. § 126-A:92(III).
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practitioner's own records without a court order. Id. § 318-

B:12(II) ("[Practitioners' records] shall be open for inspection 

only to federal, state, county and municipal law enforcement 

officers [and others] . . . whose duty it is to enforce the laws 

of [New Hampshire] or of the United States relating to controlled 

drugs.").

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 11, 2018, the DEA issued an administrative 

subpoena to "Michelle Ricco Jonas, Program Manager for the NH PDMP"

pursuant to 21 U.S.C. § 876(a). The subpoena, which was served on 

Ricco Jonas on June 13, 2018, stated that "[p]ursuant to an 

investigation of violations of 21 U.S.C. 801 et seq., [she was] to 

provide any and all records regarding [REDACTED], being maintained 

by the New Hampshire Prescription Drug Monitoring Program from 

February 28, 2016 through present day."7 

On July 12, 2018, Ricco Jonas objected to the subpoena 

in a letter from the New Hampshire Attorney General's Office sent 

7 The DEA had previously served an administrative subpoena on 

the PDMP requesting the same information. The New Hampshire 

Attorney General objected on the ground that the CSA allegedly 

does not authorize the DEA to subpoena states or their sovereign 

agencies. He further argued that, although pursuant to § 876(c) 

of the CSA the DEA could enforce a subpoena against "any person," 

neither the State nor its sovereign agencies were "persons" against 

whom the subpoena could be enforced. Without conceding the point, 

the DEA subsequently served the subpoena naming Ricco Jonas. 
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to the DEA. The letter stated that the subpoena was issued to her

in her official capacity as the Program Manager of the PDMP, rather 

than in her personal capacity, and thus amounted to a subpoena 

issued to the State. According to Ricco Jonas, because 21 U.S.C 

§ 876 does not authorize the DEA "to subpoena a [s]tate, its 

sovereign agencies, or its officials serving in their official 

capacities," the subpoena was unenforceable. The letter directed 

the DEA to follow state law and obtain a court order based on 

probable cause to obtain the desired information. 

On August 8, 2018, the Department of Justice ("DOJ") 

filed a petition to compel compliance with the administrative 

subpoena in the United States District Court for the District of 

New Hampshire. In its petition, the DOJ addressed Ricco Jonas's 

objections from the July 12 letter and argued that those objections 

failed because the subpoena was issued to Ricco Jonas in her 

personal capacity and sought no relief from the State. In 

addition, the DOJ contended that even if the subpoena was directed 

to the State of New Hampshire, it was nonetheless enforceable 

because, as a matter of statutory interpretation, the CSA's use of 

"any person" in § 876(c) includes a state and its agencies. 

Finally, the DOJ submitted that the CSA preempts any state law 

limitations on the DEA's authority to issue administrative 

subpoenas. 
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Ricco Jonas opposed the petition for essentially the 

same reasons she asserted in the July 12 letter, along with a new 

argument based upon the Fourth Amendment. Ricco Jonas contended 

that even if the CSA permits the issuance of subpoenas to states, 

patients have a reasonable expectation of privacy in their 

prescription drug records under the Fourth Amendment and the DEA 

must therefore secure a court order based on probable cause before 

it can obtain PDMP data. 

After a hearing, a magistrate judge issued a Report and 

Recommendation ("R&R") in which she recommended that the court 

grant the DOJ's petition to compel. U.S. Dep't of Justice v. Ricco 

Jonas, No. 18-MC-56-LM, 2018 WL 6718579, at *1 (D.N.H. Nov. 1, 

2018). The magistrate judge rejected Ricco Jonas's "proposition 

that her being served because of her position as PDMP manager 

convert[ed] th[e] subpoena enforcement action [under 21 U.S.C. § 

876(c)] into a suit against the State of New Hampshire." Id. at 

*3. She reasoned that because the subpoena enforcement proceeding 

would not result in a judgment of any kind requiring financial 

payment from the State, it was not a suit against the State. Id. 

The magistrate judge found that the DEA issued the subpoena to 

Ricco Jonas because she had "custody and control over PDMP 

information," id., and reasoned that whether she must comply with 

it in her official or personal capacity was "irrelevant." Id. at 

*4, *5 n.5. In light of this, the magistrate judge deemed it 
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unnecessary to reach the issue of statutory interpretation and 

decide whether a state is a "person" under 21 U.S.C. § 876(c) 

subject to the DEA's subpoena power. Id. at *4. The magistrate 

judge next determined that the CSA preempted New Hampshire's 

statutory requirement that law enforcement officials obtain an 

order based on probable cause before obtaining PDMP data. Id. at 

*4-5. Finally, because she deemed the issue non-dispositive, the 

magistrate judge assumed without deciding that Ricco Jonas had 

standing -- either in her own right or on behalf of others -- to 

make the Fourth Amendment argument. Id. at *6. Nonetheless, she

concluded that patients have no reasonable expectation of privacy 

in their prescription drug records. Id. She reasoned that the 

closely regulated nature of the prescription drug industry, the

state law requirement that the information be transmitted to the 

PDMP, and its provisions allowing that the data be shared in 

certain limited circumstances "operate to diminish the privacy 

expectation in prescription drug records." Id. at *6-7.

After additional briefing from both sides, the district 

court adopted the R&R and entered judgment in the DOJ's favor. 

U.S. Dep't of Justice v. Ricco Jonas, No. 19-CV-030-LM, 2019 WL 

251246 (D.N.H. Jan. 17, 2019). Ricco Jonas timely appealed.
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III. DISCUSSION

On appeal, Ricco Jonas challenges the district court's 

conclusions that the subpoena is enforceable under 21 U.S.C. 

§ 876(c) and that the Fourth Amendment poses no bar to the 

disclosure of the prescription drug records to the DEA without a 

court order based on probable cause.

We review a district court's decision to enforce an 

administrative subpoena for abuse of discretion, even if it 

"implicate[s] the privacy interests protected by the Fourth 

Amendment" or other questions of law. McLane Co. v. EEOC, 137 S. 

Ct. 1159, 1169-70 (2017). "A district court would necessarily 

abuse its discretion if it based its ruling on an erroneous view 

of the law." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 

(1990); Drysdale v. Spirito, 689 F.2d 252, 256 (1st Cir. 1982) 

(noting that issues of statutory construction are legal issues).

A. The Target of the Administrative Subpoena

"The requirements for enforcement of an administrative 

subpoena are not onerous." United States v. Sturm, Ruger & Co., 

84 F.3d 1, 4 (1st Cir. 1996). "In order to obtain judicial backing 

the agency must prove that (1) the subpoena is issued for a 

congressionally authorized purpose, the information sought is 

(2) relevant to the authorized purpose and (3) adequately 

described, and (4) proper procedures have been employed in issuing 

the subpoena." Id. (citing United States v. Morton Salt Co., 338 
- 14 -

U.S. 632, 652 (1950)). Only the first requirement is at issue

here. A challenge to a subpoena on that ground alone will fail 

"[a]s long as the agency's assertion of authority is not obviously 

apocryphal." Id. at 5-6 (citing FTC v. Swanson, 560 F.2d 1, 2 

(1st Cir. 1977)).

