FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                No. 21-10296

             Plaintiff-Appellee,            D.C. Nos.
                                         3:19-cr-00026-
 v.                                       LRH-WGC-1
                                         3:19-cr-00026-
MYRON MOTLEY,                              LRH-WGC

             Defendant-Appellant.

OPINION

      Appeal from the United States District Court
               for the District of Nevada
       Larry R. Hicks, District Judge, Presiding

               Argued March 10, 2023
             Submitted December 29, 2023
                 Las Vegas, Nevada

               Filed December 29, 2023

Before: Susan P. Graber, Richard R. Clifton, and Mark J.
               Bennett, Circuit Judges.

              Opinion by Judge Bennett;
             Concurrence by Judge Graber
2                         USA V. MOTLEY


                          SUMMARY *


                         Criminal Law

    The panel affirmed (1) the district court’s order denying
Myron Motley’s motion to suppress evidence obtained from
two GPS tracking warrants, and (2) the district court’s
determination that a wiretap warrant was supported by
probable cause and was necessary, in a case in which Motley
was convicted and sentenced arising from his involvement
in a conspiracy to distribute controlled substances—
oxycodone and hydrocodone.
    Given the government’s long-standing and pervasive
regulation of opioids, the panel held that Motley had no
reasonable expectation of privacy in his opioid records
maintained in Nevada’s Prescription Monitoring Program
database. Thus, Motley’s Fourth Amendment challenge to
the resulting tracking warrants fails. The panel therefore
affirmed the order denying the suppression motion.
    Concerning the wiretap determination, the panel wrote
that the affidavit supporting the warrant application
contained more than sufficient evidence establishing
probable cause that Motley was engaged in a conspiracy to
illegally distribute prescription opioids, and also contained
sufficient information for the court to reasonably conclude
that a wiretap was necessary to identify the full scope of the
conspiracy.



*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       USA V. MOTLEY                       3


   The panel addressed Motley’s remaining arguments in a
concurrently filed memorandum disposition.
    Judge Graber concurred in the part of the opinion that
rejects Motley’s challenges to the wiretap warrant, and
concurred in the judgment. She did not join the part of the
opinion that affirms the denial of the motion to suppress the
evidence obtained as a result of the tracking warrants. She
would uphold the denial of the motion to suppress on
alternative grounds: the good-faith exception and
harmlessness. She would not reach the substantial legal
question of whether Motley had an objectively reasonable
expectation of privacy in the identity and dosage of his
prescription medications.



                        COUNSEL

Ellesse Henderson (argued) and Aarin Kevorkian, Assistant
Federal Public Defenders; Rene L. Valladares, Federal
Public Defender; Las Vegas Federal Public Defender’s
Office, Las Vegas, Nevada, for Defendant-Appellant.
Javier A. Sinha (argued), Attorney, Appellate Section,
Criminal Division; Lisa H. Miller, Deputy Assistant
Attorney General; Kenneth A. Polite, Jr., Assistant Attorney
General; United States Department of Justice, Washington,
D.C.; Robert L. Ellman, Assistant United States Attorney;
Elizabeth O. White, Appellate Division Chief; Jason M.
Frierson, United States Attorney; United States Attorney’s
Office, District of Nevada, Reno, Nevada; for Plaintiff-
Appellee.
4                          USA V. MOTLEY

OPINION

BENNETT, Circuit Judge:

    Myron Motley appeals his conviction and sentence
arising from his involvement in a conspiracy to distribute
controlled substances—oxycodone and hydrocodone. In
this opinion we address two issues: (1) whether the district
court properly denied Motley’s motion to suppress evidence
obtained from two tracking warrants because Motley had no
reasonable expectation of privacy in his opioid prescription
records maintained in Nevada’s Prescription Monitoring
Program (“PMP”) database; and (2) whether the district
court properly determined that the wiretap warrant was
supported by probable cause and was necessary. 1
    We have jurisdiction under 

. Given the
government’s long-standing and pervasive regulation of
opioids, we hold that Motley had no reasonable expectation
of privacy in his opioid prescription records maintained in
Nevada’s PMP database. Thus, there was no Fourth
Amendment violation, and we affirm the district court’s
order denying suppression. We also affirm the district
court’s determination that the wiretap warrant was supported
by probable cause and was necessary.




1
  We address Motley’s remaining arguments in a concurrently filed
memorandum disposition. For reasons explained in the separate
disposition, we affirm Motley’s conviction in full; we affirm in part and
vacate in part the sentence; and we remand.
                          USA V. MOTLEY                            5


                     I. BACKGROUND
A. Nevada’s PMP Database
    Like in every other state, 2 Nevada operates an electronic
database that tracks filled prescriptions for controlled
substances. 

 (2023). Nevada’s
database tracks drugs listed on Nevada’s Schedules II–V. 

Oxycodone is a Schedule II drug, and tramadol is a Schedule
IV drug. 

