UNITED STATES оf America, Plaintiff-Appellant, v. Rande H. LAZAR, Defendant-Appellee.
No. 08-5653.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 4, 2009. Decided and Filed: May 4, 2010.
ON BRIEF: Stephen C. Parker, Kevin Whitmore, Assistant United States Attorneys, Memphis, Tennessee, for Appellant. Orin S. Kerr, George Washington University Law School, Washington, D.C., Steven E. Farese, Sr., Farese, Farese & Farese, P.A., Ashland, Mississippi, Marc N. Garber, The Garber Law Firm, P.C., Marietta, Georgia, Daniel A. Clancy, Clancy Law Firm, Jackson, Tennessee, for Appellee.
Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.*
CARR, D.J., delivered the opinion of the court, in which GRIFFIN, J., joined. KETHLEDGE, J. (p. 242), delivered a separate concurring opinion.
OPINION
JAMES G. CARR, District Judge.
This is an appeal from an order granting the defendant‘s motion to suppress evidence seized from two medical offices. Following the searches, a grand jury indicted the defendant, Dr. Rande H. Lazar, a pediatric otolaryngologist, on 110 counts of health care fraud. A superceding indictment charges him with devising and executing a scheme to defraud and obtain money from health care benefit programs.
The defendant contended in the District Court and argues in this Court: 1) the affidavit for the warrant did not establish probable cause; 2) the warrant did not meet the particularization requirement of the Fourth Amendment; 3) the government‘s claim of inevitable discovery has no merit; аnd 4) suppression is therefore appropriate.
The District Judge, agreeing with the defendant and adopting the Report and Recommendation of a United States Magistrate Judge [the reviewing Magistrate Judge], granted the defendant‘s motion to suppress, ordering exclusion of all evidence seized in the challenged searches.
For the following reasons, we affirm the decision of the District Court in part, and vacate in part.
Standard of Review
This Court reviews a district court‘s ruling on a motion to suppress for clear error on factual determinations, and de novo on legal determinations. United States v. Adams, 583 F.3d 457, 463 (6th Cir.2009). “A factual finding will only be clearly erroneous when, although there may be evidence to support it, thе reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (internal quotation and citation omitted). This Court reviews the evidence “in the light most likely to support the district court‘s decision.” Id. (internal quotation and citation omitted). Legal determinations re-
Background
A Magistrate Judge [the issuing Magistrate Judge] signed the warrants at issue on October 9, 2002, for searches of offices located at 777 Washington Avenue and 791 Estate Place, Memphis, Tennessee. The applications, affidavits and warrants were duplicates, except with regard to the addresses to be searched. The affiant was Tennessee Bureau of Investigation Special Agent/Criminal Investigator Donald F. Lee. Assistant United States Attorney [AUSA] Kevin Whitmore was with Agent Lee when Agent Lee presented the applications and affidavits to the issuing Magistrate Judge.
When submitted, the warrant applications included—as part of the affidavit—Attachment A, describing the premises to be searched, and Attachment B, captioned “Description of the Items to be Seized.” Attachment B listed the items subject to seizure in eight paragraphs, stating, in summary:
- “Any and all documents and records ... including but not limited to patient charts, files, medical records ... concerning the treatment of any of the below listed patients, claim forms, billing statements, records of payments received ... for the following patients:“;
- “Any and all information and data, pertaining to the billing of services....“;
- “Any and all computer hardware....“;
- “Any and all computer software....“;
- “Any computer related documentation....“;
- “Any computer passwords....“;
- “If a determination is made during the search, by the Special Agent assigned to the computer aspect of this search, ... that imaging or recreation of the computer hard drives will damage the seized information, you are authorized to seize the computers....“; and
- “All other records or property that constitutes evidence of the commission of the offenses outlined in the search warrant“....
In addition to the warrant applications, the supporting affidavits, Attachments A and B, аnd the warrants themselves, the “packet” submitted for the issuing Magistrate Judge‘s review included a list of patient names. [5/26/2005 Suppression Hearing Tr. 145] [Hearing Tr.].