The CSA provides that administrative subpoenas may be 

issued "[i]n any investigation relating to . . . controlled 

substances" to "require the production of any records . . . which 

the [DEA] finds relevant or material to the investigation . . . 

from any place in any State." 21 U.S.C. § 876(a). The CSA includes 

an enforcement mechanism that allows the DEA to invoke the aid of 

federal courts "[i]n case of contumacy by or refusal to obey a 

subp[o]ena issued to any person." Id. § 876(c).

Although Ricco Jonas does not dispute the DEA's 

congressional authority under 21 U.S.C. § 876(a) to issue a 

subpoena to her, she contends that, because in order to comply 

with the subpoena she would need to use her state-issued 

credentials to access state-collected data and provide it to the 

DEA, the State of New Hampshire is the subpoena's "true target." 

This, in her view, makes the instant subpoena one issued to the 

State, and this enforcement proceeding a "suit" against the State. 

She posits that the CSA does not authorize courts to enforce 

subpoenas issued to states because, under her reading of 21 U.S.C. 

§ 876(c), states are not "person[s]" to whom subpoenas may be 
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issued. Accordingly, she concludes, the instant subpoena was not 

"issued for a congressionally authorized purpose" and is not 

enforceable.

In response, the DOJ argues that the DEA issued its 

subpoena to Ricco Jonas, not to the State of New Hampshire, and 

that "requiring a state employee to produce records is not 

compelling the state to act; it is requiring the employee to act 

by producing records over which she has control." The DOJ further 

argues that, even if the instant subpoena is deemed to have been 

issued to the State, it is enforceable because 21 U.S.C. § 876 

authorizes the issuance and enforcement of subpoenas against 

states. 

To support her argument that the instant subpoena was 

issued to the State and that this enforcement proceeding 

constitutes a suit against the State, Ricco Jonas invokes the 

principle, often arising in the Eleventh Amendment sovereign 

immunity context, that a suit against a state employee seeking 

relief from a state is a suit against the state. But even under 

case law applying that principle, courts have rejected the 

invitation by state officers to blur the distinction between state 

officers and the states. Instead, courts have validated the 

service of process to state officers for the production of 

documents or objects in their possession or control as persons 

independent of the states, and regardless of whether the states 
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elect to defend on behalf of their officers. See, e.g., Fla. Dep't 

of State v. Treasure Salvors, Inc., 458 U.S. 670, 691-92 (1982) 

(plurality holding that service of process served on state 

officials for the transfer of some property in the state officials' 

possession "was directed only at state officials and not at the 

State itself or any agency of the State" and thus did not 

constitute a "direct action against the State" under the Eleventh 

Amendment even if "the State elected to defend on behalf of its 

agents"); Barnes v. Black, 544 F.3d 807, 812 (7th Cir. 2008) 

(noting that orders commanding non-party state officials to 

produce documents in the states' possession for use in a litigation 

between private persons "do not compromise state sovereignty to a 

significant degree," hence, do not violate the Eleventh 

Amendment); Laxalt v. McClatchy, 109 F.R.D. 632, 634-35 (D. Nev. 

1986) (rejecting claim by the Nevada State Gaming Control Board 

that the Eleventh Amendment barred compliance with a federal 

discovery subpoena served upon the Board's custodian of records 

for inspection and copying of records).

Furthermore, even under the principle on which Ricco 

Jonas relies, courts have concluded that "[t]he service of a 

federal subpoena on an employee of an entity [that is protected by 

sovereign immunity]," such as the State of New Hampshire, "is 

neither a suit, nor one against [the entity]." United States v. 

Juvenile Male 1, 431 F. Supp. 2d 1012, 1016 (D. Az. 2006); see
- 17 -

also Allen v. Woodford, 544 F. Supp. 2d 1074, 1078-79 (E.D. Cal. 

2008) (holding that the issuance and required compliance with 

discovery subpoenas directed to custodians of records of state 

agencies under the Federal Rules of Civil Procedure did not 

constitute a "suit in law or equity" within the meaning of the 

Eleventh Amendment); Juvenile Male 1, 431 F. Supp. 2d at 1016 

(holding in a proceeding to enforce a subpoena duces tecum issued 

under Rule 17(b) and (c) of the Federal Rules of Criminal Procedure 

that "sovereign immunity from suit [lacks] any application to the 

enforcement of a federal subpoena on the custodian of records of 

a state or federal agency"). Some courts have reasoned that an 

enforcement proceeding seeking to compel a state officer to comply 

with a subpoena for state records that may only be obtained through 

the state's custodian of records does not constitute a suit against 

the state because such proceeding does not assert a claim in law 

or equity against the state or its officer. See, e.g., Allen, 544 

F. Supp. 2d at 1079. "No judgment will be issued . . . against 

the State that could have any conceivable effect on the State 

treasury; the State custodian[] [is] only subpoenaed to produce 

documents for use in [a litigation not involving the State or the 

State custodian]." Id. We find this reasoning persuasive. Here, 

the enforcement proceeding does not involve a claim in law or 

equity against the State of New Hampshire. Nor will a judgment be 

issued against the State that could have a conceivable effect on 
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New Hampshire's treasury. The relief sought by the DEA through 

this enforcement proceeding is merely an order for Ricco Jonas to 

produce records to be used by the DEA in its investigation of 

violations involving controlled substances and only she, not the 

State, may be found to be in contempt of court for failing to 

comply with a court order enforcing the subpoena.

Although Ricco Jonas complains that the cases cited 

herein involved discovery subpoenas issued under other statutory 

provisions to obtain documents for pending litigation, she fails 

to meaningfully discuss, and we fail to see, why such distinction 

should lead to a different conclusion in this case.8 After all, 

an administrative subpoena "amount[s] to no more than a simple 

direction to produce documents, subject to judicial review and 

enforcement." Sturm, Ruger & Co., 84 F.3d at 3 (citing, among 

other authority, Okl. Press Pub. Co. v. Walling, 327 U.S. 186, 195 

(1946)). And a proceeding to enforce an administrative subpoena, 

such as the one established in 21 U.S.C. § 876(c), is "a 

'satellite' proceeding . . . designed only to facilitate the 

[federal agency's] investigation," McLane Co., 137 S. Ct. at 1168, 

by allowing the agency to use "one of the tools" that Congress 

8 Nor does she explain why the logic of the cases cited 

should not control merely because, in her view, this case involves 

an issue "of statutory interpretation, not Eleventh Amendment 

immunity," especially when she herself relied on sovereign 

immunity principles in making her arguments.
- 19 -

placed "at its disposal in conducting its investigation[s]." Id.

at 1164.