(2)(a) (2023); 

§ 453.540(3) (2023). Both are opioids. See United States v.
Flores, 

, 1032 n.2 (9th Cir. 2013)
(“‘Oxycodone’ is a generic opioid pain reliever . . . .”);
Schedules of Controlled Substances: Placement of Tramadol
Into Schedule IV, 

, 37,623 (July 2, 2014)
(“Tramadol is a centrally acting opioid analgesic . . . .”).
    With exceptions not relevant here, pharmacies that
dispense covered controlled substances must input certain
information into Nevada’s PMP database, such as the name
and address of the individual prescribed the controlled
substance, the prescribed controlled substance, the quantity
dispensed, and the appropriate “ICD-10 Code” that identifies
the diagnosis for which the substance was prescribed. 

 (2023). Pharmacies must retain all
prescriptions for at least two years, 

(1) (2023), and keep all “[f]iles of
prescriptions . . . open to inspection by members, inspectors
and investigators of the [State] Board [of Pharmacy] and by
inspectors of the Food and Drug Administration and agents

2
  “As of February 2018, 50 states, the District of Columbia, and two
territories (Guam and Puerto Rico) had operational [prescription drug
monitoring programs (PDMPs)] within their borders.” Lisa N. Sacco et
al., Cong. Rsch. Serv., R42593, Prescription Drug Monitoring
Programs 4 (2018).
6                          USA V. MOTLEY


of the Investigation Division of the Department of Public
Safety,” 

 § 639.236(3).
     The Nevada Legislature has mandated that the PMP
database be designed to, among other things, provide
information on “[t]he inappropriate use by a patient of
controlled substances listed in schedules II, III, IV or V
to . . . appropriate state and local governmental agencies,
including,       without     limitation,     law     enforcement
agencies . . . , to prevent the improper or illegal use of those
controlled substances.” 

(1)(a)(1).
The state entities responsible for developing the PMP
database “shall report any activity [they] reasonably
suspect[] may . . . [i]ndicate . . . inappropriate activity related
to the prescribing, dispensing or use of a controlled
substance to the appropriate law enforcement agency . . . and
provide the law enforcement agency . . . with the relevant
information obtained from the program for further
investigation.” 

 § 453.164(3)(a) (2023); see also id.
§ 453.162(1). Certain law enforcement officers can access
the PMP database without a warrant but only to
“[i]nvestigate a crime related to prescription drugs” or to log
information related to an investigation. Id. § 453.165(4)
(2023). 3
B. Facts and Procedural History
    1. First Tracking Warrant
  In July 2018, law enforcement began investigating
Motley because of information from a confidential

3
  Motley does not challenge the constitutionality of Nevada’s laws
establishing and governing the PMP database, and so we do not reach
that question. Thus, the concurrence’s concern with the constitutionality
of Nevada’s statute is irrelevant.
                              USA V. MOTLEY                        7


informant (“CI”) who had proven reliable in a past, unrelated
controlled purchase. The CI disclosed that Motley, who
lives in California, regularly traveled to Reno, Nevada, to
illegally obtain and sell prescription drugs. 4 As part of their
investigation, law enforcement obtained a report from
Nevada’s PMP database that showed a certain physician had
prescribed Motley opioids—oxycodone and tramadol—
averaging 279 morphine milligram equivalent (“MME”) per
day over a several-year period. The amount prescribed
suggested opioid abuse or diversion, as CDC guidance at the
time recommended avoiding or carefully justifying an
increase in dosage to greater than or equal to 90 MME per
day. 5
    In September 2018, law enforcement filed in Nevada
state court an application for a warrant to install a global
positioning system (“GPS”) tracking device on Motley’s
vehicle. The affidavit in support included the information
from the CI as well as the PMP database information about
Motley’s opioid prescription history. The state court issued
the search warrant, allowing law enforcement to place a
tracking device on Motley’s vehicle for ninety days.


4
    Specifically, an officer explained:
           The CI told me that [Motley] comes from California
           and meets with a physician . . . approximately every
           30 days. [Motley] then meets this physician and the
           physician writes Motley a prescription for Oxycodone.
           In addition, the physician gives [Motley] a stack of
           prescriptions in other people’s names for [Motley] to
           sell to those people.
5
  CDC, CDC Guideline for Prescribing Opioids for Chronic Pain—
United       States,     2016       (Mar.         15,    2016),
https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm.
8                      USA V. MOTLEY


    2. Second Tracking Warrant
    In December 2018, after the first warrant expired, law
enforcement sought a second tracking warrant in the United
States District Court for the District of Nevada. The
supporting affidavit repeated the information that supported
the first warrant, including Motley’s opioid prescription
history obtained from the PMP database. The affidavit also
explained that the PMP database records showed that Dr.
Eric Math was the physician who wrote the prescriptions,
and the affidavit included new information that law
enforcement had obtained from the first tracking warrant. A
magistrate judge issued the second warrant, and later
renewed it, allowing law enforcement to install a tracking
device on Motley’s vehicle for a total of another ninety days.
    3. Wiretap Warrant
    Law enforcement later sought a wiretap warrant on
Motley’s cell phone under 

