             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                         :
                                           :     ID No. 1509015469
                                           :     In and for Kent County
                                           :
        v.                                 :
                                           :
SCOTT SECREST                              :
                                           :
                Defendant.                 :
                                           :

                             Submitted: September 12, 2016
                               Decided: October 3, 2016

                                       ORDER

        On this 3rd day of October 2016, having considered Defendant Scott Secrest’s

(hereinafter “Defendant’s”) Motions to Suppress, and the State’s response, it appears

that:

        1. The State charged Defendant with (1) Unlawfully Obtaining Possession of a

Controlled Substance in violation of 16 Del. C. § 4756(a)(3), (2) Conspiracy Second

Degree in violation of 11 Del. C. § 512, and (3) Providing a False Statement in

violation of 11 Del. C. § 1245A.

        2. During the course of the State’s investigation of these alleged crimes, the

Justice of the Peace Court issued two search warrants for client/patient lists maintained

by Kent Sussex Counseling Services in an effort to determine whether certain

individuals were patients of that facility. Furthermore, the State requested information
from Delaware's Office of Controlled Substances’ Prescription Monitoring Program

(hereinafter "PMP") pursuant to 16 Del. C. § 4798(l)(2)d. The PMP is a system that

accumulates controlled substance prescription information state-wide, through

mandatory reporting from pharmacies. The purpose for the warrants and separate

requests for PMP data was to further an investigation regarding whether Defendant and

others fraudulently obtained controlled substances.

      3. Defendant filed a Motion to Suppress all evidence obtained through the two

search warrants that sought patient lists from Kent Sussex Counseling Services.

Defendant argued that the Justice of the Peace Court issued the search warrants without

following the procedures contained in 42 CFR § 2.65 and 16 Del. C. § 4798.

Accordingly, Defendant argued that the searches were illegal. Furthermore, although

Defendant did not advance written argument that the requests for PMP information

from the Office of Controlled Substances exceeded the State's authority, the Defendant

raised that issue at oral argument.

      4. At oral argument, the State stipulated that it would not seek to use or

introduce at trial any information obtained pursuant to the two search warrants.

Consequently, both parties agreed that any issue regarding the legality of those search

warrants is now moot.

      5. Separately, Defendant argued that when the investigative agent obtained PMP

                                          2
data from the Office of Controlled Substances, it did not provide a sufficiently detailed

description of the purpose for the investigation. Defendant further argued that the forms

created for purposes of this request contain a block that requires the requesting agent

to "list and give a detailed description of each crime currently under investigation."

Defendant claims that the description of the alleged crimes was not sufficiently

detailed, and that as a result, the data recovered from PMP pursuant to these law

enforcement requests should be suppressed.

      6. State law provides restrictions regarding disclosure of this information.

Relevant to the case at hand, such restrictions limit authorization of the Office of

Controlled Substances to provide PMP data in the form of a report to

      [a] local, state, or federal law-enforcement or prosecutorial official
      engaged in the administration, investigation, or enforcement of the laws
      governing controlled substances and who is involved in a bona fide
      specific drug-related investigation in which a report of suspected criminal
      activity involving controlled substances by an identified suspect has been
      made, and provided that such information be relevant and material to such
      investigation, limited in scope to the extent reasonably practicable in light
      of the purpose for which the information is sought, and include identifying
      information only if non-identifying information could not be used.1

      7. The Defendant did not argue that the State failed to comply with the

provisions of this statute when obtaining PMP information. Rather, the Defendant

argues that the investigative agent failed to provide a sufficiently detailed description,

      1
          16 Del. C. § 4798(l)(2)d.

                                            3
making the request insufficient. In doing so, the Defendant relies on the language in

the standardized form used to submit such requests to the Office of Controlled

Substances.

       8. Here, the benchmark is in fact the statute itself. The statute requires a "report

of suspected criminal activity involving controlled substances by an identified

suspect."2 It requires no greater level of detail. The statute further requires that the

information sought be relevant and material to the investigation while also being limited

in scope.3 The information provided to the Office of Controlled Substances by the

investigative agent on the forms at issue comply with this requirement. Namely, the

forms state that Michele Staats allegedly accessed PMP information, including that of

Defendant, without authorization in an attempt to illegally write a controlled substance

prescription under a doctor's name. Additionally, the information sought was material

to the investigation and limited in scope in that it allowed the investigative agent to

identify the people involved in the illegal activity. It was not too broad in scope in light

of its intended purpose.

       9. Defendant cited no authority to support the argument that a form created by

an agency to facilitate law enforcement requests for PMP information requires a level


       2
           Id.
       3
           Id.

                                             4
of specificity greater than the requirements of the controlling statute. Moreover, in

reviewing the language provided in the forms, the Court alternatively finds that the

agent's identification of the criminal conduct being investigated was adequately detailed

in each of the forms at issue.

      10. An evidentiary hearing is not necessary since the only argument advanced

by Defendant focused on whether the forms at issue included sufficient detail.

Accordingly, since the requested information meets the requirements set forth in 16

Del. C. § 4798(l)(2)d, exclusion of evidence obtained by the requests at issue is not

warranted.

      WHEREFORE, Defendant's Motion to Suppress is MOOT in part, and otherwise

DENIED.

      IT IS SO ORDERED



                                               /s/Jeffrey J Clark
                                                      Judge




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