Andrew Dollard v. Gary Whisenand ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-1602, 19-1604 & 19-1605
ANDREW J. DOLLARD, et al.,
Plaintiffs-Appellants,
v.
GARY WHISENAND, et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 16-cv-01721 & 16-cv-01908 — Richard L. Young, Judge.
____________________
ARGUED NOVEMBER 5, 2019 — DECIDED DECEMBER 23, 2019
____________________
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. In 2013, the Drug Enforcement Ad-
ministration (DEA) began investigating Dr. Larry Ley and his
opioid addiction treatment company, Drug Opiate Recovery
Network, Inc. (DORN), for dealing a controlled substance. Af-
ter conducting undercover surveillance, lead agent Gary
Whisenand decided Dr. Ley did not have a legitimate medical
purpose in prescribing Suboxone, a drug used to treat opioid
addiction.
2 Nos. 19-1602, 19-1604 & 19-1605
After finding probable cause, two Indiana courts issued a
series of warrants that culminated in twelve separate arrests
of five medical providers (four physicians and one nurse) and
seven non-provider DORN employees. In the ensuing prose-
cution, the Indiana courts quickly dismissed the charges
against all the non-providers and the nurse. The State eventu-
ally proceeded to a bench trial against Dr. Ley, where an In-
diana court ultimately acquitted him. Following this acquittal,
the State dismissed the rest of the charges against the three
remaining providers.
Together, DORN’s providers and non-provider employ-
ees sued the DEA agent and others in federal court alleging
false arrest, malicious prosecution, and civil conspiracy. The
district court entered summary judgment for the defendants
on all claims, holding probable cause supported the warrants
used to arrest the plaintiffs. We affirm the district court’s judg-
ment as to every plaintiff except Joseph Mackey. With respect
to Mackey, we reverse and remand the judgment because the
undisputed facts at the summary judgment stage do not es-
tablish that officers had probable cause to arrest Mackey or
even that reasonable officers could believe probable cause ex-
isted.
I. Background
Larry Ley graduated from medical school in 1971 and has
worked in a variety of medical positions across central Indi-
ana since. He is board-certified in addiction medicine by the
American Society of Addiction Medicine. In 2002, he founded
Living Life, an alcohol abuse treatment company. Dr. Ley ran
Living Life out of four offices in central Indiana: Centerville,
Noblesville, Muncie, and Kokomo.
Nos. 19-1602, 19-1604 & 19-1605 3
A. DORN
Shortly after starting Living Life, Dr. Ley began prescrib-
ing Suboxone, a drug commonly used to treat opioid addic-
tions. In 2007, Dr. Ley expanded his practice and renamed it
“DORN.” He opened a new office in Carmel, and continued
operations at the four existing satellite offices. Dr. Ley saw all
his patients for their initial consultations at the Carmel loca-
tion. He primarily worked out of that office, but he also spent
time in Noblesville and Muncie. 1
For follow-up appointments, patients went to the office
closest to their homes. Other physicians staffed these satellite
offices, including Dr. Ronald Vierk in Centerville, Dr. Luella
Bangura in Kokomo, and Dr. George Agapios in Carmel.
Yvonne Morgan is a registered nurse who directed the Cen-
terville clinic and assisted the Muncie and Carmel clinics. She
completed mostly clerical tasks for DORN, like answering the
phone, conducting drug screens, and handing patients their
prescriptions.
Several non-provider employees worked at the DORN
clinics, too:
• Derek Tislow was a part-time office assistant in No-
blesville.
• Eric Ley—Dr. Ley’s son—was a part-time office as-
sistant in Carmel and Kokomo.
• Felicia Reid was a receptionist in Carmel.
1 The Carmel clinic had a conference room and Dr. Ley’s office, but no
examination room and no medical equipment.
4 Nos. 19-1602, 19-1604 & 19-1605
• Joseph Mackey was a part-time parking lot at-
tendant in Kokomo.
• Jessica Callahan was the part-time office manager
in Muncie.
• Cassy Bratcher was the Carmel office manager.
• Andrew Dollard is an attorney and was the part-
time Noblesville office manager.
B. Controlled Substance Laws
Indiana, like all other states, criminalizes dealing a con-
trolled substance. Ind. Code § 35-48-4-2. Under state law, any
“person who: (1) knowingly or intentionally … (C) delivers;
or (D) finances the delivery of; a controlled substance … clas-
sified in schedule I, II, or III … commits dealing …, a level 6
felony.” Id. Buprenorphine, the primary drug component in
Suboxone, is a Schedule III controlled substance. Indiana ad-
ditionally proscribes conspiracies, id. § 35-41-5-2, and corrupt
business influence, id. § 35-45-6-2.
Medical practitioners may prescribe controlled sub-
stances, such as buprenorphine, but their authority is limited:
They must have a legitimate medical purpose to issue a rea-
sonable quantity in the usual course of business. 856 Ind. Ad-
min. Code 2-6-3(a). Those who prescribe controlled sub-
stances outside the scope of their practice or without a legiti-
mate purpose are subject to sanction under Indiana criminal
law. Id.; see also Alarcon v. State, 573 N.E.2d 477, 480 (Ind. Ct.
App. 1991) (holding Indiana’s controlled substance laws ap-
ply to licensed physicians who issue invalid prescriptions).
Nos. 19-1602, 19-1604 & 19-1605 5
Furthermore, medical doctors may not prescribe con-
trolled substances to a person whom they have never physi-
cally examined in person and diagnosed, unless it is a cross-
coverage situation (or another exception applies) where mul-
tiple professionals may see a patient during her treatment by
a practice group. 844 Ind. Admin. Code 5-4-1(a). Doctors must
also ordinarily sign and date prescriptions on the day they is-
sue them. 856 Ind. Admin. Code 2-6-4(a). To be sure, a secre-
tary (or another authorized agent) may prepare and com-
municate prescriptions, leaving the practitioner responsible—
indeed, liable—if the prescription does not conform to law or
regulation. Id. 2-6-4(b); Id. 2-6-2(b); see also Ind. Code § 16-42-
19-20(b). That is, unless the secretary (or other agent) knows
the prescription is invalid; then they could be culpable too.
856 Ind. Admin. Code 2-6-3(a).
The United States also regulates a physician’s ability to
prescribe controlled substances. Specifically, the Drug Addic-
tion Treatment Act of 2000 (DATA) caps the number of pa-
tients a physician may treat with buprenorphine for addic-
tion. See generally 21 U.S.C. § 823(g)(2)(B)(iii). In the beginning,
newly certified providers may treat thirty patients; after one
year, providers may treat up to 100 patients. Id. If a practi-
tioner meets certain requirements, the number is 275. Id.
§ 823(g)(2)(B)(iii)(II)(dd). This maximum number of patients,
however, only applies in the addiction context, meaning those
receiving treatment for an off-label use, like pain, do not count
toward the 100. See id. § 823(g)(1).
6 Nos. 19-1602, 19-1604 & 19-1605
C. Investigation
In 2013, the Madison County Deputy Coroner contacted
Officer Aaron Dietz of the Carmel Police Department to dis-
cuss the death of one of Dr. Ley’s former patients. 2 Officer
Dietz put the Deputy Coroner in touch with a sergeant, Marc
Klein, who learned that the deceased’s family expressed con-
cerns about the care Dr. Ley once provided to the deceased.
The Deputy Coroner also reached out to Adam Deitz, the di-
rector of the Hamilton and Boone County Drug Task Force,
regarding the death.
Both officers began investigating Dr. Ley and DORN
based on this information, leading to an interview with the
deceased’s family. In the interview, the family explained that
Dr. Ley treated the deceased for addiction over six years. They
identified the following concerns they had with Dr. Ley’s
medical care: The deceased rarely went into the doctor’s of-
fice; Dr. Ley was not personally seeing him; other family
members would pick up prescriptions for him; and he always
paid in cash.
Around this time, the DEA began receiving complaints
about DORN, which focused on the lack of medical care at the
clinics and the ease with which patients could procure pre-
scriptions for Suboxone without being seen by a physician.