. The 93-page
affidavit reiterated the information contained in the two
tracking warrant applications, including Motley’s opioid
prescription history obtained from the PMP database. The
affidavit explained that other PMP database records showed
that Dr. Math was also prescribing large amounts of opioids
to coconspirators of Motley’s. The affidavit included
information establishing that Motley was well-acquainted
and in frequent contact with those individuals. Some of this
information was obtained through the GPS tracker on
Motley’s vehicle and his phone records.
    The affidavit included information supporting law
enforcement’s contention that Motley was part of a drug
trafficking organization.      Information from several
confidential sources (including the original CI) showed that
Motley bought prescriptions for himself and others and then
                       USA V. MOTLEY                        9


sold the prescribed pills, including to another coconspirator,
Michael Slater, who would resell the pills. Law enforcement
observed Motley and his coconspirators engage in the
following conduct “on multiple occasions”: Motley and
Joseph Jeannette traveled to a pharmacy where Jeannette
obtained an item from the pharmacy. Afterward, Motley
drove to Slater’s apartment, and Motley and Slater appeared
to conduct an exchange from Motley’s vehicle. Law
enforcement conducted several controlled buys: a
confidential source bought oxycodone from Motley three
times, and another confidential source bought oxycodone
pills from Slater once.
    The affidavit contained detailed reasons why a wiretap
was necessary to achieve the goals of the investigation,
including to identify the members and scope of the
conspiracy. It explained that, although the confidential
sources had provided useful information, they would
probably be unable to obtain more details about the scope of
the conspiracy without raising suspicion, given their limited
relationships with Motley and Slater. The affidavit added
that officers had evaluated other potential cooperators but
ultimately determined that approaching such individuals
would likely compromise the investigation.
    The affidavit discussed the following investigative
methods and explained, using case-specific details, why they
would fail: more controlled purchases, undercover
investigations, physical surveillance, search warrants,
witness interviews, grand jury subpoenas, pole cameras,
tracking warrants, GPS tracking warrants on cell phones,
10                         USA V. MOTLEY


telephone toll analysis, covert recording devices, trash
searches, financial investigations, and mail covers. 6
  The district court granted the application for a wiretap on
Motley’s cell phone.
     4. Relevant District Court Proceedings
    A grand jury indicted Motley and his six coconspirators.
Motley was charged with (and went to trial on) one count of
conspiracy to possess with intent to distribute, and to
distribute, oxycodone and hydrocodone, in violation of 

(a)(1), 846; four counts of distribution of
oxycodone, in violation of 

(a)(1); and one
count of distribution of hydrocodone, in violation of 

(a)(1). 7
    Motley moved to suppress the evidence obtained from
the two tracking warrants, arguing that they rested on an
unconstitutional warrantless search of his PMP database
records. He also argued that the wiretap warrant was invalid
because the supporting affidavit failed to show that there was
probable cause to believe that he was a member of a drug
trafficking organization and failed to show the required
necessity for electronic surveillance.
    The district court denied the motion to suppress. It
determined that the search of the PMP database without a

6
        Mail cover is the process by which a nonconsensual
        record is made of any data appearing on the outside
        cover of any sealed or unsealed class of mail matter,
        or by which a record is made of the contents of any
        unsealed class of mail matter as allowed by law . . . .

(c)(1).
7
  Motley was also charged with distribution of methamphetamine, but
that count was dismissed.
                            USA V. MOTLEY                              11


warrant did not violate Motley’s Fourth Amendment rights
because he had no reasonable expectation of privacy in the
challenged PMP database information. 8
    The district court also rejected Motley’s challenges to the
wiretap warrant. The court found probable cause, as the
affidavit established that “(1) the six codefendants were
well-acquainted with each other[,] (2) Motley and Jeannette
were regularly obtaining large quantities of opioids from
Math, and (3) Motley was regularly selling opioids to Slater
and other individuals, including confidential sources.” The
court determined that that information established probable
cause to believe that Motley was engaged in a drug
trafficking conspiracy. The district court found the wiretap

8
  Because it is unnecessary, we do not address the district court’s
alternative determination that, even if the search violated Motley’s
Fourth Amendment rights, the good-faith exception to the exclusionary
rule barred suppression of the evidence obtained pursuant to the warrant.
We also need not decide whether any error was harmless. The
concurrence takes issue with our approach. But the issue—whether law
enforcement may search opioid prescription records maintained in
Nevada’s PMP database—was squarely presented below, the district
court decided it, and the parties fully briefed it on appeal. We believe
that guidance is needed, as the parties request, on this important issue,
particularly given the government’s recent attempts to access
prescription databases without warrants, which is likely to persist due to
the existing opioid crises. See Sacco, supra note 2, at 26 (“In recent
years, to investigate violations of the federal Controlled Substances Act
(CSA), the DEA has demanded access to certain PDMP data without a
court order or search warrant . . . .”); U.S. Dep’t of Just., Civ. Div.,
Opioid        Enforcement         Effort      (Mar.       22,       2023),
https://www.justice.gov/civil/consumer-protection-branch/opioid
(“With more than 84,000 Americans dying annually from prescription
drug and synthetic opioid overdoses, the Department of Justice is
committed to using every available tool to prevent overdose deaths and
hold accountable those responsible for the opioid crisis.” (footnote
omitted)).
12                      USA V. MOTLEY


necessary because the affidavit showed that officers
considered less intrusive methods and reasonably
determined that they would have been ineffective.
    A jury convicted Motley on all counts. The court
sentenced him to 179 months’ imprisonment on each count,
to be served concurrently, and to be followed by five years
of supervised release.       Motley timely appealed his
conviction and sentence, raising several issues. In this
opinion, we address Motley’s challenges to the district
court’s denial of his motion to suppress evidence obtained
from the tracking warrants and the court’s determination that
the wiretap warrant was both necessary and supported by
probable cause.
             II. STANDARD OF REVIEW
    We review de novo the denial of a motion to suppress.
United States v. Magdirila, 