In light of the above, we are unpersuaded by Ricco 

Jonas's arguments that New Hampshire was the instant subpoena's 

true target and that this enforcement proceeding constitutes a 

suit against the State. Furthermore, even if we were to find that 

the subpoena was really issued to the State, Ricco Jonas's 

challenge would still fail because as explained below, states, 

their agencies, and their officials in their official capacities 

are "persons" within the meaning of 21 U.S.C. § 876(c) against 

whom subpoenas may be enforced.

B. Statutory Construction of 21 U.S.C. § 876

The parties dispute whether 21 U.S.C. § 876(a) 

authorizes the Attorney General to issue administrative subpoenas 

to states and to enforce them under § 876(c). Because this is an 

issue of statutory construction, we turn to the language of the 

statute. See In re Fin. Oversight & Mgmt. Bd. for P.R., 919 F.3d 

121, 128 (1st Cir. 2019) ("[I]n resolving a dispute over the 

meaning of a statute we begin with the language of the statute 

itself." (citing Landreth Timber Co. v. Landreth, 471 U.S. 681, 

685 (1985))).

The Attorney General's subpoena power derives from 

§ 876(a) of the CSA. Congress used very broad language in that 

section: "In any investigation relating to . . . controlled 
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substances, . . . the Attorney General may . . . require the 

production of any records . . . which [he] finds relevant or 

material to the investigation. . . . from any place in any State." 

21 U.S.C. § 876(a) (emphasis added). Ricco Jonas urges us to find 

that, despite this broad language, the Attorney General's subpoena 

authority is limited by § 876(c), which provides that "[i]n the 

case of contumacy by or refusal to obey a subp[o]ena issued to any 

person, the Attorney General may invoke the aid of [federal 

courts]." Id. § 876(c). According to Ricco Jonas, because the 

CSA does not define "person," we must presume that such term does 

not include the sovereign, and construe § 876(a) consistent with 

such limitation. She further argues that "the text, structure, 

purpose, legislative history, and executive interpretation" of the 

CSA all lead to the conclusion that states, their agencies, and 

their officials are not "'persons' who may be targeted and 

commanded to comply with administrative investigatory subpoenas." 

In the absence of an express statutory definition, we 

apply a "longstanding interpretative presumption that 'person' 

does not include the sovereign."9 Return Mail, Inc. v. USPS, 139 

9 This presumption both "reflects 'common usage'" and is "an 

express directive from Congress," which has set forth in the 

Dictionary Act that, unless context indicates otherwise, "person" 

includes "corporations, companies, associations, firms, 

partnerships, societies, and joint stock companies, as well as 

individuals." Return Mail, Inc. v. USPS, 139 S. Ct. 1853, 1862 

(2019) (first quoting United States v. Mine Workers, 330 U.S. 258, 

275 (1947); and then quoting 1 U.S.C. § 1).
- 21 -

S. Ct. 1853, 1861-62 (2019) (quoting Vt. Agency of Nat. Res. v. 

U.S. ex rel. Stevens, 529 U.S. 765, 780-81 (2000)). This 

presumption, however, "is not a 'hard and fast rule of exclusion'" 

and "may be disregarded upon some affirmative showing of statutory 

intent to the contrary." Id. at 1862 (first quoting United States

v. Cooper Corp., 312 U.S. 600, 604-05 (1941); and then quoting 

Stevens, 529 U.S. at 781); see also Int'l Primate Prot. League v. 

Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 83 (1991) ("[O]ur 

conventional reading of 'person' may . . . be disregarded if '[t]he 

purpose, the subject matter, the context, the legislative history, 

[or] the executive interpretation of the statute . . . indicate an 

intent, by the use of the term, to bring state or nation within 

the scope of the law.'") (first and second alterations ours).

Ricco Jonas's contention that the Attorney General's 

authority conferred in § 876(a) is limited by § 876(c) is not the 

most natural reading of the statute. Furthermore, the purpose of 

21 U.S.C. § 876, its context, and its legislative history all point 

to the conclusion that Congress intended to bring states within 

the scope of the Attorney General's subpoena power under § 876(a) 

and subject to § 876(c)'s judicial enforcement provision. 

Prior to the enactment of the Act in 1970, "most domestic 

drug regulations . . . generally came in the guise of revenue laws, 

with the Department of the Treasury serving as the Federal 
- 22 -

Government's primary enforcer".10 Raich, 545 U.S. at 10. Before 

1955, the Secretary of Treasury had no authority to subpoena 

witnesses or to require the production of records with respect to 

the enforcement of federal laws relating to narcotic drugs. H.R. 

Rep. No. 84-1247 (1955); H.R. Rep. No. 84-1347 (1955). At the 

time, it was "necessary for the enforcement officers of the 

Treasury Department to obtain subp[o]enas through the Federal 

courts upon a showing of sufficient evidence to justify the 

issuance of the subp[o]enas." H.R. Rep. No. 1247; H.R. Rep. No. 

84-1347. Congress believed that "[t]his lack of authority 

handicap[ped] enforcement officers of the Treasury Department." 

101 Cong. Rec. 11,683 (1955) (remarks of Rep. Cooper). Because 

Congress was of the view that "the power to subpoena witnesses, 

and to require the production of records [would be] a legitimate 

and effective aide to the administration of regulatory and penal 

statutes," H.R. Rep. No. 1347, on August 11, 1955, it passed Public 

Law 362. See Act of Aug. 11, 1955, ch. 800, Pub. L. No. 84-362, 

69 Stat. 684, codified as 21 U.S.C. §§ 198a-198c.

10 Congress eventually "shifted the constitutional basis for 

drug control from its taxing authority to its power to regulate 

interstate commerce, and in 1968 [narcotic enforcement] was 

transferred to [the Department of Justice]." Lisa N. Sacco, Cong. 

Research Serv., R43749, Drug Enforcement in the United States: 

History, Policy, and Trends 5 (2014), available at 

https://sgp.fas.org/crs/misc/R43749.pdf (last visited Jan. 27, 

2021).
- 23 -

Public Law 362 authorized the Secretary of the Treasury 

"to . . . subp[o]ena witnesses . . . and require the production of 

any records (including books, papers, documents, and tangible 

things which constitute or contain evidence) which [he deemed] 

relevant or material to [an] investigation [in connection with the 

enforcement of narcotic drugs and marihuana laws]." Pub. L. No. 

