Police May Be Violating Medical Marijuana Patients Privacy Rights in Las Vegas
Medical Marijuana Attorney Las Vegas
There are recent reports of teams of law enforcement agents in the Las Vegas area showing up at the private residences of persons who have been issued a medical marijuana patient registry identification card by the Division of Health and Human Services and requesting to enter the person’s home in order to conduct a search, purportedly to see the cardholder’s personal marijuana grow to make sure the cardholder is in compliance with medical marijuana laws. These teams are made up of officers from the Las Vegas Metropolitan Police Department, Henderson Police Department and the Federal Drug Enforcement Agency (DEA). One of the many problems with this scenario is that under applicable state law, except for the limited purpose of verifying a claim of authorization, law enforcement is not supposed to know who is a registered MMJ card holder
Medical Marijuana Cardholder Prescription
The citizens of Nevada voted to amend the State Constitution to allow for the lawful use of medical marijuana by persons who have certain medical conditions. Subsequently, the Nevada Legislature enacted statutes governing the administration of the Medical Marijuana Program, including statutes relating to the confidentiality of information concerning anybody to whom the Division of Health and Human Services has issued an identification card.
Under Nevada Revised Statute (NRS) 453A.700 the Division of Health and Human Services is required to maintain the confidentiality of the name or any other identifying information of any person who has applied for or to whom the Division has issued a registry identification card, including the contents of any applications, records or other written documentation that the Division creates or receives. In fact, the information is not even subject to a subpoena or discovery in a legal proceeding. The one exception to the confidentiality requirement is that the Division is permitted to provide the information to state and local law enforcement agencies only as needed to verify that a person is a lawful holder of a registry identification card. That is all the Division is permitted to disclose.
So how is law enforcement obtaining the information of registered cardholders enabling these teams of agents to appear at the cardholder’s doorstep? One can reasonably conclude that there is a systemic breakdown in the way the Division of Health and Human Services allows access to its database of which law enforcement is willfully exploiting for improper purposes.
From what we have learned from the Division and its lawyers, the patient database is searchable in two ways. First, by patient number, meaning the number appearing on the card. This would require the officer to actually interact with the patient and the patient to make a “claim of authorization” by providing the card and/or patient number which would then allow the officer to verify the claim. Because the database only shows a patient number and effective dates (no names or addresses) this protects the patient from unlawful disclosure of his confidential medical information. In other words, police cannot simply run a name thought the system to initiate an investigation. Rather, they would in this way verify a claim of authorization. Unfortunately, the Division has apparently provided another way of accessing the database- via driver’s license number. Since police already have ready access to Driver License databases, this method does not require the officer to actually interact with a patient to determine if he is a cardholder.
To illustrate just one way how this information can be abused by law enforcement, consider a recent case this office has taken on. In it, the Clark County District Attorney’s Office has decided to prosecute a patient /card holder for possessing a firearm while being a cardholder. Mind you, this is not prosecuting someone for being intoxicated or ‘high’ while in actual possession of a firearm, which we can all agree is a bad thing – but rather, merely for their simultaneous status as a cardholder and gun owner. The special task force went to the cardholder’s home to conduct a compliance check /search as previously discussed. Here is a redacted excerpt from the officer’s affidavit seeking the search warrant:
I, Police Officer] went to the front door in an attempt to contact the homeowner. Through the side window next to the front door [I] did observe several firearms on the floor leaned against the wall in the living room. [I] checked with the Nevada Department of Health Medical Marijuana Division website and learned that [the homeowner] is a licensed medical marijuana patient with a card expiring [date]. As an admitted chronic user of the controlled substance marijuana, which is admitted by being a medical marijuana patient, [homeowner] is prohibited from possessing firearms.
Based upon the information provided, the officer was able to convince a judge to sign a search warrant for the cardholder’s home. It’s not hard to imagine the adverse consequences if this information was accessed every time an officer made a traffic related stop or the many other ways the disclosure of this private information can be abused.
While it is the Division that is charged, by law, with the responsibility of keeping this information confidential, and thus implementing policies and procedures which ensure such confidentiality and prevent abuse – it is also the duty of local and state law enforcement to access the information only for the purposes intended by the voters, as evidenced by the Nevada Constitution. Further, once confidential information is entrusted to law enforcement under the premise of lawful purposes, it must still abide by the law and maintain its confidentiality and only use it for the purpose stated in the constitution.
The fact that law enforcement agencies are obtaining confidential information outside of the provisions of the constitution and related statute is not only a gross violation of state law, it may also be a violation of the individual cardholder’s Constitutional Right of Privacy as well as a violation of the Health Insurance Portability and Accountability Act of 1996, commonly known as “HIPAA.”
