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9th Circuit upholds government subpoena powers in Alaska drug case

Ben Anderson
flickr / Bob Doran

A Ninth U.S. Circuit Court of Appeals in Fairbanks ruled on Tuesday that individuals’ utility bills are fair game for subpoenas in drug cases. In December 2010, the Drug Enforcement Administration subpoenaed the electric bills of three members of the Golden Valley Electric Association (GVEA), an Interior Alaska electric cooperative serving about 34,000 people.

Golden Valley initially opted not to obey the subpoena of its members' records, but a court order in February 2011 mandated that they do so. They turned over more than a year of utility bills, including names, addresses, telephone numbers and payment methods, for anybody living at three residences served by Golden Valley. They appealed the decision the next month; that appeal was denied on Tuesday by the Circuit Court.

Attorney Joe Evans, who helped represent Golden Valley, said the decision to appeal was made out of concern for the electric utility members’ privacy.

“The reason that Golden Valley challenged the administrative subpoena was primarily because (GVEA) has had a longstanding policy that members records are confidential and not disclosed to third parties, including the DEA,” Evans said.

Golden Valley argued that the basis for the subpoena was too vague and too broad. Attorney Michael Kramer, writing in a brief for Golden Valley, said that the DEA request was spurred by “an ongoing investigation of the possible violations by individuals in the Fairbanks, Alaska, area…(and a suspicion) that individuals at these residences may be involved in the manufacture and distribution of controlled substances.”

Kramer also wrote that the use of administrative subpoenas -- subpoenas issued not by the court, but by an agency seeking information -- “by DEA agents has become the norm when any, unsubstantiated suspicion of drug activity strikes the fancy of a federal investigator.”

The DEA was presumably seeking the records showing electric usage history. High electric bills could be an indicator of drug-related activity, since growing and maintaining marijuana plants requires large amounts of power to run grow lamps.

In 2010, an Alaska State Trooper used an abnormally high electric bill in the Matanuska-Susitna Valley to aid in getting a search warrant for a home that had a grow operation under way. That case was thrown out, but only because a judge determined the trooper had been dishonest about his ability to smell marijuana.

The brief asserts that “records showing unusual electrical consumption have no inherent incriminatory value,” and argues that because Golden Valley is a cooperative utility company, it has different expectations of privacy from those it serves than a public company would. Golden Valley also took issue with all the other information included in the subpoenaed records, particularly since multiple people could have lived at those three addresses over the course of 18 months.

On Tuesday, the court disagreed. Circuit Court Judges Alfred Goodwin, William Fletcher, and Milan Smith upheld the DEA’s subpoenas of Golden Valley members’ records. Fletcher, who wrote the court’s opinion, said that the Comprehensive Drug Abuse Prevention and Control Act of 1970 -- which helped kick off President Richard Nixon’s “War on Drugs” -- gave administrative agencies the ability to issue subpoenas in criminal investigations.

“Congress has been very liberal in the ‘60s, ‘70s, ‘80s in granting administrative subpoena powers,” Evans said.

The court argued that the administrative subpoenas were not too broad, because “the information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime.” The court said that the additional information, beyond simple usage histories, was clearly relevant, even if not necessarily incriminating.

The court also found that the action would not violate the Fourth Amendment of the U.S. Constitution -- the clause protecting against unlawful search and seizures. The Supreme Court has ruled that administrative subpoenas do not require probable cause to be issued. Search warrants and subpoenas handed down by a grand jury both require such probable cause before they're issued.

Evans said the hardest part of oral arguments was the existing case law on administrative subpoenas.

“In fact,” Evans said, “the court during oral arguments specifically asked us if we could cite a case where this sort of request made for utility records had been denied, and we couldn’t.”

He said that Fletcher had done a good job of “hammering away” at the abundance of existing case law that would seem to go against Golden Valley's arguments. Evans added that Fletcher, at several points, asked “do you want me to go rogue on you?” -- a reference to contradicting previous Supreme Court rulings.

Evans said that Golden Valley likely wouldn’t continue the case, but had wanted to challenge the subpoenas on behalf of its members to demonstrate it was working to protect their privacy. He was optimistic future cases may start turning case law history around, allowing for more flexibility in the perceived authority of administrative subpoenas -- especially in a world where citizens often must disclose payment information, addresses, credit histories, and other personal information to obtain services.

“I think what Golden Valley feels is that in the future, the courts may take a closer look at this, because so much information is disclosed to a third party in so many cases nowadays,” Evans said.

Contact Ben Anderson at ben(at)alaskadispatch.com