LEWIS v. S.C. (MEDICAL BOARD OF CALIFORNIA)

Real Party in Interest, Medical Board of California, Answer Brief on the Merits

Cal.July 17, 2015

du the Supreme Court of the State of Caltfornta ALWIN LEWIS, M.D., Petitioner, Vv. SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent, MEDICAL BOARD OF CALIFORNIA, Real Party in Interest. Case No. $219811 SUPREME COURT FILED JUL 1.72088 Frank A. McGuire Clerk Deputy Second Appellate District, Division Three, Case No. B252032 Los Angeles County Superior Court, Case No. BS139289 The Honorable Joanne O’Donnell, Superior Court Judge ANSWERBRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General KATHLEEN A. KENEALY Chief Assistant Attorney General GLORIA L. CASTRO Senior Assistant Attorney General JANILL L. RICHARDS Principal Deputy Solicitor General AIMEE FEINBERG Deputy Solicitor General E. A. JONES UI Supervising Deputy Attorney General EDWARD K.KIM Deputy Attorney General State Bar No. 195729 *KATHLEEN VERMAZEN RADEZ Associate Deputy Solicitor General State Bar No. 278871 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 Telephone: (415) 703-2549 Fax: (415) 703-2552 Email: kathleen.radez@doj.ca.gov Attorneysfor Real Party in Interest Medical Board of California Page INTRODUCTION.........cccccssscsssssecssssesseeeeeccescseesessevseceeessdsesseeenensseescasssecenees 1 BACKGROUND.........cccsssssscscscensesssecsetectscesscsssusssessccensesseseeseenecenseaeeusseseeses 4 I, California’s Recordkeeping and Reporting Requirements for Controlled Substances and Other Prescription Drug...............scssesecssssssessseseeeseeseeeseeceeeeeessenesees 4 Il. The California Medical Board ............ceeesseesseseeesseseseseterees 8 I. Procedural Background...........cccseecscesscsscesssssecsseseessenseens 9 A. The Board Investigates a Patient Complaint Against Lewis and Imposes Discipline for His Negligence in Treating Four Patients ...........cee 9 1. Complaint and Investigation..............sss 9 2. Administrative Hearing and Decision........... 11 B. The Superior Court Rejects Lewis’s Request to Overturn the Board’s Discipline Based on His Claim that the Board Violated His Patients’ State Constitutional Right to Privacy ...........eee 13 C. The Court of Appeal Affirms...eeesss eeeeeeeee 14 ARGUMENT.......cccccscsscssccsssssesceccesenccneeeeceseessnsacsrseseesesceeseseeesesesessesasseses 16 I. The Board’s Confidential Receipt of Cures Reports of Lewis’s Controlled Substances Prescriptions Is Consistent with the California Right to Privacy...............4.. 16 A. Lewis Cannot Assert His Patients’ Privacy Rights to Thwart a Disciplinary Proceeding Designed to Protect His Patients..............:csssscseeeees 16 B. Lewis Has Not Established an Actionable Invasion of the Right to Privacy ........... cs eessseseeeeeees 19 1, Patients Have No Reasonable Expectation that CURES Data Will Not Be Provided Confidentially to the Board in the Course of Physician Disciplinary Investigations ........ccccccceessecesecsecssesereeteeeees 20 TABLE OF CONTENTS TABLE OF CONTENTS (continued) Page 2. The Board’s Receipt and Review of CURESDataIs Not a Serious Invasion of Privacy Giving Rise to a Constitutional Claim ............:ccscsseseceseeseeteees 23 C. The Board’s Prompt Access to Cures Data Serves Vital Public-Safety Interests that Outweigh AnyIntrusion on Patients’ Privacy Titerest............:sccccssescceceeecssesceeseseesecseesensessessssnsoueees 25 1. The “Compelling Interest’’/“Least Intrusive Means” Test Does Not Apply........ 25 2. The Board’s Vital Interest in Protecting the Public Justifies Its Use of CURESto Investigate Physician Care...eeeeeeeeeeeees 29 3. Lewis’s Argumentthat the Board Must Obtain a Warrant or Subpoena Before Accessing CURES Data Is Unsupported and Would Fundamentally Undermine the Board’s Ability to Protect the Public....... 30 II. Lewis’s Fourth Amendment Challenge to the Board’s Review of Cures Data Is Forfeited, Rests on Third- Party Rights that Cannot Be Asserted Vicariously, and Lacks METrit..........cccccccsccssecesecsscsceecceseecesssescessassessassasessonsonaes 34 A. Lewis Forfeited His Fourth Amendment Claim....... 35 B. Lewis May Not Vicariously Assert a Fourth Amendment Claim on Behalf of His Patients........... 35 C. The Board’s Review of Cures Data Without a Warrant Was Consistent with the Fourth AMECNAMENL........ceeeeecscceeeeceseeeeeeeseeceeesoasessceseeusesseees 37 III. Lewis’s Challenge to the CVS Pharmacy Report Is Forfeited and, in Any Event, Without Merit... 4] A. Lewis Forfeited His Challenge to the Board’s Review of the CVS Pharmacy Report .................0++ 4] i TABLE OF CONTENTS (continued) Page B. Lewis’s Challenge to the CVS Pharmacy Report Fails... sseesssssscseseesessesesseeeseserereeseseseneenes 41 IV. Lewis Is Not Entitled to the Remedy of Suppression, WhichIs the Only Remedy He Seeks............:cscsteessseeeeteeees 43 A. The Fourth Amendment Does Not Require EXCIUSION.....ccccceeeescessesssesceceeeeesscccsesseecenseseeseeseeseres 43 B. Article I, Section 1 of the California Constitution Likewise Does Not Require EXCIUSION.L.......cccseescesscescescecesesccoseesecereneesseneeerenseserens 46 CONCLUSION.....eecceccccssssssessessessssscssccecseecssscssssaseanenseesasessesnensseassasressersaes 46 il TABLE OF AUTHORITIES Page CASES 420 Caregivers, LLC v. City ofLos Angeles (2012) 219 Cal.App.4th 1316... eessssecseeeenseseeeseeenesessesensseees 23,27 American AcademyofPediatrics v. Lungren (1997) 16 Cal.4th 307...eeeeesceccesecesssssenserseneeseeeseeensessssesseeees 17, 26 Arnett v. Dal Cielo (1996) 14 Cal.4th 4oeeeeescceeseeersesseenscssseeeseeesenseesseesaseneens 8, 9, 32 Bearman v. Superior Court (2004) 117 CalApp.4th 463 ooo.ccscssesscesereensenseneseessenseseenesensenees33 Board ofMedical Quality Assurance v. Gherardini. (1979) 93 CalApp. 3d 669oesestsscssssessseeseesessseeneesesenees 22, 28, 36 Brovelli v. Superior Court (1961) 56 Cal.2d 524occbesesesnececscsanceseeceeeenaeensaeetaeeereecsaes 32 City ofIndianapolis v. Edmond (2000) 531 U.S. 32 weeeeseccesecsseesessscsscsssssssescsscnsesessseeasnesessseeenensees 42 City ofLos Angeles v. Patel NO. 13-1175 (2014) eeececcsssesceseeeseeceeessesssssssrssessseeseseneeesseessnsnseesseeseees 39 Conservatorship ofSusanT. (1994) 8 Cal.4th 1005, 1017eeeesssessseetseeesseneeseesseseenesees 44, 45, 46 County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926. 0... ceeessssseeeeeeeeeeeeees beceeaeeessseeneees 19, 26, 27 Craib v. Bulmash (1989) 49 Cal.3d 475 oo.eesceesseceeesessssssssesseeneeseesenesenserenesesenssrenseees 32 Davis v. United States (2011) 131 S.Ct. 2419.eecesecesseesssssssceseesesseaseneseeeneseessnenereees 43, 44 iv TABLE OF AUTHORITIES (continued) Page Dyson v. State PersonnelBd. (1989) 213 Cal.App.3d 711 oo... eecssesessssneceeeeeereteeeressetetessaseseseneeessenenes 45 Emslie v. State Bar (1974) 11 Cal.3d 210 eeeceesesessesseeeseeeneeeseeeetseesseenesenseeneeneensnenees 45, 46 Finklestein v. State Personnel Bd. (1990) 218 Cal.App.3d 264 .......ccsesssssessesseesserssesretssssssenssnesnssnsnenenseneens 45 Griffiths v. Superior Court (2002) 96 CalApp.4th 757 .....scccesesesessssecnesensretseseseseesassaeeneeeaseenseneeas 32 Griswold v. Connecticut (1965) 381 U.S. 479 wecescsseesseseessssesesssseeseneneetenenensneeaseneneeneaeenenesneneees 17 Haskins v. San Diego Dept ofPublic Welfare | (1980) 100 Cal.App.3d 961 .......sessscssessesecesseensesseseereeerenesnsenssseeseseneenes 25 Hernandez v. Hillsides, Inc. (2009) 47 Cal4th 272... eecseecsesssessssesessssecennecnsensensenssnnecensesssaseneeseys 26 Herring v. United States (2009) 555 U.S. 135 weeessscesessssesseeenenestecseenestensasarsseeenesssnenensenseesensonenss 43 Hill v. National Collegiate Athletic Assn. (1994) 7 Cal4th Loccscsesseesessssesseseeseneesscssenseessseeeesesssseanenneneas passim Horn v. County of Ventura (1979) 24 Cal.3d 605 ...c.cessssscccsecesseseeseesterscerescensssssenesecessssensesenssenenenteass 16 LN.S. v. Lopez-Mendoza (1984) 468 U.S. 1032,1042-1043 ......eeseesecsessersseseeceressesseenesseeseenees 45, 46 Illinois v. Krull (1987) 480 U.S. 340 o.sececeeesseeeseeseeessesensensetssesssceseesseesssesennesnsenens 44, 46 In re Lance W. (1985) 37 Cal.3d 873 ...cscsssesecscscsssseeeeeecnteneesssressscsenseesesesseensenecenenees 36, 37 TABLE OF AUTHORITIES (continued) Page International Federation ofProfessional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319oesceescsescssessssesseseseeersssnsesterserseneneees 20, 27 Johnson v. Superior Court — (2000) 80 Cal.App.4th 1050 oo... essssseesesseeseseetsesssetsssereseeseneenees 28 Loderv. City ofGlendale / . (1997) 14 Cal.4th 846.0ceeeescssessereersceeseseessneeeesseseeeenes 19, 26, 27 Medical Bd.ofCalifornia v. Chiarottino | (2014) 225 Cal.App.4th 623 oo... cecsssseeeesesesesseesesssseseeeeneneeneneespassim Medical Bd.ofCalifornia v. Superior Court (1991) 227 Cal.App.3d 1458 oocecesssessseseereeessssesnsseseseeneesteesessenensenes 35 Minnesota v. Carter (1998) 525 ULS. 83 woe eeseseessesseessesssssssssssssseesesseesesseseeeneseesesseseseeenenes 36 New York v. Burger . (1987) 482 U.S. 691 oueeeeesesseeccesscseseeesecaseeseneeeessseeseseesenens 38, 39, 41 Ochoav. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480occsseseseeseeseesenetsneeeceseetesessessessssees 35 Oregon Prescription Drug Monitoring Program v. U.S. Drug Enforcement Administration (D. Or. 2014) 998 F.Supp.2d 957 .....ceccsseeessesseenseeeeeneneseeseeereeees 39, 40 Pating v. Board ofMedical Quality Assurance (1982) 130 CalApp.3d 608 .......ccc essseseseseeeseeesennenenesesenens 18, 19, 36, 45 Pennsylvania Bd. ofProbation and Parole v. Scott (1998) 524 U.S. 357ececseesesssseseeeesssscsssnesseseseeseeseeesseesneenenseseeeessessenees 45 People v. Ayala (2000) 23 Cal.4th 225 oo.escsessssssesssssesessesesesesseenseeseeeenseseessesenessees 36 People v. Belous (1969) 71 Cal.2d 954oeeeesssceeesrensnssseceeesseesesesenssseenensteneseseeesseneees 17 V1 TABLE OF AUTHORITIES (continued) Page People v. Bryant (2014) 60 Cal.4th 335oeceescesssessscrsssesessessesseseseesesserssesesssesseneees 36 People v. Crowson (1983) 33 Cal.3d 623 ......ceeseeecesesecscsessesscssssscsuseessessessesesessesessseneneenss 40 People v. Doss (1992) 4 Cal.App.4th 1585oecsecsecssseescsssssestesesssenssseessesseseeseesnes 4 People v. Hazelton (1996) 14 Cal.4th 101eeesetstcteesssscessessseserseteesesctsnesssessseeeees 16 People v. Katz (1962) 207 Cal.App.2d 739.0... eeesssssssessssssscsscssscsssscssssesenensereesensseseeete 6 People v. Maikhio (2011) 51 Cal.4th 1074oeeeescsesctsescesssessssssesssssseeeeseeesessesesaesees 39 People v. Stanley (1995) 10 Cal4th 764oecescscessssssssssssseressssscsssersreeesesssseeeeseessenesees 35 People v. Willis (2002) 28 Cal.4th 22 oo.essscsssssssssssceessesessssessseesessesesesessssseeseeseesens 44 Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 373 oo.cecesstsssesscessesssesesssseseessenssersesesseneseeaes 42 Rakasv.Illinois (1978) 439 U.S. 128 weeeesessccssecsseesseseessseeseneseeeeesseseeeeseeeenee 35, 36, 37 Reynaud v. Superior Court (1982) 138 Cal.App.3d 1 oeeecesessssscsseeceesssnecssesssecseseeseseseasenens 25, 31 Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 oo. eseeessssesessessseesssesssseenseseseeeeeees 16, 26, 27, 40 State ofMinnesota ex rel. Whipple v. Martinson (1921) 256 US. 41 weessscssescesseresssseeeseeseseseseesessessseessneneesenessenees 29 Vii TABLE OF AUTHORITIES (continued) Page State v. Russo (Conn. 2002) 790 A.2d 1132.0... eeeteeeeeteceteesecseseseneeeessecesseeeasevess 22 State v. Skinner (La. 2009) 10 S0.3d 1212 weeeceseeeeeeeeeseeeeeeseceeesssessssasseeessensersenaes 38 State v. Welch (Vt. 1992) 624 A.2d 1105...eeseeeeeeecccseeseeseessssesscersseesesseeseaseenaes 42 State v. Wiedeman (Neb. 2013) 835 N.W.2d 698 00...ee eeeseseeseeseeeeeeeesersecsessenssssensesseenses 22 Stiger v. Flippin (2011) 201 Cal.App.4th 646eesescccsesesseceesesssssssesessresessssensenenes 32 Stone v. Stow (Ohio 1992) 593 N.E.2d 294 oo... eeesceeseeeseecesesseesessessseeensesseseenses 22, 42 United States v. Jacobsen (1984) 466 U.S. 109oeeecsestececesceeeeseteeeseseesesseeseessensssseesesseneseaes 38 United States v. Moore (1975) 423 U.S. 122 eeeee eeseeeeceseeneeeeees veveeceeeesseesecssneessesssesseeeesaues 5 United States v. Tobin (11th Cir. 2012) 676 F.3d 1264oessctceeceeereseeeesssesseeesessesserassees 5 Whalen v. Roe (1977) 429 US. 589 woecesceersceesceecsesscseesessnsresessesessesseeeeseentepassim White v. Davis (1975) 13 Cal.3d 757 0... ceecesseseecesseeseeececesceseesesseseesseesessssssssecesssseesseses 26 Whitney v. Montegut (2014) 222 CalApp.4th 906...eeeeesecsetssseesesssseerenscsseseeeees 18, 27, 34 Williams v. Com. (Ky. 2006) 213 S.W.3d 6 71aeesssscesseeseesresesseeseesseseeeeensneees 22, 38 Vill TABLE OF AUTHORITIES | (continued) Page Wood v. Superior Court (1985) 166 Cal.App.3d 1138 uoeessssessesssesseseneseeneeneeenens 18, 22, 23 STATUTES Business & Professions Code § 159.5 wecccesscsssecseesceccsctsesesersecesesecescesescsnssesssuessssseesseseeseseesesessseeresees 42 0008 § ZOOL cececccsesscssscesccesssssceseecseeceesceeseeseceeesseeesesesssesrsesessecssessssensesens 8 § 2004 oo. eeeececcceceeceeseececeececececesesensesensscssseseceessesesssseeeesenseessenseneeseees 8, 24 § 2220, Sub. (2) .......cccccecesesesecesecscceesseesescseesarssescecsseesensesesseeseseseeseneseeees 9 § 2220.08 u...eccccesccscscecceccscssesesesseceeesenceecnsssesessssscscesssssssssensseseseseceeneseesenes 9 § 2225 veeececeseesssscecsseesenececesssessscesesssssesessscssessssssnsssseseeseerenseasesseneesaeaeeees 8 § 2234...ececectcececsnscceebecsvsacessecsecescscecessessccessecescesseeesenseecssseessnseesaeecs 12 § 2238 uoeeccssssscescsscesecceceseseecssscseeeesonsesssesasssessessssssesseeseensseessssseesesteaseeees 8 § 2242 uo eececccsscssessesceseseceeessceneecscsececesscescscescsasscescseseasssseesssecsesnessseseeseseets 8 § 2266 oo.ececccssessesceceescsrensesececesesevecssessesesscsevsesssssenssseseessesssseeseseeseseeseneneses 8 § 2266 oo. cececsccscscsscesssscosecescessceesceacecessevscsesseeasuescessesssssssesseesseessssnesseeeees 12 § AOD 7 oo eecccccscesesscsccscecseceeeececscsccseeeseeecsetsnsccsacscssesssescseeseseeseseessseseeseats 42 § 4022ee eeseescsceseceseeeecsecsesesesseeseeseeseeeseseeessuecesuscescnsesessesescevsecscesseesesees 4 § 408] occcesecscecessececcecscseteeserseeeescsscsesessesessesecseeeeasseesensenses 4, 42, 43 § 4105S oe eecsccesesssseesscesssseeesesestersceeesasecesessesuesessenssesessenseteassasssteseecaneees 42 § 4332 oecccsssseccsscseesesescccesecseesesssccseessesesssuscsssssssseussesecseseeeesensaseeeeneneates ‘42 Civil Code § 1798.24, Subd.