 (9th Cir.
2020). In reviewing the district court’s probable cause
determination as to the wiretap, we look “only to the four
corners of the wiretap application” and “will uphold the
wiretap if there is a ‘substantial basis’ for . . . findings of
probable cause.” United States v. Meling, 

 (9th Cir. 1995) (quoting United States v. Stanert, 

 (9th Cir.), amended, 

 (9th Cir.
1985)). We review for abuse of discretion the district court’s
decision that the wiretap was necessary. United States v.
Blackmon, 

 (9th Cir. 2001).
                    III. DISCUSSION
     A. Tracking Warrants
    Motley argues that law enforcement’s warrantless search
of his opioid prescription records in the PMP database
violated the Fourth Amendment, and without that illegally
                             USA V. MOTLEY                               13


obtained information, the evidence was insufficient to
support issuance of the tracking warrants. 9 Thus, according
to Motley, the district court erred in denying his motion to
suppress evidence obtained from the tracking warrants. We
reject Motley’s argument, as we agree with the district court
that there was no Fourth Amendment violation because
Motley had no legitimate expectation of privacy in his opioid
prescription records maintained in the PMP database. 10
    “[A] criminal defendant may invoke the protections of
the Fourth Amendment only if he can show that he had
a legitimate expectation of privacy in the place searched or
the item seized.” United States v. Ziegler, 

 (9th Cir. 2007). “This expectation is established where


9
  Motley does not argue that the affidavits supporting the tracking
warrants were insufficient if his opioid prescription records are
considered.   His challenge therefore depends on whether law
enforcement’s search of his opioid prescription records violated the
Fourth Amendment.
10
   We also reject Motley’s argument that the affidavit’s statement that
his 279 MME/day “prescription pattern can be an indicator for opioid
abuse or diversion” was unsupported. The statement was supported by
CDC guidance at the time, which explained that most experts agree that
dosages greater than 50 MME/day “increases overdose risk without
necessarily adding benefits for pain control or function,” and dosages
should not be increased to greater than 90 MME/day “without careful
justification based on diagnosis and on individualized assessment of
benefits and risks.” CDC, CDC Guideline for Prescribing Opioids for
Chronic      Pain—United     States,   2016      (Mar.    15,   2016),
https://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm.
   Motley also contends that the district court erred in denying his request
for an evidentiary hearing under Franks v. Delaware, 

(1978). But he waived this challenge, as he mentions it only in passing
in his briefs and does not provide any supporting arguments. See United
States v. Stoterau, 

, 1003 n.7 (9th Cir. 2008).
14                     USA V. MOTLEY


the claimant can show: (1) a subjective expectation of
privacy; and (2) an objectively reasonable expectation of
privacy.” 

 “An expectation of privacy is legitimate if it
is one which society accepts as objectively reasonable.”
United States v. Thomas, 

 (9th Cir.
2006).
     Assuming, as the district court did, that Motley had a
subjective expectation of privacy in his opioid prescription
records, the question is whether that expectation was
objectively reasonable. While this is an issue of first
impression for our court, the First Circuit recently addressed
it in United States Department of Justice v. Ricco Jonas, 

 (1st Cir.), cert. denied sub nom. Program
Administrator of the New Hampshire Controlled Drug
Prescription Health & Safety Program v. Department of
Justice, 

 (2022).
    The First Circuit held that individuals do not have a
reasonable expectation of privacy in prescription drug
records maintained in New Hampshire’s Prescription Drug
Monitoring Program (“PDMP”) database. 

 at 736–37.
The court focused on the closely regulated nature of
prescription drugs under both federal and New Hampshire
law. Under the Controlled Substances Act (“CSA”), “every
registered dispenser of a controlled substance must maintain
a complete and accurate record of each such substance
disposed of,” 

, and keep those records for at least
two years “for inspection and copying by officers or
employees of the United States authorized by the Attorney
General,” 

 (quoting 

(b)). Similarly, New
Hampshire’s laws require practitioners to maintain records
on all controlled drugs and keep such records “open for
inspection to federal, state, county and municipal law
enforcement officers and others whose duty it is to enforce
                       USA V. MOTLEY                       15


the laws of New Hampshire or of the United States relating
to controlled drugs.” 

 (cleaned up) (quoting 

-B:12(II)). New Hampshire also requires
the “report[ing] to the PDMP information about the
dispensed drug, including the patient’s name and address,
the drug and quantity dispensed, and the date of dispensing.”

   The court concluded:

       [I]n light of the intense government scrutiny
       to which prescription drug records are subject
       and the availability of those records for
       inspection without the need of court
       intervention under both state and federal law,
       a person does not have a reasonable
       expectation that the information contained in
       prescription drug records will be kept private
       and free of government intrusion.

 at 736–37.
    This analysis is persuasive. For over half a century, the
federal government has regulated opioids under the CSA.