2 Officer Dietz—a Carmel Police Department Officer and Director of
the Hamilton/Boone County Drug Task Force—was the local point of con-
tact for the ensuing federal investigation. Although Officer Dietz is a de-
fendant in this lawsuit, his personal involvement does not end up being
germane to our disposition on appeal. See infra Part II-D.
Nos. 19-1602, 19-1604 & 19-1605 7
Based on these complaints and the interview with the de-
ceased’s family, the DEA opened an investigation into Dr. Ley
and DORN, which was assigned to Agent Gary Whisenand.
Agent Whisenand began his inquiry by looking into past
complaints about DORN from practitioners, pharmacists, and
former patients. 3 Most of the complaints criticized Dr. Ley
and DORN for not providing any medical treatment to their
patients and simply handing out prescriptions for Suboxone.
The principal concern was that Dr. Ley was admitting people
into his program without first conducting a full medical eval-
uation. The accusations related not only to Dr. Ley but also to
DORN’s satellite offices and other practitioners. 4
These complaints led Agent Whisenand to research
DORN on INSPECT, an online database that allows law en-
forcement to monitor controlled substance prescriptions. The
data showed that each DORN physician issued a high num-
ber of Suboxone prescriptions in 2011, 2012, and 2013. 5 Agent
Whisenand consequently interviewed patients and surveilled
all four DORN offices. One then-current DORN patient de-
scribed the Kokomo clinic parking lot as a place where people
conducted drug deals and talked about how they planned to
sell their medications. The patient also noted how no doctors
3 Some of DORN’s competitors submitted complaints. Former pa-
tients included those who had dropped out or been kicked out of the pro-
gram.
4 There were eight regulatory inspections of DORN clinics before the
arrests in this case.
5 For instance, in 2012 and 2013, Dr. Agapios wrote Suboxone pre-
scriptions for over 680 and 750 patients, respectively.
8 Nos. 19-1602, 19-1604 & 19-1605
saw any addicts; instead, patients obtained pre-signed pre-
scriptions from the front desk. DEA surveillance confirmed
that no doctors administered any physical exams at the clin-
ics.
D. Undercover Agents and Experts
The state prosecutor assigned to the investigation, Andre
Miksha, recommended Agent Whisenand enlist undercover
officers to provide a firsthand account from the insides of the
clinics. On March 25, 2014, two DEA special agents posed as
new patients at the Carmel clinic. Cassy Bratcher, the office
manager, greeted the agents and instructed them to fill out
some paperwork. 6 She then showed the agents into a confer-
ence room where they met with Dr. Ley and discussed addic-
tion treatment for about one hour.
Then, for another hour, Dr. Ley questioned the prospec-
tive patients about what types of drugs they were taking, in
what doses, and whether they had any conditions causing
pain. At the end of the second hour, Dr. Ley prescribed Sub-
oxone for “chronic pain/pain management” and directed the
agents to the front to pick up their prescriptions. DORN ulti-
mately charged the agents a $300 program fee at their initial
sessions. Dr. Ley gave them the contact number for “Andrew”
and assigned the agents to the Noblesville office for all future
appointments.
6 The agents, like all DORN patients, had to sign a pledge to take the
prescribed medication only in the dosage and on the “taper schedule” set
by the program. They also agreed to consume no other narcotics. No agent
ever reported that a DORN doctor increased their prescription upon re-
quest.
Nos. 19-1602, 19-1604 & 19-1605 9
The use of undercover agents for initial visits continued at
the Carmel clinic, following the pattern set by the first: Dr. Ley
led a two-hour group discussion; he did not conduct a physi-
cal or meet with any patient one-on-one; and each patient left
the clinic with a prescription of Suboxone after paying a $300
program fee. 7 Each of the agents’ prescriptions (and corre-
sponding taper schedules) were different and individualized
to them, based on their reported drug histories.
The undercover agents reported to the various clinics for
their follow-up appointments and corroborated many of their
earlier findings: The appointments generally lasted a few
minutes; the agents received their Suboxone prescriptions
without a doctor assessing them (they submitted to urine
screening 8); and many prescriptions were pre-signed because
there was often no doctor present at the facility.9 On the pre-
scriptions, the reasons for additional medication often
changed without explanation; so, one agent received a Subox-
one prescription for “dependency” even though his initial
prescription was for “pain management.”
7 This price never changed, regardless of the number of appointments
or the amount of medication prescribed. As a general matter, it cost $300
to enter the program at the initial session, and then it was $40 per week
thereafter. The weekly charge covered all the program’s services, meaning
there were no separate DORN fees for prescriptions, in-person appoint-
ments, or telephone consultations.
8 DORN expelled many patients for failed drug screens, including Un-
dercover Officer Richardson, because his two previous urine drug screens
tested negative for Suboxone. DORN booted another undercover agent,
Officer Katt, because he refused a drug screen.
9At follow-up appointments, receptionists and office assistants often
did not request identification or medical records from patients.
10 Nos. 19-1602, 19-1604 & 19-1605
The DEA retained two medical doctors to opine on Dr. Ley
and DORN. First, Dr. Tim E. King, a pain expert and practic-
ing anesthesiologist, stated that it was unrealistic for a physi-
cian to treat 80–100 patients in a three-hour period and highly
unconventional to assume that one person could perform an
initial pain or addiction evaluation (not in any actual exami-
nation room) and then assign the patient to another provider
for exclusive treatment. Dr. King felt like Dr. Ley was running
DORN as a “pill mill” because Dr. King thought Dr. Ley was
not issuing prescriptions for controlled substances in the
usual course of practice or for a legitimate medical purpose.
Second, Dr. R. Andrew Chambers, an associate professor
of psychiatry at Indiana University School of Medicine and a
practicing addiction treatment doctor, echoed Dr. King.
Dr. Chambers believed it was unusual for Dr. Ley to care for
that many patients in that short of time. Dr. Chambers, like
Dr. King, found it abnormal for one doctor to conduct an ini-
tial examination and then “farm out” the subsequent ones.
Dr. Chambers ultimately shared Dr. King’s conclusion that
DORN was an illegal dealing operation and the physicians in-
volved “conspired to use their professional authorities and
reputations, and the cover of medical practice an authority to
maximize financial gains at the expense of clinical stand-
ards.” 10
10The investigation did not find any DORN patient who was not ac-
tually an addict, making these individuals otherwise eligible for medical
care. Similarly, it found that no DORN patient was ever hospitalized or
treated for an overdose. The DEA determined that DORN never pre-
scribed anything more than a therapeutic dose of Suboxone to its patients.
Nos. 19-1602, 19-1604 & 19-1605 11
E. Probable Cause Affidavit and Arrests
Agent Whisenand prepared a probable cause affidavit to
support the arrests of all DORN staff and the search and sei-
zure of certain property. 11 Relevant here, the allegations
against the non-provider employees 12 were:
• Two undercover agents and one former patient re-
ceived suspected pre-signed prescriptions (suspected
because the patients did not observe doctors on the
premises) for continued treatment from Jessica Calla-
han at the Muncie office on at least three separate oc-
casions. Two investigators surveilled Callahan at the
Muncie office two other times.
• Investigators surveilled Eric Ley or his vehicle at
the Carmel and Kokomo offices eight different times.
They also observed him printing prescriptions for
11Dietz did not participate in the drafting of the affidavit; in fact, he
only read it after it was submitted to the courts.
12 We are not going to exhaustively restate the contents of the probable
cause affidavit in this opinion. Instead, we include the allegations against
the non-provider employees because it is those that will ultimately be
most relevant to our analysis. We do, however, think it is important to
include the accusations against one provider, Yvonne Morgan, and we do
so below:
Investigators believed Yvonne Morgan (or another employee), a
registered nurse, issued pre-signed prescriptions at the Center-
ville and Muncie offices seven different times. They additionally
observed her at the Muncie office on two other occasions. The of-
ficers learned Morgan operated a 2012 Ford Edge. One under-
cover agent received her phone number because she was suppos-
edly the Centerville office point-of-contact; another agent was
given her and Jessica Callahan’s names as the Muncie office leads.