(€)....ceceecececccessesesceceseseecessessesesessessesenessesseeseaee 24, 31 § 1798.45 wi cccececcsseseceseeseeecssscseeeseeseessecessnseensesseessssssesseseseseneeeeesteneeessensens 8 § 1798.48 oeccecscsssescscesessseessessessessscesvscsssecscsensnscsesessseeensessarsaneenenenentes 8 § 1798.57 veceecsesseseccsctsecscnensetscssseeeessesessssecsesesssessssecaesesesenensateesenesenentees 8 Government Code § 11181, subds. (8), (©) ...ceecececcscesessssssssssscsstsescsceesesenseeessseseesesenenentenes 8 ix TABLE OF AUTHORITIES (continued) Page Health & Safety Code § 11000 et Seq. 0... eeseesecssesssecsecseesecsescaesecesseesteesseeeceeteseescesnscesssecsnesees 4 § 11007 ooeeccsscesreessesscssescessessessceeeccseescsscersscesseesseaeesseesssaceessetseenereas 4 § 11054 occcccsccesesesseeseensessessnscesescscessceneesetsnseseeeatecseeseeesaeeastasesaeees 4 § 11054, subd. (Bu...eee csscsssesscecceseeseesecesessceestecssceseeseesessneeseearseeetteetees 5 § 11055, subd. (D) ou...eeeeeeecceseetceerececeesceceeceesensceesssssessenseseeeessseeeeseees 5 § 11056 weeeecccsccsscessecseseccssscscsccesresscessecseeseaceaeeaeenecseeceeteseeeseeeseeeees 5 § L1O57eeeeeseesseesscesssssssecscssessnsseecsseesssscecceessacerseseesesseeceseeseesseeedeeeees 5 § 11058 ooeecssscesceessesseessessecsssesessccssesecsnceessacsaesoessesseecesenseeessenseanees 5 § 11165 oo. eeescessessecsccseessentscnsceascaeavsaveseseessessstssnsssessnsssceensensensseny passim § 11165, subd. (8) oo. ceeeesesccscctsesseeseescesersceeseseereesetsesseeseesesssssaeas 6, 22 § 11165, subd. (C) ou. eecccesssesceseeeeeseeeeseeseneesaseseesesesenaes 6, 7, 20, 24, 39 § 11165, subd. (d)oeccceccscseeeeeececseeeesesseeceseetseseeseeseeseaseneees 5, 6, 22 § 11190eeeecceeeseeesseceseeseceesceseeeneseseceeeeseeseseaesaeseesassenacsenees 5,37 Stats. 1871, ch. 454, p. 681, § L cecssssssscscsccccccssssssesssessssssesssesessssssssseetenheed Stats. 1905, ch. 406, p. 535, § 1 ou. eseccssesecenseeeeeeeeeresesetsncscesneasssesceeseeseees 4 Stats. 1929, ch. 216, p. 381, § 1 ccceseseeeesceeseeseesesessssssssessssseessssesenens 4 Stats. 1939, ch. 60, p. 758 oo... ceececcssessecsecssecesecseecseessessesessasoseesassevssseeseesaess 5 Stats. 1945, ch. 1193, p. 2248, § Leeeeeeeseescevserseseseeesssesssssesesseeeeeees 4 Stats. 1945, ch. 1196, p. 2255, § LD ccccscscssscssssessssessseessecssessnesssessessneecsseesseesees 4 Stats. 1996, ch. 738, p. 3976, § 1 eceeeeeeeeessetcereeeeceetsssssseesseasseesssessseenees 34 CONSTITUTIONAL PROVISIONS California Constitution Article [, § 1 icccee cccescsceccsseceeseseeseessceesesescesscsesosssseeessesseeseasonssespassim Article I, § 13 oo... cccccessessesessescesscsceseessescenssecsrsccsscaseessncsecsesagesssssseesess 40 United States Constitution Fourth Amendment ............cccccsscsscectssseseeceereeeeersnseessessseesessnssessanes passim Fourteenth Amendment .0.....0.....ccccccccccssssssccssssesssseeesessseeececssesesseeeneees 21 TABLE OF AUTHORITIES (continued) OTHER AUTHORITIES 21 CFR. § 1304.04(f)-(h) ecesssesssssssssssssssssssesssssssssssssssssssssutnsessssesesnssneet § 1306.04(A) crecvssssssssssssssssssssssssssssssssssssssssssssseeessnussecsesennseseset 45 C.F.R. § 164.512(d)....ceececescscececssecesessesnssseeeseeesesesssnesseesseseneseneenensoaeas 86 Ops.Cal.Atty.Gen. 198 ......sesssssssssseneeeereseteesestceserererescsseesesees 2 Witkin, California Criminal Law (4th ed. 2012) Crimes— Public § 85, at 728 oo... ssssssescesssssssesseseeeessseseseneesessseeseteeeneseees Assem. Com. on Public Safety, Analysis ofAssem.Bill. No. 3042 (1995-1996 Reg. Sess.) as amended Mar. 28, 1996 .occecccccsssssessscesscecesesssetscscesesscesesseesseesssessseneesssesenseneaseneneres Congressional Research Service, Prescription Drug Monitoring Programs (Mar. 24, 2014).....ssssecseeeeeereeeneees U.S. Dept. of Health & Human Services, Center for Disease Control, Prescription Painkiller Overdosesin the U.S. Infographic (Nov. 1, 2011) ....cceccscesereeessseeeseeereretenereesenseneneeees Sen. Health Com., Analysis of Sen. Bill 1071 (2009-2010 Reg. Sess.) as amended Apr. 28, 2010 .........cessseseeeeeeteeeteesees Rite Aid, Privacy Policy .......:-.-cs0 x1 Page seseeesseseenes 5 sesseseseesnees 5 sesseee 22, 40 sessestesee 40 seseessoseeevns 5 seseaeseesesens 6 sesseeeeeee 6,7 seseeeeeesees 29 seseeeeseeeeeee 7 sessesenaneee 22 INTRODUCTION Petitioner Alwin Lewis, M.D. seeks.to avoid the professional discipline imposed on him byreal party in interest, the Medical Board of California. After an eight-day administrative hearing, the Board placed Lewis’s medicalcertificate on probation for three years. The Board found that Lewis, on a numberofspecific occasions, prescribed powerful drugs to two patients at excessive levels; failed for almost two years to monitor anotherpatient for liver toxicity, which could have resulted from the interaction between two drugshe prescribed; and failed to document the reasonsfor prescribing, changing the doses of, and switching prescription medications. Lewis does not now dispute these findings or the discipline imposed. Rather, he argues that evidence offered to establish his negligenceasto all but the original complainant—the medical records of certain patients obtained from his files by consent or subpoena—should have never been admitted in the administrative proceeding. According to Lewis, those records were the fruit of the Board’s review of patient prescription records, ‘maintained as required by law by the Department of Justice (Department) in its Controlled Substance Utilization Review and Evaluation System (CURES)database and by the dispensing pharmacy. Lewis claimsthat the Board’s receipt and review ofthese prescription records, in compliance with statutory requirements but without a warrant or subpoena,violated the Fourth Amendment andhispatients’ right to privacy underarticleI, section 1 of the California Constitution. All of his claimsfail. Lewis does not dispute that the Department may lawfully collect and maintain recordsofall controlled substance prescriptions dispensed to patients. His sole challengeis that the Boardviolatedarticle I, section 1 of the state Constitution when it received and reviewed CURESrecords about his prescribing practices where the original complaint abouthis patient care did not concern his prescribing practices. | Asa threshold matter, Lewis lacks standing to pursue this claim, as his interests do not align with those of his patients. Lewis should not be able to assert his patients’ right to privacy to insulate himself from discipline whenthe central purpose of the Board’s request and review of the CURESrecords wasto protect the health and safety of his patients and the public. Even if Lewis could assert his patients’ state right to privacy, there is no violation. Underthe test established by Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, Lewis has not established that his patients have a reasonable expectation ofprivacy that would prevent lawfully collected CURESdata from being provided to the Board orthat the Board’s | receipt of Department-collected CURES data amounts to a serious invasion of his patients’ right to privacy. As the United States Supreme Court observed nearly forty years ago in Whalen v. Roe (1977) 429 U.S. 589, whenit rejected a challenge to the constitutionality of a drug-tracking system muchlike CURES,disclosures of health information to those who have a reason to know it—includingstate health regulators—are an expected feature of the modern health care system. Indeed,the collection of prescription drug information in California dates back many decades. As a result, patients reasonably understandthat prescriptions for controlled substances are highly regulated and monitored by the government and recognize that these records may be accessed on a confidential basis by administrative agencies, like the Board, in supervising the medical system. If the minimal invasion effected by the Board’s review ofCURES data were enoughto shift the burdento the State to put forward a countervailing interest under the Hill] framework, the Board’s interests are more than sufficient. When there is a complaint that a physician is engaging in negligent medical practices of any type, it is important— indeed,it is essential—that the Board be able to quickly ascertain whether that physician’s negligence extendsto hisor her controlled substances prescribing practices, which present a special risk to patients. In this case, the law worked as intended. The Board used CURESdata to narrowits investigation, discover, and correct Lewis’s unprofessionalpractices, including those related to prescribing controlled substances, before Lewis’s conduct could result in harm. Interposing a subpoena or warrant requirement between the Board and the CURESdata held by the Department, as Lewis proposes, lacks legal support and would cause delays that would result in unnecessary risk of harm without meaningful countervailing benefits to patient privacy. Lewis’s remaining claims may be quickly rejected. Lewis waivedhis Fourth Amendmentclaim byfailing to assert it below and is precluded from asserting the rights of his patients because Fourth Amendment protections are personal. Moreover, the United States Supreme Court rejected a similar Fourth Amendmentclaim nearly 40 years ago. Lewis’s challenge to the Board’s receipt and review ofadditional prescription records obtained directly from one pharmacychain,in accordance with statute and without any objection from the pharmacy, has been forfeited by his failure to raise this challenge below,andfails on its merits for reasons substantially similar to the defects in his parallel CURES claims. | Finally, even if Lewis showed anyviolation of constitutional rights (which he did not), he is not entitled to the sole remedy that he seeks— suppression of the evidence that he claims wasthe fruit of the Board’s review ofhis patients’ prescription records. Not only is the exclusionary rule inapplicable in disciplinary proceedings, but the deterrent value,if any, in excluding these records from the Board’s consideration ofdisciplinary action is more than outweighed by the costs of suppressing relevant evidence in proceedings to prevent future professional misconduct. The Court ofAppeal’s decision should be affirmed. BACKGROUND I. CALIFORNIA’S RECORDKEEPING AND REPORTING REQUIREMENTS FOR CONTROLLED SUBSTANCES AND OTHER PRESCRIPTION DRUGS California has actively regulated the dispensing and use of prescription drugsin the State for nearly 150 years. (See Stats. 1871, ch. 454, p. 681, § 1 [regulating pharmacists in San Francisco]; Stats. 1905, ch. 406, p. 535, § 1 [statewide regulation of prescription drug distribution]; see also People v. Doss (1992) 4 Cal.App.4th 1585, 1598 [discussing pervasive regulation ofpharmaceutical industry].) Since 1929,the State has required pharmacies to maintain recordsfor certain prescriptions so that the records would be “at all times open to inspection” by law enforcement and by regulatory inspectors. (Stats. 1929, ch. 216, p. 381, § 1; see Stats. 1945, ch. 1193, p. 2248, § 1 [extending requirementto all prescription drugs]; id., ch. 1196, p. 2255, § 1; see Bus. & Prof. Code, § 4081 [substantially similar].) Althoughall prescription medications in California are definedas “dangerous drugs” andcarefully regulated, a subset of thoseare classified as “controlled substances”dueto their toxicity and potential for abuse leading to psychological or physical dependence. (Bus. & Prof. Code, § 4022; Health & Saf. Code, § 11000 et seq. [California Uniform Controlled Substances Act].)' The Uniform Controlled Substance Act classifies controlled substances into five different schedules. (§§ 11007, ' All further statutory references are to the Health and Safety Code unless otherwise noted. . 11054-11058.) While Schedule I controlled substances are considered unacceptable for medicaluse, the drugs on Schedules II through V are prescribed for medical uses despite their high potential for abuse and dependence. (2 Witkin, Cal. Crim. Law (4th ed. 2012) Crimes—Public, § 85, pp. 728-729.)° Any physician whoprescribes a controlled substance listed on Schedule II must keep a record of the prescription. (§ 11190.) Anyphysician or pharmacist who dispenses a controlled substancelisted on SchedulesII, III, or IV must keep a record of the prescription and report that information to the Department, subject to certain exceptions notat issue here. (§§ 11190, 11165, subd.(d).)° The precursor to the modern CURESprogram dates back to 1939, whenthe State adoptedits “triplicate program”to track the prescription and distribution of certain controlled substances. (Stats. 