Tit. II, 

, 1250 (1970)
(codified at 

) (classifying as Schedule II
drugs any opiate produced “by extraction from substances of
vegetable origin, or independently by means of chemical
synthesis”). As the First Circuit recognized, under the CSA,
registered dispensers of controlled substances must maintain
records of each substance dispensed and make those records
available for inspection and copying by the Attorney General
for at least two years. Ricco Jonas, 

; see also

(a)(3), (b). And since the CSA’s inception,
the Attorney General has had the authority to obtain these
16                      USA V. MOTLEY


records without a warrant when investigating crimes related
to controlled substances. 

Tit. II, 

, 1272 (1970) (codified at 

(a)) (“[T]he
Attorney General may . . . require the production of any
records . . . which the Attorney General finds relevant or
material to [an] investigation [related to controlled
substances].”); see also Ricco Jonas, 

 (“Both
federal and New Hampshire laws regulate controlled
substances by requiring pharmacies . . . to maintain
prescription drug records and keep them open for inspection
by law enforcement officers without the need of a warrant.”).
    Nevada’s laws track the CSA’s close, extensive
regulation of opioid prescriptions. See 

 (establishing the PMP database); 

(2)(a) (classifying “opium and opiate” as a
Schedule II drug). In general, all prescription records must
be kept for at least two years and are open to inspection by
the “[State Board of Pharmacy] and by inspectors of the
Food and Drug Administration and agents of the
Investigation Division of the Department of Public Safety.”

(1), (3). Nevada established the
PMP database nearly thirty years ago to prevent the illegal
use of controlled substances. See 

(“The [PMP] program must . . . [b]e designed to provide
information regarding the inappropriate use of controlled
substances . . . to . . . appropriate state agencies in order to
prevent the improper or illegal use of such controlled
substances.”). The state entities in control of the database
have always had the obligation to report suspected illegal
activity to law enforcement and to give law enforcement
relevant information from the PMP database. Id.; 

(3)(a). Certain law enforcement agency
employees can also access the PMP database without a
                           USA V. MOTLEY                              17


warrant to “[i]nvestigate a crime related to prescription
drugs.” 

(4)(a).
     Opioid use and prescriptions have thus been subject to
well established and extensive regulation, including
disclosure of opioid records to law enforcement without a
warrant. On the undisputed historical record, for more than
fifty years, society’s expectation has been that law
enforcement would closely monitor and have access to
opioid prescription records. See Ricco Jonas, 

(“[S]ociety’s expectation has been for decades that law
enforcement would have access to prescription drug records
and would closely monitor the prescription and use of
controlled substances.”). 11

11
  The concurrence asserts that the statutory record-keeping requirements
and laws that allow law enforcement officers to access such records
without a warrant “do[] not answer the constitutional question.”
Concurrence at 28. We disagree. While such laws may not be
dispositive, we agree with the First Circuit that such laws inform the
analysis of whether an expectation of privacy is objectively reasonable.
See Ricco Jonas, 24 F.4th at 734–35.
   The concurrence also points to two cases that reached conclusions
contrary to Ricco Jonas. Concurrence at 28–29. We find those cases
unpersuasive. In State v. Skinner, the Supreme Court of Louisiana based
its holding on “federal jurisprudence and Louisiana’s constitutional
requirement of a heightened privacy interest for its citizens.” 

 (La. 2009) (emphasis added); see also 

 (“Louisiana
provides protection not only against unreasonable searches and seizures,
but [its] Constitution explicitly protects against unreasonable invasions
of privacy.”). Here, Motley points to no similar heightened privacy
protection under Nevada’s constitution.
  We also find unpersuasive the analysis in Oregon Prescription Drug
Monitoring Program v. U.S. Drug Enforcement Administration, as the
district court’s holding rested on the view that prescription records
18                         USA V. MOTLEY


    Motley argues that we should nonetheless find that his
subjective expectation of privacy was objectively reasonable
because society has recognized as reasonable, patients’
expectations of privacy in their medical records. The First
Circuit declined to equate prescription drug records to all
other medical records, and we again find its analysis
persuasive. 

 at 735–36. Prescription opioid records are
unlike general medical records. Opioid prescription records
are only a “subset of medical records . . . [that] do not
generally or necessarily contain the more personal and
intimate information that other medical records do.” Id. at
736 (noting that general medical records contain “‘sensitive
medical history and other information, including about
mental illnesses, learning disabilities, birth defects, illicit
drug use, pregnancy terminations, domestic-violence
history,’ patients’ complaints and symptoms, and ‘the
patients’ family members,’ among others” (quoting Eil v.
U.S. DEA, 

 (1st Cir. 2017)). Additionally,
“unlike prescription [opioid] records, medical records are
not subject to pervasive regulatory disclosures under both
federal and state law.” 

 These crucial differences justify
treating opioid prescription records differently from general
medical records for Fourth Amendment purposes. 12


should be treated the same as all other medical records. 