Federal Constitutional Right to Privacy: The Supreme Court of the United States has declared that the right of privacy is a fundamental right guaranteed by the Federal Constitution. The right to make decisions regarding one’s own bodily integrity and medical treatment is embraced in both federal and state constitutional rights of privacy. The right of privacy, as an independent and distinctive legal concept, and as one of the major fundamental constitutional rights has two main aspects: (1) the general law of privacy, which affords a tort action for damages resulting from an unlawful invasion of privacy; and (2) the constitutional right of privacy which protects personal privacy against unlawful governmental invasion. There are two classes of privacy interests. One is the interest in precluding dissemination or misuse of sensitive and confidential information, and the other is the interest in making intimate personal decisions or conducting personal activities without observation, intrusion or interference.
Nevada Constitutional Right of Privacy: Many state constitutions go beyond federal constitutional guarantees by expressly recognizing a zone of personal privacy. Because a state constitution’s right of privacy is explicit, its protections are necessarily more robust and broader in scope than those of the implied federal right of privacy. The Nevada Constitution is no exception to these general rules. Under Article 1, Section 1, the Nevada Constitution provides that all men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty. Liberty includes freedom from invasion of one’s privacy or the unnecessary disclosure of one’s private matters. In fact, in the case of the medical marijuana program, the Nevada Constitution makes it abundantly clear that the information relating to patients is to be kept confidential. Article 4, Section 38 of the Nevada Constitution provides:
The legislature shall provide by law for:
- A registry of patients, and their attendants, who are authorized to use the plant for medical purpose, to which law enforcement officers may resort to verify a claim of authorization, and which is otherwise confidential.
This provision not only explicitly states that the information is confidential and therefore subject to rights of privacy, it also makes it crystal clear that the only time that a law enforcement officer is allowed access to the information is to verify that the cardholder is authorized to have marijuana in his or her possession. Further, the verification is only allowed when the cardholder has made a “claim of authorization,” meaning that if a person is stopped while in possession of marijuana and actually makes a claim of authorization, the officer can then verify the validity of the cardholder’s authorization to possess medical marijuana. Therefore, there is no reason the police should ever be in possession of this private medical information before encountering a MMJ cardholder.
Potential Violations of HIPAA: Like any controlled substance, medical marijuana requires a system of patient verification to make certain that patients who are receiving prescriptions are identified properly. The Department of Health and Human Services and Medical dispensaries use computerized patient verification systems in the pursuit of this goal. This verification system is subject to HIPAA. Under HIPAA, marijuana is treated almost exactly the same as any other prescription or treatment. In fact, the information given to qualify for a card in the first place is also covered by HIPAA and can’t be released without the patient’s written consent. To do so, even accidentally, could lead to a fine.
In addition to the privacy rights provided by the United States and Nevada Constitutions, and the laws relating to the confidentiality of the registry information, the legislature passed laws relating to the search and/or seizure of a person or their property. NRS 453A.400 states the fact that a person possesses a registry identification card issued to the person by the Division or its designee does not, alone constitute probable cause to search the person or the person’s property or subject the person or the person‘s property to inspection by any governmental agency. This means that there must be some other act by the cardholder to constitute probable cause that some violation of the law has occurred.
The DEA is not a state or local law enforcement agency: What makes this situation even more egregious is that the confidential information is being provided to the DEA. The DEA is not a state or local law enforcement agency! As noted above, NRS 453A.700 states, “[t]he Division or it’s designee may release the name and other identifying information of a person to whom the Division or its designee has issued a registry identification card to: (b) Authorized employees of state and local law enforcement agencies, only as necessary to verify that a person is a lawful holder of a registry identification card…” The DEA is a part of the teams that are knocking on the doors of registry cardholders. One can reasonably assume this information is discussed and thus shared within the team. The dissemination of the information to the DEA is clearly a violation of the law and has the potential of exposing the registry cardholders to prosecution under federal statutes and civil forfeiture proceedings.
What is being reported appears to be in direct violation of the constitutional provisions and the statutes, as well as HIPAA, as law enforcement officers appear to have the names and addresses of cardholders without there ever being a reason to verify anything. Further, it appears that the confidential information is being provided to the DEA for unknown purposes. As illustrated, this unlawfully obtained information has been used in at least once instance we are aware in order to obtain a search warrant, which the Court signed without first questioning the requesting officer as to how and why the information was obtained. Clearly not even some judges are aware of the special protections given to patients via our state Constitution.
The protection against the unauthorized disclosure of the information contained in the Medical Marijuana cardholder registry is set forth in the Nevada Constitution and is a primary reason the legislature passed laws requiring confidentiality on the part of the Division. Yet, these teams of law enforcement agents appear to be operating outside these constitutional and legislative protections.
You are under no obligation to grant consent to these warrantless searches simply because you have a MMJ card!!! If law enforcement has shown up at your doorstep requesting that you allow them to inspect your residence, without a warrant, under the guise of making sure you are compliant with the medical marijuana program, we want to hear from you. With over 20 years of experience and AV rated in Criminal Law and Litigation, The Wright Law Group, P.C. is well equipped to assist you. Please call us at 702-405-0001 to schedule a consultation.
⊕ THE WRIGHT LAW GROUP, P.C.
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