12 Nos. 19-1602, 19-1604 & 19-1605
Dr. Agapios to sign in person those days, without first
seeing the actual patients on four separate occasions.
The officers confirmed Ley resided with his father, Dr.
Larry Ley, in Noblesville.
• Investigators and agents observed Felicia Reid or
her vehicle at the Kokomo office four times. In one in-
stance, an undercover agent received a Suboxone pre-
scription from Reid signed by Dr. Bangura, who was in
the office but did not meet with the agent. Reid also
answered DORN’s phone when an investigator called
on one occasion.
• Investigators and agents observed Joseph Mackey
at the Kokomo office five times. The officers generally
saw Mackey walk in and out of the office with a clip-
board, taking people’s names down and arranging
them outside, and interacting with vehicles in the park-
ing lot.
• Investigators surveilled Derek Tislow entering the
Noblesville office on five separate occasions. They also
observed him attend a business meeting with Andrew
Dollard at a local restaurant. One undercover agent
met with him for a drug screen in the clinic. The agents
referred to him as the “office assistant,” although he
called himself the assistant office manager on his
LinkedIn page. Tislow took $80 from the agents five
times and told them that their prescriptions would be
phoned in later that day. During these encounters, the
undercover agents observed multiple prescriptions on
his desk. Separately, two agents received pre-signed
prescriptions from Tislow for “chronic pain and sec-
ondary opiate dependency” in exchange for $160 cash.
Nos. 19-1602, 19-1604 & 19-1605 13
The agents reported that Tislow had to sort through
multiple prescriptions to find the correct ones, and in
fact, one agent observed Dr. Ley hand several pre-
signed prescriptions to Tislow, including the one he
eventually left with, before ever meeting with any pa-
tient.
• Surveillance teams observed Cassy Bratcher at the
Carmel and Kokomo offices meeting with patients and
speaking with people many times (even making a bank
deposit once), regardless of whether there were pro-
viders onsite or not. The investigators described
Bratcher as the Carmel office manager and Dr. Ley de-
scribed her as the point-of-contact for both the Carmel
and Kokomo clinics. One time, she interrupted a meet-
ing between Dr. Ley and an undercover agent so Dr.
Ley could sign prescriptions for people he did not see
while he was in the meeting. On two other occasions,
Bratcher handed prescriptions to agents even though
the physician never met with the agents. Undercover
agents also observed her print prescriptions for Dr.
Agapios to sign and give to the agents on three other
dates. In one instance, Bratcher informed an agent he
had to take a drug screen, and in another, she told the
agent that he had to exit the program because his
screens showed no buprenorphine in his system.
• Former patients stated that they would pay An-
drew Dollard, Dr. Ley’s attorney and the Noblesville
office director, $80 in return for Dollard filling out and
handing the patient a pre-signed prescription when no
doctor was present. Investigators surveilled Dollard
entering the Noblesville clinic on five dates; they also
14 Nos. 19-1602, 19-1604 & 19-1605
observed him at his law office and two restaurants, one
of which was for a business meeting in which he
pitched a potential DORN expansion to an unidenti-
fied male. The undercover agents eventually learned
where Dollard lived and that he was the Noblesville
point-of-contact. In four instances, Dollard called in
prescriptions for undercover agents; on three days he
was observed in the Noblesville clinic and on one day
he was not.
After examining these accusations and all others con-
tained in the affidavit, state prosecutors agreed with Agent
Whisenand that the affidavit supported probable cause to
charge all DORN employees. 13 The lead prosecutor charged
the non-provider employees because of their business roles
and his belief that it would have been obvious to them under
the circumstances that they were engaged in an illegal prac-
tice. Two state courts reviewed the affidavit and found prob-
able cause existed to charge all DORN employees with con-
spiracy to commit dealing in a controlled substance and cor-
rupt business influence. Police officers arrested the DORN
employees on July 24, 2014.
F. Indiana’s Criminal Prosecution of DORN
Early on in their criminal cases, each then-defendant (now
plaintiff) moved to dismiss the charges against them, arguing
that the evidence was insufficient as a matter of law to support
13 Federal prosecutors hadalready declined prosecution because they
believed there was not probable cause to arrest and prosecute the DORN
employees, at least under federal controlled substance laws.
Nos. 19-1602, 19-1604 & 19-1605 15
any potential convictions. 14 One state court granted the non-
providers’ motions. At the same time, that court denied the
providers’ motions to dismiss (except for Yvonne Morgan).
Another state court granted Morgan’s (the nurse and point-
of-contact for Centerville and Muncie) motion, although a
state appellate court ultimately reversed that judgment. State
v. Y.M., 60 N.E.3d 1121, 1128 (Ind. Ct. App. 2016).
The State eventually proceeded to a bench trial against Dr.
Ley. After denying Dr. Ley’s motion based on the insuffi-
ciency of the evidence, the court ultimately acquitted Dr. Ley
of all charges. The court found that the State had not proved
a knowing and intentional violation of a standard of profes-
sional conduct. It followed, then, that the State did not prove
beyond a reasonable doubt that Dr. Ley issued the prescrip-
tions outside the usual course of professional medical prac-
tice. After Dr. Ley’s acquittal, the State dismissed the charges
against the remaining DORN doctors.
G. This Federal Civil Rights Case
All the DORN employees then sued the lead investigator,
Agent Whisenand, and other defendants in federal court,
claiming they violated their constitutional rights by conspir-
ing to falsely arrest and maliciously prosecute them. The dis-
trict court granted the defendants’ motion for summary judg-
ment, holding that law enforcement had probable cause to ar-
rest and charge all twelve DORN employees under Indiana
law. Even in the absence of probable cause, the district court
14 We intentionally use the plural noun, “cases,” because the State
charged the then-defendants in the counties where their alleged criminal
conduct occurred.
16 Nos. 19-1602, 19-1604 & 19-1605
reasoned, the defendants had “arguable probable cause,” en-
titling them to qualified immunity.
This appeal followed.
II. Discussion
We review the district court’s entry of summary judgment
de novo, looking at the record in the light most favorable to
the non-moving plaintiffs and construing all reasonable infer-
ences from the evidence in their favor. See Martin v. Marinez,
934 F.3d 594, 597 (7th Cir. 2019). Summary judgment is appro-
priate when there are no genuine disputes of material fact, en-
titling the movant to judgment as a matter of law. Fed. R. Civ.
P. 56(a).
“Factual disputes are genuine ‘only if there is sufficient ev-
idence for a reasonable jury to return a verdict in favor of the
non-moving party on the evidence presented,’ and they are
material only if their resolution might change the suit’s out-
come under the governing law.” Maniscalco v. Simon, 712 F.3d
1139, 1143 (7th Cir. 2013) (quoting Stokes v. Bd. of Educ. of the
City of Chicago, 599 F.3d 617, 619 (7th Cir. 2010)).
On appeal, the DORN plaintiffs argue that probable cause
did not exist to arrest them. Additionally, they assert that ar-
guable probable cause did not support the warrants either,
meaning qualified immunity does not shield the defendants
from suit. The lead DEA investigator and other defendants
contend that there was probable cause to support criminal
charges against the DORN employees, and even if there was
not, they had an objectively reasonable basis to believe there
was probable cause, which entitles them to qualified immun-
ity. We address each issue in turn.
Nos. 19-1602, 19-1604 & 19-1605 17
A. False Arrest
“Probable cause is an absolute bar to a claim of false arrest
asserted under the Fourth Amendment and section 1983.”
Muhammad v. Pearson, 900 F.3d 898, 907 (7th Cir. 2018) (cita-
tion omitted). “Probable cause exists to arrest a suspect if at
the time of arrest the facts and circumstances within the ar-
resting officer’s knowledge and of which he has reasonably
trustworthy information would warrant a prudent person in
believing that the suspect had committed or was committing
an offense.” Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019)
(citation omitted).