 (D. Or. 2014), rev’d on other grounds, 

(9th Cir. 2017). As discussed below, we reject that view.
12
   We express no view as to the extent patients have a reasonable
expectation of privacy in other types of medical or prescription records.
We only decide that Motley had no objectively reasonable expectation
of privacy in his opioid prescription records maintained in Nevada’s
PMP database, given the long-standing and pervasive regulation of
opioids as a controlled substance and regulatory disclosure of opioid
                           USA V. MOTLEY                              19


    Given the long-standing and pervasive regulation of
opioids as a controlled substance and regulatory disclosure
of opioid prescription records, Motley had no objectively
reasonable expectation of privacy in his prescription opioid
records maintained in Nevada’s PMP database, and thus his
Fourth Amendment challenge to the tracking warrants fails.
We therefore affirm the district court’s order denying
suppression of the evidence obtained from the two tracking
warrants.
     B. Wiretap Warrant
    Motley also challenges the district court’s determination
that the wiretap warrant was necessary and was supported by
probable cause. To authorize a wiretap warrant under 

, the judge must find, as relevant here, that
“there is probable cause for belief that an individual is
committing, has committed, or is about to commit” certain
offenses. 

(3)(a). 13 “Probable cause” means
a “fair probability.” Illinois v. Gates, 

(1983). The judge must also find that “normal investigative
procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too
dangerous.” 

(3)(c). In determining
whether the government has shown necessity, we employ a
“common sense approach,” using “a standard of
reasonableness to evaluate the government’s good faith
effort to use alternative investigative means or its failure to



prescription records. Thus, the concurrence is simply wrong in stating
that our holding applies to “any prescription record.” Concurrence at 28.
13
  Motley does not challenge the other probable cause requirements
under § 2518. See 

(3)(b), (d).
20                     USA V. MOTLEY


do so because of danger or low probability of success.”
Blackmon, 

.
    Motley’s probable cause challenge fails because his
suppression motion fails. Motley makes no alternative “lack
of probable cause” argument. But even if Motley had made
such an argument, it too would have failed. The wiretap
affidavit established that Motley and several others, who
were in frequent contact with Motley, were all obtaining
large amounts of prescription opioids from the same
physician; that Motley was buying the prescriptions for
himself and others; and that Motley and at least one other
coconspirator were selling the prescribed pills. This
evidence provided a “substantial basis” for the district
court’s finding that there was probable cause that Motley
was engaged in a conspiracy to illegally distribute
prescription opioids. Meling, 

.
    Turning to necessity, the affidavit explained, in specific
detail, law enforcement’s investigative methods, why those
methods had been exhausted, and why other methods would
likely be ineffective in identifying the members and scope of
the conspiracy. As just one example, the affidavit explained
that it would not be “feasible in the Reno area to introduce a
UC [undercover law enforcement agent] into a DTO [drug
trafficking organization] . . . at a level high enough to
accomplish the goals of the investigation,” and “[g]iven the
relatively low-level contact [the confidential source] has had
with Motley in recent months, it also would likely raise
suspicion that [the confidential source] is introducing a UC
to Motley, who is a stranger to Motley.” Given those and
other facts, the affidavit explained that “Motley [would be]
unlikely to reveal the inner workings of his DTO with the
UC” and thus undercover operations would likely be
unsuccessful. Based on the information in the affidavit, the
                        USA V. MOTLEY                        21


district court did not abuse its discretion in finding that the
wiretap was necessary. See Blackmon, 

.
    Motley’s counterarguments are unpersuasive. He claims
that the government had all the evidence it needed “to
prosecute [him] on the drug distribution counts.” Even if
that were true, it would not negate necessity, because we
have “consistently upheld findings of necessity where
traditional investigative techniques lead only to
apprehension and prosecution of the main conspirators, but
not to apprehension and prosecution of . . . other satellite
conspirators.” United States v. Torres, 

(9th Cir. 1990).
    Motley also argues that the government could have
employed other methods. But, as noted above, the affidavit
explained why all the alternative methods identified by
Motley would probably be ineffective or were tried and had
failed.
    We are also unconvinced by Motley’s claim that the
government “manufacture[d] necessity” because it had
identified some conspirators and knew that Dr. Math was
their source. The government’s need for a wiretap is not
negated simply because it managed to obtain some evidence
of a conspiracy without a wiretap. See United States v.
McGuire, 

 (9th Cir. 2002) (“[T]here [is]
a powerful government interest in identifying all
conspirators        and   the full scope of    the conspiracy.”
(emphasis added)); see also 

 (“Because the
government has a duty to extirpate conspiracy beyond its
duty to prevent the mere commission of specific substantive
offenses, . . . the government is entitled to more leeway in its
investigative methods when it pursues a conspiracy.”
(footnote and citation omitted)).
22                     USA V. MOTLEY


    In sum, the district court did not err in determining that
the wiretap was supported by probable cause and was
necessary, as the detailed, case-specific information in the
affidavit established probable cause and showed that other
investigative methods would likely have been unsuccessful
in identifying the full scope of the conspiracy.
                  IV. CONCLUSION
    We affirm the district court’s order denying the motion
to suppress because Motley had no reasonable expectation
of privacy in his opioid prescription records maintained in
Nevada’s PMP database. We also affirm the district court’s
determination that the wiretap warrant was supported by
probable cause and was necessary. The supporting affidavit
contained more than sufficient evidence establishing
probable cause that Motley was engaged in a conspiracy to
illegally distribute prescription opioids. It also contained
sufficient information for the court to reasonably conclude
that a wiretap was necessary to identify the full scope of the
conspiracy.
     AFFIRMED.
                       USA V. MOTLEY                       23