1939, ch. 60, p. 758 [adding former § 11165].) Under the program, physicians were required to * For example, Schedule I drugs include cocaine. (§ 11054, subd.(f).) Schedule II includes morphine, Vicodin (acetaminophen and hydrocodone), and Percocet (acetaminophen and oxycodone). (§ 11055, subd. (b).) Schedule III includes stimulants like benzphetamine,certain depressants, and variousother narcotics, steroids, and hallucinogenic substances. (§ 11056.) Schedule IV includes all other narcotics, benzodiazepines, and certain other depressants and stimulants. (§ 11057.) Schedule V includescertain narcotic drugs containing nonnarcotic active ingredients. (§ 11058.) 3 Federal law, too, imposessignificant restraints on controlled substance prescriptions, recognizing that practitioners “have the greatest access to controlled substances and therefore the greatest opportunity for - diversion.” (United States v. Moore (1975) 423 U.S. 122, 135.) All physicians must register with the Drug Enforcement Agencyand are subject to extensive recordkeeping requirements and oversight. (Jd. § 1304.04(f)-(h).) For a controlled substance prescription to beeffective, the prescription “must be issued for a legitimate medical purpose” (21 C.F.R. § 1306.04(a)), though States retain primary authority to define the applicable standards of practice. (United States v. Tobin (11th Cir. 2012) 676 F.3d 1264, 1275.) write controlled substances prescriptions on specially printedtriplicate forms, and oneofthe three copies was requiredto be sent from the pharmacyto the state government. (See People v. Katz (1962) 207 Cal.App.2d 739, 745.) CURESwascreated in 1996 to movethe State’s longstanding drug- tracking program into an electronic format. (Assem. Com.on Public Safety, Analysis of Assem. Bill. No. 3042 (1995-1996 Reg.Sess.) as amended Mar. 28, 1996,p. 3 [as of July 17, 2015].) Section 11165, subdivision (a), requires the Department to maintain CURESto help health care practitioners appropriately prescribe and dispensecontrolled substances,to facilitate statistical analysis and education, andto help “law enforcement and regulatory agenciesin their efforts to control the diversion and resultant abuse of Schedule II, Schedule III, and Schedule IV controlled substances[.]” As was true underthetriplicate program, CURES requires any pharmacyor otherdispenserthatfills a prescription for certain controlled substancesto report specific, limited informationto the state government (now the Department), including the patient’s name and contact information; the prescriber’s identity and medical license number; the name, quantity, and form ofthe controlled substanceprescribed; the diagnostic code for the prescription; the date the prescription was written; and the date the prescription was filled. (§ 11165, subd. (d).) The Department, in turn, is authorized to provide information in the CURES database to “appropriatestate, local, and federal public agencies for disciplinary, civil, or criminal purposes[.]” (§ 11165, subd.(c)(2).) Almost every State in the country has a drug-tracking program similar to CURES. (Congressional Research Service, Prescription Drug Monitoring Programs (Mar. 24, 2014),at p. 4 [as of July 13, 2015].) The CURESdatabase generally allows for the production of three different types of reports related to controlled substances. “Prescriber activity reports,” whichare at issue here, includeall controlled substance prescriptions written by a particular doctor and filled in California during a particular time period. (See AR1090-AR1091.) The system can also generate reports specific to either individual pharmaciesorpatients for authorized users. (Sen. Health Com., Analysis of Sen. Bill 1071 (2009- 2010 Reg. Sess.) as amended Apr. 28, 2010, p. 5 < http://www.leginfo.ca. gov/ pub/ 09-10/bill/sen/sb_1051-1100/sb_1071_cfa_20100505_125046_ sen_comm.html> (as of July 17, 2015) (2010 Sen. Report).) Prior to 2009, the Board and other authorized regulatory agencies obtained CURESreports by mailing or faxing a written request to the Department. (2010 Sen. Report, p. 5.) In 2009, CURES was modified to enable authorized regulatory agencies to obtain real-time, on-line access to the database. (/bid.) Physicians and pharmacists who register with CURES can also directly access information abouttheir patients’ individual controlled substances (ibid.), which allows the physician or pharmacist to check for drug contraindications and to detect overprescribing and “doctor- shopping” before writingor filling a prescription. CURESis maintained in a secure database and is required to “comply with all applicable federal and state privacy and security laws and regulations.” (§ 11165, subd. (c)(1).) The information reported to CURES is subjectto all “existing provisions of law to safeguard the privacy and confidentiality of patients[,}” while any information provided to a regulatory agency pursuantto section 11165 “shall not be disclosed, sold, or transferred to any third party.” (/d., subd. (c)(2)). Numerous other privacyprotections apply to CURESdata provided to the Board. (See,e.g., Bus. & Prof. Code, §§ 800, 2225.) Wrongful public disclosure of personal information—including that obtained from CURES—maytriggercivil or criminal liability. (See Civ. Code, §§ 1798.45, 1798.48, 1798.57.) II. THE CALIFORNIA MEDICAL BOARD The Board is one of the agencies to which the Departmentis authorized to provide CURES information. (See § 11165.) Established in ~ 1876 as the Board of Medical Examiners(and later the Board of Medical Quality Assurance), the Board’s missionis “to protect the public against incompetent, impaired, or negligent physicians[.]” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7, citations omitted.) “Protection of the public”is the Board’s “highestpriority.” (Bus. & Prof. Code, § 2001.1.) The Board is charged with enforcing both the disciplinary and criminal provisions of the Medical Practice Act against licensed physicians. (See Bus. & Prof. Code, § 2004; see generally Medical Bd. ofCalifornia v. Chiarottino (2014) 225 Cal.App.4th 623, 630.) As relevant here, the MedicalPractice Actdirects the Board to take action against any physician engaged in unprofessional conduct, including the failure to comply with all federal and state laws regulating prescription drugs andcontrolled substances. (See, e.g., Bus. & Prof. Code, §§ 2238, 2242, 2266.) To that end, state law broadly vests the Board with the powerto investigate complaints that a physician may be engaging in unprofessional conduct. (Arnett, supra, 14 Cal.4th at pp. 7-8.) In addition to interviewing and taking statements from witnesses, Board investigators are authorized to inspect books andrecords and to issue subpoenasfor testimony and the production of records. (Ibid.; see Gov. Code, § 11181, subds.(a), (€).) These tools are designed to permit the Board not only to investigate allegations of misconductbutalso to assure itself that its licensees are complying with the law. As this court previously explained, the Board’s investigatory powers, like those of other administrative agencies, are “analogousto the powerofthe grand jury, which does not depend on a case or controversy to get evidence but can investigate ‘merely on suspicion that the law is being violated, or even just because it wants assurance thatit is not.’” (Arnett, at p. 8.) Bystatute, the Board is authorized to investigate physicians for unprofessional conduct in response to complaints from the public or on its owninitiative. (Bus. & Prof. Code, § 2220, subd. (a).) Complaints related to quality of care generally are assessed by the Board’s medical experts before they are assigned to an investigator. (Bus.& Prof. Code, § 2220.08.) Once an investigation is complete, the Board determines whethersufficient evidence ofunprofessional conduct warrants instituting a formal disciplinary action. (Arnett, supra, 14 Cal.4th at p. 9.) Ifso, the Board refers the matter to the Attorney General’s Office to pursue disciplinary action in an administrative proceeding. (/bid.) If the physician is found guilty of unprofessional conduct, the Board mayeither suspend or revokethe license, place the physician on probation,or issue a public reprimand. (/bid.) The Board publishesits findings andresulting discipline on its website. WI. PROCEDURAL BACKGROUND A. The BoardInvestigates a Patient Complaint Against Lewis and ImposesDiscipline for His Negligence In Treating Four Patients 1. Complaint and investigation The Board opened an investigation into Lewis’s patient care after receiving a complaint from patient V.C. (AR0081.) V.C. saw Lewis complaining of a low iron count and fatigue. (AR0082.) According to V.C., Lewis did not attempt to ascertain the reasons for her symptoms, but instead recommendedthat she lose thirty pounds in three weeks through his “five-bite diet,” which consisted of eating no breakfast and consuming only five bites of food for lunch and dinner. (AR0080-AR0083, AR0946- AR0953.) V.C. reported Lewis to the Board because she believed he was engaging in dangerous medicalpractices; she simultaneously consented to . release her full medical records. (AR0081, AR0953.) After obtaining V.C.’s medical records, the Board assigned the complaint to an investigator. As part of her usual practice, the investigator obtained a CURESprescriber activity report on Lewisfor the preceding three years. (AR0082, AR0099, AR1090-AR1092.) The 205-page report contained the nameanddate ofbirth of each patient to whom Lewis had prescribed a Schedule I-IV controlled substance between November1, 2005, and November 25, 2008; the date of the prescription; the name, form, strength, and quantity of the prescribed drug; the numberofprescriptions filled; and other information on the pharmacy and prescriber. (ARO116- AR0320 [redacted].) The investigator then interviewed both V.C. and Lewis. (AR0082-AR0087.) She later obtained a supplemental 49-page CURESprescriberactivity report of Lewis’s controlled substance prescriptions from December 16, 2008, to December16, 2009. (AR0088; see AR0321-AR0369 [redacted].) After the medical consultant’s initial review of the case, the Board asked five of Lewis’s patients—D.S., D.L., W.G., M.M., and M.U.—to release their full medical records. (AR0088.)* Three patients (D.S., D.L., and W.G.) returned signed releases, and Lewis provided copies oftheir records to the Board. (AR0088-AR0089; AR0099; AR0090.) Because patients M.M. andM.U.did notreturn signed releases, the Board served a “ The Board initially requested a medical release from a sixth patient, M.C., but did not ultimately pursue that patient’s records. (AR0088.) 10 subpoena duces tecum on Lewis forthose patients’ records, followed by Jetters notifying the patients and providing an opportunity to object. (AR0092-AR0093.) Neither M.M.nor M.U.objected, and Lewis provided the requested records two weekslater without objection. (AR0093.) Following routine practice, the investigator also requested a copy of Lewis’s complete prescription history from the corporate headquarters of CVS Pharmacyforthe previous three years. (AR1123, AR1126.) CVS responded by providing the Board with a list of all prescriptions written by Lewis andfilled at CVS pharmacies during that time period, including both controlled and non-controlled substances. (AR1124-AR1125.) The CVS Pharmacyreport included the patients’ names and addresses; the name, form, and quantity of the prescriptionsfilled; the dates the prescriptions werefilled; and information identifying the prescriber and the pharmacist for each prescription. (AR0372-AR0893 [redacted].) It included no other information about patients’ medical conditions or communications between the patients and Lewisor the pharmacists. 2. Administrative hearing and decision The Board filed an initial accusation against Lewis regarding patient V.C. (AR0061-AR0066.) The accusation was later amendedto include allegations regarding the five additional patients for whom the Board obtained full medical records. (AR0029-AR0043.) Lewis movedto dismiss these new allegations, arguing that the _ evidence on which the Board relied concerning patients W.G., M.U., D.L., D.S.,and M.M.wasthe fruit of an unlawful search, namely the Board’s review of the CURESprescriber reports. (AR1186.) According to Lewis, the Board infringedhis patients’ privacy rights by obtaining CURES data from the Department without a warrant, subpoena, or showing of good 1] cause. (Motion to Dismiss, 1.)° Although Lewis’s motion made a passing referenceto his patients’ rights “under the state and federal constitutions,” the only legal authority he offered in support concerned article I, section 1 of the California Constitution. (/d., 3-4.) The administrative law judge denied Lewis’s motion, finding that the Board’s compelling interest in regulating controlled substance prescriptions outweighed any intrusion uponpatients’ privacyrights in information contained in the CURES prescriber reports. (AR0977.) After an eight-day administrative hearing, the administrative law judge issued a proposed decision,finding that Lewis’s unprofessional conduct warranted discipline. (AR0002, AR0023.) The judge concluded that Lewis committed a numberof“repeated negligentacts[,]” “failed to maintain adequate medical records[,]” and, as a result, “engaged in unprofessional conduct” related to four of the’ six patients (V.C., W.G., M.U., and D.L.). (AR0022 [ff 2-4]; see Bus. & Prof. Code, §§ 2234, 2266.) With regard to original complainant V.C., the judge concludedthat Lewis failed to chart basic information about hervisit. (AR0022 [{{ 2-4], AR0004[J 6], AR0005-0006 [Gq 11-13].) The judge also found that Lewis had negligently treated three other patients, including with respectto his prescribing of controlled substances: e With regardto patient D.L., the judge found that Lewis prescribed two controlled substances drugs that, when taken together, can causeliver toxicity, yet failed to obtain or recommendliver function tests for almost two years. (AR0016 [{] 63-64]; AR0022 [ff 2, 4], AROO17 [§] 69].) Lewis also failed to document whether he obtained D.L.’s informed > A copyofthe motion to dismiss is attached as Exhibit A to the Board’s Request for Judicial Notice, filed concurrently with this brief. 