362, § 1 (authorizing subpoenas in connection with the enforcement 

of narcotic laws) (emphasis added). Under this provision, records 

were subject to the subpoena authority of the Secretary of Treasury 

as long as he deemed them relevant or material to an investigation 

relating to narcotic drugs or marihuana laws, regardless of who 

the records belonged to or who was their custodian. See 101 Cong. 

Rec. 11,683 (remarks of Rep. Jenkins summarizing that the House 

bill would authorize the Secretary of the Treasury to subpoena 

"any records" which the Secretary found "necessary or relevant to 

an investigation in connection with the enforcement of laws 

pertaining to narcotic drugs and marihuana"). The bill included 

an enforcement mechanism that allowed the Secretary of the Treasury 

to invoke the aid of federal courts "[i]n case of contumacy by, or 

refusal to obey a subp[o]ena issued to[] any person." Pub. L. No. 

362, § 3. As explained in the Congressional Record, the intent 

was to "establish a contempt procedure as a means of compelling 

compliance with any summons issued pursuant to the authority 

granted [under the statute]." 101 Cong. Rec. 11,683 (remarks of 
- 24 -

Rep. Cooper) (emphasis added); see also S. Rep. No. 1247

(explaining that the bill included a provision establishing "a 

contempt procedure before Federal district judges as a means of 

compelling compliance with any summons issued" under the statute); 

H.R. Rep. No. 84-1347 (same). Congress sought to provide the 

Secretary of the Treasury with "an invaluable weapon in the 

enforcement of the laws relating to narcotic drugs and marihuana." 

S. Rep. No. 1247; H.R. Rep. No. 84-1347; see also United States v. 

Pardo-Bolland, 348 F.2d 316, 321 (2d Cir. 1965) (noting "[t]he 

ease with which the Secretary of the Treasury [could] legally 

authorize the issuance of a subpoena in furtherance of a narcotics 

investigation").

Public Law 362 was § 876's predecessor. The statutory 

language of § 876 is identical in all relevant parts to that of 

Public Law 362. Congress's grant of authority to the Attorney 

General in § 876(a) is as broad as that of its predecessor, and 

its plain language allows for the subpoena of "any records" in 

"any investigation" relating to controlled substances as long as 

the Attorney General finds the records relevant or material to the 

investigation and such records are located in any State, territory, 

or within the jurisdiction of the United States. 21 U.S.C. § 

876(a). See United States v. Mountain States Tel. & Tel. Co., 516 

F. Supp. 225, 230 (D. Wyo. 1981) (stating that the subpoena powers 

under § 876 and Public Law 362 are coterminous); see also United 
- 25 -

States v. Moffett, 84 F.3d 1291, 1293 (10th Cir. 1996) (stating 

that 21 U.S.C. § 876(a) "is written to give the DEA broad powers 

to investigate violations of federal drug laws").

Ricco Jonas does not contest that the statutory language 

authorizing the Attorney General to issue administrative subpoenas 

under § 876(a) is broad or that its plain language does not limit 

law enforcement's authority to obtain records relevant to its 

investigations based on who holds such records. She posits, 

however, that we must read § 876(a)'s language in tandem with 

§ 876(c) which, in her view, limits the Attorney General's 

authority. But Ricco Jonas's proposed reading is not consistent 

with Congress's intent as revealed in the legislative history of 

Public Law 362. The legislative history reveals that § 876(c) was 

not meant to limit or otherwise hamper the broad authority granted 

to the Attorney General under § 876(a). Instead, § 876(c) was 

meant to give teeth to the Attorney General's authority by 

providing a mechanism to enforce subpoenas issued under § 876(a). 

And contrary to Ricco Jonas's contention, the legislative history 

leads to the conclusion that the scope of § 876(c) is informed by 

the authority granted in § 876(a), not the other way around. 

See 101 Cong. Rec. 11683 (remarks of Rep. Cooper noting that the 

enforcement mechanism was meant to "compel[] compliance with any 

summons issued pursuant to the authority granted").
- 26 -

It is clear that Congress's intention was to facilitate 

law enforcement investigations so that the goals of the CSA -- "to 

conquer drug abuse and to control the legitimate and illegitimate 

traffic in controlled substances," Raich, 545 U.S. at 12 -- could 

be accomplished. See United States v. Zadeh, 820 F.3d 746, 752 

(5th Cir. 2016) (noting that because "[f]ederal control" is 

"essential to the effective control of the interstate incidents of 

. . . traffic in controlled substances," the CSA "grants the DEA 

broad enforcement power to prevent, detect, and investigate" drug 

diversion into illegal channels) (alterations in original). To 

interpret § 876 in a way that restricts law enforcement's authority 

to request records relevant to their investigations from states

-- who customarily maintain records of all controlled substances 

distributed in their jurisdictions -- would not only run afoul of 

the statutorily conferred broad authority, but would also be 

contrary to Congress's intent by significantly reverting law 

enforcement's investigation capabilities to its pre-1955 

situation. Because the language of § 876 of the CSA is identical 

in all relevant respects to that of Public Law 362 and the CSA is 

part of a comprehensive statute that sought to "enhance federal 

drug enforcement powers" and "strengthen law enforcement tools 

against the traffic in illicit drugs," Raich, 545 U.S. at 10, 12 

(emphasis added), it is clear that Congress could not have intended 

to revert law enforcement's investigation capabilities to its pre-
- 27 -

1955 situation. See United Sates v. Hossbach, 518 F. Supp. 759, 

767 (E.D. Pa. 1980) (noting that "[e]ven though [the grant of 

subpoena power under 21 U.S.C. § 876] may be broader than that 

customarily granted to agencies by Congress, the preamble to the 

statute as to Congressional findings and declarations, 21 U.S.C. 

§ 801, makes clear that it was of grave concern to Congress that 

there should be effective methods of dealing with illegal drug 

manufacturing and distribution").

Ricco Jonas argues that the CSA "uses the terms 'person' 

and 'State' throughout its statutory text differently" which, in 

her view, indicates that the term "person" contained in 21 U.S.C. 

§ 876(c) does not include the State, its agencies, or its officials 

in their official capacities. As an example, she cites 21 U.S.C. 