When a judge authorizes an arrest, as one did here, “we
presume the validity of [the] warrant and the information of-
fered to support it.” Id. (citation and internal quotation marks
omitted). The presumption must give way, however, “if the
warrant application was ‘so lacking in indicia of probable
cause as to render official belief in its existence unreasona-
ble.’” Edwards v. Jolliff-Blake, 907 F.3d 1052, 1060 (7th Cir. 2018)
(quoting Junkert v. Massey, 610 F.3d 364, 369 (7th Cir. 2010)
(quoting Malley v. Briggs, 475 U.S. 335, 345 (1986))). “Under
these circumstances, even a facially valid arrest warrant does
not shield otherwise unreasonable conduct.” Williamson v.
Curran, 714 F.3d 432, 444 (7th Cir. 2013) (citation omitted).
“An officer faces personal liability only if ‘courts have
clearly held that a materially similar affidavit previously
failed to establish probable cause under facts that were indis-
tinguishable from those presented in the case at hand’ or if
‘the affidavit is so plainly deficient that any reasonably well-
trained officer would have known that his affidavit failed to
establish probable cause and that he should not have applied
for the warrant.’” Edwards, 907 F.3d at 1060 (quoting United
18 Nos. 19-1602, 19-1604 & 19-1605
States v. Koerth, 312 F.3d 862, 870 (7th Cir. 2002)); see also
Brunson v. Murray, 843 F.3d 698, 709 (7th Cir. 2016).
B. Probable Cause
We agree with the district court’s conclusion that the affi-
davit established probable cause to arrest the DORN plaintiffs
with a few notable exceptions. It is undisputed that one of Dr.
Ley’s former patients died and that individual’s family ex-
pressed concerns about Dr. Ley’s prior treatment of him.
Other doctors voiced their worries, too, accusing Dr. Ley of
prescribing Suboxone for pain to avoid the 100-patient limit
and ultimately bring in more revenue.
At least one pharmacy refused to fill prescriptions for
DORN, and several former patients reported that they re-
ceived their prescriptions without undergoing any type of
physical exam. INSPECT records showed that DORN physi-
cians prescribed an unusually high amount of Suboxone and
accordingly made a substantial income. Two expert doctors,
retained by the DEA, opined that the DORN physicians were
not prescribing Suboxone for a legitimate medical purpose in
the usual course of medical practice.
The investigators’ surveillance and undercover recordings
corroborate many of those observations. Dr. Ley saw prospec-
tive patients for an initial consultation in a conference room
for two hours. At the end of that meeting, the patients would
receive a Suboxone prescription after paying $300. Dr. Ley did
not conduct any physical examinations and all patients paid
for their prescriptions in cash. At many follow-up appoint-
ments, patients received their prescriptions without ever be-
ing seen by a doctor. Some of those appointments lasted just
a few minutes. At times, DORN’s non-provider employees
Nos. 19-1602, 19-1604 & 19-1605 19
handed out prescriptions when no provider was present. In
fact, the providers pre-signed a lot of those prescriptions.
Considering the totality of the circumstances, a reasonable
officer could believe that most DORN employees were con-
spiring to deal in a controlled substance because they were
knowingly issuing invalid Suboxone prescriptions; in other
words, they were prescribing a controlled substance without
a legitimate medical purpose and outside the usual course of
medical practice. Most of the DORN plaintiffs’ points to the
contrary are unavailing. We will begin with the medical pro-
viders and end with the nonmedical providers.
1. Medical Providers
First, the medical providers maintain that Agent
Whisenand should have identified and evaluated exculpatory
evidence in his probable cause affidavit, namely, whether the
physicians had a legitimate medical purpose in prescribing
Suboxone. The plaintiffs insist that: DORN patients filled out
medical histories; addiction treatment does not necessarily
entail physical examination; each patient received an appro-
priate dose of Suboxone and corresponding tapering sched-
ules; and all patients—including the undercover agents—
signed paperwork promising to attend counseling. This evi-
dence, the district court reasoned, went toward their defense
but did not defeat probable cause. See Alarcon, 573 N.E.2d at
480 (“[T]he writing of a valid prescription by a licensed phy-
sician is an absolute defense to a charge of dealing in a con-
trolled substance.”).
Plaintiffs’ argument confuses the matter somewhat. The
use of a valid prescription as a defense to possessing—or here,
20 Nos. 19-1602, 19-1604 & 19-1605
dealing—a controlled substance is a type of affirmative de-
fense, while a defense that the intent element is lacking is not.
Using the terminology of Professors LaFave and Robinson, a
prescription’s validity is an “offense modification defense,”
not a “failure of proof defense.” Wayne R. LaFave, Subst.
Crim. L. § 9.1(a)(1)–(2) (3d ed. 2000); see also Paul H. Robinson,
Crim. L. Def. § 23 (1st ed. 1984) (explaining that an offense
modification defense means that “while the actor has appar-
ently satisfied all elements of the offense charged, he has not
in fact caused the harm or evil sought to be prevented by the
statute defining the offense,” and identifying as a “typical …
offense modification[] … the use of a valid prescription as a
defense to possessing a controlled substance”).
The distinction is meaningful in the probable cause con-
text. On the one hand, an officer “‘may not ignore conclu-
sively established evidence of the existence of an affirmative
defense,’ [but] the Fourth Amendment imposes no duty to in-
vestigate whether a defense is valid.” McBride v. Grice, 576
F.3d 703, 707 (7th Cir. 2009) (quoting Hodgkins ex rel. Hodgkins
v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004)). On the other
hand, although a police officer must have “some evidence” on
an intent element to demonstrate probable cause, BeVier v.
Hucal, 806 F.2d 123, 126 (7th Cir. 1986), an officer need not
have “the same type of specific evidence of each element of
the offense as would be needed to support a conviction.”
Hawkins v. Mitchell, 756 F.3d 983, 994–95 (7th Cir. 2014) (quot-
ing Adams v. Williams, 407 U.S. 143, 149 (1972).
Viewing a prescription’s validity as an affirmative de-
fense, which the district court appropriately did, we cannot
say that the plaintiffs’ proffered evidence “conclusively estab-
lished” the affirmative defense. McBride, 576 F.3d at 707. Even
Nos. 19-1602, 19-1604 & 19-1605 21
if it did, “there is a meaningful distinction between disregard-
ing potentially exculpatory information and disbelieving it.”
Mahnke v. Garrigan, 428 F. App’x 630, 635 (7th Cir. 2011). Most
importantly, the district court did not exclude the evidence
from its probable cause analysis; instead, it decided that law
enforcement still showed probable cause existed based on a
host of other facts.
In total, Dr. Ley was prescribing Suboxone without ad-
ministering physical examinations; all DORN physicians
were prescribing a usual amount of Suboxone in return for
quite a lot of money; and patients received many pre-signed
prescriptions without seeing doctors at follow-up appoint-
ments. The officers therefore had enough information to rea-
sonably suspect that the DORN physicians were either issu-
ing prescriptions without a legitimate purpose or outside the
usual course of professional practice. 15 See United States v.
Chaney, 921 F.3d 572, 591 (6th Cir. 2019) (“Evidence of the cir-
cumstances surrounding a prescription allows juries to infer
that a physician’s purpose was something other than legiti-
mate medical treatment.”), cert. denied, 140 S. Ct. 301 (2019),
and cert. denied, 140 S. Ct. 271 (2019).
This evidence accords with our and our sister circuits’ case
law concerning other “pill mill” prosecutions of physicians
for dealing controlled substances. See United States v.
15 It is incorrect for the plaintiffs to claim that this conclusion means
that every doctor who writes a prescription for a controlled substance is
vulnerable to lawful arrest and prosecution. Quite the contrary, only a
doctor who writes prescriptions in such unorthodox and inappropriate
circumstances opens themselves up to criminal liability. See United States
v. Kohli, 847 F.3d 483, 491 (7th Cir. 2017), reh’g and suggestion for reh’g en
banc denied (Mar. 27, 2017), cert. denied, 138 S. Ct. 204 (2017).