12 consent to continue a drug that could cause livertoxicity. (AR0022 [ff 2, 4], ARO015 [61].) e With respect to W.G., the judge found that Lewis failed to document whythe patient required Vicodin, a Schedule IT drug (AR0022 [§{ 2-3], AROO11 [§ 38]); why W.G. needed a duplicate prescription for the same medication (AR0022 [ff 2- 4], AROO11 [40]; why Lewis switched W.G.to Percocet, another Schedule II drug, (AR0022 [4 2-4], ARO012 [§] 44]); andhis “plan to address the apparent change in behavior which mayhavebeenrelated to the Percocet.” (AR0013 [{ 47.)- Lewis also prescribed W.G. an excess amount ofVicodin on one occasion, and an excess amount of Percocet on two occasions. (AR0022 [ff 2, 4], AR0013 [{ 52].) e With respect to M.U., the judge found that Lewisfailed to include in M.U.’s chart any details about whether the Vicodin he prescribed for her was effective, or why M.U. required three prescriptions for this medication in close proximity. (AR0014 [ 55b].) Had M.U.had ingestedall the tablets prescribed, she would have exceededa toxic level. (AR0015 [59c].) The Board adopted the judge’s proposed decision, and placed Lewis’s medical license on a three-year probation with specific conditions. (AR0001, AR0023-AR0026.) B. The Superior Court Rejects Lewis’s Request to Overturn the Board’s Discipline Based on His Claim that the Board Violated His Patients’ State Constitutional Right to Privacy Lewis sought a writ of mandate in the Los Angeles County Superior _ Court, arguing that the Board violated his patients’ right to privacy under article I, section I of the California Constitution. (AR1186, AR1189; OB 4.) Lewis claimed that the CURESreports that the Board obtained from the Department provided the basis upon which the Board obtained the five patients’ medical records and that evidence from those records should be suppressed as the fruit of the Board’s unlawful search of CURES. (AR1188, AR1193.) The superior court denied his petition, concludingthat the Board’s review of the CURESprescriber reports did not violate any 13 reasonable expectation of privacy Lewis’s patients might have in those reports. (AR1246.) C. The Court of Appeal Affirms Lewis then filed a petition for writ of mandate in the Court ofAppeal, asking the court to set aside the Board’s discipline, again based on his claim that the Board’s review of CURESrecords violated his patients’ federal and state constitutionalrights to privacy. Lewis did not dispute that the Justice Department could properly collect information about controlled substances prescriptions from pharmacies. (Opn. 7.) Lewis argued only that the Board violated the state and federal Constitutions by obtaining CURESdata in the course ofinvestigating a complaint that did not allege misconductrelated to his controlled substances prescribing practices. (Petn. 15.) As in the superior court, Lewis’s opening brief challenged only the Board’s receipt of the CURESprescriber activity reports, not the subsequently obtained CVS Pharmacyreport, which heraised forthe first time in his reply brief. (Mem.in Support 18-19; Reply 9.)° | The Court of Appeal denied the petition. The court first concluded that Lewis had no standing to assert the privacy rights of his patients who voluntarily consentedto the release of their medical records. (Opn.4, fn. 3.) The court further observed that, although Lewis’s recitation of the issues suggested that he was asserting a Fourth Amendment claim, Lewis madeclear that he was pursuing only an informational privacy claim under article 1, section 1 of the state Constitution. (Opn.6; see alsoid., fn. 5 ° Lewis made a passing reference to the CVS Pharmacyreport that assumed it was a CURESreport, whichit is not. (See Mem. 20.) All of his legal arguments centered on a challenge to the Board’s receipt of information from CURES. 14 [noting additionally that Fourth Amendmentrights are personal and cannot be vicariously asserted].) The court rejected Lewis’s claim on the merits. Applying the frameworkthis court set forth in Hill, supra, 7 Cal.4th 1, the Courtof Appeal held that patients have a legally protected interest in recordsoftheir prescriptions but that any reasonable expectation of privacy in those records is diminishedin light of the known and pervasive regulation of controlled substances. (Opn. 13-16.) The court further held that the Board’s access to CURESduring the course ofits disciplinary investigation did not constitute a serious invasion of Lewis’s patients’ privacy (Opn. 21), andit rejected Lewis’s argument that the Board must have a subpoenaor warrant before obtaining CURESdata (see Opn. 18-21). Although the court concluded that Lewis failed to establish Hill’s three threshold elements,it held the Board still would prevail even under the applicable balancing test. (Opn. 24.) Even assuming the Board was required to establish a compelling interest, the court held that the State has compelling interests both in controlling the diversion and abuse of controlled substances andin protecting the public against incompetent, impaired,or negligent physicians. (Opn. 22.) These interests, the court held, outweigh the “minorintrusion upon a patient’s informational privacy in his or her controlled substances prescription records stored in CURES.” (Opn. 24.) Imposing a “good cause” requirement, moreover, would require the Board tolitigate privacy issues “in advance,” resulting in delay that would defeat the legislative purpose of CURESto provide real-time access to data used to protect public health and safety. (Opn. 23.) In light of these conclusions, the court held that the superior court correctly denied Lewis’s petition to set aside the discipline imposed. (Opn. 24.) The Court ofAppeal did not address the CVS Pharmacyreport or the applicability of the exclusionaryrule. 15 This court granted Lewis’spetition for review. ARGUMENT I. THE BOARD’S CONFIDENTIAL RECEIPT OF CURES REPORTS OF LEWIS’S CONTROLLED SUBSTANCES PRESCRIPTIONSIS CONSISTENT WITH THE CALIFORNIA RIGHT TO PRIVACY Adoptedbyinitiative in 1972, California’s right of privacy contained in article I, section 1 of the state Constitution ““protects the individual’s reasonable expectation ofprivacy against a serious invasion.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998, italics in the original; id. at p. 997.) Lewis lacks standingto assert his patients’ rights underthis provision to impede aninvestigation into the care he provided them. In any event, the Board’s review of CURESdatain investigations into patientcare is fully consistent with state privacy protections. A. Lewis Cannot Assert His Patients’ Privacy Rights to Thwart a Disciplinary Proceeding Designed to Protect His Patients Lewis seeksrelief from the Board’s discipline against him based on his claim that the Board infringed the privacy rights of his patients when it reviewed two CURESreports. But California constitutional rights are “generally personal” and cannot be asserted on behalf of others except according to certain well-defined exceptions permitting third-party standing. (See People v. Hazelton (1996) 14 Cal.4th 101, 109.)’ While physicians have been permitted to assert their patients’ privacy interests in certain defined circumstances, those circumstancesare not present here. 7 Although the Boardhas not previously argued that Lewis lacks standing, standing mayberaisedforthe first time on appeal. (Hornv. County of Ventura (1979) 24 Cal.3d 605, 619.) 16 Article I, section I’s privacy provision encompasses twoclasses of rights: an informational privacy interest “in precluding the dissemination or misuse of sensitive and confidential information” and an autonomyinterest “in making intimate personal decisions or conducting personalactivities without observation, intrusion, or interference[.]” (Hill, supra, 7 Cal4th at p. 35.) Both state and federal courts have permitted physicians to assert their patients’ autonomyinterests in making certain types ofpersonal decisions involving, for example, contraception and reproduction. (See, e.g., Griswold v. Connecticut (1965) 381 U.S. 479, 480-481 [contraception]; American Academy ofPediatrics v. Lungren (1997) 16 Cal.4th 307, 322, fn. 8, 332 (lead opn. of George, C.J.) [abortion].) In such cases, the physician’s andpatients’ interests are aligned: the physician wishes to provide certain services or advice, the patients wish to receive those services or advice, and the challenged law directly interferesin this medicalrelationship. (See Griswold, at pp. 480-481 [physician faced criminalliability for aiding and abetting contraception]; People v. Belous (1969) 71 Cal.2d 954, 959-960 [physician convicted of providing abortion services].) Further, in these particularly sensitive cases, patients may be unwilling or unable to assert their rights directly, and thus without suits’ brought by physicians, patients’ rights may be diluted. (See Griswold,at p. 481.) . Such concerns are not present here. Lewis does not suggest that the | Board’sability to obtain CURESdata interferes with or adversely affects his patients’ ability to receive medical services. (Cf. Whalen, supra, 429 U.S.at p. 603 [observing that requirement to report controlled substances prescriptions to state health officials deprived no individualofthe right to decide independently to acquire needed medication].) Nor are patients’ and physician’s interests necessarily aligned when a physician seeksto vicariously assert his patients’ privacy interests in order to avoid Board 17 review of his medical practices. Here, when five of Lewis’s patients were informed that the Board soughttheir complete medical records in the course ofits investigation, three consented and the other two did not object. If those patients had been concerned about the Board accessing the more limited CURESdata, they likely would have objected to the Board’s review of their full medical records. Allowing Lewisto assert his patients’ informationalprivacy rights in these circumstancesis inappropriate. A second group ofcases has permitted physicians to assert their patients’ right to informationalprivacy in medical records that are held by the physician. (See, e.g., Whitney v. Montegut(2014) 222 Cal.App.4th 906, 918-921; Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1143- 1145.) These cases,too, are inapposite. Where the physician is the custodian of the records being sought, it makes sense to permit the physicianto object initially to the disclosure, given the physician/patient relationship and the implicit understanding that the physician will maintain patient confidences. Here, Lewis did not object to the Board’s subpoenas of his patients’ full medical records in his custody. The Courts ofAppeal have expressed different views as to whether a physician under Board investigation for practices that could endangerhis or her patients mayassert patients’ privacy rights to attempt to prevent the use ofrecords obtained from third-party sources. (Compare, e.g., Chiarottino, supra, 225 Cal.App.4th at p. 630, fn. 3 [relying on Wood, supra, 166 Cal.App.3d at 1145 for the proposition that a physician may assert privacy interests ofpatients who have not consented to disclosure of their medical records] with Pating v. Board ofMedical Quality Assurance (1982) 130 Cal.App.3d 608, 621 [“reasonabl[e]” to concludethat “havingallegedly victimizedhis patients, [a physician] should not be permitted standing to thus assert their privacy rights for his own protection,” citing Peoplev. Solario (1977) 19 Cal.3d 760, 764 [burglary suspect could not complain 18 that police officer violated householder’s right to privacy by entering residenceto arrest defendant].) The Pating court’s view is in keeping with patients’ interests and commonsense, andthis court should adoptit. B. Lewis Has Not Established an Actionable Invasion of the Right to Privacy Even if Lewis had standing to assert his patients’ rights, he would still fail to establish that the Board’s access to CURESdata infringes any of his patients’ constitutionally protected privacy interests. An actionable invasion-of-privacy claim requires three elements: “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy underthe circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill, supra, 7 Cal.4th at pp. 39-40; see also County ofLos Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926.) These threshold elements are intended to “screen out claimsthat do not involve a significant intrusion” on a protected privacy interest. (Loderv. City ofGlendale (1997) 14 Cal.4th 846, 893 (lead opn. of George, C.J.); County ofLos Angeles, at p. 926 [defendant“entitled to prevail if it negates any ofthe three required elements”].) If the claimant satisfies each of the three elements, and thereby establishes an actionable invasion of privacy, the court weighsthe strength of the asserted privacy interest against the defendant’s countervailing interests. (County ofLos Angeles, at p. 926.) Lewis’s claim fails at the Hill threshold because he has not shownthat patients reasonably expect that records of controlled substances prescriptions lawfully maintained by the Departmentwill not be provided confidentially to the Board in a physician discipline investigation. Nordid he showthatthe provision of such records from onestate agency to another, as intended by the Legislature and subject to continuing 19 protections against public disclosure, involves a serious invasionofpatient privacy. 