§ 873, a provision requiring the Attorney General to "cooperate 

with local, State, tribal, and Federal agencies concerning traffic 

in controlled substances." But that the CSA uses the more specific 

term "State" in some of its provisions for a more precise and 

coherent language does not mean that "State" cannot also be 

included within the meaning of "person" when such term is used in 

a way that encompasses several different terms, as used in 

§ 876(c).11 In fact, just like the CSA uses "State" as a less 

11 Moreover, a single statutory term may even "take[] on 

'distinct characters' in distinct statutory provisions" throughout 

a statute. Return Mail, Inc., 139 S. Ct. at 1863 (quoting Utility 

Air Regulatory Grp. v. EPA, 573 U.S. 302, 320 (2014).
- 28 -

inclusive and more precise term than "person" in some provisions, 

it also uses the less inclusive and more precise term "individuals" 

in its text. See, e.g., 21 U.S.C. § 823(g)(1) (establishing that 

practitioners who dispense narcotic drugs to "individuals" for 

maintenance or detoxification treatments shall obtain a separate 

registration for that purpose). Yet, Ricco Jonas does not dispute 

that despite the CSA's use of "individuals" throughout its 

statutory text differently from "person," the term "person" 

contained in 21 U.S.C. § 876(c) includes "individuals."12

Next, Ricco Jonas posits that the CSA contemplates 

"cooperative arrangements" between the federal government and 

states, see id. § 873, "not relationships where records will be 

seized via administrative investigatory subpoena." But that 

Congress envisioned cooperation between the federal government and 

states does not mean that it intended the Attorney General/DEA to 

hopelessly rely on the states' willingness to cooperate in order 

to obtain needed information to perform their congressionally 

assigned investigative function. Legislative history makes clear 

that Congress intended to "strengthen law enforcement tools," 

Raich, 545 U.S. at 10, so that "[t]he illegal traffic in drugs 

12 Ricco Jonas urges us to adopt the Dictionary Act's 

definition of "person," which includes "corporations, companies, 

associations, firms, partnerships, societies, and joint stock 

companies, as well as individuals." See 1 U.S.C. § 1 (emphasis 

added).
- 29 -

[c]ould be attacked with the full power of the Federal Government," 

H.R. Rep. No. 91-1444, at 4575 (1970) (emphasis added), not that 

law enforcement be at the mercy of the states' willingness to 

cooperate. This very case exemplifies why it was important for 

Congress to provide the Attorney General/DEA with a mechanism to 

obtain records relevant to their investigations from states, its 

agencies, and its officials.

Furthermore, contrary to Ricco Jonas's contentions, 

providing the Attorney General/DEA with a mechanism to enforce 

subpoenas does not render the cooperative arrangements provision 

meaningless. Section 873 of the CSA, titled "Cooperative 

Arrangements," states that, "[t]he Attorney General shall 

cooperate with local, State, tribal, and Federal agencies 

concerning traffic in controlled substances and in suppressing the 

abuse of controlled substances." 21 U.S.C. § 873(a). To this 

end, the Attorney General "is authorized to . . . assist State, 

tribal, and local governments in suppressing the diversion of 

controlled substances from legitimate medical, scientific, and 

commercial channels." Id. § 873(a)(6). That the Attorney 

General/DEA may enforce administrative subpoenas issued to states, 

their agencies, or officials under § 876(c) for records relevant 

to their own investigations relating to controlled substances in 

no way hampers the Attorney General's authorization under § 873 to 

assist local, state, tribal, and federal agencies in their own 
- 30 -

fights against the illicit traffic of controlled substances. Nor 

does it hamper, as Ricco Jonas contends, the states' prerogative 

to conduct their own investigations and prosecute drug offenses 

pursuant to applicable state laws.

Finally, we note that our interpretation is consistent 

with the federal agency's interpretation of its statutory 

authority to issue administrative subpoenas for records relevant 

to its investigations, and, for aught that it appears, this is the 

first time that a state has challenged this interpretation in court 

in the more than six decades that such authority has been in 

place.13 See, e.g., Or. Prescription Drug Monitoring Program v. 

U.S. DEA, 860 F.3d 1228, 1236 (9th Cir. 2017) (stating, where the 

DEA issued an administrative subpoena under § 876(a) to seek 

records from Oregon's Prescription Drug Monitoring Program -- a 

state-maintained database like the PDMP -- that "[t]he upshot of 

the statutory scheme is that the Attorney General can obtain 

testimony and documents through a subpoena and without a court 

order" and that "[a] court order is needed only in the event of 

noncompliance ('contumacy . . . or refusal to obey') with the 

subpoena" (third alteration in original) (citing 21 U.S.C. 

§§ 876(a) and (c))); see also Return Mail, Inc., 139 S. Ct. at 

13 The parties have not pointed us to any case addressing the 

statutory construction question presented here, nor has our 

independent research revealed such a case.
- 31 -

1866 (stating that "[w]hen administrative and judicial 

interpretations have settled the meaning of an existing statutory 

provision, repetition of the same language in a new statute 

indicates, as a general matter, the intent to incorporate its 

administrative and judicial interpretations as well" (quoting 

Bragdon v. Abbott, 524 U.S. 624, 645 (1998)).

In light of the above, we find that the instant subpoena 

is a legitimate exercise of authority under the CSA. Hence, the 

district court did not abuse its discretion in concluding that it 

was enforceable under 21 U.S.C. § 876(c).14

C. The Privacy Interest in PDMP Data

Ricco Jonas argues that, even if 21 U.S.C. § 876 

authorizes the issuance and enforcement of administrative 

subpoenas against states, their agencies, and officials in their 

official capacities, the Fourth Amendment nonetheless bars the 

enforcement of the instant subpoena. According to Ricco Jonas, 

individuals have a reasonable expectation of privacy in their 

prescription drug records stored in the PDMP database, thereby 

allowing the DEA to obtain such records only with a court order 

based on probable cause.

14 On appeal, Ricco Jonas does not challenge the district 

court's conclusion that the CSA preempts New Hampshire's statutory 

requirement that law enforcement officials obtain an order based 

on probable cause before obtaining PDMP data. Hence, we do not 

address that issue.
- 32 -

The parties dispute whether Ricco Jonas has standing to 

assert the substantive Fourth Amendment rights of the individual 

patient subject to the subpoena. The district court assumed 

without deciding that Ricco Jonas had standing. On appeal, Ricco 

Jonas and Amici argue in favor of standing, relying on the parens 

patriae doctrine and third-party standing, respectively. For its 

part, the DOJ argues that Fourth Amendment rights may not be 

invoked vicariously. Because this is an issue of prudential 

constraint, rather than Article III standing, we bypass the issue 

and directly address the merits of the case. See Lexmark Int'l, 

Inc. v. Static Control Components, Inc., 572 U.S. 118, 125 (2014) 

(explaining that the "'prudential' branch of standing," which is 

"not derived from Article III," includes "the general prohibition 

on a litigant's raising another person's legal rights" (quoting 

Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12 (2004)); 

Warth v. Seldin, 422 U.S. 490, 509 (1975) (noting that the 

prudential standing rule "normally bars litigants from asserting 

the rights or legal interests of others in order to obtain relief 

from injury to themselves"); Katz v. Pershing, LLC, 672 F.3d 64, 

72 (1st Cir. 2012) (explaining that prudential concerns 

"ordinarily require a plaintiff to show that his claim is premised 

on his own legal rights (as opposed to those of a third party), 

that his claim is not merely a generalized grievance, and that it 

falls within the zone of interests protected by the law invoked" 
- 33 -

(quoting Pagán v. Calderón, 448 F.3d 16, 27 (1st Cir. 2006)); see

also Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 638 (1st 

Cir. 2013) (bypassing the prudential standing issue "in favor of 

a more straightforward resolution on the merits").