22 Nos. 19-1602, 19-1604 & 19-1605
Pellmann, 668 F.3d 918, 924–25 (7th Cir. 2012); Gatzimos v. Gar-
rett, 431 F. App’x 497, 501–02 (7th Cir. 2011); United States v.
Joseph, 709 F.3d 1082, 1099, 1102 (11th Cir. 2013); see also United
States v. Garrison, 888 F.3d 1057, 1064–65 (9th Cir. 2018); United
States v. Evans, 892 F.3d 692, 706–07 (5th Cir. 2018), as revised
(July 6, 2018); United States v. Oti, 872 F.3d 678, 688–89, 698
(5th Cir. 2017), cert. denied sub nom. Iwuoha v. United States, 138
S. Ct. 1988 (2018), and cert. denied sub nom. Okechuku v. United
States, 138 S. Ct. 1990 (2018); United States v. Elliott, 876 F.3d
855, 865–66 (6th Cir. 2017), cert. denied sub nom. Frial-Carrasco
v. United States, 138 S. Ct. 1314 (2018); United States v. Votrobek,
847 F.3d 1335, 1342–43 (11th Cir. 2017); United States v. Azmat,
805 F.3d 1018, 1035–36 (11th Cir. 2015).
Second, the plaintiffs contend that the follow-up clinic vis-
its either met or exceeded established medical standards. As-
suming for the sake of argument that they are correct, this ev-
idence still goes to their prescription validity defense, and
does nothing to change the fact that probable cause exists in-
dependent of the follow-up appointments. Granted, an excep-
tion is just as much a part of a statute as the rule itself is. Agent
Whisenand should not have omitted the statutory exception
to the physical exam rule for cross-coverage situations from
the probable cause affidavit. But that error is harmless here
because many patients received pre-signed prescriptions
without a doctor ever being present. The DORN plaintiffs do
not address this point.
What is more, taking the plaintiffs at their word, all the
propriety of the follow-up visits means is that the doctors
were operating within the usual course of professional prac-
tice. Agent Whisenand and his team could still have reasona-
Nos. 19-1602, 19-1604 & 19-1605 23
bly believed that the physicians were not issuing the Subox-
one prescriptions for a legitimate medical purpose because of
the number of pre-signed prescriptions. Again, this is par for
the course under the controlled substance laws. See Joseph, 709
F.3d at 1102 (holding evidence of providing pre-signed and
pre-dated prescriptions is sufficient to support federal crimi-
nal convictions under Controlled Substances Act); Chaney, 921
F.3d at 578, 592; Garrison, 888 F.3d at 1061, 1064–65; Evans, 892
F.3d at 698; United States v. DeLia, 906 F.3d 1212, 1215 (10th
Cir. 2018) (“While at the clinic, investigators confiscated 5,625
blank pre-signed prescriptions and a sign-out log showing
that the clinic’s staff had already used 4,330 pre-signed pre-
scriptions between March 1, 2010 and November 3, 2010.”).
Just as one might expect a reasonable doctor to have a
gauge on prescription authority, so too with a registered
nurse. Like her physician counterparts, the DEA could have
reasonably thought that Yvonne Morgan knew that it was un-
lawful to distribute pre-signed prescriptions. See Joseph, 709
F.3d at 1091, 1102 (recounting expert testimony that “a rea-
sonable doctor and physician’s assistant would know that it
is unlawful to distribute pre-signed prescriptions.”); United
States v. King, 898 F.3d 797, 803, 806 (8th Cir. 2018) (observing
in another pill mill prosecution that clinical nurses had direct
knowledge of standard operating procedures, including its
reliance on pre-signed prescriptions); United States v. Single-
ton, 626 F. App’x 589, 592 (6th Cir. 2015) (stating that a nurse
accused the defendant doctor of running a pill mill and telling
him that he “cannot do this”); United States v. Guzman, 571 F.
App’x 356, 363 (6th Cir. 2014) (noting that physicians tried to
modify the prescribing practices of a nurse practitioner who
consequently quit). Indeed, that is exactly what Agent
24 Nos. 19-1602, 19-1604 & 19-1605
Whisenand testified to. When questioned why a nonphysi-
cian would know that something was amiss at DORN, Agent
Whisenand specifically brought up Morgan but neglected to
explain why any of the other support staff would have
known.
That conclusion also mirrors the Indiana appellate court’s
finding in the State’s appeal in her criminal case. See Y.M., 60
N.E.3d at 1127 (reasoning that “a person of ordinary intelli-
gence would easily understand that agreeing with or assisting
a physician to distribute prescriptions for controlled sub-
stances—prescriptions that person knows to be invalid—is
proscribed conduct.”). The probable cause affidavit was ac-
cordingly on solid ground as applied to the providers.
2. Non-provider Employees
Ending with the non-provider employees, the probable
cause affidavit tells a different story about some of them. At
the start, let us focus on the non-providers that are just more
of the same. The affidavit—as it relates to Callahan, Tislow,
Bratcher, and Dollard—is sufficient to show that probable
cause existed to arrest those four individuals. The allegations
critical to this probable cause finding are that multiple under-
cover agents and former patients received pre-signed pre-
scriptions from all four on various occasions.
Obviously this was not the only evidence that Agent
Whisenand and his team had compiled; however, it is key be-
cause at least one court of appeals has held that evidence that
a layperson knew of a clinic’s use of pre-signed prescriptions
paired with the fact that she sometimes distributed them her-
self is sufficient to support a federal criminal conviction for
conspiracy to distribute controlled substances. See Chaney, 921
Nos. 19-1602, 19-1604 & 19-1605 25
F.3d at 592. Combined with the other facts unearthed by the
investigation, there was probable cause to arrest Callahan,
Tislow, Bratcher, and Dollard for conspiracy and corrupt
business influence.
As to Eric Ley, Reid, and Mackey, the affidavit did not es-
tablish probable cause to arrest these three non-provider em-
ployees. The key distinction here is that intent (or lack
thereof) is now the issue, not an affirmative defense. The clos-
est the affidavit comes to reaching probable cause for two of
the three (Ley and Reid) are the allegations that they handed
out prescriptions from doctors who had just signed them
without examining the patients. In Reid’s case, there was a
single report from an undercover agent that he received a
Suboxone prescription from Reid signed by Dr. Bangura, who
was in the office but did not personally meet with the agent.
In Mackey’s, though, all investigators and agents observed
Mackey do is walk in and out of the office with a clipboard,
taking people’s names down and arranging them outside, on
top of interacting with vehicles in the parking lot.
There is a wealth of authority that suggests evidence of
physicians who spend little to no time with patients is rele-
vant in a pill mill prosecution. See United States v. Stegawski,
687 F. App’x 509, 513 (6th Cir. 2017), cert. denied, 138 S. Ct. 282
(2017); Votrobek, 847 F.3d at 1342–43; Elliott, 876 F.3d at 865–
66; Oti, 872 F.3d at 684–85, 688, 698; Evans, 892 F.3d at 707;
Azmat, 805 F.3d at 1035–36; United States v. Singleton, 626 F.
App’x 589, 597 (6th Cir. 2015) (collecting cases); United States
v. Kincaid, 631 F. App’x 276, 280, 282 (6th Cir. 2015); United
States v. Dileo, 625 F. App’x 464, 475–76 (11th Cir. 2015); United
States v. Sawaf, 129 F. App’x 136, 142 (6th Cir. 2005).
26 Nos. 19-1602, 19-1604 & 19-1605
But only one of those cases concerned a physician who did
not examine patients at follow-up appointments when the physi-
cian re-prescribed opioids. See Stegawski, 687 F. App’x at 513. Ad-
ditionally, agents and officers in those cases always had addi-
tional evidence of wrongdoing, not just the fact that some-
body may have been aware that a doctor conducted little-to-
no physical exams.