1. Patients Have No Reasonable Expectation that CURESData Will Not Be Provided Confidentially to the Boardin the Course of Physician Disciplinary Investigations Although the CURESstatute confirmsthat patients have a legally recognized privacy interest that CURESrecords will remain confidential (§ 11165, subd. (c)(2); see Opn. 13), patients have no reasonable expectation that such information will not be provided confidentially to the Board for purposes of investigating possible physician misconduct. The California right to privacy protects only an individual’s reasonable expectation ofprivacy, defined as “an objective entitlement founded on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.) “A plaintiffs expectation of privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved[.]” (d. at p. 26.) Custom and practice, including backgroundlegalrules, “maycreate or inhibit reasonable expectations of privacy.” (/d. at p. 36; International Federation ofProfessional & Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 331-332, 338 [looking to widespread practices of federal, state, and local governments and conclusion in Attorney General opinions to find no reasonable expectation of privacy].) With regard to controlled substances prescriptions, the long history of government regulation and the established and widespread practice of . reporting to state regulatory agencies demonstrate that patients have no reasonable expectation that CURES information will be shielded from the Board. In Whalen, supra, 429 U.S. 589, the United States Supreme Court rejected a federal constitutional challenge to a drug-monitoring program 20 similar to CURES,concluding that disclosure of controlled substances prescription information to the governmentis not “meaningfully distinguishable from a host of other unpleasant invasionsofprivacy that are associated with manyfacets ofhealth care.” (/d. at p. 601.) The Court explained, “[D]isclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part ofmodern medical practice even when the disclosure may reflect unfavorably on the character of the patient.” (/bid.) In light of this background norm, New York’s drug-tracking program, which required pharmacists to report Schedule II prescriptions to the state Department of Health and mandated that such records be madeavailable to agencies with licensing and regulatory authority over those authorized to deal in controlled substances, violated neither the liberty protections of the Fourteenth Amendmentnor the Fourth Amendment. (Id. at pp. 592-595, 602, 604, fn. 32.) Requiring disclosure of controlled substance prescriptions to state health agencies, the Court concluded, “does not automatically amount to an impermissible invasion of privacy.” (/d. at p. 602; see also id. at p. 595 [at time of trial, 17 state health department employees had access to the records; records had been used in two investigations involving alleged patient overuse].) The long-established regulatory scheme governing controlled substancesin California likewise gives patients no reasonable expectation that CURESdata will be shielded from state medical regulators. As described above, California has required physicians and pharmacists to maintain prescription records for regulatory review for more than a century and to proactively report controlled substance prescriptions to the governmentfor nearly as long. (Supra, 4-8.) State law requires pharmacies to furnish records of patients’ controlled substance prescriptions to the Department, and, in turn, authorizes the Department to make those records 21 available to regulatory agencies, including the Board. (See § 11165, subds. (a), (d); Opn. 15.) Federal law requires physicians and pharmacists to inform patients that their records may be provided to government agencies overseeing the health care system, including physician care. (See, e.g., 45 C.F.R. § 164.512(d) (2005).)° In light of the specific statutory mandate granting the Board access to CURES data and the “well-knownand long- established regulatory history” of controlled substances, patients cannot reasonably expect that the Board would be denied access to CURES information for use in disciplinary investigations. (See Opn.15.) Other state high courts have similarly concludedpatients have a “significantly diminish[ed]” expectation ofprivacy in controlled substance prescription records. (See,e.g., State v. Wiedeman (Neb. 2013) 835 N.W.2d 698, 711 [discussing “well-known and long-established regulatory history’]; see also State v. Russo (Conn. 2002) 790 A.2d 1132, 1150-1153 [similar]). One court explained, “Whatever privacy interest . . . patients and physicians possessin [controlled substance] prescription recordsis limited to the right not to have the information disclosed to the generalpublic.” (Stone v. Stow (Ohio 1992) 593 N.E.2d 294,301; see also Williams v. Com. (Ky. 2006) 213 S.W.3d 671, 683 [similar].) Cases discussing patients’ heightened privacy interests in their complete medical recordsare inapposite. (E.g., Wood, supra, 166 Cal.App.3d at pp. 1140-1141; Bd. ofMedical Quality Assurancev. Gherardini (1979) 93 Cal.App. 3d 669, 673.) A patient’s complete medical 8 At one pharmacy, for example, patients are informed, “[W]e may disclose information about you (i) if we are required to do so by law or legal process,(ii) to law enforcement authorities or other government officials based on a lawful disclosure request ....” (Rite Aid, Privacy Policy [as of July 15, 2015].) 22 record—which can include symptom descriptions, patient questions and concerns, family history, diagnoses, test results, and other personal details that the patient communicates in a confidential, one-on-one setting with his or her physician—is much moresensitive and broad-ranging than the limited records contained in the CURESdatabase, and a patient’s expectation ofprivacy is, accordingly, different. (See Wood, supra, at p. 1147 [information in physician’s files is “broadranging” and may include “highly personal details oflifestyle and information concerning sources of stress and anxiety”]; cf. 420 Caregivers, LLC v. City ofLos Angeles (2012) 219 Cal.App.4th 1316, 1350 [medical record “would contain significantly more personal and intimate information”than membership record of ~ medical marijuanacollective].) And in fact, the Board treated such records differently here, providing the patients for whom it sought complete medical records an opportunity first to consent and then providing notice and an opportunity to object before the records were obtained by subpoena. Patients have no reasonable expectation ofprivacy that CURESrecords will not be provided to the Board during physician disciplinary investigations. 2. The Board’s Receipt and Review of CURES Data Is Not a Serious Invasion of Privacy Giving Rise to a Constitutional Claim Lewis hasalso failed to satisfy Hill’s third threshold element, which asks whether the defendant’s conductrises to the level of a serious invasion of privacy. Because “[n]o community could function if every intrusion into the realm of private action, no matter howslightor trivial, gave rise to a cause of action for invasion ofprivacy[,] . . . [a]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” (Hill, supra, ‘7 Cal. 4th at p. 37.) As the 23 Court of Appeal concluded, the incrementalintrusion alleged in this case— a non-public disclosure from the Department to a regulatory agency acting within the scopeofits authority to protect the patients to whom the CURES reports pertain—is not the kindof serious invasion against which the state Constitution guards. (Opn.21.) As explained above, section 11165 authorizes the Department to disclose CURESdata to the Board and other regulatory agencies only “for disciplinary, civil, or criminal purposes” (subd. (c)(2)), and the Board uses the data received only to enforce the disciplinary and criminalprovisions of the Medical Practice Act. (Bus. & Prof. Code, § 2004.) When such information is providedto the Boardit is subject to extensive privacy protections. (Supra, 7-8.) This limited disclosure of CURESrecords to the Board on a confidential basis for the precise purpose for which CURES data are compiled does notrise to the level of an actionable invasion of privacy. (See Opn. 21; Chiarottino, supra, 225 Cal.App.4th at p. 636 [Board’s receipt of CURESdatainvolves a “relatively minor intrusion upon a patient’s reasonable expectation of privacy”); ibid. [“limited incremental intrusion’’].) Nor can such information sharing be viewedas a serious invasion whenthe practice is well-established in state law. Under the Information Privacy Act, state agencies are permitted to share information—even personalinformation—with other state agencies whenit is necessary for the recipient-agency “to perform its constitutional or statutory duties, and the use is compatible with a purpose for which the information wascollected,” orif “the information requested is needed in an investigation ofunlawful activity under the jurisdiction of the requesting agency orfor licensing, certification, or regulatory purposes by that agency.” (Civ. Code, § 1798.24, subd. (e).) Under Lewis’s theory, a constitutional claim would lie any time a state agency provided personal information abouta citizen to 24 another agencyacting within the scopeofits jurisdiction unless the agency obtained a warrant or subpoena. This is not (and should not be) the law. (See Reynaud v. Superior Court (1982) 138 Cal.App.3d 1, 6 [Department’s receipt of Medi-Cal claim information from State’s agent for processing claims for use in state investigation cannot “be deemed an unreasonable governmentalintrusion”]; Haskins v. San Diego Dept ofPublic Welfare (1980) 100 Cal.App.3d 961, 971 [disclosures from one government employee to another understatutory authority to investigate “is not the stuff out of which a cause ofaction for [a] violation of [the] right of privacy grows’].) Because the information in the CURES database was only shared with the Board any invasion ofprivacyis slight. Lewis has not met Hill’s threshold inquiry, and this court should affirm the decision below on that basis. C. The Board’s Prompt Access to CURES Data Serves Vital Public-Safety Interests that Outweigh Any Intrusion on Patients’ Privacy Interests Even if Lewis could satisfy Hill’s three threshold requirements, the Board wouldstill prevail because, as the Court ofAppeal concluded, the — Board’simportant—indeed, compelling—interests in accessing CURES data to investigate patient care concerns outweighthe limited intrusion resulting from such access. 1.. The “Compelling Interest”/“Least Intrusive Means” Test Does Not Apply At the outset, Lewis invokes the wrong standard for determining a violation of article I, section 1. Lewis contends the Board must demonstrate that its access to CURESserves a “compelling interest” and wasthe “least intrusive means”ofprotecting the public from potentially dangerous medical care. (OB 16-23.) This contentionis without merit. 25 As a general rule, an invasion of privacy does not violate the state Constitution so long as “it substantively furthers one or more countervailing interests.” (Hill, supra, 7 Cal.4th at p. 40; see also County ofLos Angeles, supra, 56 Cal.4th at p. 926 [same].) The invasion may be unjustified, however, if the claimant can point to “‘feasible and effective alternatives’ with ‘a lesser impact on privacy interests.’” (/bid., quoting Hill, at p. 40; see also Sheehan, supra, 45 Cal.4th at pp. 998-999 [same].) Lewis urges the Court to disregard the established Hi// balancing test and hold instead that, in cases involving action by a state agency or information relating to medical care, the State must demonstrate a compelling interest that cannot be met throughless intrusive means. (OB 16-23.) Although this court has applied strict standard of scrutiny to cases involving infringements on bodily autonomyor speech and associational rights (American Academy ofPediatrics, supra, 16 Cal.4th at pp. 340-341 (lead opn. of George, C.J.) [abortion]; White v. Davis (1975) 13 Cal.3d 757, 761 [freedom of speech and association]), the court has madeclear that this heightened standard does not apply outside of that . context. (Hernandezv. Hillsides, Inc. (2009) 47 Cal.4th 272, 288 [“For purposesofthis balancing function [under Hil/|—and exceptin the rare case in which a ‘fundamental’ right of personal autonomy is involved—the defendant need not present a ‘‘compelling’’ countervailing interest; only ‘general balancing tests are employed,”” quoting Hill, supra, at p. 34].) Accordingly, this court has repeatedly applied Hill’s legitimate- interests balancing test, including in cases where the governmentis alleged to have infringed an informational privacyinterest, including in the context of medical information. In Loder, for example, five Justices applied Hill’s balancing test to reject a claim that a city’s requirementthat job applicants submitto urinalysis as part of a preemployment medical assessment, violated applicants’ constitutional right to privacy. (14 Cal.4th at pp. 896- 26 898 (lead opn. of George, C.J.) [city’s “substantial interest in conducting suspicionless drug