                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                     TENTH CIRCUIT                           February 1, 2012

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                            No. 11-6000
v.                                                 (D.C. No. 5:10-CR-00017-HE-7)
                                                          (D. W.D. Okla.)
MARTHA EARLENE PHILLIPS,

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges.


      After Martha Phillips was arrested in connection with a drug trafficking scheme,

she moved to suppress evidence of her involvement, claiming it was obtained illegally.

Specifically, she challenged the constitutionality of the Oklahoma law authorizing

investigators to obtain prescription drug records without a warrant. She also challenged


      *
        Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
the legality of a wiretap. Following the district court’s denial of her motion, Phillips

proceeded to trial, where a jury convicted her of distributing and conspiring to distribute

OxyContin. We affirm.

                                   I. BACKGROUND

       Phillips supplied OxyContin to a family trafficking operation run out of an air-

conditioning business in Norman, Oklahoma. She obtained prescriptions from a doctor

recommended by the distributors and was paid based on the volume of pills she passed on

to the trafficking operation. She continued her illegal activities for over a year, supplying

more than 1000 40mg tablets.

       Law enforcement officers began monitoring the operation several months after

Phillips became involved. The investigation, which spanned more than a year, was an

enormous undertaking, involving two wiretaps, three controlled buys, half-dozen

confidential informants, and hundreds of hours of surveillance. In the end 24 people

were charged in connection with the trafficking operation; 23 pled guilty. Phillips was

the lone defendant to proceed to trial.

       Investigators compiled an impressive case against Phillips. Using a wiretap, they

intercepted a phone conversation in which she agreed to meet one of the distributors at a

pharmacy to purchase an OxyContin prescription. Investigators then captured the drug

deal on video. In addition, investigators obtained records of Phillip’s OxyContin

prescriptions from the Oklahoma Prescription Monitoring Program (“OPMP”). The

OPMP was created by the Oklahoma Anti-Drug Diversion Act, OKLA STAT. tit. 63, §§ 2-

309A-309H, which requires dispensers of oxycodone operating in state to furnish

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prescription records to a central repository to be made available to law enforcement

officers conducting criminal investigations. According to OPMP records, Phillips had

obtained and filled nineteen 60-pill OxyContin prescriptions in a period of over 20

months.

       Phillips moved to suppress all prescription records obtained under the Anti-Drug

Diversion Act. She claimed law enforcement accessed the records from the OPMP

without a search warrant, thereby violating her Fourth Amendment rights. She also

claimed the evidence obtained from the wiretap should be excluded because investigators

failed to demonstrate the need for the wiretap.

       The district court rejected both arguments. Without passing on the

constitutionality of the Anti-Drug Diversion Act, the judge concluded the exclusionary

rule does not apply because the constitutionality of the Anti-Drug Diversion Act was not

in question when investigators obtained access to Phillip’s records. They reasonably

believed they could obtain the information as permitted by statute. With respect to the

wiretap, the trial judge decided there was no basis for excluding the conversations

because the judge who authorized the wire taps had reasonably concluded normal

investigative procedures were insufficient to achieve the objectives of the investigation.

                                    II. DISCUSSION

       A. The Anti-Drug Diversion Act

       Phillips argues the prescription records obtained from the OPMP should have been

suppressed because the Anti-Drug Diversion Act is unconstitutional. She maintains any

law which gives investigators license to search private records without regard to the


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limitations of the Fourth Amendment cannot be upheld.

       The district court properly looked past her arguments. Typically, the remedy for a

Fourth Amendment violation is the exclusion of evidence obtained from an unlawful

search. Illinois v. Krull, 480 U.S. 340, 347 (1987). But the exclusionary rule does not

apply where officers act in reasonable reliance upon a statute, because justice is not

served by punishing officers for the mistakes of the legislature. Id. at 349; United States

v. Leon, 468 U.S. 897, 923 (1984). Accordingly, in reviewing a motion to suppress, a

court may consider whether the good-faith exception applies to a search without passing

on the constitutionality of the authorizing statute. See United States v. Cardenas-

Alatorre, 485 F.3d 1111, 1115 (10th Cir. 2007) (assuming, without deciding,

unconstitutionality of New Mexico statute).