The Fourth Amendment applies when the person invoking 

its protection has a reasonable expectation of privacy in the place 

to be searched or the item to be seized by governmental officials. 

Smith v. Maryland, 442 U.S. 735, 739-40 (1979); United States v. 

Battle, 637 F.3d 44, 48 (1st Cir. 2011). The Supreme Court has 

established a "two-part test" for analyzing whether a movant has

a reasonable expectation of privacy under the Fourth Amendment. 

United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009). Under 

this test, we must determine "first, whether the movant has 

exhibited an actual, subjective, expectation of privacy; and 

second, whether such subjective expectation is one that society is

prepared to recognize as objectively reasonable." Id. (citing 

Smith, 442 U.S. at 740). Absent such an expectation, the 

government may use a subpoena to acquire records in its 

investigation without the need of a court order based on probable 

cause. See Carpenter v. United States, 138 S. Ct. 2206, 2222 

(2018) ("The Government will be able to use subpoenas to acquire 

records in the overwhelming majority of investigations. . . . [A]

warrant is required in the rare case where the suspect has a 

legitimate privacy interest in records held by a third party.").
- 34 -

The DOJ argues that, contrary to Ricco Jonas's 

contentions, "because of the closely regulated nature of the 

pharmaceutical industry and the third-party doctrine, a person 

cannot claim an objectively reasonable expectation of privacy" in 

his prescription drug records included in the PDMP database.15 We 

agree.

The closely regulated industry doctrine recognizes that 

there is a diminished expectation of privacy for materials that 

are maintained by a business that is subject to pervasive 

regulation and inspection.16 See Donovan v. Dewey, 452 U.S. 594, 

600 (1981) (explaining that in a pervasively regulated business 

"the federal regulatory presence is sufficiently comprehensive and 

defined that the owner of commercial property cannot help but be 

aware that his property will be subject to periodic inspections 

undertaken for specific purposes"); New York v. Burger, 482 U.S. 

691, 702 (1987) (explaining that "[b]ecause the owner or operator 

of commercial premises in a 'closely regulated' industry has a 

reduced expectation of privacy," administrative searches and 

warrantless inspections "may well be reasonable within the meaning 

15 The DOJ notes that, because the individual whose 

prescription records are being sought was not before the district 

court, it is impossible to determine whether such individual claims 

a privacy interest in those records. The DOJ thus focuses its 

argument on the objective part of the test. 

16 Case law uses the terms "closely regulated," "highly 

regulated," and "pervasively regulated" interchangeably.
- 35 -

of the Fourth Amendment"); Giragosian v. Bettencourt, 614 F.3d 25, 

29 (1st Cir. 2010) (validating the government's warrantless search 

of a licensed firearm dealer's inventory and records because "the 

owner of commercial property in a closely regulated industry has 

a reduced expectation of privacy in those premises"). This court, 

as well as others, has characterized the pharmaceutical industry 

as a closely regulated industry. United States v. Gonsalves, 435 

F.3d 64, 67 (1st Cir. 2006); see also United States v. Schiffman, 

572 F.2d 1137, 1142 (5th Cir. 1978) ("The pharmaceutical industry 

is a 'pervasively regulated business' like the liquor and gun 

industries." (quoting United States v. Montrom, 345 F. Supp. 1337, 

1340 (E.D. Pa. 1972))); United States v. Acklen, 690 F.2d 70, 75 

(6th Cir. 1982) (holding that "the pharmaceutical industry, like 

the mining, firearms, and liquor industries, is a pervasively 

regulated industry and that consequently pharmacists and 

distributors subject to the Controlled Substances Act have a 

reduced expectation of privacy in the records kept in compliance 

with the Act") (footnotes omitted); United States v. Nechy, 827 

F.2d 1161, 1166 (7th Cir. 1987); United States v. Motley, 443 F.

Supp. 3d 1203, 1213 (D. Nev. 2020) (noting that the prescription 

drug industry is highly regulated); U.S. Dep't of Justice v. Utah 

Dep't of Commerce, No. 2:16-cv-611-DN-DBP, 2017 WL 3189868, at *8 

(D. Utah July 27, 2017) (stating that "[p]rescription drugs are a 

highly regulated industry"); State v. Welch, 624 A.2d 1105, 1110-
- 36 -

11 (Vt. 1992); Stone v. Stow, 593 N.E.2d 294, 300 (Ohio 1992) 

("Being in such a pervasively regulated business, a pharmacist has 

a reduced expectation of privacy in the prescription records he or 

she keeps.").

Both federal and New Hampshire laws regulate controlled 

substances by requiring pharmacies, among other handlers of 

controlled substances, to maintain prescription drug records and 

keep them open for inspection by law enforcement officers without 

the need of a warrant.

The CSA and its implementing regulations provide that 

every registered dispenser of a controlled substance must maintain 

a complete and accurate record of each such substance disposed 

of.17 21 U.S.C. § 827(a)(3); 21 C.F.R. §§ 1304.03, 1304.04(h), 

1304.21(a). These records must be kept for at least two years 

"for inspection and copying by officers or employees of the United 

States authorized by the Attorney General." 21 U.S.C. § 827(b); 

see also 21 C.F.R. § 1304.04(a) (establishing that all required 

records concerning controlled substances must be maintained for at 

least two years for inspection and copying by duly authorized DEA 

officials).

17 The records of controlled substances maintained by 

registered pharmacies shall include paper prescription records and 

electronic prescription records, which must be sortable by 

prescriber name, patient name, drug dispensed, and date filled. 

21 C.F.R. § 1304.04(h).
- 37 -

Similarly, New Hampshire law requires practitioners, 

including pharmacists, physicians, and hospitals, to maintain 

records "show[ing] the receipt and disposition of all controlled 

drugs." N.H. Rev. Stat. Ann. § 318-B:12(I). These records must 

comply with "federal laws and regulations" and must indicate at 

least: (1) the name, dosage form, strength, and quantity of the 

controlled drug; (2) the name and address of any person to whom 

the drug was administered, dispensed, sold or transferred; and (3) 

the date of any and all transactions involved with the controlled 

drug. Id. Practitioners shall keep these records "open for 

inspection . . . to federal, state, county and municipal law 

enforcement officers [and others] . . . whose duty it is to enforce 

the laws of [New Hampshire] or of the United States relating to 

controlled drugs." Id. § 318-B:12(II).

Pursuant to New Hampshire law, every person or entity 

authorized to deliver schedule II-IV controlled substances must 

also report 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. §§ 126-A:89(VI), 126-

A:91(VI)(a)-(o).