testing of a job applicant”justified “the relatively minor intrusion upon such an applicant’s reasonable expectations of privacy’); id. at p. 933 (conc. & dis. opn. of Chin, J. [upholding policy based on “City’s important and substantial interests”].) Likewise, the court applied the legitimate-interests balancing test to permit a county to reveal employees’ home addresses to the employees’ union. (County ofLos Angeles, supra, 56 Cal.4th at pp. 930-932; see also JFPTE, supra, 42 Cal.4th at pp. 338-339 [applying balancingtest in challenge to public disclosure of employee salary information by county]; 420 Caregivers, supra, 219 Cal.App.4th at p. 1347 [applying “legitimate”interest standard in case challenging disclosure ofmembership records in medical marijuana collective]; Whitney, supra, 222 Cal.App.4th at p. 919 [same regarding Board subpoena of medical records].) As these cases makeclear, the legitimate-interests balancing test applies to informational privacy claims against governmental actors, even in the medical context. Lewis places heavyreliance on this court’s statement in Hill, repeated in Sheehan,that “the argumentthat . . . a ‘least restrictive alternative’ burden must invariably be imposed on defendants in privacy cases derives from decisionsthat . . . are directed against the invasive conduct of government agenciesrather than private, voluntary organizations.” (OB 20, quoting Sheehan, supra, 45 Cal.4th at p. 1002, quoting Hill, supra, 7 Cal.4th at p. 49.) But in making this observation, the court explained that “at the roots ofthe ‘leastrestrictive alternative’ burden lie cases of infringement of fundamental freedoms of expression and association”—two constitutionally protected rights not at issue in this case. (Hill, supra, at p. 49, fn. 16.) There is no basis, moreover, to subject the Board’s use ofCURES data to the searching standard suggested by Lewis. The “critical factor” in 27 determiningthe level of scrutinyis the “particular context” in which an alleged privacy intrusion occurs,“i.e., the specific kind ofprivacy interest involved and the nature and seriousness of the invasion and any countervailing interests.” (Hill, supra, 7 Cal.4th at p. 34.) Here, for all the reasons explained above, patients have significantly reducedprivacy interests in information about their controlled substance prescriptions when it comes to non-public disclosures to state regulatory agencies. And a limited disclosure of CURESprescriberactivity reports from the Department to the Board in a physician discipline investigation does notreflect the kind of serious invasion of patient autonomyor privacy that calls for searching judicial inquiry. (Cf. Chiarottino, supra, 225 Cal.App.4th at p. 636 [upholding Board review of CURESdata without requiring Board to show actions wereleast intrusive means].) Such probing judicial inquiry, moreover, would lead to unwarranted judicial second- guessing of the Board’s physician-oversight function, with the perverse result of protecting patient privacy at the expenseofpatient safety.” Accordingly, to prevail in this case, the Board need only establish that any invasion of patients’ constitutional privacy interests is justified by a “legitimate and important competing interest.” (Hill, supra, 7 Cal.4th at p. 38.) | ° The two cases on which Lewis relies, Gherardini, supra, 93 Cal.App.3d 669 and Johnson y. Superior Court (2000) 80 Cal.App.4th 1050, are inapposite. (OB 16, 20.) Gherardini predates Hill and, in any event, involved complete patient medical records. (Gherardini, at p. 673.) Thecourt in Johnson did not employthe court’s analysis in Hill to determine whether a compelling or legitimate interest standard should apply and, in any event, was not required to make that determination, concludingthat the state-compelled disclosure in a private party lawsuit wouldsatisfy even the heightened compelling interest standard. (Johnson, at p. 1071.) 28 2. The Board’s Vital Interest in Protecting the Public Justifies Its Use of CURESto Investigate Physician Care The Board’s review of CURESdata already collected by the Departmentis justified by legitimate—indeed, compelling—state interests. Asthis court explained in Hill, “[l]egitimate interests derive from the legally authorized andsocially beneficialactivities of government and private entities[.]” (7 Cal.4th at p. 38.) Here, providing the Board with access to CURESdata serves the State’s vital, dual interests in protecting the public from unlawful use and diversion of a particularly dangerousclass of prescription drugs and in protecting patients from negligent or incompetent physicians. The Supreme Court observed long agothat a State’s right to “regulate the administration, sale, prescription, and use of dangerous and habit- forming drugs”is “so manifest in the interest of the public health and welfare, that it is unnecessary to enter upona discussion ofit beyond saying that it is too firmly established to be successfully called in question.” (State ofMinnesota ex rel. Whipple v. Martinson (1921) 256 U.S. 41, 45; see also Whalen, supra, 429 U.S.at p. 598 [State has “vital interest in controlling the distribution of dangerous drugs”].) Abuse and diversion of prescription drugs are significant problems in California, as the Court ofAppeal concluded. (Opn. 23.) For example, one governmental study showed that the numberofdeaths from prescription painkillers has been steadily increasing in California and across the United States since 1999. (See U.S. Dept. of Health & Human Services, Center for Disease Control, Prescription Painkiller Overdoses in the U.S. Infographic, p. 2 (Nov. 1, 2011) [as of July 15, 2015]; id. at p. 3 [California’s drug 29 overdose death rate was 9.5 to 12.3 deaths per 10,000 people in 2008].) Protecting the public from these dangersis not only a legitimate but a compelling state interest. In addition, the State has a compelling interest in protecting the public from incompetent, impaired, or negligent physicians. (Opn. 22.) Physicians hold important positionsoftrust, and violations of the standard of care can have significant—even fatal—consequences. Because patients often lack the knowledge or expertise necessary to detect when their physicians are delivering inappropriate or dangerous medicalcare, the Board is vested with the responsibility and authority to investigate physicians whose care mayposerisks to patients’ health and safety. The Board’sability to investigate physicians’ prescriptions of highly regulated controlled substancesis an integral part of its important oversight responsibilities. (See Whalen, supra, 429 U.S. at p. 603 fn. 30 [“well settled that the State has broad police powersin regulating the administration of drugs by the health professions’]; Opn. 22.) These critical state interests easily outweigh any incremental intrusion caused by the Board’s receipt of CURES information, on a confidential basis, from the Department. As the Court ofAppeal explained in Chiarottino, “[S]ociety’s substantial interest in reducing theillegitimate use of dangerously addictive prescription drugs” outweighs “therelatively minorintrusion” that occurs when the Board confidentially reviews CURESrecordsto discover and take action against negligent medical practices. (225 Cal.App.4th at p. 636.) 3. Lewis’s Argument that the Board Must Obtain a Warrant or Subpoena Before Accessing CURES Data Is Unsupported and Would Fundamentally Underminethe Board’s Ability to Protect the Public 30 Lewis argues that the Board should be required to use a “less intrusive means” of obtaining CURESdata, which, in Lewis’s view, means the Board must obtain awarrant, subpoena, or otherwise “show good cause” before obtaining prescriber reports from CURES. (OB 27-28.) Forall the reasons explained above, the Board neednotestablish that its method for obtaining CURESdata is the least intrusive way of accomplishing its importantpatient-safety goals. Lewis’s proposed alternatives, moreover, lack legal support and would compromise the Board’sability to protect patients from physicians whose unprofessional practices pose risks to patients. Asan initial matter, Lewis cites no authority for the proposition that article I, section 1 of the state Constitution requires one state agency to obtain a warrant, or even resort to a subpoena, before receiving information from another state agency when conducting a regulatory investigation within the scope of its statutory authority.'° Indeed, as explained above, state law permits inter-agency information sharing without resort to such proceduralhurdlesin a range of circumstances. (Supra, 24-25 [discussing Civil Code, § 1798.24]; see also Reynaud, supra, 138 Cal.App.3d 1, 7 [““unreasonable”to require State “to make a formalshowingorto seek formal adjudication, or even to perceive a genuine privacyissue, before reviewing its own records for the very purposes for which those records were compiled”].) Lewis’s proposed alternatives makelittle sense in the context ofthe Board’s review of CURESrecords, and each would compromise the Board’s ability to discover and stop dangerous medical practices. Lewis first contends that a warrant (presumably supported by probable cause) '° The State may, of course, require additional procedures as a matter ofpolicy rather than constitutional compulsion. 31 should be required. (OB 27-28.) But agency investigators need not demonstrate probable causein order to obtain records relevant to their investigations. As this court explained in discussing the Board’s investigative authority, “the power to make administrative inquiry”is analogous to the powerof a grand jury, which “can investigate merely on suspicion that the law is being violated, or even just because it wants assurancethatit is not.” (Arnett, supra, 14 Cal.4th at p. 8, citing Brovelliv. Superior Court ofLos Angeles County (1961) 56 Cal.2d 524, 528; see also Chiarottino, supra, 225 Cal.App.4th at p. 630.) Unlike a criminal prosecution, Boarddisciplinary investigations are primarily aimed at preventing future misconduct that might endanger patient health. (See Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 772 [public-protection purpose oflicensing statutes “does not require harm to a client before licensing discipline can take place”].) Requiring the Board to marshal probable cause before reviewing CURES data would deprive the Board of the ability to spot-check prescribers for compliance with both the laws and standards of care governing controlled substance prescriptions, potentially preventing the Board from detecting and addressing problems before they result in patient harm. Inthiscase, for instance, it was through review of CURESreports that Lewis’s deviation from the standard ofcare in his prescribing practices was detected. Lewis’s second alternative, an administrative subpoena (OB 27-28),is likewise inappropriate for Board requests for CURESprescriber data. Unlike warrants, subpoenas neednot be supported by probable cause, but rather may demand information that is “reasonably relevant” to an agency’s investigation. (Stiger v. Flippin (2011) 201 Cal.App.4th 646, 656-657; see also Craib v. Bulmash (1989) 49 Cal.3d 475, 483.) Subpoenas, however, are notself-executing, and the agency mustseekjudicial enforcementif the subpoenaed party refuses to comply. (Stiger, p. 657; see also Brovelli, 32 supra, 56 Cal.2d at p. 528.) In the context ofBoard review of CURESdata, there is no rationale for requiring this kind of pre-enforcementjudicial process, as there would be no occasion for the Department (the presumed recipient of the subpoena Lewis proposes) to object to Board requests for CURESdata whenthe Boardis acting within its authority to investigate unprofessional practices and follows any access protocols that the Department, in its discretion, sets. In addition, Board requests for CURES prescriber records in the course ofinvestigating a physician unquestionably satisfy the minimal relevance standard applicable to subpoenas, whether or not the investigation focusesinitially on the physician’s prescriptions of controlled substances. (See, e.g., Opn. 23-24 [“a physician’s prescribing practices are directly related to medical care and treatment affordedto his patients”].) Where review of CURESdata reveals questionable practices necessitating investigation of full medical records, the Board does seek consentor issue a subpoena, with notice to patients. Accordingly, requiring the Board to issue a subpoenaeach time it seeks a CURESprescriber report would addlittle to the robust privacy protections already coveringpatients. (Supra, 7-8.) Although his brief is not entirely clear, Lewis suggests that this court should limit the Board’sability to obtain CURESrecords to cases in which the Board has developed “good cause”to review the records andafter notice to patients—requirements that some Courts ofAppeal have applied to subpoenas for medical records. (See, e.g., Bearman v. Superior Court (2004) 117 Cal.App.4th 463.) Whatever merit such a standard has with respect to subpoenas for complete medical records, that standardis inapplicable to Board requests for CURESdata, which, as explained above, do not contain the kind of detailed personal information as may be found in a medical record (supra, 22-23), and have long been subjectto administrative review without warrant or subpoena (supra, 4-8). 