*1 petition rehearing for is denied and suggestion rehearing en for banc is RAZEY, Plaintiff-Appellant, Harvey B. rejected. HECKLER, Secretary Margaret M. Services,
Health and Human
Defendant-Appellee.
No. 85-3639. Appeals,
United States Court
Ninth Circuit. America, UNITED STATES Argued Oct. 1985. and Submitted Plaintiff-Appellee, 1, 1986. April Decided July As Amended 1986. HAYES, Defendant-Appellant. R. Jude No. 84-1276. Appeals,
United States Court of Ninth Circuit. Wash., Spokane, for Stephens, P.
Robert Argued and Submitted Nov. 1985. plaintiff-appellant. 9,May Decided Seattle, Wash., Wetmore, for de-
Richard
fendant-appellee. ALARCON, GOODWIN,
Before
POOLE, Judges. Circuit
ORDER opinion amend its panel has voted to 1,1986, 785 F.2d April on
filed herein page following paragraph on adding “AFFIRMED”:
1431 before reach, express opin- do not no preclusive ef- upon,
ion the issue of the any case on other case
fect of this of a Razey may be a member class, any
plaintiff express nor do we
opinion upon effect of such other upon
cases this case. amendment, panel has vot-
With rehearing deny petition
ed to for and to suggestion rehearing
reject for en
banc.
The full court has been advised
suggestion rehearing en and no banc requested judge
active has a vote matter en banc.
whether to rehear 35.)
(Fed.R.App.P.
offices. The executed the search warrants seized over 200 medical files. Hayes then instituted a civil action for records, alleging the return of the issued warrants were unconstitutionally overbroad. district court in the civil *3 action concluded that the warrants were overbroad and ordered all of the seized records and documents to be returned un- Hayes 1, by February less was indicted 28, 1983, January 1983. On a federal grand jury Hayes indicted on 640 counts of prescribing pa- his tients violation of the Act. The indict- Hayes’s ment focused on treatment of 20 patients three-year period; over a each scription drug of a Schedule II constituted separate count. Fresno, Leighton, Cal., plain- Brian C. trial,
tiff-appellee. Hayes suppress Prior to moved to the evidence seized from his offices on the Parham, Porterville, Cal., Dale Alan Der- probable basis that there was no cause to showitz, Mass., Cambridge, for defendant- issue search warrants and that appellant. general, overbroad, warrants were and vio
lated the fourth amendment. A different held, judge district denied his motion and contrary by judge to the decision in the action, civil warrants were not WALLACE, ANDERSON, Before argued Hayes overbroad. never PREGERSON, Judges. Circuit decision the court in the civil action collaterally estopped the court the crimi WALLACE, Judge: Circuit considering validity nal action from Hayes appeals from his conviction for Therefore, the warrant. we will not con prescribing patients II See United appeal. sider that issue on Act, violation of the Controlled Substances 765, Lasky, States v. (9th 769 (the Act). 841(a)(1) 21 U.S.C. He con- § denied, Cir.), cert. 444 U.S. improperly tends in- jury was Mahoney v. structed and that the should States, (D.C.Cir. United 255 been allowed to introduce evi- 1969). pursuant dence his office secured records trial, eight-week jury After an re- jurisdiction to search warrants. haveWe Hayes turned convictions 281 counts. 28 under U.S.C. and we affirm. § years prison was sentenced to three probation three-year a consecutive term of I $100,000. and was fined physician patients is a and treats Porterville, Farmersville, at his offices in Ivanhoe, receiving California. After the district
information that
contends
Act,
jury in
supplemental
medication in
court’s initial and
violation of the
Drug
A defendant is
the United States
Enforcement Ad-
structions were erroneous.
jury
ministration
from fed-
entitled to a
instruction on a defense
obtained warrants
magistrate
theory
theory
if the
has a basis
law and
Hayes’s
eral
to search
three
Coin,
in the record. See United States v.
the usual
professional
course of his
prac-
Cir.1985) (per
tice.
F.2d
cu
riam).
adequacy
jury
The
instruc
questions
before
pertain
raised
us
tions, however,
is determined
examining the fourth
element.
court instructed
See United
a whole.
the instructions as
jury
meaning
good
about the
faith:
Wellington,
faith means an honest effort
[G]ood
—
(9th Cir.) (Wellington),
prescribe
patient’s
for a
condition in ac-
—,
S.Ct.