Ricco Jonas contends that, despite the closely regulated 

nature of the pharmaceutical industry and the availability of 

prescription drug records to law enforcement without a court order 

under both federal and state law, we should nevertheless find a 
- 38 -

reasonable expectation of privacy in prescription drug records 

because several courts have recognized that patients have a 

reasonable expectation of privacy in their medical records.18 We 

reject Ricco Jonas's invitation to equate prescription drug 

records to all other medical records. As a subset of medical 

records, prescription drug records do not generally or necessarily

contain the more personal and intimate information that other 

medical records do. 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. Eil

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

unlike prescription drug records, medical records are not subject 

to pervasive regulatory disclosures under both federal and state 

18 In support of this argument, Ricco Jonas cites Ferguson

v. City of Charleston, 532 U.S. 67 (2001). But Ferguson was not 

about access to prescription drug records held by a third-party. 

Rather, there, the hospital, in conjunction with law enforcement, 

developed and followed a policy for identifying and testing 

pregnant patients suspected of drug use. Under that policy, the 

hospital would take urine tests of pregnant women and provide 

positive results to the police. Ferguson, 532 U.S. at 70-73. The 

Supreme Court held that the hospital's performance of a diagnostic 

test to obtain incriminating evidence from their patients for law 

enforcement purposes without the patients' consent was 

unconstitutional. Id. at 83-84. The Court noted that its ruling 

did not extend to a situation "in which state hospital employees, 

like other citizens, may have a duty to provide law enforcement 

officials with evidence of criminal conduct acquired in the course 

of routine treatment." Id. at 78 n.13.
- 39 -

law. See U.S. Dep't of Justice v. Utah Dep't of Commerce, No. 16-

cv-00611-DN-DBP, 2017 WL 9131888, at *4 (D. Utah Mar. 10, 2017)

(Pead, Mag.J.) (stating that "the applicable legal framework 

suggests prescription drug records are highly regulated, and thus 

less deserving of privacy [than medical records]").

Ricco Jonas also argues that individuals have a 

reasonable expectation of privacy in their prescription drug 

records stored in the PDMP database because "prescription drug 

records are frequently suggestive of patients' underlying medical 

diagnoses." But her argument crumbles in the face of the 

pharmaceutical industry's regulatory requirements. Both New 

Hampshire and federal law require that practitioners and handlers 

of controlled substances (including pharmacies and pharmacists) 

maintain records containing essentially the same information 

stored in the PDMP database and keep such records available for 

law enforcement inspection without the need of a court order. The 

PDMP merely aggregates into one depository the information 

included in records that must already be maintained available and 

open for inspection by the DEA. Ricco Jonas does not discuss why 

we should find a reasonable expectation of privacy in the 

aggregated database records when the underlying individual records 

containing essentially the same information are open to on-site 

inspection by law enforcement. And case law suggests we should 

not. See Whalen v. Roe, 429 U.S. 589, 600-04 (1977) (holding that 
- 40 -

New York's collection of prescription records in a computerized 

database did not violate patients' and physicians' right to privacy 

under the Due Process Clause of the Fourteenth Amendment).

We thus find that, in 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. See Motley, 443 F. Supp. 3d at 1213 

(reasoning that, because the pharmaceutical industry is highly 

regulated and "is required by federal law to keep the types of 

records sought by [law enforcement] in [that] case, [defendant] 

did not have a reasonable expectation of privacy in the 

[Prescription Monitoring Program] database"); Utah Dep't of 

Commerce, 2017 WL 3189868, at *8-9 (holding that, because "patients 

do not have a reasonable expectation of privacy in the highly 

regulated prescription drug industry," the Fourth Amendment posed 

no bar to enforcement of subpoena issued by the DEA to obtain 

records from the state-maintained database); Murphy v. State, 62 

P.3d 533, 541 (Wash. Ct. App. 2003) ("Given [the] long history of 

government scrutiny, patients who fill prescriptions for narcotic 

drugs . . . should reasonably expect that their prescriptions will 

be available to appropriate government agents."). In fact, the 
- 41 -

expectation created by the intense regulatory requirements is that 

"prescription and use of controlled substances will happen under 

the watchful eye of [both] the federal [and state] government[s]." 

Utah Dep't of Commerce, 2017 WL 3189868, at *8.

Our conclusion that patients do not have a reasonable 

expectation of privacy in their prescription drug records is 

further supported by the third-party doctrine. Under that

doctrine,

a person has no legitimate expectation of privacy in 

information he voluntarily turns over to third parties 

. . . even if the information is revealed on the 

assumption that it will be used only for a limited 

purpose and the confidence placed in the third party 

will not be betrayed.

United States v. Morel, 922 F.3d 1, 8-9 (1st Cir. 2019) (citing 

Smith, 442 U.S. at 743-44) (quotation marks omitted).

This doctrine "largely traces its roots to [United 

States v. Miller, 425 U.S. 435 (1976)]." Carpenter, 138 S. Ct. at 

2216. In Miller, the Supreme Court applied the third-party 

doctrine in rejecting a bank customer's claim of a reasonable 

expectation of privacy in his financial records held by the bank. 

Miller, 425 U.S. at 436-45. The Court noted that the records 

subpoenaed were business records and not Miller's "private papers"

and that they contained information "exposed to [bank] employees 

in the ordinary course of business." Id. at 440, 442. The Court 

thus concluded that Miller had "take[n] the risk, in revealing his 
- 42 -

affairs to another, that the information [would] be conveyed by 

that person to the Government." Id. at 443. The Court applied 

the same logic to dialed phone numbers in Smith v. Maryland, where 

it held that, "[w]hen he used his phone, petitioner voluntarily 

conveyed numerical information to the telephone company and 

'exposed' that information to its equipment in the ordinary course 

of business. In so doing, petitioner assumed the risk that the 

company would reveal to police the numbers he dialed." 442 U.S. 

at 744.

Ricco Jonas, however, resists the application of the 

third-party doctrine. Relying on Carpenter v. United States, 138 

S. Ct. 2206 (2018), where the Supreme Court declined to extend the 

third-party doctrine to cell-site location information, Ricco 

Jonas claims that such doctrine is not applicable here because 

patients do not turn over prescription records voluntarily 

inasmuch as the only way to avoid such sharing is by forgoing 

medical treatment or filling their prescriptions in another state. 

But Carpenter is of no help to Ricco Jonas. Carpenter

did not disturb the third-party doctrine. Carpenter, 138 S. Ct. 

at 2220 ("We do not disturb the application of Smith and Miller."). 