In this case, all Agent Whisenand had to go on was that
doctors signed prescriptions and handed them to Ley and
Reid to give to the patients. There is no evidence that Ley and
Reid were “intimately involved with the schedules and pre-
scribing practices of [the] physicians.” Singleton, 626 F. App’x
at 597. They did not “pressure[] doctors to see large numbers
of patients,” or “ensure[] that patients receive[] the drugs they
wanted.” Id. (citing United States v. Johnson, 831 F.2d 124, 128–
29 (6th Cir. 1987) (explaining a clinic manager “was intimately
involved in virtually every facet of administrating the clinic,
including the hiring and firing of the doctors and staff, the re-
cording of the receipts and the prescriptions, and the supervi-
sion of the employees who actually handed out the prescrip-
tions and received the payments”)).
It is not as if these clerical employees filled out the pre-
scriptions themselves. Cf. Kincaid, 631 F. App’x at 280, 283;
Garrison, 888 F.3d at 1061 (detailing how a receptionist re-
ceived directives from the clinic’s operators to prescribe the
highest strength OxyContin to all patients regardless of ne-
cessity). The undisputed facts developed at summary judg-
ment do not show that Ley and Reid knew that the prescrip-
tions they were passing along were potentially invalid, espe-
cially when “cross-coverage situations” do not require inde-
pendent physical exams for prescription renewals. 844 Ind.
Nos. 19-1602, 19-1604 & 19-1605 27
Admin. Code 5-4-1. Agent Whisenand and his expert wit-
nesses acknowledged as much when they testified that the
law did not require an evaluation at each appointment.
The probable cause affidavit was lacking even more re-
garding Mackey. Again, the DEA essentially accused Mackey
of being a glorified valet, situating people and cars in the
parking lot. True, in some pill mill investigations, there is a
security guard that patrols the premises with a firearm. See,
e.g., Oti, 872 F.3d at 689. In Kincaid, for example, the security
guard: collected cash payments; issued receipts; allegedly
gave someone a pill; maintained a book of accounts; held onto
pharmacy contracts (one of which he signed); had multiple
pill bottles in his home when investigators searched it; and
possessed tens of thousands of dollars in a safe-deposit box.
631 F. App’x at 283. As it happened, that defendant was much
more than just a security guard.
Likewise, in Elliott, the security guard prevented investi-
gators from uncovering the truth behind the clinic’s practice.
876 F.3d at 863. He “chas[ed] away those who would watch
the property[,] … he warned patients of [investigators’] pres-
ence, [and he] shuttled bags of prescriptions back and forth to
a doctor for signature.” Id. It was this— “his work in facilitat-
ing … prescriptions, and his warnings about government sur-
veillance”—that transformed Elliott from innocent bystander
into coconspirator. Id. at 864.
Here, however, there were no facts alleged in the affidavit
that Mackey was ever armed, impeding investigations, han-
dling money, or possessing narcotics. On the face of the affi-
davit, it seems as if Mackey did not have much more than a
slight connection to the conspiracy. He was certainly not a
28 Nos. 19-1602, 19-1604 & 19-1605
major actor in it. Indeed, Agent Whisenand did not summa-
rize his individual criminal liability (or Reid’s or Dr. Ban-
gura’s) like he did for all the other DORN employees. Reading
the affidavit thus leaves the unmistakable impression that
Mackey, along with Ley and Reid, were caught in the cross-
hairs of the conspiracy.
“The concept of guilt by association is repugnant to our
notion of elemental justice and fair play.” Driebel v. City of Mil-
waukee, 298 F.3d 622, 651 (7th Cir. 2002) (citation omitted); see
also United States v. Jones, 713 F.3d 336, 352 (7th Cir. 2013) (col-
lecting cases); Boim v. Quranic Literacy Inst. & Holy Land Found.
For Relief & Dev., 291 F.3d 1000, 1022 (7th Cir. 2002) (same).
That is why, generally speaking, “it is necessary to establish
that the group possessed unlawful goals and that the individ-
ual held a specific intent to further those illegal aims.” Boim,
291 F.2d at 1022 (citations omitted).
On intent, while probable cause does not “require the
same type of specific evidence of each element of the offense
as would be needed to support a conviction,” Adams, 407 U.S.
at 149, it does require police to marshal “some evidence” of the
requisite mental state. BeVier, 806 F.2d at 126 (holding that the
police “needed some evidence” of intent to establish probable
cause under a statute proscribing knowing or willful conduct)
(emphasis added); see also Jordan v. Mosley, 487 F.3d 1350, 1355
(11th Cir. 2007) (concluding that a police officer needed “some
evidence” of intent to arrest an individual).
In this case, there is nothing in the probable cause affidavit
indicating the intent of Ley, Reid, or Mackey. What is more,
Agent Whisenand did not testify that he believed his investi-
gation had revealed that these three individuals intended to
Nos. 19-1602, 19-1604 & 19-1605 29
deal controlled substances. Agent Whisenand needed to ob-
tain some evidence that Ley, Reid, or Mackey acted knowingly
before he pursued them on charges of conspiracy to deal con-
trolled substances and corrupt business influence. There is
nothing in the record to show that he had any such evidence,
that he attempted to obtain it, or that he in any way directed
his investigation toward the elements of the crimes he ar-
rested Ley, Reid, and Mackey for committing.
We should further emphasize the points we have just
made about elements and investigations. First, one of the es-
sential elements of a conspiracy is the specific intent to com-
mit the underlying felony; in this case, dealing controlled sub-
stances. See Ind. Code Ann. § 35-41-5-2; Lawrence v. State, 665
N.E.2d 589, 592 (Ind. Ct. App. 1996); see also United States v.
Moore, 641 F.3d 812, 825 (7th Cir. 2011) (“The evidence was
directed toward Moore’s intent and knowledge in distrib-
uting drugs, which are crucial considerations in establishing
the intent necessary for conspiracy to distribute drugs.”);
United States v. Ross, 510 F.3d 702, 713 (7th Cir. 2007). So, too,
with corrupt business influence in Indiana, which implicitly
entails a specific intent to commit the underlying racketeering
acts. See Ind. Code Ann. § 35-45-6-2(3). Many predicate of-
fenses require specific intent themselves. Cf. Ritchie v. Taylor,
701 F. App’x 45, 47 (2d Cir. 2017) (“The various RICO predi-
cate acts Ritchie proposes all require specific intent.”).
When it comes to specific intent crimes, the need for prob-
able cause on the intent element is particularly acute. See Jor-
dan, 487 F.3d at 1355–56 (collecting cases). This is especially so
in the context of long, drawn-out investigations where officers
do not have to “definitively resolve difficult mens rea questions
in the few moments in which officers have to decide whether
30 Nos. 19-1602, 19-1604 & 19-1605
to make an arrest.” Wesby, 816 F.3d at 107–08 (Kavanaugh, J.,
dissenting from denial of rehearing en banc) (collecting
cases). Because officers must typically think on their feet, we
usually allow an inference of specific intent from the defend-
ant’s conduct. See United States v. Schwanke, 694 F.3d 894, 896–
97 (7th Cir. 2012) (collecting cases); Neiman v. Keane, 232 F.3d
577, 580 (7th Cir. 2000) (endorsing circumstantial evidence of
criminal motive); Stefani v. City of Grovetown, 780 F. App'x 842,
849 (11th Cir. 2019).
Moreover, we have “repeatedly held that it is up to the
courts, not police officers, to determine a suspect’s mental
state.” Shea v. Muensterman, 2 F. App’x 528, 529 (7th Cir. 2001)
(collecting cases). On the ground, it is not a police function to
“sort[] out conflicting testimony and asses[] the credibility of
putative victims and witnesses ….” Beauchamp v. City of No-
blesville, Ind., 320 F.3d 733, 745 (7th Cir. 2003) (collecting
cases); see also Hebron v. Touhy, 18 F.3d 421, 423 (7th Cir. 1994)
(“Police have a hard time evaluating competing claims about
motive; they are entitled to act on the basis of observable
events and let courts resolve conflicts about mental states.”);
Marks v. Carmody, 234 F.3d 1006, 1009 (7th Cir. 2000).