U.S.
cordance with the standard of medical
proposed
to refuse a
(1985).
not error
“[I]t
practice generally recognized and accept-
the other
long
instructions
instruction so
ed in
Mistakes,
the country.
course,
theory.”
entirety cover
in their
faith____
good
not a breach of
Kenny,
You
agree
need not
with or believe in a
Cir.),
practice
profession,
standard
but
3059,
A. (9th Cir.) (Boettjer), In Hayes contends that the jury initial Boettjer, jury we a reviewed instruction concerning instructions the elements of the which stated physician that to convict a charged offense with which he was were distributing Schedule II in violation misleading. The jury court instructed the Act, jury beyond had to find a prove must prescription reasonable doubt that was Hayes “knowingly did an act which the law good “other than in issued a forbids, purposefully intending to violate faith for legitimate purpose medical and in ac the law.” The read jury court to the cordance gen with the medical standards part 841(a)(1) relevant of 21 U.S.C. and § erally recognized accepted and in the then instructed them that order to con profession.” medical Id. at 1081 (empha Hayes they vict original). expressed sis We concern in must find as to each those counts that Boettjer jury could have interpret proven beyond Government has a ed this in three conflicting instruction reasonable doubt each of the elements ways, per but concluded that there was no necessary 1) to establish the offense: suasive showing prejudice of actual and Hayes, defendant, That Dr. Jude R. was precise that a more instruction would not registrant a to dispense authorized con- deliberations. Id. at jury’s have altered the trolled legitimate substances for medical 1081-83. purposes; 2) That defendant know- ingly intentionally argument prescrip- issued a raises a similar here. tion; 3) prescription given That the He contends was for a the instructions permitted jury narcotic controlled to convict him if he substance alleged; 4) good as That the acted in failed to prescription faith but conform to is, good practices was issued him other than in standard a con- medical —that faith, legitimate purpose, negligence. Hayes’s argu- for a medical in viction based on If a narcotic addict and the in isolation a were only if we read weighty isment complaint addiction or prescrip- only a medical was states that which the instruction withdrawal, Hayes than in could not have issued “other have been issued tion must pur- good faith, legitimate faith. The instruction for a good professional only complaint his course of refers to “a medical pose, in the usual instructions, proper Jury addiction or as a practice.” than withdrawal” drug in the context as a whole for a Schedule must be viewed basis Wellington, trial. See drug Any vagueness in the in- the entire addict. jury court’s light In of the district at 1463. since section struction favored good specific intent 1306.07(c) permits prescribing instructions narcotic jury faith, how the could to see we fail drugs to narcotic addicts “intracta- permitting interpret the instructions possi- no relief or cure is pain ble negligence. mere finding guilt based on after reason- or none has been found ble very argument in Indeed, rejected able efforts.” Id. concluding strains Boettjer after “[i]t doubt, the instructions could Without jury could have imagine that the belief to improved. as a been When viewed finding into the defendant misled been whole, however, jury the initial instructions if his actions in accordance guilty relating to given by the district court both Boettjer, medical standards.” 841(a)(1)violation the elements of a section original). (emphasis in F.2d at 1082 exception Act’s medical were suffi- confusion any possible emphasized contends that cient. But further dealing eliminated later instructions *5 correctly if instructions even the initial relationship stan- faith and its to good law, confusing, and the stated Id. practice. at 1082. of medical dards compounded the con- that the district court language Although precise could more supplemental in its instructions to fusion used, reach the same conclu- have been jury. the in case. sion this B. jury instructed the The court also against pre prohibition Act’s about the deliberating, jury the sub While drugs II for detoxifica scribing Schedule questions to the four mitted substantive and maintenance addiction: tion that the Hayes court. contends district ex responses the medical court’s misstated is not or addiction Narcotic withdrawal additional confu ception and thus created justifying medical condition a sufficient concerning necessary elements for the sion administering of a nar- prescribing or 841(a). section We a conviction under Therefore, if cotic controlled substance. “ necessity, extent and that stated ‘[t]he the defendant ... wrote you find that instructions of additional character prescription for a narcotic control[led] the sound discretion matters within did addict who substance on a narcotic ” Collom, v. trial court.’ United States complaint other than not have a medical Cir.1979) (Collom), (9th requiring the or withdrawal addiction 446 U.S. controlled substances type of narcotic quoting Wilson (1980), 64 L.Ed.2d pre- the issuance of said prescribed, then States, F.2d good faith in scription not be would time, district Cir.1970). At the same practice professional usual course of responsibility to eliminate court has purpose. legitimate medical for a clarification jury asks for confusion when a improper “be- argues that this is Hayes particular issue. See United of a to objective test as imposes it an cause Cir.) (per McCall, F.2d complaint of a medical the existence both curiam), of treatment.” appropriateness 2061, instruction, however, properly states The 1306.07(c)(1985). jury first asked: The See the law. C.F.R. § expert drug on not [Assuming an abuse his discretion in not answering dependence and understands conse jury’s question directly. The court’s quences medication,] restatement of the initial instruction was guilty be would Dr. adequate. Collom, See at 631. charged in case if after the med’s jury legal The any then asked: “Is it for assumptions considering the noted above physician prescribe prescribe we felt Dr. didn’t pain long relieve physi- for a time as the drug or them for maintenance addiction pain cian present?” believes the to be The for prescribed and he the med’s judge always. physi- answered: “Not legitimate reasons such as moderate to weigh cian must the risk of addiction sincerely pain that he felt severe existed (and against the benefits see the answer to any patient[?] any Would individual other questions).” Hayes’s counsel ac- guilty charged of the crimes [doctor] knowledged weighing of the risk under these circumstancesf?] of addiction versus the of a benefits Sched- the jury: The district court answered “If II drug argued, ule relevant. was He how- good Dr. Hayes prescribed the ever, jury specifical- should also be legitimate purpose faith for ly pre- instructed the duration of a professional practice usual course scription alone-does not the prescrip- make prescribe drug did them for not mainte- illegal. tion see no error the court’s nance he is guilty.” Hayes or addiction not give refusal this additional instruction agreed supplemental to the court’s instruc- response since the jury’s court’s tion, except he “did felt the inquiry adequately jury referred the to the drug scribe them maintenance addic- relevant considerations. confusing language tion” since the Lastly, jury asked: jury’s question assumed that he did not do meritless, opinion has expressed so. been This contention is for the our hinges incorporates decision we can plainly court’s answer whether deter- mine, doubt, question’s beyond assumption. reasonable whether pain fact existed. The conclusion The jury pa- next asked: “If we find a *6 opinion based on this is that since no tient was an addict and the doctor treated degree human can determine the of an- drugs, his addiction II Sched[ule] person’s pain, we cannot rule on patient the experienced pain, chronic pain. the or of exist[e]nce nonexist[e]nce pain the doctor treated the chronic in a effort, good faith how would we find— The court answered: “The existence of guilty or guilty?” The court answered: pain only question is not the involved. The
I
question directly.
can not answer this
jury
must determine whether
not the
In the
case of the treatment
a
good
painful
Doctor in
faith
that a
believed
addict,
you
who is an
factors
all
the
that
the
condition existed
warranted
mentioned must be considered
scription
peri-
II
for
of Schedule
the
order to
or not
determine whether
the
dosages
Hayes
od of time and
involved.”
prescribed
argues
subjective
that
this obscures the
good faith,
legitimate
pur-
for
good
Hayes’s
suggest-
element of
faith
pose
professional
in the usual
course
ing
pain
that
must exist. The court’s an-
practice.
however,
swer,
clearly
pain
that
is
stated
only
jury
not the
and that the
consideration
Hayes objected ground
the
that under
good
if
physician
must determine
the
Boettjer the
been
answer should have
“not
pain
faith believed that
existed.
guilty.”
disagree.
An answer of “not
“warrant-
argues
also
that use of the term
guilty” might
jury
have misled the
into
suggested
jury
to the
prescription”
ed the
believing
Hayes could
addiction
treat
applied.
drugs,
that an
test should be
objective
with Schedule II
he could not
only
judge
that term refers
Consequently,
do.
did When read
context
district
—
denied,
U.S. —,
75,
good faith.
cert.
106 S.Ct.
subjective
to the doctor’s
(1985).