Rather, it reiterated that two primary rationales underlie the 

third-party doctrine: the nature of the information sought and 

the voluntariness of the exposure of that information to third 

parties. Id. at 2219-20. Based on these rationales, the Court 
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refused to apply the third-party doctrine in that case because

doing so would amount to "a significant extension of [the doctrine] 

to a distinct category of information." Id. at 2219.

In considering the nature of the information sought, the 

Supreme Court noted in Carpenter that cell-site location 

information provides an "all-encompassing record of the [cell 

phone] holder's whereabouts[,] . . . revealing not only his 

particular movements, but through them his 'familial, political, 

professional, religious, and sexual associations.'" Id. at 2217

(quoting United States v. Jones, 565 U.S. 400, 415 (2012)

(Sotomayor, J., concurring)). In essence, it amounts to a 

"detailed chronicle of a person's physical presence compiled every 

day, every moment, over several years." Id. at 2220. In the 

Court's view, because the personal information that law 

enforcement can get from cell-site records is not limited like the 

information at issue in Miller and Smith, it "implicates privacy 

concerns far beyond those considered in [those two cases]." Id.

Here, Ricco Jonas argues that prescription drug records 

contain intimate and private details because it may be possible to 

determine a person's illnesses from looking at such records, thus 

suggesting that the nature of the documents sought should cut 

against applying the third-party doctrine. But the nature of 

prescription drug records is similar to that of bank records, and 

much different than that at issue in Carpenter. See id. at 2219 
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("There is a world of difference between the limited types of 

personal information addressed in Smith and Miller and the 

exhaustive chronicle location information casually collected by 

wireless carriers today."). Even though financial transactions 

can reveal personal information, such as "personal affairs, 

opinions, habits," "a person's activities, associations, and 

beliefs," Miller, 425 U.S. at 451, 453 (Brennan, J., dissenting), 

the Supreme Court characterized this type of personal information

as "limited." Carpenter, 138 S. Ct. at 2219. The personal 

information that law enforcement could get from prescription drug 

records is likewise limited. At most, law enforcement could 

possibly decipher a patient's diagnosis or several potential 

diagnoses. This is thus more akin to the information at issue in 

Miller than to the "all-encompassing record" and "detailed 

chronicle" that may be ascertained from cell-site records. Id. at 

2217, 2220. Furthermore, the records subpoenaed by the DEA are 

not the patient's "private papers." Miller, 425 U.S. at 440. A 

physician does not write a prescription for the patient to keep to 

himself. Instead, the prescription is meant to be turned over to 

a drug dispenser in the ordinary course of business with 

instructions of what drug, what dosage and frequency, and to whom 

the controlled substance should be dispensed. See United States

v. Gayden, 977 F.3d 1146, 1152 (11th Cir. 2020) (finding that 

disclosure of prescription drug records was voluntary because 
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prescriptions "were, by their very nature, intended to be revealed 

to others when they were disclosed . . . to the pharmacies which 

filled them"). Prescription drug records are kept by the pharmacy 

or dispensary and subsequently shared with the PDMP, and the 

patient has no access to those records or control over them.

Nor does the second rationale underlying the third-party 

doctrine -- voluntary exposure -- help Ricco Jonas. In Carpenter, 

the Supreme Court noted that 

a cell phone logs a cell-site record by dint of its 

operation, without any affirmative act on the part of 

the user beyond powering up. Virtually any activity on 

the phone generates [cell-site location information]

. . . . [and] [a]part from disconnecting the phone from 

the network, there is no way to avoid leaving behind a 

trail of location data.

 

Carpenter, 138 S. Ct. at 2220. Ricco Jonas argues that, like the 

cell phone user in Carpenter, patients do not voluntarily share 

their prescription drug information with third parties. She 

submits that obtaining health care and drug treatment therapies is 

"indispensable to participation in modern society" and apart from 

forgoing health care and drug treatment therapies, there is no way 

to avoid leaving behind prescription drug data. Thus, in her view,

in no meaningful sense does a patient voluntarily assume the risk 

of turning over prescription drug data. But the Supreme Court 

rejected a similar argument in Miller. There, Miller argued that 

"[f]or all practical purposes, the disclosure by individuals or 

business firms of their financial affairs to a bank is not entirely 
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volitional, since it is impossible to participate in the economic 

life of contemporary society without maintaining a bank account." 

Brief for Respondent, United States v. Miller, 425 U.S. 435 (1976) 

(No. 74-1179), 1975 WL 173642, at *8; see also Miller, 425 U.S. at 

451 (Brennan, J., dissenting) (adopting this argument). 

Unpersuaded, the Court found that this does not change the fact 

that the person affirmatively elected to turn over the document to 

a third party and, in so doing, "t[ook] the risk" that the 

information be conveyed by that third party to the government. 

Miller, 425 U.S. at 443. Similarly, a person who turns over his 

prescription for controlled substances to a third party "assume[s] 

the risk" (in this case the certainty, given the state and federal 

disclosure requirements), that the information be turned over to 

the government. Carpenter, 138 S. Ct. at 2220.

In sum, an analysis of the two rationales underlying the 

third-party doctrine lead us to conclude that the third-party 

doctrine applies to this case. See Gayden, 977 F.3d at 1152 

(holding that "prescription records are third-party material" that 

may be obtained by law enforcement without a warrant). As the

Court noted in Carpenter, "society's expectation has been that law 

enforcement agents . . . would not -- and indeed, in the main, 

simply could not -- secretly monitor and catalogue every single 

movement of an individual's car for a very long period." 

Carpenter, 138 S. Ct. at 2217 (quotation marks omitted). In the 
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Court's view, allowing the government to benefit from "seismic 

shifts in digital technology" that now makes possible the "tireless 

and absolute surveillance" of individuals "at practically no 

expense" would contravene that expectation. Id. at 2218-19.

Here, in contrast, there is no "powerful new tool," id.

at 2223, that makes possible for law enforcement to now do what it 

could not do before. Although it may be easier and cheaper for 

law enforcement to obtain prescription drug records from the PDMP 

than from individual pharmacies, society'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.

Finally, Ricco Jonas argues that finding no reasonable 

expectation of privacy in prescription drug records may cause 

people to forgo treatment to maintain their privacy. But in Whalen

the Supreme Court rejected a similar argument under the Fourteenth 

Amendment and Ricco Jonas offers no explanation for why the same 

reasoning should not apply under the Fourth Amendment. See Whalen, 

429 U.S. at 602-04 (finding no invasion of privacy right protected 

by the Fourteenth Amendment despite the fact that "some 

individuals' concern for their own privacy may lead them to avoid 

or to postpone needed medical attention" because of fear that 

public disclosure of this information "may reflect unfavorably on 

the[ir] character").
- 48 -

IV. CONCLUSION

In light of the above, we hold that the district court 

did not abuse its discretion in enforcing the instant 

administrative subpoena. The district court's judgment is thus 

affirmed.