Agent Whisenand’s task was not to resolve credibility con-
flicts in a spur-of-the-moment judgment call. Quite the con-
trary, he led a yearlong investigation that amassed an array of
evidence. The trouble here is that there were no “competing
claims about motive” or “conflicts about mental states,” let
alone “observable events” on which to support probable
cause to arrest Ley, Reid, and Mackey. Hebron, 18 F.3d at 423.
Knowledge is a crucial element of the offenses Agent
Whisenand arrested these DORN employees for committing.
Nos. 19-1602, 19-1604 & 19-1605 31
Probable cause did not require Agent Whisenand to have cer-
tainty of their knowledge, but it did require some evidence—
enough to confer on him a reasonable belief that they had
committed criminal offenses—demonstrating that they had
that knowledge. What Agent Whisenand knew at the time he
arrested them was insufficient as a matter of law to establish
probable cause as to their mental states.
Second, “[r]easonable avenues of investigation must be
pursued especially when, as here, it is unclear whether a
crime had even taken place.” BeVier, 806 F.2d at 128. It is not
enough for an officer to choose not to explore further when
doing so would undoubtedly shed light on the situation. Cf.
Driebel, 298 F.3d at 644 (concluding that the police department
“conducted a legally adequate inquiry by interviewing the
victim … as well as numerous witnesses who gave sufficient
corroborating testimony ….”).
In these circumstances, without asking Ley, Reid, or
Mackey (or any non-provider employee) a single question
about DORN during the yearlong investigation—coupled
with his lack of any other information as to what they might
observed—Agent Whisenand had no “reasonably trustwor-
thy information” as to what they knew about potential crimi-
nal activity. Hunter v. Bryant, 502 U.S. 224, 228 (1991). This in-
formation, frankly, should not be that hard to come by in pill
mill prosecutions. See DeLia, 906 F.3d at 1215 (investigators
questioned the clinic staff); Chaney, 906 F.3d at 578 (officers
interviewed clinic employees). Without more, with the record
developed to date, the undisputed facts did not give Agent
Whisenand a reasonable basis to determine that they know-
ingly conspired to deal controlled substances and knowingly
corrupt business influence. We cannot draw any inferences
32 Nos. 19-1602, 19-1604 & 19-1605
from the absence of this information from the record now,
which means Agent Whisenand lacked a reasonable basis to
believe critical elements of the crimes existed then.
In sum, Agent Whisenand had to have some information
from which a reasonable officer could conclude that Ley,
Reid, and Mackey knowingly conspired to deal controlled
substances and knowingly corrupted business influence. But
there was no evidence introduced at summary judgment from
which Agent Whisenand could have inferred what those
DORN employees knew—an indispensable element of the of-
fenses. Some evidence of that knowledge is necessary to es-
tablish probable cause that the DORN employees committed
crimes. To hold otherwise would leave vulnerable to arrest
any individual who unknowingly worked at a pill mill, no
matter how innocent they are.16 The Constitution prohibits
such a result.
C. Qualified Immunity
The question remains whether “a reasonable officer would
have known that the evidence provided to support the war-
rant failed to establish probable cause.” Brunson, 843 F.3d at
709 (citing Williamson, 714 F.3d at 442); see also White v. City of
Chicago, 829 F.3d 837, 842 (7th Cir. 2016). Agent Whisenand
faces personal liability only if “‘courts have clearly held that a
16We reject the DORN employees’ theory that ill will or malice moti-
vated Agent Whisenand and his investigation. See Gerald M. v. Conneely,
858 F.2d 378, 381 (7th Cir. 1988) (“If probable cause exists, an arrest is not
tainted because a police officer may dislike one of the actors in the under-
lying dispute, unless this is shown to be an important factor in the deci-
sion.”). The DORN employees merely speculate on this point.
Nos. 19-1602, 19-1604 & 19-1605 33
materially similar affidavit previously failed to establish
probable cause under facts that were indistinguishable from
those presented in the case at hand’ or if ‘the affidavit is so
plainly deficient that any reasonably well-trained officer
would have known that his affidavit failed to establish prob-
able cause and that he should not have applied for the war-
rant.’” Edwards, 907 F.3d at 1060 (quoting Koerth, 312 F.3d at
870).
Courts have not held that a materially indistinguishable
affidavit previously failed to support probable cause. The
analysis thus turns to whether the affidavit was so clearly de-
ficient that any reasonable officer would have known that
there was no probable cause and that an officer should not
have applied for the warrant. We conclude that Agent
Whisenand could have reasonably believed there was proba-
ble cause to attest that Ley and Reid—but not Mackey—had
the requisite criminal mens rea to commit the crimes with
which they were charged.
There is a dearth of Indiana case law touching on intent in
drug conspiracy and racketeering cases, not to mention pill
mill prosecutions. Conspiracy and racketeering statutes are
broad by design. Of course, lack of intent will always be a
defense to a charged crime and therefore a potential defect in
a probable cause affidavit. But, on that score, the caselaw
leaves a lot to be desired. It is clear, though, that many federal
investigations have homed in on physical examination prac-
tices in so-called pill mills. Because the law in this area re-
mains undeveloped, officers of reasonable competence could
disagree on whether arrest warrants should have issued
based on Ley and Reid’s minimal knowledge of DORN’s
34 Nos. 19-1602, 19-1604 & 19-1605
physical exam practices. Cf. Whitlock, 596 F.3d at 413. Quali-
fied immunity therefore protects Agent Whisenand from Ley
and Reid’s lawsuits.
Conversely, a reasonably competent officer should have
known that there was no probable cause to believe that
Mackey had the intent vital to the offenses that the warrant
issued to arrest him for committing. See Belcher v. Norton, 497
F.3d 742, 749 (7th Cir. 2007), as amended (Nov. 19, 2007); see also
Malley, 475 U.S. at 345; Whiteley v. Warden, Wyo. State Peniten-
tiary, 401 U.S. 560, 565 (1971). Since at least 1986, it has been
clear to reasonable officers in this Circuit that they must har-
bor “some evidence” of a crime’s mens rea to support proba-
ble cause to arrest. See BeVier, 806 F.2d at 126; see also Belcher,
497 F.3d at 748–50; Juriss, 957 F.2d at 349–50. 17 We think that
is especially true in a case like this one: a yearlong investiga-
tion that culminated in an arrest warrant application based on
specific intent crimes.
Here, there was no evidence that Mackey ever dealt with
the medical providers, let alone knew of their alleged miscon-
duct. When confronted with how a lay employee would know
that DORN was debatably violating a civil regulation, Agent
Whisenand answered: “I would say to that the judge obvi-
ously agreed with that. They didn’t know. They wouldn’t know.
That’s why their charges were dismissed.” Then, when spe-
cifically asked about Mackey’s knowledge (or lack thereof) of
DORN’s medical exams in his deposition, Agent Whisenand
initially replied that Yvonne Morgan, the nurse, would have
known about it. The attorney then pressed Agent Whisenand
17
We are certainly not alone in acknowledging this unexceptional
proposition of law. See Jordan, 487 F.3d at 1355.
Nos. 19-1602, 19-1604 & 19-1605 35
to respond to how Mackey would have known this, and
Agent Whisenand said: “I don’t know. I don’t know how to
answer that. I don’t know.”
When questioned later whether any of the low-level cleri-
cal staff or the parking lot attendant (Mackey) knew that doc-
tors were prescribing medication without a legitimate pur-
pose, Agent Whisenand stated: “I don’t know. I can say that,
you know, ultimately the charges – the State determines the
charges, who gets charged and what they’re being charged
for.”
