Warrantless Searches of Doctor's Offices

The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 8 No. 4 • October 2005

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government—lest it come to dominate our lives and interests.
— Patrick Henry
On every question of construction [of the Constitution, let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one which it was passed.
— Thomas Jefferson, letter to William Johnson, June 12, 1823
Woe to the nation whose literature is cut short by the intrusion of force. This is not merely interference with freedom of the press but the sealing up of a nation’s heart, the excision of its memory.
— Alexander Solzhenitsyn
Congress passed and the president signed 269 bills into law in 2002. But, as noted, regulatory agencies issued 4,167 rules. The unelected are doing the bulk of the lawmaking. . . . The way to control regulation is not to merely require agencies to perform cost/benefit analyses but to require Congress to vote on agencies’ final rules before they are binding on the public.
— Clyde W. Crews, Jr., “Ten Thousand Commandments, an
Annual Snapshot of the Federal Regulatory State”
Cato Institute, 2003

Warrantless Searches of Doctor’s Offices

Though there is no constitutional text describing a right to privacy as such, there is a clear constitutional limit (Fourth Amendment) to government access to an individual’s person, papers, and effects: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The inclusion of the Fourth Amendment in the Bill of Rights was, among other things, a result of the bad experience of the colonists with British “general warrants,” which were virtually unlimited licenses for government fishing expeditions.

As a result of the War on Drugs and the War on Terror, the courts have restricted the applicability of the Fourth Amendment requirement of a warrant for searches and seizures of private papers and effects to where little is now left of this protection. (The constitutional limits on searches and seizures are undoubtedly inconvenient for law enforcement and for administrative agencies.) For example, any business that is part of a “heavily regulated” industry has been deprived by past court rulings of any Fourth Amendment protection, permitting warrantless searches limited only by their being conducted during regular business hours. (Though there are often said to be “administrative search warrants” that agencies such as the FDA issue on their own behalf, these are not Fourth Amendment warrants.)

On August 25, 2005, we filed an amicus brief (along with Dr. Julian Whitaker’s Freedom of Health Foundation) in the case of U.S. v. Gonsalves (Case No. 04-2316) before the U.S. Court of Appeals for the First Circuit. The central issue of the case was that a warrantless search was made of a doctor’s office, and medical records were seized. We argued that this was a violation of the Fourth Amendment because doctors’ offices are not a “heavily regulated” industry and hence still have Fourth Amendment protection. We believe this is a strong argument, as medical records in doctors’ offices have been the focus of considerable legislative protection. (What we could not argue was that a warrantless search is an inherent violation of the clear meaning of the Fourth Amendment, as earlier courts have seen fit to rule otherwise.) As this is a case before a court of appeals, the decision may take some time.

People really have no idea how quickly the “privacy” of their medical information is slipping away. Without the requirement of a warrant signed by a judge and based upon probable cause, warrantless searches of doctors’ offices become at-will fishing expeditions that spell the end to any private medical information. Yet, who has heard of U.S. v. Gonsalves and knows that perhaps the final nail in the coffin of Fourth Amendment protection of doctors’ offices and records is now being quietly driven?

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