There
no error.
requires
The fourth amendment
C.
particularly
that “warrants shall
describe
arguments relat-
Hayes raises two other
things
general
to be seized
makes
[and]
He contends
jury instructions.
ed to the
impossible.”
searches under them
Marron
impermissibly shifted
that the instructions
States,
192, 196,
v. United
U.S.
disagree.
him. We
proof
the burden
76,
(1927).
par
Thus,
reject Hayes’s argument that the
We first examine whether
circumstances of this case caused section
government’s affidavits can be considered
841(a)(1)
unconstitutionally vague as
to be
determining
partic
if the warrant lacked
applied.
may
ularity. An affidavit
be relied on to
provide
requisite particularity
in an oth
III
(1)
only “if
erwise overbroad warrant
contends
warrant,
(2)
accompanies the
affidavit
of his three offices were
the search
uses suitable words of refer
*7
warrant
general
facially
and authorized a
overbroad
incorporate the affidavit there
ence which
in violation of the
search and seizure
1340;
Hillyard,
in.”
677 F.2d at
see Unit
The
and
amendments.
fourth
fourteenth
Belonging
Talk
Property
ed
to
of
any lack of
district court concluded that
Inc.,
Bookstore,
Town
644 F.2d
particularity in
was eliminat
the warrants
(9th Cir.1981) (Talk
the Town
1319
support
by
ed
the affidavits submitted
Bookstore).
and, alternatively,
warrants
Here,
disputed
is
whether
general
it
description in the warrants
incorporated the affi
descrip
adequately
permissible
precise
more
warrants
because a
reference,
by
but it is clear that
novo davits
possible.
tion was not
We review de
accompany the
did not
warrants.
affidavits
the district court’s conclusion
war
concluded that
The district court
facially
were not
overbroad. See
rants
“be used to
McClintock,
government’s affidavits could
United States v.
may be
Cir.1984) (McClintock),
any particularity which
supply
1282
warrant,”
missing
from the
and that the
contends
requirement
accompany
that an affidavit
are overbroad on their face
because
challenge
the warrant is relevant
to a
permitted the
officers
examine thou
disagree.
that a search is overbroad. We
patient
sands
files. The number of files
purpose
accompanying
of the
affidavit
scrutinized,
could be
is not
clarifying a
is both to
warrant
limit the
determinative. The search and seizure of
per-
officer’s discretion and to inform the
large quantities of
justified
material is
if
subject
son
to the search what items the
scope
material
is within the
executing
officers
the warrant can seize. probable
underlying
cause
the warrant.
Bookstore,
Talk
the Town
644 F.2d at
McClintock,
1283;
United
B. now examine whether warrant on magistrate probable found its face is overbroad and violation of the cause to issue the warrants based on an magistrate fourth amendment. The issued complaint affidavit that by described one warrants, three for each of Hayes’s one patient, by statements an undercover offi offices, that authorized officers to seize cer, testimony by Hayes’s reception one of (1) (mependine), morphine demerol sul ists, testimony of a medical consultant substance; (2) fate and other controlled who Hayes’s prescription reviewed records purchas all records which document pharmacies for Schedule II at 15 ing, dispensing of con California, County, Tulare and concluded substances, including, trolled lim but not there high probability was a to, patient ited contained in records abetted, Hayes “caused, or prolonged required charts and all relevant records or habituation controlled sub addi[c]tion be maintained Title of the Code magistrate probable stances.” The found Regulations, of Federal Part 1300 to end cause seize all controlled substances and Sections 11190and of the Cali all procuring, records that related to the Code; (3) Safety fornia pa Health and transferring, administering, prescribing, or logs, tient appointment books and other dispensing of controlled substances. On ledgers reflecting records and distribu appeal, Hayes challenge does not this de substances1; (4) tion of controlled corre probable cause. termination of The fact spondence concerning procuring, discovered, upon that the officers arrival at transferring, administering, prescribing offices, 10,- the three that there were over dispensing of controlled substances files not detract from the does Dr. Hayes; all of which constitute evi magistrate’s finding probable initial possible dence of of 21 violations USC 841(a)(1) 843(a)(3).2 and 21 cause. USC warrants, departure provision 1. In two of the that such a failure was a from normal read: Dissent, "patient logs, appointment procedures. p. n. 1. The books office and other *8 reflecting patient ledgers however, records and attorney, visits to United States also stated that Hayes employees, constituting Dr. or his evi- drafting he warrants and affida- assisted illegal dence of of controlled distribution sub- only departure vits. The from normal office stances." procedures to review was his failure the final they drafts of the warrants before affidavits and
2. The states the United States attor- dissent magistrate. were submitted to the argument ney admitted oral that he did not at draft or review the warrants affidavits and 1356 per- the war cers did not seize all the materials contends that
Hayes also
for the
warrant does not mean that
to
standards
mitted
provide
failed
rant
possessed
type
files
dis-
distinguish
they
between those
of unfettered
to
officers
they
and
seize
those
cretion that violates the fourth amendment.
the officers could
should
the warrants
could not and
We also conclude that
the war
dis
narrowly drawn. We
more
have been
narrowly
rants need not have been more
“some
of this nature
agree.
