PA Superior Court: No Search Warrant Required to Obtain Pharmacy Records of Pseudoephedrine Purchases

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McFarland, holding that information obtained from the NPLEX is not federally protected health information. Therefore, police do not need to require a search warrant to obtain records from that system. The NPLEX is a system that is used by pharmacies to track over-the-counter Pseudoephedrine purchases.

Commonwealth v. McFarland

An officer entered an Altoona, PA residence in order to attempt to serve a search warrant on two occupants of the residence on March 5, 2018. The defendant was found in the residence with the two other occupants. The officer observed a glass smoking pipe that he deemed likely to be used for smoking methamphetamines, in addition to empty blister packets, batteries, and a soda bottle with a white crystal substance inside. The other officers conducted a protective sweep of the house for any other individuals and noted other items they deemed consistent with manufacturing methamphetamines via the one-pot method.

Notably, methamphetamine can be manufactured using a two-liter bottle, known as the one-pot method. Pseudoephedrine is a primary ingredient to manufacture methamphetamine via this method. It can be purchased at pharmacies or retail stores in blister packets. The medication containing pseudoephedrine is intended to treat allergies and cold symptoms.

The officers notified the Pennsylvania State Police Clandestine Lab, and officers from that organization went to the house and concluded that the residence contained a methamphetamine production lab.

The officers then searched the National Precursor Log Exchange (NPLEX), which is a database that contains information provided by buyers of pseudoephedrine such as their name, address, and date of birth, in addition to the date, time, brand, and amount of pseudoephedrine purchased. This system also limits the amount of pseudoephedrine purchased by a person within a specified period of time.

The NPLEX log showed that the defendant had attempted to purchase Wal-Phed on November 26, 2017, but he was blocked because he had exceeded the 9-gram limit within 30 days. On January 4, 2018, the defendant was blocked from purchasing a 10-count box of pseudoephedrine. On January 28, 2018, the defendant was blocked from making a purchase of a 10-count box of pseudoephedrine. On February 5, 2018, the defendant successfully purchased a 20-count box of pseudoephedrine. On February 19, 2018, the defendant successfully purchased a 20-count box of pseudoephedrine. On March 2, 2018, the defendant successfully purchased a 10-count box of pseudoephedrine. Between January 2017 and March 2, 2018 of the NPLEX log, the defendant had made 28 successful purchases and attempted 17 blocked purchases of pseudoephedrine in Altoona.

A preliminary hearing was held for the defendant on May 23, 2018. After this hearing, the defendant filed an omnibus pretrial motion seeking suppression of the NPLEX log because the officer obtained the log without securing a search warrant or court order first. The motion also sought dismissal of all charges, arguing that the Commonwealth had not found evidence that the defendant was aware of the drug manufacturing operation.

The suppression hearing was held on May 24, 2019 and after this hearing, the court ordered both parties to file memoranda of law, specifically addressing a prior opinion in the case of Commonwealth v. Babcock.  Babcock set the precedent in a nearby county that police could obtain NPLEX logs without obtaining a search warrant, though the defendant argued that Babcock was contrary to other existing precedents. The trial court denied the defendant’s motion, and the case proceeded to trial in February 2020. The defendant was found guilty of manufacturing a controlled substance and conspiracy and not guilty of the rest of the charges.

On July 13, 2020, the defendant filed a post-sentence motion, arguing that the verdicts were against the weight of the evidence and that the jury’s verdicts were not sufficiently supported by evidence, as well as arguing that the trial court should have suppressed the NPLEX logs. The post-sentence motion hearing was conducted on September 21, 2020. The Commonwealth’s post-sentence motion, in which the prosecution argued that the trial court had erred in failing to sentence the defendant to the statutory mandatory minimum sentence, was granted, while the defendant’s motion was denied.

The defendant filed an appeal to the Pennsylvania Superior Court. On appeal, he argued that the trail court erred in denying the motion to suppress because the police should have been required to obtain a search warrant in order to get the pharmacy purchase information.

The Pennsylvania Superior Court’s Decision

The defendant argued that there was a reasonable expectation of privacy in the health information that the police obtained without a warrant under the Health Insurance Portability and Accountability Act (HIPAA), which protects information that was obtained in the NPLEX logs.

The Superior Court agreed with the trial court’s decision that the NPLEX logs were not protected information. The NPLEX is a real-time stop-sale system which is intended to be used by law enforcement agencies in addition to pharmacies and other businesses to track sales of ephedrine and pseudoephedrine to ensure individuals do not go over the purchase limit. Data such as the name and address of the purchaser, the name and quantity of the product purchased, the date and time of the purchase, and the purchaser’s identification and signature are allowed to be viewed by law enforcement, according to federal law.

HIPAA is intended to regulate the use and disclosure of health information, which is defined as past, present, or future health or conditions of an individual, in addition to the provision of health care to an individual and any past, present, or future payment for health care to an individual. NPLEX logs do not fall under this definition, and instead would be classified as retail purchase information. NPLEX demonstrates the time and date of purchase, as well as freely given identification of a purchaser.

The Superior Court also reviewed Babcock and agreed with the Commonwealth’s arguments. The Superior Court concluded that the defendant had no protected privacy interest regarding the NPLEX logs, so the Fourth Amendment did not apply, and police did not have to obtain a search warrant.

The defendant also argued that there was insufficient evidence to convict him of manufacturing a controlled substance and conspiracy beyond a reasonable doubt. The Superior Court deemed this claim waived because the defendant did not specify in his statement of errors which elements the Commonwealth failed to prove.

The defendant further argued that his presence at the residence where drug manufacturing occurred was not sufficient to convict him of conspiracy. The Superior Court determined that his extensive, 3.5-year purchase and attempted purchase history of pseudoephedrine, many coinciding with purchases and attempted purchases of the other defendants in the case, established a conspiracy. Additionally, the defendant’s close proximity to the drug manufacturing paraphernalia on March 5, 2018 did not help his case, either. Finally, the defendant was found with $3500 in cash on his person, which the testifying officer explained was consistent with drug trafficking.

The defendant also argued that the trial court should not have denied his claim that the jury’s verdicts were against the weight of the evidence presented, claiming the majority of evidence was based solely on the NPLEX logs. According to relevant case precedent, the jury was free to believe some, all, or none of the evidence presented. The defendant must also establish that the evidence that supported his conviction was vague and uncertain in order to succeed on a weight challenge. The Superior Court determined that there was no abuse of the court’s discretion in rejecting the defendant’s weight claim. As a result, the sentence was affirmed, and the defendant’s appeal was denied.

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Read the Superior Court’s Opinion