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VERNAL — Two Vernal residents say they intend to sue the state of Utah and Vernal City, claiming that a police detective improperly accessed a prescription drug database and used the information he obtained to steal painkillers from them.
Russell Wayne Smithey, 42, and Candy Jean Holmes, 37, are seeking $2 million dollars from the state and the city, according to one of their attorneys, Troy Walker.
"It's a case about a police officer who, acting under color and authority of law, uses his position as a police officer to violate the Fourth Amendment rights of our clients," Walker said.
"It's also a case about the state of Utah...providing and creating a system that also violates the Fourth Amendment rights of these clients and all the rest of us," he added.
That system is the Utah Controlled Substance Database, according to Walker, which was first created in 1995 and then expanded two years ago. It collects and tracks all information on prescription drugs dispensed by pharmacies in Utah. Its use is restricted to doctors, pharmacists and law enforcement officers for the purpose of identifying patients or doctors who might be overusing, over-prescribing or abusing of prescription drugs.
Police can access the database by providing an active case number, and they are supposed to have probable cause before accessing an individual's prescription information.
Former Vernal police detective Ben M. Murray ignored those requirements when he looked up Smithey and Holmes' information and went to their home several times in 2011, Walker said.
We think that this officer accessed the prescription database that our state keeps on all of us, every single one of us.
–Troy Walker
"The officer used that system freely and was able to track these individuals and figure out when they got their prescriptions, how many pills they had," the attorney said. "He comes in gun, badge, uniform (and) tells them he's there for a 'pill count' and ... while they're talking and distracted, he's grabbing pills and putting them in his pocket."
Smithey and Holmes, who both have extensive criminal histories, set up a hidden video camera in their home and recorded one of Murray's visits in late 2011. They gave the tape to one of their attorneys, who handed it over to the Utah Attorney General's Office.
Murray was on duty Aug. 11 when he was arrested by investigators with the Utah Attorney General’s Office. He was booked into the Salt Lake County Jail that day for investigation of burglary, but has not been charged with a crime.
"On the Murray matter, we have nothing we can say at this point," attorney general's spokesman Paul Murphy told the Deseret News when asked about the case Wednesday.
But Murray's defense lawyer, Loni DeLand, said he has been working with state prosecutors since his client's arrest to resolve the case.
"They were going to charge him. They're still going to charge him, and my client's going to plead guilty as charged," DeLand said. "It's been that way since day one."
The delay in charging Murray stems from allegations by other individuals after his arrest that the former officer also burglarized their homes for prescription drugs.
"We've had to stop negotiations so (the state) can investigate those claims before moving forward on our plea bargain," DeLand said. "They're baseless claims, and each time that happens, we have to delay."
A 12-year veteran of the Vernal Police Department, Murray resigned the day after his arrest.
A jail report indicates that he took prescription medication from a home on Aug. 1 and Aug. 11. "Post- Miranda, (Murray) admitted taking the prescription medication. The dwelling was occupied at the time of both thefts,” the report states.
Walker said Murray's case should have been a wake-up call for the state — that it should have implemented more stringent controls on the prescription database after his arrest — but apparently, the state did not.
To get a password, from what we've been able to ascertain, is not very difficult. And once you have that password, you're able to log onto the system and you can look at anyone.
–Troy Walker
"To get a password, from what we've been able to ascertain, is not very difficult," Walker said. "And once you have that password, you're able to log onto the system and you can look at anyone."
The state Division of Occupational and Professional Licensing, which operates and maintains the database, declined to comment on the allegations made in Smithey and Holmes' notice of claim. The agency did, however, release a statement Wednesday.
"It is the Utah Legislature that allows law enforcement to access the Controlled Substance Database," the statement said. "If legislators want to amend the statute to limit access to medical practitioners, then that would be their call to make."
DOPL also noted that the "terms of use" for the database makes it clear that "any attempt to obtain information from the database by fraud, deceit, or subterfuge" or "unauthorized use of this information" is a third-degree felony.
Rep. Brad Daw, R-Orem, helped craft the legislation that expanded the database in 2010. He said the allegations against Murray demonstrate that government is often "behind the curve" in finding ways to adequately secure private information.
"It's something that we continually need to be addressing and monitoring," Daw said, pledging to "bring a group together and craft a solution that would be effective at stopping this kind of abuse."
The state and the city have 60 days to respond to Smithey and Holmes' notice of claim, Walker said.
"If they decide to deny it or they don't want to settle with us," he said, "then the next step for us will be filing a lawsuit in federal court."