GRABER, Circuit Judge, concurring in part and concurring
in the judgment:

    I concur in Part III-B of the opinion, which correctly
rejects Defendant’s challenges to the wiretap warrant. But I
do not join Part III-A of the opinion, which affirms the
district court’s denial of Defendant’s motion to suppress the
evidence obtained as a result of two tracking warrants. Two
alternative grounds support the district court’s conclusion:
the good-faith exception and harmlessness. I therefore
concur in the judgment. The majority opinion declines to
reach either of those alternative grounds and, instead, holds
that Defendant did not have an objectively reasonable
expectation of privacy in the identity and dosage of his
prescription medications. We need not and, in my view,
should not reach that substantial legal question in this case.
   A. The Good-Faith Exception Applies, and Any Error
      Was Harmless.
    As the district court held, the good-faith exception
applies here. The Nevada statute clearly authorized the
officer’s access to the database, and the officer acted “in
objectively reasonable reliance” on the statute. Illinois v.
Krull, 

 (1987); see also Davis v. United
States, 

 (2011) (citing Krull for the rule
that the good-faith exception extends “to searches conducted
in reasonable reliance on subsequently invalidated
statutes”). Whatever doubts one may have about the
constitutionality of the Nevada statute, the fact that both of
my colleagues and a unanimous panel of the First Circuit
have held that persons lack a pertinent reasonable
expectation of privacy means that, at a minimum, the statute
is not “clearly unconstitutional.” Krull, 

.
“Unless a statute is clearly unconstitutional, an officer
24                     USA V. MOTLEY


cannot be expected to question the judgment of the
legislature that passed the law.” 

 at 349–50.
    In addition, any error here was harmless. Even assuming
that the information from the prescription database should
have been excluded from Detective Johnson’s affidavit, the
remaining assertions in the affidavit provided probable
cause. See, e.g., United States v. Nora, 

(9th Cir. 2014) (holding that a “warrant remains valid if,
after excising the tainted evidence, the affidavit’s remaining
untainted evidence would provide a neutral magistrate with
probable cause to issue a warrant” (citation and internal
quotation marks omitted)).
    A confidential informant (“CI”) who had proved reliable
during an earlier controlled drug purchase explained, in
some detail, Defendant’s scheme. Detective Johnson
reported:

       The CI told me that [Defendant] comes from
       California and meets with a physician at [a
       specific office] approximately every 30 days.
       [Defendant] then meets this physician and the
       physician writes [Defendant] a prescription
       for Oxycodone. In addition, the physician
       gives [Defendant] a stack of prescriptions in
       other people’s names for [Defendant] to sell
       to those people. . . . The CI’s wife has
       received a prescription in her name from the
       physician via [Defendant], but has never
       actually seen the physician personally. The
                        USA V. MOTLEY                       25


       CI also stated that [Defendant] fills most [of]
       his prescriptions [at a specific pharmacy].

    Detective Johnson verified some of the information
given by the informant. For example, Detective Johnson
determined that Defendant’s car was registered in California.
Similarly, the informant told Detective Johnson that
Defendant was staying at a specific hotel in town, and
officers saw Defendant at that hotel the next day. Finally,
Detective Johnson reported that Defendant’s criminal
history, including a series of arrests for drug trafficking and
possession, was consistent with the informant’s information.
    In sum, an informant—known to be reliable—described
in detail a criminal scheme in which the informant’s wife had
participated personally; officers confirmed some aspects of
the informant’s description; and officers confirmed that
Defendant’s criminal history was consistent with the
scheme. Accordingly, independent of the information
derived from the prescription database, the affidavit
supported a finding that there was a “fair probability” that
the tracking device would yield evidence of a crime. United
States v. Kvashuk, 

 (9th Cir. 2022), cert.
denied, 

 (2022); see, e.g., Nora, 

 (“[C]riminal history can be helpful in establishing
probable cause, especially where the previous arrest or
conviction involves a crime of the same general nature as the
one the warrant is seeking to uncover.” (citation and internal
quotation marks omitted)); United States v. Rowland, 

 (9th Cir. 2006) (“[A] known informant’s tip is
thought to be more reliable than an anonymous informant’s
tip.”); 

 (“[A]n informant with a proven track record
of reliability is considered more reliable than an unproven
informant.”); 

 (“[An] informant’s tip is considered more
26                      USA V. MOTLEY


reliable if the informant reveals the basis of knowledge of
the tip—how the informant came to know the
information.”); 

 (“[A] tip that provides detailed predictive
information about future events that is corroborated by
police observation may be considered reliable.”).
    I would uphold the denial of the motion to suppress on
those alternative grounds: the good-faith exception and
harmlessness.
     B. Whether a Person Has an Objectively Reasonable
        Expectation of Privacy in Prescription Records is a
        Significant and Debatable Legal Question that We
        Ought Not Reach.
    The majority opinion decides that Defendant lacked an
objectively reasonable expectation of privacy in his
prescription records. Because it is unnecessary to reach that
significant legal issue, and because I have doubts about the
majority opinion’s conclusion, I would not reach that issue.
    Federal courts have “no talisman that determines in all
cases those privacy expectations that society is prepared to
accept as reasonable.” O’Connor v. Ortega, 

 (1987) (plurality opinion). “[T]he reasonableness of an
expectation of privacy . . . differ[s] according to context.”