Analyzing Agent Whisenand’s testimony alongside the
rest of the evidence in the record, we conclude that the undis-
puted facts do not demonstrate that a reasonably well-trained
officer would have known that this affidavit established prob-
able cause to arrest Mackey. There was no evidence admitted
at summary judgment that Mackey had knowledge of
whether the prescriptions handed out at the clinic were illegal
or not. Because the affidavit was “so lacking in indicia of prob-
able cause as to render official belief in its existence unreason-
able,” Agent Whisenand should have known that he should
not have applied for the warrant to arrest Mackey. Malley, 475
U.S. at 345.
At oral argument, we questioned counsel for Agent
Whisenand about our concerns surrounding the non-pro-
vider employees. Counsel responded:
So, if you look at the facts of the probable cause affida-
vit, and um, also these undercover videos, you would
see that, what you deem the ‘clerical employees’ were
mainly office managers, meaning they were running
36 Nos. 19-1602, 19-1604 & 19-1605
the office. They were printing off prescriptions, hand-
ing them to the patients; sometimes, they were the only
employee that the patient ever saw.
And so, while the appellants have tried to deem the
non-medical employees as having very little involve-
ment, in fact they were the central—in many cases—
they were running the office. They, they were the only
person with whom a patient ever had an interaction.
Tailoring our inquiry to Mackey, we asked again but this
time only about him. Counsel for Agent Whisenand replied:
Again, your Honor, we would point you to the proba-
ble cause affidavit and, and, the undercover visits. The
plaintiffs have called Mr. Mackey the ‘parking lot at-
tendant.’ He was hired initially to be—to control the
traffic—and to make sure no violent acts or drug deals
were going on in the parking lots. He took on a larger
role later. Um, he was bringing patients in, he was in-
volved in—you are correct, the Kokomo office—um,
his involvement became more extensive as time went
on.
We cannot square these answers, however, with the alle-
gations Agent Whisenand included in the probable cause af-
fidavit. It is worth noting that Agent Whisenand referred to
Mackey five times in his fifty-six-page affidavit. Mackey ap-
pears on pages 26, 43, 46, 48, and 51. We will walk through
each identification one-by-one:
• Page 26: Seen entering the DORN Kokomo office
was on this date [November 13, 2013] was Eric Ley.
This office had a person (identified as Joseph Mackey)
Nos. 19-1602, 19-1604 & 19-1605 37
located outside the office in the paring lot with a clip-
board taking names and arranging people.
• Page 43: On April 16, 2014, TFO [Task Force Officer]
Davie Richardson acting in an undercover capacity
traveled to the assigned DORN office located 38217
South LaFountain Street, Kokomo, Indiana, and met
with Joseph Mackey, Felicia Reid, and Cassy Bratcher.
At the conclusion of the visit, TFO Richardson received
a Suboxone prescription for “dependency” signed by
Dr. Bangura in exchange for $80.00 cash. TFO Richard-
son received his prescription from Bratcher as she
handed out prescriptions to several other unknown pa-
tients in the DORN waiting room.
• Page 46: On May 14, 2014, TFO Dave Richardson
acting in an undercover capacity traveled to his as-
signed DORN office located at 3827 South LaFountain
Street, Kokomo, Indiana, and met with Joseph Mackey
and office assistant Felicia Reid. After submitting a
urine screen (due to being an insurance patient) and
paying $160 cash, TFO Richardson received a Subox-
one prescription for “dependency” from Reid that was
signed by Dr. Bangura.
• Page 48: On June 11, 2014, TFO Dave Richardson
acting in an undercover capacity traveled to his as-
signed DORN office at 3827 South LaFountain Street,
Kokomo, Indiana, where he met with Joseph Mackey,
Felicia Reid, and Cassy Bratcher. TFO Richardson re-
ceived a two week prescription for Suboxone signed by
Dr. Bangura but never met with Dr. Bangura. TFO
Richardson was told by Cassy Bratcher that TFO Rich-
ardson had to “exit” from the program due to TFO
38 Nos. 19-1602, 19-1604 & 19-1605
Richardson’s urine drug screens failing to show bu-
prenorphine in his system.
• Page 51: On July 19, 2014, TFO Tonda Cockrell and
TFO David Richardson conducted surveillance on the
DORN office at 3827 S. Lafountain Street, Kokomo, In-
diana in an attempt to identify the parking lot “ar-
ranger” known as “Joe.” TFO Cockrell observed Dr.
Bangura, Cassy Bratcher, Felicia Reid, and “Joe” at the
premises. “Joe” was seen going in and out of the build-
ing and interacting with persons and vehicles in the
parking lot … “Joe” was observed leaving around 7:17
p.m. in a Chevy Suburban. He was stopped by Ko-
komo Police Sgt. David Foster for a traffic violation. He
was identified by Sgt. Foster as Joseph A. Mackey.
Agent Whisenand seemingly faults the plaintiffs for call-
ing Mackey the “parking lot attendant,” when Agent
Whisenand views Mackey’s role as remarkable. The problem
with that theory is that Agent Whisenand himself referred to
Mackey as the “parking lot arranger.” More importantly, it
apparently took the investigators nine months to identify
Mackey, a man they surveilled “taking names and arranging
people” on one occasion and “going in and out of the building
and interacting with persons and vehicles in the parking lot”
on another. The other remaining entries in the affidavit
merely state an officer “met” with Mackey and others at the
Kokomo office on three different dates. Crucially, the officer
never described Mackey’s participation in or awareness of the
prescription transactions.
We are therefore left with a lack of evidence—either in
Agent Whisenand’s affidavit or the record more generally—
giving him probable cause to arrest Mackey for intentional
Nos. 19-1602, 19-1604 & 19-1605 39
criminal conduct. Maybe that is why Agent Whisenand ne-
glected to summarize Mackey’s individual criminal liability
in the affidavit. Mackey was not, as Agent Whisenand’s coun-
sel described many non-provider employees, an “office man-
ager[] … running the office.” He was never “the only person
with whom a patient ever had an interaction.”
Contrary to counsel’s contention, the record currently be-
fore us indicates he did not take “on a larger role later.” Per-
haps there is evidence that Mackey took on a larger role later,
but that evidence was not so clear and undisputed that it was
included in the motion for summary judgment. According to
the affidavit, he was not “bringing patients in”; as a matter of
fact, he was “arranging people” and “interacting with persons
and vehicles in the parking lot.” That is far from the formida-
ble, “extensive” involvement that counsel sees in Mackey’s
file. Hence, these allegations simply cannot add up to proba-
ble cause to arrest Mackey.
One cannot be oblivious to the ongoing opioid epidemic.
Indiana itself is no stranger to a recent outbreak of overdoses.
See, e.g., Press Release, U.S. Dep’t of Justice, Justice Dep’t
Awards More Than $333 Million to Fight Opioid Crisis:
$2,446,664 will support efforts to combat drugs and crime in
the S. Dist. of Ind., (Dec. 13, 2019), https://www.justice.gov
/usao-sdin/pr/justice-department-awards-more-333-million-
fight-opioid-crisis. We recognize the important part the police
must play in responding to this public health crisis, and that
physician-run pill mills perpetuate this plague. On the record
before us, however, we cannot sustain Mackey’s arrest under
the Fourth Amendment’s Warrant Clause.
40 Nos. 19-1602, 19-1604 & 19-1605
D. Remaining Issues
As to the other arguments raised by the parties in their
briefs, we can leave those in the capable hands of the district
court to address in the first instance. The district court’s deci-
sion rested on probable cause, and in the alternative, arguable
probable cause, so it never had occasion to analyze malicious
prosecution and false arrest claims under state law (if the
plaintiffs so pleaded); Aaron Dietz and the City of Carmel’s
level of participation in the plaintiffs’ arrests; the United
States’ amenability to suit; and any relevant defenses,
whether they be forfeiture, immunity, or lack of notice. Our
disposition on appeal—grounded in probable cause and qual-
ified immunity—leaves only Mackey’s claim(s) still live, so
that should streamline these matters on remand.
III. Conclusion
For the reasons stated above, we AFFIRM the district
court’s judgment in all respects except as to Joseph Mackey.
As the judgment pertains to him, we REVERSE AND REMAND it
for further proceedings consistent with this opinion.