33 Imposing the samekind of notice and good cause requirements to Board requests for CURES data would also compromise the Board’sability to detect and halt dangerous medical practices and thereby putpatients’ health—and even lives—atrisk. “Real-time access to CURES.. . protects patients from incompetent and unprofessional doctors.” (Opn. 23.) In creating CURES,the Legislature concludedthat “the ability to closely monitor the prescribing and dispensing of Schedule II controlled substances” “‘is essential to effectively control the abuse and diversion of these controlled substances.” (Stats. 1996, ch. 738, p. 3976, § 1.) Ifthe Board were required to provide notice to patients and develop good cause as understood by the Courts of Appeal in the medicalrecords context before obtaining recordsof controlled substances prescriptions from the Department, it would delay the Board’s ability to identify and correct potentially dangerouspractices. This is true even if no patientultimately had any objection to the disclosure. And in cases in which a party objected, the delays could be extensive. (See Chiarottino, supra, 225.Cal.App. 4th 623 [Board requested patient releases in February 2012; appeal decided April 2014]; Whitney, supra, 222 Cal.App.4th 906 [petition seeking medical records filed June 2011; appeal decided January 2014].) Requiring the Board to wait for a potentially lengthy judicial-enforcementprocess to conclude would impede the Board’s ability to detect andpromptly halt unsafe medical practices, putting public and patient safety at risk, with no meaningful added benefit to patient privacy. The Board’s receipt of CURESprescriberreports is consistent with the privacy guarantee ofarticle I, section 1 of the California Constitution. IJ. LEWIS’Ss FOURTH AMENDMENT CHALLENGE TO THE BOARD’S ~ REVIEW OF CURESDATAIS FORFEITED, RESTS ON THIRD- PARTY RIGHTS THAT CANNOT BE ASSERTED VICARIOUSLY, AND LACKS MERIT 34 In addition to his claim underarticle I, section 1 of the state constitution, Lewis now argues that the Board’s review of CURESdata violated his patients’ rights under the Fourth Amendmentto the federal constitution. Lewis failed to preserve this claim and, in any event, is precluded from pressing the Fourth Amendmentrights ofthird parties. Furthermore, the claim has no merit. A. Lewis Forfeited His Fourth Amendment Claim The Court need not reach Lewis’s arguments under the Fourth Amendmentbecausehe did notassert the Fourth Amendmentasa basis for relief. In administrative proceedings before the Board (andin writ proceedings before the superior court), Lewis generally referred to “violations of fundamentalprivacy protections guaranteed understate and federal law,” but supported his claim solely on the basis of the state constitution. (Motion to Dismiss 1, 3-6; see Verified Petn. 2-3 [ARI141- _ AR1142]; OB 4.) This kind of passing reference to “federal law,” unsubstantiated by legal authority, is not sufficient to advance a Fourth Amendment claim. (See People v. Stanley (1995) 10 Cal.4th 764, 793; Ochoav. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.) And because he did not assert a Fourth Amendmentchallenge in the administrative proceedings before the Board, he cannot now seek writ relief on that basis. (Medical Bd. ofCalifornia v. Superior Court (1991) 227 Cal.App.3d 1458, 1462.) B. Lewis May NotVicariously Assert a Fourth Amendment Claim on Behalf of His Patients Lewis’s Fourth Amendmentclaim on behalf ofhis patients fails at the threshold for the additional reasonthat he is not entitled to assert any Fourth Amendmentinterest his patients may have in the Board’s review of CURESdata. In Rakas v. Illinois (1978) 439 U.S. 128, the United States 35 Supreme Court rejected any notion of third-party standing in this context, holding that “‘Fourth Amendmentrights are personal rights which, like someother constitutional rights, may not be vicariously asserted.” (Id. at pp. 133-134, quoting Alderman v. United States (1969) 394 U.S. 165, 174; see Opn.6, fn. 5.) Applying Rakas, this court has explained that, “[iJn | order to challenge a searchor seizure, a defendant must allege . . . that the defendant’s personalinterests were violated.” (People v. Bryant (2014) 60 Cal.4th 335, 365,italics added; see also People v. Ayala (2000) 23 Cal.4th 225, 255 [similar].)"" Ignoring Rakas, Lewis advances two arguments in support ofhis claim that he can advancehis patients’ Fourth Amendmentinterests. First, he argues that a 1979 Court of Appeal decision, Gherardini, establishesthat he has “standing”to assert his patients’ Fourth Amendmentrights in an administrative proceeding. (OB 41, citing 93 Cal.App.3dat p. 675 [allowing hospital to challenge subpoena becauseit “has standing ... under the ‘vicarious exclusionary rule’ to object to the admission of evidence obtainedin violation of another’s constitutional rights”].) To the extent that Gherardini suggests there is a “vicarious exclusionary rule,”it fails to accountfor Rakas, whichspecifically held that Fourth Amendment rights are purely personal, and “may be enforced by exclusion of evidence only at — the instance of one whose ownprotection was infringed by the search and seizure.” (Rakas, supra, 439 U.S.at p. 428 [rejecting “target theory” of the 'l As discussed above, even if Lewis as a legal matter couldassert his patients’ rights, two ofthe three patients whose full medical records Lewis seeks to suppress affirmatively consented, and none objected,to their records’ use. Lewis should not be allowedto to override these patients’ decisions about their own rights. (See Pating, supra, 130 Cal.App.3d at p. 621 [once patients consented to introduction of their medical records, physician was “no longerentitled (if ever he had been) to assert their rights”].) 36 Fourth Amendment]; see also Minnesota v. Carter (1998) 525 U.S. 83, 87 [question under the Fourth Amendmentis not one of “standing,” but whetherclaimantasserts a personal right].) Contrary to Lewis’s view, Jn re Lance W. (1985) 37 Cal.3d 873 did not carve out a different rule for civil proceedings. (OB 41-42.) Rather, Lance W. explained that the exclusionary rule generally does not applyin civil matters. (Lance W., supra, at pp. 892-893; see also infra, 44-46.) Second, Lewis arguesthat he may vicariously assert his patients’ privacy interests becausehe has a personalinterest in his own prescription practices. (OB 42-43.) Not only did Lewis fail to argue below that he had any personal Fourth Amendmentinterest in records kept by third parties about the controlled substance prescriptions he writes, but this argumentis a non-sequitur. Even if he hasa personal, constitutionally protected privacyinterest in his own prescribing practices (which he does not), thatis irrelevant to the question whether he mayassert the rights of someone else, '? C. The Board’s Review of CURES Data Without a Warrant Was Consistent with the Fourth Amendment Even if Lewis wereable to assert his patients’ Fourth Amendment rights, his argumentthat the Fourth Amendment required the Board to "2 Any suggestion that a doctor would have a reasonable expectation ofprivacy in prescription records held by CURES wouldfail. As explained above,there is no reasonable expectation ofprivacy that would deny the Board access to CURESdata collected by the government (supra, 20-23), and doctors are on clear notice that their controlled substance prescriptions are reported to the State. (Opn.7 [relying on § 11190 and concludingthat “Lewis has no reasonable expectation ofprivacy in his prescribing practices of controlled substances”].) “Obviously . . . a ‘legitimate’ expectation of privacyby definition means more than a subjective expectation of [one’s wrongdoing] not being discovered.” (See Rakas, supra, 439 U.S.at p. 143, fn. 12.) 37 obtain a warrant before reviewing CURESdata would fail. (OB 38-41.) Asthe Supreme Court explained more than 40 years ago, it has “never carried the Fourth Amendment’s interest in privacy as far as” to forbid a State to collect and review prescription drug information, and it “decline[d] to do so” in that case. (Whalen, supra, 429 U.S. at p. 604, fn. 32 [rejecting Fourth Amendmentchallenge to New York’s controlled substance program and noting it was unlike “those cases involv[ing] affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations” in which a Fourth Amendmentright mightlie]; see also Opn. 19 [discussing Whalen].) As explained above, patients have no reasonable expectation that records of a physician’s controlled substance prescriptions will be shielded from the very state agency charged with overseeing the physicians who prescribe those drugs. (Supra, 20-23.) Because such regulatory review does not infringe upon any reasonable expectation of privacy, no warrantis necessary under the Fourth Amendment. (See Williams, supra, 213 S.W.3d at pp. 683-684; see United States v. Jacobsen (1984) 466 U.S. 109, 113 [Fourth Amendment“search” occurs only when a reasonable expectation of privacyis infringed].)"* Even were a warrant otherwise required, the Board would beentitled to access CURESphysician records without a warrant under the administrative search exception set forth in New York v. Burger (1987) 482 U.S. 691. Burger held that no warrant is necessary to search the records of s 13 The Louisiana Supreme Court in State v. Skinner (La. 2009) 10 So.3d 1212, held that a warrant was required before law enforcement could obtain an individual’s prescription drug records from pharmacies. But that case explicitly distinguished the focused police search for criminal prosecution purposesat issue there from the kind of regulatory inquiry at issue in Whalenand here. (Id. at p. 1218.) 38 a closely regulated business so long as (1) the State has a substantial interest in regulating the business; (2) the warrantless inspectionis necessary to further the regulatory scheme; and(3) the statute authorizing the search provides a constitutionally adequate substitute for a warrant by informing the business operator that inspections are expected and by limiting the discretion of inspection officers. (/d. at pp. 702-703; see also People v. Maikhio (2011) 51 Cal.4th 1074, 1091-1093 & fn. 8.) While the SupremeCourt recently declined to extend this exception to hotel guest registers, observing that “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare” (City ofLos Angeles v. Patel, No. 13-1175 (2014) (slip opn.), at p. 14), the opposite is true of prescription drugs in general and controlled substancesin particular. Both categories of drugs are defined by law as “dangerous,” and both pose inherentrisks that require close regulatory scrutiny. (Supra, 4-5.) More than a century of detailed regulation in California and across the country confirms that commonsenseproposition. (Supra, 4-8.) Asthe Court ofAppeal held, the three Burger criteria are satisfied here. First, the State has a substantial interest in controlling access to controlled substances. (Supra, 28-30.) Second, the Board requires real- time access to pharmaceutical records to respond quickly and effectively to concerns that physicians may befailing to comply with the limits imposed on controlled substances for patient and public safety. Third, the CURES statute informspatients, physicians, and pharmacists that controlled substancerecords are madeavailable to the Department and the Board for disciplinary purposes as well as civil and criminal enforcement. (§ 11165, subd. (c); Opn 21 [“the physician and patient know whois authorized to receive CURESdata and under what narrow circumstances”’].) Thedistrict court’s decision in Oregon Prescription Drug Monitoring Program v. U.S. Drug Enforcement Administration (D. Or. 2014) 998 39 F.Supp.2d 957 (Oregon PDMP) (see OB 40), does not assist Lewis. That decision, which is pending on appeal (9th Cir. No. 14-35402), invalidated federal law enforcement subpoenasof controlled substance information held bythe State based onthe incorrect premise that Whalen left open whetherstate collection of information about controlled substance prescriptions violated the Fourth Amendment. (Compare Oregon PDMP, supra, at p. 964 [Whalen not controlling because it “did not reach any claims raised pursuant to the Fourth Amendment”’] with Whalen, supra, 429 USS.at p. 604 fn. 32 [“[w]e have never carried the Fourth Amendment’s interest in privacy asfar as [plaintiffs] would have us” and “[w]e decline to do so now”].) Moreover, the court observed, the Oregon statute specifically advised patients that prescription data could be disclosed to law enforcement only with a judicial order based on probable cause, which contributed to the reasonablenessofpatients’ expectation of privacyin their prescription records. (Oregon PDMP,at p. 960.) The CURESstatute contains no such requirement, and federal law requires patients be informed that their information may be shared with entities such as the Board. (See, e.g., 45 CFR. § 164.512(d) (2005)." '4 The absence of a warrant requirement under the Fourth Amendmentalso confirms that no such procedural hurdle should be imposed underthe state Constitution’s privacy provision. As this court has explained,“{iJn the search andseizure context, the articleI, section 1 ‘privacy’ clause of the California Constitution has never been held to establish a broaderprotection than that provided by the Fourth Amendment of the United States Constitution or article I, section 13 of the California Constitution.” (People v. Crowson (1983) 33 Cal.3d 623, 629; see also Hill, supra, 7 Cal.4th at p. 30, fn. 9; Sheehan, supra, 45 Cal.4th at p. 1001; but cf. 86 Ops.Cal.Atty.Gen. 198, *3-4 (2003) [suggestingarticleI, section 1 would require judicial authorization for law enforcementtrap and traces and penregisters even though such authorization not required under the Fourth Amendment].) 