In searches
Hayes
drawn.
contends that
officers
examined,
will be
at
documents
innocuous
concerning
possessed information
58 cases
to
cursorily,
in order
determine
least
potential
involving
Schedule II
violations
fact,
are,
among those
whether
have
drugs and that
should
to be seized.” Andresen
papers authorized
Such
been limited to those 58
files.
11,
463,
n.
96
482
Maryland,
427 U.S.
conclusion,
ignores
magis
(1976)
11,
L.Ed.2d 627
2749 n.
49
S.Ct.
unchallenged
finding,
appeal, of
trate’s
Here,
(.Andresen).
the officers were limit
con
probable
to
all documents
cause
seize
dealing
to
documents
ed
their seizure
cerning
substances.4
The 58
controlled
of controlled subs
distribution
with the
fairly
considered as
known cases could
permit
did
tances.3
warrants
pervasive
violations
representative
more
to
any documents unrelated
to seize
them
State, 708 F.2d
of the Act. See 50
at
substances. See United States
controlled
1374-75.
Cir.1983),
Whitten,
1009
AFFIRMED.
1100, 104
rt.
U.S.
ce
Where,
(1984).
as
PREGERSON,
dissenting.
Judge,
Circuit
here,
standards that
there
articulated
lawfully
on information
received
avoiding
Based
“reasonably guide the
officers
pharmacies,
federal
various
protected property, a search
from
the seizure of
pre-
illegally
Dr.
authorizing
seizure is not a
determined that
such
warrant
drugs
patients.
v. Pol
Schedule II
to
warrant.” United States
general
scribed
Cir.1984);
limiting
to
sus-
lock,
1456, 1466 (9th
the search
these
see
Instead
substances,
Andresen,
patients
three
pected
at
at
n.
Tamura,
broadly
595;
case
11;
search warrants issued
this
Nor
the warrant
describe with
opinion pass
majority
in the text of the
particularity the items to be seized cannot
The warrants at is-
constitutional muster.
squared
repeated pro-
be
with this court’s
the
of
in
authorize
search
sue
this case
a general description
nouncements that
in a
in
three of
patient
file
all
Dr.
every
if
permissible only
warrant is
“a more
language
The
of
Hayes’s
broad
offices.
description
possible.”
cise
is not
Gomez-
8,000
encompasses about
files
Soto,
654;
F.2d at
728
United
v.
1,500
office,
files in
in the
the
Porterville
Cardwell,
75,
(9th Cir.1982);
78
office,
1,000 files
and
in
Farmersville
the
VonderAhe,
370;
see also
508 F.2d at
ac-
majority opinion
The
con-
Ivanhoe office.
804,
Bright,
cord
States v.
United
really
these vast numbers
cludes that
(5th Cir.1980). Although
govern-
812
the
noting
the Court in
insignificant,
An-
acknowledges
ment
investigation
that its
of
acknowledged
in
searches of
dresen
Dr. Hayes
prescrip-
focused on excessive
records, “some innocuous doc-
voluminous
drugs,
tion of
II
au-
warrant
examined,
cursorily,
at least
uments will be
thorized a search of
patient
documents and
they are,
in order
determine whether
to
pertaining
every
files
to
controlled sub-
fact, among
papers
those
authorized to be
stance,
commonly
from Percodan to such
11,
at
n.
96
seized.” 427 U.S.
482
S.Ct. at
prescribed
Tylenol
medications as
co-
n.