 In concluding that persons lack a reasonable expectation
of privacy in their prescription records, the majority opinion
offers a plausible assessment of several relevant factors. But
an alternative approach, described below, might yield a
different result.
    As a general matter, people reasonably expect privacy in
their personal medical records. See, e.g., Norman-Bloodsaw
v. Lawrence Berkeley Lab’y, 

, 1269 (9th Cir.
1998) (“The constitutionally protected privacy interest in
                        USA V. MOTLEY                       27


avoiding disclosure of personal matters clearly encompasses
medical information and its confidentiality.”); see also
Ferguson v. City of Charleston, 

 (2001)
(“The reasonable expectation of privacy enjoyed by the
typical patient undergoing diagnostic tests in a hospital is
that the results of those tests will not be shared with
nonmedical personnel without her consent.”). As the
Supreme Court has noted, “an intrusion on that expectation
may have adverse consequences because it may deter
patients from receiving needed medical care.” Ferguson,

 n.14.
    Prescription records are a subset of medical records and,
accordingly, are entitled to some measure of privacy.
Prescription records may not disclose as much information
as a person’s entire hospital chart might. But prescription
records can be extremely revealing, nonetheless. A
knowledgeable person could tell, from prescriptions alone,
that a person was undergoing treatment for a sensitive,
private ailment, such as low testosterone or delayed puberty;
weight loss associated with AIDS or chemotherapy;
difficulty with conceiving; anxiety and panic disorders; or
alcohol withdrawal or opioid use. The Supreme Court’s
observation about medical records generally applies with
equal force to prescriptions specifically: “an intrusion on [an
expectation of privacy in prescription records] may have
adverse consequences because it may deter patients from
receiving needed medica[tions].” 

    Nor is Nevada’s statute tailored in any way to opioids or
to those drugs with the most potential for abuse. The statute
applies broadly to all drugs on Schedules II-V. (Schedule I
drugs have no medical use.) A more narrowly tailored
statute—for example, a law that permitted warrantless
searches of only the most dangerous prescription drugs,
28                      USA V. MOTLEY


coupled with a requirement that persons filling those specific
prescriptions be warned that their prescription data could be
subject to search—likely would pass constitutional muster.
But Nevada’s law indiscriminately allows warrantless
searches of any and all prescriptions, even those drugs with
no history of abuse or resale, and even those drugs that reveal
specific medical histories. The majority opinion at times
focuses its analysis on opioids, but its holding is broad:
persons have no reasonable expectation of privacy in any
prescription record.
     Finally, the other laws cited by the majority opinion do
not fully establish that persons lack a reasonable expectation
of privacy. Congress and state legislatures permissibly may
impose a record-keeping obligation on medical providers,
but those laws do not answer the question relevant here:
does the Constitution permit law enforcement officers to
rifle through those records solely in search of evidence of a
crime? Similarly, the fact that Congress granted the
Attorney General a wide subpoena power to “require the
production of any records (including books, papers,
documents, and other tangible things which constitute or
contain evidence) which the Attorney General finds relevant
or material,” 

(a), does not answer the
constitutional question. That subpoena power—like the
searching authority granted by state law—is limited by the
Fourth Amendment’s protection against unreasonable
searches.
    Some jurisdictions have concluded, contrary to the
majority opinion’s conclusion, that persons do have a
reasonable expectation of privacy in their prescription
medications. For example, the Supreme Court of Louisiana
has held that a warrant is required for an investigative search
of prescription records, because “the right to privacy in one’s
                       USA V. MOTLEY                       29


medical and prescription records is an expectation of privacy
that society is prepared to recognize as reasonable.” State v.
Skinner, 

 (La. 2009) (emphasis added).
Closer to home, the federal district court for the District of
Oregon agreed, concluding in a well-reasoned opinion
concerning Oregon’s analogue to Nevada’s prescription
database that the intervenors’ “subjective expectation of
privacy in their prescription information is objectively
reasonable.” Or. Prescription Drug Monitoring Program v.
U.S. DEA (Or. PDMP), 

 (D. Or.
2014), rev’d on other grounds, 

 (9th Cir.
2017). On appeal, we held that the intervenors lacked
standing, and we therefore did not reach the pertinent Fourth
Amendment question. Or. PDMP, 860 F.3d at 1234–35. But
we recognized the weightiness of the issue:

           We acknowledge the particularly private
       nature of the medical information at issue
       here and thus do not question the seriousness
       of Intervenors’ fear of disclosure. Nor do we
       imply that this concern is unreasonable.

.
    In sum, the majority opinion reaches an important issue
that has divided courts: whether a person has a reasonable
expectation of privacy in prescription records. Because I
have doubts about the correctness of the majority opinion’s
conclusion, I would choose not to reach the issue; we should
wait for a case in which the result matters to the outcome.
For those reasons, I concur in the opinion only in part, but I
concur in the judgment in full.