40 If. LEWIS’s CHALLENGE TO THE CVS PHARMACYREPORTIS FORFEITED AND, IN ANY EVENT, WITHOUT MERIT In his opening briefbefore this court, Lewis challenges not only the Board’s review of CURESdata but also the prescriber profile report that the Board obtained from CVS Pharmacy. (OB 28-38.) As explained above, that report lists the prescriptions that Lewis wrote andthathis patientsfilled at CVS pharmacies during a specified time period. Because the Court of Appeal did not address this issue, which wasforfeited below, the court should decline to address Lewis’s arguments. Butif the court chooses to reach Lewis’s arguments on the merits, they are easily rejected. A. Lewis Forfeited His Challenge to the Board’s Review of the CVS Pharmacy Report The court need not address Lewis’s challenge to the Board’s review of the CVS Pharmacyreport, as Lewis did not address that report until his reply brief before the Court ofAppeal. Lewis’s sole focus below—from his motion to dismiss the administrative accusation through his writ petition to the Court ofAppeal—wasthe Board’s review of CURES data. An argumentnot raised during the challenged administrative proceeding cannot serve as the basis for later writ relief. (Supra, 35.) The Court ofAppeal, moreover, did not address Lewis’s arguments concerning the CVS Pharmacyreport. B. Lewis’s Challenge to the CVS Pharmacy ReportFails In any event, Lewis’s belated attempt to assert his patients’ interests in the CVS Pharmacyreport fails. As an initial matter, for all the reasons explained above, Lewis lacks standing to assert his patients’ state privacy interests in records obtained from CVS. (Supra, 16-19.) 4] Onthe merits of his arguments, Lewis contendsthat the Board improperly used the tool of a regulatory pharmacy audit as a pretext to investigate his medical practices and therefore cannot rely on the Burger exception for warrantless administrative searches. (OB 28-38.) This claim has no merit. First, the record is clear that the Board obtained the report by means of a request with which the pharmacy chose to comply, and not through a compelled search of the pharmacy’s records. (AR1124-AR1125.) Second, the Board hasstatutory authority to obtain pharmacyrecords for the specific purpose for which they were obtained here: investigating a physician’s patient care. (See, e.g., Bus. & Prof. Code, §§ 159.5, 4017, 4081, 4105, 4332; see also City ofIndianapolis v. Edmond (2000) 531 U.S. 32, 45 [reasonableness under Burger of warrantless administrative search groundedin purposes ofprogram,not subjective intentions].) Beyondhis “pretext” claim, Lewis offers little to no argumentas to why the Board’s review of the CVS Pharmacyreport violates the state constitutional right of privacy. To the extent Lewis has preserved such an argument, it fails for the same reasonsas his challenge to the Board’s review of CURESrecords. First, Lewis does not satisfy Hill’s three threshold elements, and thus fails to show an actionable invasion of privacy. Patients’ reasonable expectations of privacy are diminishedin this closely regulated area. (Supra, 20-23.) Althoughpatients certainly have a reasonable expectation that such records will not be made available to the general public (see Stone, supra, 593 N.E.2dat p. 301), the Board’s confidential review of such records to investigate Lewis’s prescribing practices is not a “serious intrusion” upon patient privacy. (See Hill, supra, 47 Cal. 4th at p. 37; State v. Welch (Vt. 1992) 624 A.2d 1105, 1110-1112 [upholding warrantless search ofpharmacy’sprescription records under Burger].) As above, Lewis’sfailure to satisfy these threshold elements should end the court’s 42 inquiry. (See Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 373.) Second, even werethe court to reach the balancing test in Hill, the sameanalysis set forth above applies. The Legislature has authorized the Boardto obtain pharmacyrecords to investigate physicians and ensure compliance with the Medical Practice Act, includingits patient health and safety provisionsrelated to prescription drugs. (See Chiarottino, supra, 225 Cal.App.4th at p. 630; Bus. & Prof. Code, § 4081.) The CVS Pharmacyreport helped the Board to narrowits investigation of Lewis to focus on his treatment offive additional patients and ultimately revealed negligencein his treatment of three of them. The alternatives Lewis proposes—a warrant, subpoena,or other showing of “good cause”—lack legal support, would not meaningfully addto patient privacy, and would undermine the Board’s ability to detectand stop unsafe medicalpractices, for all the reasons explained above. (Supra, 30-34.) Third, any Fourth Amendmentchallenge to the CVS Pharmacyreport would fail for all the samereasonsset forth above. (Supra, 34-40.) IV. LEwIs Is NOT ENTITLED TO THE REMEDY OF SUPPRESSION, WHICH IS THE ONLY REMEDY HE SEEKS Forall the reasons explained above, the Board did notviolate either article I, section 1 of the state Constitution or the Fourth Amendment when it reviewed CURESrecords of Lewis’s controlled substance prescriptions or the CVS Pharmacyreport as part of its investigation into his patient care.. Evenif it had, Lewis would not be entitled to suppress the full medical records of those patients identified by the Board after review of the more limited prescription records—the only remedyhe seeks. A. The Fourth Amendment Does Not Require Exclusion 43 Suppression of evidence “is not an ‘automatic consequence of a Fourth Amendmentviolation.” (Herring v. United States (2009) 555 U.S. 299 135, 137.) Exclusionis not a “‘personal constitutional right,”” norisit aimedat “ search.”” (Davis v. United States (2011) 131 S.Ct. 2419, 2426,citation omitted.) Rather, “[t]he rule’s ‘sole purpose. . . is to deter future Fourth redress[ing] the injury occasioned by an unconstitutional Amendmentviolations.’” (Ibid.) Because “[e]xclusion exacts a heavy toll on both the judicial system and society at large” by suppressing reliable and probative evidence, the rule applies only when “the deterrence benefits of suppression... outweigh its heavy costs.” (dd. at p. 2427; see also Conservatorship ofSusan T. (1994) 8 Cal.4th 1005, 1017 [similar]; People v. Willis (2002) 28 Cal.4th 22, 35.) In Illinois v. Krull (1987) 480 U.S. 340, 349-350, the Supreme Court held that the exclusionary rule does not apply when an officer reasonably relies on statutory authority that is later deemed unconstitutional. Forall the reasons explained above, the Board’s investigation in this case poses no Fourth Amendment concern. But evenif it did, under Krull, Lewis would not be entitled to exclude the patients’ full medical recordsas the fruit of an improper search where the statute (§ 11165) specifically authorized Board investigators to examine the CURES data. (See Krull, at pp. 356-360.) Althougha state statute “cannot support objectively reasonable reliance if. . . the legislature wholly abandonedits responsibility to enact constitutional laws”or the statute’s “provisions are such that a reasonable officer should have knownthat the statute was unconstitutional”(id. at 4A p. 355), Lewis has made no such argumentin this case, nor could he do so in light of the authorities presented above. ”° In any event, the exclusionary rule does not apply to Board disciplinary proceedings. Inlight of its purposes andits costs, the Supreme Court has “generally held the exclusionary rule to apply only in criminal trials” (Scott, supra, 524 U.S.at p. 364, fn. 4), and “[l]ike the United States SupremeCourt, [this court] too ha[s] never extended the [exclusionary] rule to exclude evidence from civil proceedings,” but only those that are “quasi- criminal”in nature, such ascivil forfeiture proceedings. (Susan T., supra, 8 Cal.4th 1016.)'° Extending the exclusionary rule to Board disciplinary proceedings would be inappropriate because the substantial costs of suppressing evidence of a physician’s substandard patient care outstrip any possible deterrent effect. Unlike a criminaltrial, which is aimedat punishing past conduct, a disciplinary action seeks to ensure that a professional acting undera state license or permitis acting in the public interest and not 'S Lewis suggests that the mere fact that Board employees both obtain the information from CURESandthen usethat information in disciplinary proceedingsis sufficient to establish the application ofthe exclusionary rule. (OB 43-47.) But this court and the United States Supreme Court have refused to extend the exclusionary rule to noncriminal proceedings even when the same government agencyeffecting the search seeks to useits fruits. (See Susan T., supra, 8 Cal.4th at pp. 1018-1020; - Pennsylvania Bd. ofProbation and Parole v. Scott (1998) 524 U.S. 357, 368-369; I.N.S. v. Lopez-Mendoza (1984) 468 U.S. 1032,1042-1043.) '6 Lewis relies solely on Dyson v. State Personnel Bd. (1989) 213 Cal.App.3d 711, 714, which concerned a wholly unauthorized search of a person’s home. Nothing resembling such activity occurredin this case. In addition, Dyson has been distinguished in other published appellate decisions. (See, e.g., Finklestein v. State Personnel Bd. (1990) 218 Cal.App.3d 264, 265 [holding that evidence should not be excluded in disciplinary proceeding before State Personnel Board; distinguishingits “recent decision in Dyson”].) 45 creating risk ofharm. Forthis reason,courts generally decline to apply the exclusionary rule in disciplinary proceedings. (Pating, supra, 130 Cal.App.3dat p. 624 [rejecting suppression remedy in Board disciplinary action becausepublic is entitled to protection against a physician’s negligence or incompetence”); Emslie v. State Bar (1974) 11 Cal.3d 210, 229-230 [rejecting suppression remedy in State Bar disciplinary proceeding]; Susan T., supra, 8 Cal.4th at p. 1017,fn. 9 [listing court of appeal decisionsthat question or decline to apply exclusionary rule in disciplinary proceedings]; cf. Lopez-Mendoza, supra, 468 U.S.at p. 1046 [applying exclusionary rule in proceedings aimed not at punishmentbutat prevention of future harm would require “courts to close their eyes to ongoing violations of the law;” high court “has never before accepted” such costs in applying exclusionaryrule].) Here, denying the Board information neededto protect the public from potentially substandard medicalcare risks grave societal harm. Andlittle, if any, deterrence would be achieved by applying the exclusionary rulein caseslike this one, where the Board investigator acted properly and pursuant to statutory authority. (See Krull, supra, 480 U.S.at pp. 349-350.) Exclusion in these circumstancesis unwarranted. B. Article I, Section 1 of the California Constitution Likewise Does Not Require Exclusion Lewis also would not be entitled to exclusion even if he had established a violation ofarticle I, section 1. As this court has explained, “It]o identify another source ofthe right to privacy [other than the Fourth Amendment] does not appearto affect the analysis of... whether a violation of that right triggers the exclusionary rule.” (Susan T., supra, 8 Cal.4th at p. 1014, fn. 8 [rejecting application of exclusionary rule in conservatorship proceeding whether predicated on a Fourth Amendmentor California right-to-privacy claim]; see also supra, 40, fn. 14 [protections 46 underarticle I, section 1 are coextensive with the Fourth Amendment].) And aswith the Fourth Amendmentanalysis, the balance between deterring alleged violations of state constitutional rights through a suppression remedy andthe social costs of exclusion likewise tips decisively against application of any exclusionary remedyin this case. CONCLUSION The Court of Appeal’s judgment should be affirmed. Dated: July 17, 2015 Respectfully submitted, KAMALAD, HARRIS Attorney General of California EDWARD C. DUMONT Solicitor General KATHLEEN A. KENEALY Chief Assistant Attorney General GLORIA L. CASTRO Senior Assistant Attorney General JANILL L. RICHARDS Principal Deputy Solicitor General AIMEE FEINBERG Deputy Solicitor General E. A. JONESIII Supervising Deputy Attorney General EDWARD K. KIM Deputy Attorney General Lirklin. Viemyg lad KATHLEEN VERMAZEN RADEZ Associate Deputy Solicitor General Attorneysfor Real Party in Interest Medical BoardofCalifornia 47 CERTIFICATE OF COMPLIANCE I certify that the attached AnswerBrief on the Merits uses a 13 point Times New Roman font and contains 13,712 words, as counted by the Microsoft Word word processing program and excludingall parts that may be excluded under Rule 8.204(c)(3) of the California Rules of Court. Dated: July 17, 2015 KAMALA D. HARRIS Attorney General of California KATHLEEN VERMAZEN RADEZ Associate Deputy Solicitor General Attorneysfor Real Parties in Interest Medical Board ofCalifornia ‘DECLARATION OF SERVICEBY U.S. MAIL Case Name: ALWIN CARL LEWIS, M.D. v. MEDICAL BOARD No.: §$219811 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day-.in the ordinary course of business. On July 17, 2015, I served the attached ANSWER BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Benjamin J. Fenton, Esq. Clerk of the Court Fenton Law Group, LLP Second District Court of Appeal, 1990 South Bundy Drive, Suite 777 Division Three Ronald Reagan State Building 300 S. Spring Street Attorneyfor Petitioner Alwin Carl Lewis, 2™ Fl. North Tower MD. Los Angeles, CA 90013 Los Angeles, CA 90025 The Honorable Joanne B. O'Donnell Los Angeles County Superior Court Stanley Mosk Courthouse 111 North Hill Street Department86 Los Angeles, CA 90012-3014 I declare under penalty of perjury underthe laws ofthe State of California the foregoing is true and correct and that this declaration was executed on July 17, 2015, at San Francisco, California. Elza C. Moreira Declarant LA2014613696/20733045.doc oe. Signature