2749
Court Andresen went
however,
state,
Here,
Cardwell,
in such
deine and Valium.
as in
on to
searches
officials,
judicial
“responsible
including
of-
governments pre-search
results of
ficials,
care
must take
to assure that
investigation “were not used to
refine
in a
are conducted
manner that minimizes
scope
Cardwell,
of the warrant.” See
680
privacy.”
upon
unwarranted intrusions
Id. F.2d at 78.5
case,
opportunity
In this
an
to minimize
to
The failure
limit
warrants so as to
presented
readily
unwarranted intrusions
upon patient’s privacy
minimize intrusions
issuing
Mag-
itself to the
and to the
particularly
interests is
troublesome be-
been,
istrate —the search could have
but
cause the documents to be searched were
not,
pertaining
to
restricted
the files
primarily medical records.
Information
particular patients
or
referred to
patient
extremely per-
contained
files is
I
“respon-
in the
affidavits.
believe
sonal
potentially embarrassing
and
to inno-
have,
minimum,
a
sible” officials would
at
parties.
cent
third
Unlike
cases cited
limited the search warrant
to Schedule
by
majority,
gen-
searches
drugs,
any
rather than to
controlled sub-
erally
of
stance,
involved narrow class
business
suspect profiles,
and the 58
rather
transactions,6
10,000 patient
than
files.
search
this case en-
75,
(1985); Gomez-Soto,
sought
5. The
that it
a war-
723
admitted
(business
attempt
F.2d
rant
its
at 653
transactions
defendant
because Dr.
resisted
corporations,
subpoena
of
records.
three
records
international
certain medical
travel,
indicating
government’s
investiga-
documents
or citi
its
residence
failure to continue
handwriting samples);
zenship,
United
way
subpoenas,
tion
of
does not
Distributing
States v.
Known As 50 State
warrant.
necessitate the use
an overbroad
Offices
Co.,
1371,
(9th
("invoic
Cir.1983)
F.2d
question
708
1372
may
"While
we
the wisdom
es,
orders”, etc.,
warrant,
supplier
from national
using
sales
opposed
less
as
intrusive
denied,
advertising products), cert.
465 U.S.
may
government],
methods available to
[the
(1984);
L.Ed.2d
79
677
procedure
demand
that 'if such drastic
is to
Whitten,
of,
F.2d
1008-09
United States
706
strictly
availed
it should be
limited
consti-
’’
(9th Cir.1983) (records indicating ownership
Cardwell,
tutionally required.’
Finally, the officers establishes provide guidelines” “reasonable
failed to search of the thousands of government’s
files in this case. While
investigation prescrip- focused on excessive drugs,
tion of Schedule the breadth of
the warrant number of medical gave searching
files in offices offi- cers no alternative but to exercise broad INDUSTRIES, RALPH C. WILSON choosing discretion in which files to seize. INC., Plaintiff-Appellant, According agent 8,000 searching to an office, files in anything the Porterville CO.; CHRONICLE BROADCASTING Mi within the confines of the offices was “fair Valley Broadcasting Corp.; ami Field game,” particular and whether to search a Corp.; Communications Viacom Inter “up file was to the discretion of the offi- national, Inc.; Films; P.I.T.S. Twenti fact, agent cer.” In “[pjerson- stated: Century-Fox Corp.; eth Film Para ally, specifically looking I was for the sub- mount Television Domestic Distribu stances Dialudid and Percodan.” He fur- tion, Inc.; Warner Bros. Television Do ther admitted basically that “it was as- Distribution, Inc.; mestic MCA Tele sumed that each officer was to use his Ltd.; Metro-Goldwyn-Mayer, vision common sense judgment as to which Inc.; Television, and United Artists fact, agents file should be In seized.” Inc., Defendants-Appellees. attempts soon called off their to search all records, the medical and focused instead on No. 84-2758. files, certain triplicate and on a Appeals, United States Court of prescription log maintained Dr. Ninth Circuit. Thus, prescriptions. for Schedule II overbreadth of the warrants in this case Argued and Submitted Oct. 1985. only permitted rummag- not discretionary July Decided seizure, ing and but fact necessitated it. searched, gener- number of files object search, al and the nature of
the information contained in all those files
demonstrate “guidelines” con-
tained simply warrants were
reasonable. There is no valid excuse for relating guidelines uments to the activities of a 7. The lack of reasonable was also business debtors); agents. charge locating involved in noted see also United Pollock, the Ivanhoe and Farmersville searches testified Cir. although they looking for that indicating documents 1984) (items methamphetamine used in manu prescription excessive of Schedule II facture). drugs, specific guidelines by there were no what to seize. were to determine