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The warrantless administrative search of a Rhode Island doctor’s office in 2002 turned up bottles of diluted and outdated vaccines for measles, chickenpox and tetanus that he had administered to hundreds of unsuspecting immigrant patients. Now Dr. Wallace E. Gonsalves Jr.�serving a 10-year prison sentence for that conduct as well as tax evasion and falsifying HIV and syphilis test results�has challenged the broad discretion of state health officials to walk into a doctor’s office unannounced to conduct searches. His challenge is now before the 1st U.S. Circuit Court of Appeals and expected to be argued in the fall. Complicating the search issue, a decision against the doctor could also implicate efforts in some states to monitor abortion clinics by means of administrative searches. Administrative search laws exist in every state and allow for random warrantless searches of highly regulated professions as an aid to state enforcement of regulations. Nine states-Alaska, Arkansas, Missouri, New Mexico, North Dakota, Ohio, Oklahoma, Tennessee and Vermont-have laws virtually identical to Rhode Island’s, and many more have very similar language, according to papers filed by federal prosecutors in the case. Not ‘highly regulated’ But so far, courts have not deemed the medical profession as a “highly regulated” profession allowing exceptions to Fourth Amendment restrictions on warrantless searches. In the past, the courts have defined closely regulated professions as firearms dealers, auto wreckers, the liquor industry, liquefied propane gas sellers and pharmaceutical firms. Anthony Traini, Gonsalves’ attorney, said that the Rhode Island law has no regulatory scheme defining limits on inspection, and discretion by inspectors is absolute. That, he argues, renders the law insupportable. “You cannot just walk into any doctor’s office and say; ‘Hey Jack, let us see your stuff,’ ” said Traini of the Law Office of Anthony Traini in Providence, R.I. He added that the U.S. Supreme Court has said in a 1996 case that administrative inspections can be made only for an administrative purpose and not on a pretext. In Gonsalves’ case, U.S. v. Gonsalves, No. 04-2316, the inspector went along as part of a state criminal investigation and not as part of a random check of medical offices. In the abortion case, the 9th Circuit in 2004 struck down portions of an Arizona law that allowed immediate access to abortion clinics during hours of operation and warrantless searches. The court held that Arizona did not “pervasively regulate the industry [of private physicians]” until passage of the abortion clinic regulations. It ruled that in fact expectation of privacy is heightened in abortion clinics. Tucson Women’s Clinic v. Eden, 370 F.3d 549 (2004). If the searches had been allowed in the Tucson abortion clinic case it would have treated abortion clinics like auto chop shops, said Bonnie Scott Jones, attorney in the Arizona case for the Center for Reproductive Rights in Washington. Federal prosecutors in Providence declined comment. However, a recently filed brief by Assistant U.S. Attorney Donald Lockhart argued that the state law is limited and should pass legal muster. He said the law is limited to unannounced inspections of doctors who administer and store vaccines, allowing the state to look for adulteration and misbranding. The state law limited the inspector’s discretion in terms of the time, place and scope of the search, Lockhart wrote. “The limitations were more than adequate,” he said. As for the abortion clinics, Lockhart counters that they have unique privacy issues, and the Arizona law was much broader than Rhode Island’s. The Gonsalves investigation began with a tip from a former employee who accused him of selling drug samples to a local pharmacy and workers’ compensation fraud. The state attorney general got a search warrant that covered patient business records but not drugs. The health inspector went along to conduct an administrative inspection for misbranded drugs, finding water bottles full of old and diluted vaccines. Records showed nearly 700 patients received doses of chickenpox shots sufficient for just 70 people and nearly 600 got measles shots from a supply of 100 doses. Part of the problem is the way courts have framed the issue as limiting the search exception to heavily regulated professions, Jones said. “We live in a heavily regulated society in general. If that is a measure of whether the Fourth Amendment applies, then there aren’t any rights under the Fourth Amendment.”

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