       The district court did so here, concluding, correctly, that the officers had no reason

to question the validity of the Anti-Drug Diversion Act. Even assuming the statute is

ultimately found to be unconstitutional, there is no dispute it stood on solid ground at the

time investigators relied upon it. It had not been called into question before Oklahoma

courts.and similar statutes have been upheld in other jurisdictions, see, e.g., State v.

Tamulonis, 39 So.3d 524, 528 (Fla. Dist. Ct. App. 2010) cert denied, 50 So.3d 662 (Fla.

2011); Williams v. Commonwealth, 213 S.W.3d 671, 684 (Ky. 2007), and while the

Supreme Court has held databases like the OPMP can exist in harmony with a

constitutional right to privacy, Whalen v. Roe, 429 U.S. 589, 603-04 (1977), neither the

Supreme Court nor this Court nor any Oklahoma court has considered whether a law

permitting the warrantless disclosure of drug records runs afoul of the Fourth

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Amendment. At worst, then, the validity of the Oklahoma statute remains an open

question, hardly grounds for an officer to refuse to enforce it. See Cardenas-Alatorre,

485 F.3d at 1117 (holding that police must enforce duly enacted statutes except in “the

most extreme of cases.”).

       B. Wiretap

       In urging suppression of recordings of her phone conversations, Phillips argues the

wiretap was requested out of convenience, not necessity as the statute requires.

       The propriety of a wiretap, and any evidence it yields, hinges on whether the

government can demonstrate “necessity.” 18 U.S.C. § 2518(1)(c). To establish

necessity, the wiretap application must include a “full and complete statement as to

whether or not other investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried.” Id. Section 2518 is not an

exhaustion requirement, and the government need not experiment with traditional

investigative techniques if the affidavits explain “why the officers believed such

techniques would be ineffective or dangerous.” United States v. Foy, 641 F.3d 455, 464

(10th Cir. 2011) cert. denied, 132 S. Ct. 467 (2011). The government’s burden is non-

exacting, and we review the authorizing judge’s determination that a wiretap was

necessary for an abuse of discretion. United States v. Zapata, 546 F.3d 1179, 1185 (10th

Cir. 2008).

       The affidavit submitted in support of the application was sufficient to support the

conclusion that the wiretaps were necessary. There could be no doubt, after reviewing

the wiretap application, that investigators could not have achieved their goal with normal

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investigative techniques. The objective was to bring down the trafficking scheme, not

just weaken it, and toward that end the confidential informants were coming up short,

unable to provide information on several high-level members of the conspiracy. See

United States v. Ramirez, 479 F.3d 1229, 1241 (10th Cir. 2007) (wiretap appropriate

where use of confidential informants was ineffective) (overruled on alternate grounds).

Investigators used caller-identification devices to identify the main players and their

associates, but the long lists of phone numbers shed no light on the content of their

conversations. They tried physical surveillance, but most transactions occurred in dimly

lit cars or inside the air-conditioning business, where it was impossible to distinguish

drug traffickers from legitimate customers. They even considered infiltration, but since

the trafficking operation was a family business with a closed clientele and scarce ties to

outsiders, an undercover agent would have run a high risk of being detected. A search

warrant was another alternative, and investigators undoubtedly had enough evidence to

support one, but the possibility of showing their hand prematurely and scaring off

potential suspects was prohibitively high.

       In the end, the district court reasonably concluded the government met the

necessity requirement. Normal investigative techniques carried the investigation only so

far, and there were still suspects to pursue and dots to connect when the government

sought authorization for a wiretap. Indeed, without a wiretap, investigators may never

have built a case against Phillips, whose identity was brought to their attention during a

monitored call with one of the key distributors.




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AFFIRMED.



            Entered by the Court:

            Terrence L. O’Brien
            United States Circuit Judge




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