According to the reviewing Magistrate Judge‘s Report and Recommendation advising suppression:
AUSA Whitmore testified [at the suppression hearing] that he was present when the affidavits and applications, attachments A and B, and the warrants were presented to [the issuing Magistrate Judge]. Whitmore told the court [at the suppression hearing] that he created a list of names of specific patients for whom records were to be seized and gave the list to Agent Lee, who in turn presented it to the magistrate judge. Whitmore claimed [at the suppression hearing] that he and [the issuing Magistrate Judge] had a discussion concerning the patient list before the warrants were signed. The substance of this conversation is unknown; however, there was some indication by Whitmore that he discussed with [the issuing Magistrate Judge] the idea of not attaching the patient list to the affidavits and applica-
[Dist. Ct. Doc. 342, at 6-7].1
The reviewing Magistrate Judge first noted that “there were no patient names listed after thе colon in paragraph one of Attachment B,” and that the applications, affidavits, and warrants, which incorporated the affidavits, did not include any patient-specific identifiers. [Id. at 7].
The reviewing Magistrate Judge‘s Report and Recommendation, however, made no finding as to which, if any, patient lists came before the issuing Magistrate Judge.2 It instead focused on the absence
During the course of AUSA Whitmore‘s testimony [at the suppression hearing], it was discovered that there were several patient lists in existence. See Exh. 6a, 6b, 6c, 10, and 15. None of the lists entered into evidence at the hearing were the actual list presented to the magistrate and none of them were identical. In fact, AUSA Whitmore testified that he did not have coрy of the original patient list that was presented to the magistrate judge. Whitmore referred to the patient list attached to the government‘s response to the present motion as a “working copy” and stated the attached copy was not the one presented to the magistrate judge. Nor are there any patient lists in the clerk‘s files [containing the search warrants]. [Id. at 7-8] (emphasis added).
The reviewing Magistrate Judge avoided determining which patient list came before the issuing Magistrate Judge because she believed it did not matter: “The fact that the [issuing] magistrate judge may have viewed a patient list before signing the warrants does not save the warrants from its [sic] facial invalidity.” [Id. at 12].
The reviewing Magistrаte Judge also found that the warrants lacked probable cause to believe that patients’ medical records would be in the defendant‘s medical offices.
Reviewing the Report and Recommendation, the District Judge—without allowing argument or further supplementation of the record4—adopted the reviewing
Discussion
I. The Search Warrants Incorporated Any Patient List Presented to the Issuing Magistrate Judge
The reviewing Magistrate Judge held that the language of the first paragraph of Attachment B did not suffice to incorporate a patient list into the affidavit and warrants.
That conclusion, however, is incorrect. “Incorporation” of one thing into another need not be by express “reference.” Cf. Northrop Grumman Info. Tech., Inc. v. United States, 535 F.3d 1339, 1346 (Fed. Cir.2008) (no “magic words” needed to incorporate one document into another); Resolution Trust Corp. v. Fed. Sav. and Loan Ins. Corp., 25 F.3d 1493, 1499 (10th Cir.1994) (“Phrases such as ‘incorporated by reference’ are not talismanic, without which we do not consider additional necessary documents that effectuate the parties’ agreement.“).
Here, the first paragraph of Attachment B gave sufficient direction when it referred to “the below listed patients” and “the following patients.” Any patient list presented to the issuing Magistrate Judge thus was effectively incorporated into the search warrants. If the record otherwise shows that the government seized patient files according to the list, if any, presented to the issuing Magistrate Judge, a lack of formal incorporation by reference into the warrants does not justify a finding of facial insufficiency.
clarify and expand the record. Had such a hearing occurred, this appeal and our remand may not have been necessary.
II. Suppression of Patient Records Seized Beyond the Scope of Whichever List Came Before the Issuing Magistrate Judge Is Required Under Groh v. Ramirez
The Supreme Court‘s decision in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), rather than its more recent, but less on point, decision in Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 698, 172 L.Ed.2d 496 (2009), controls, and requires suppression of all patient records seized beyond the scope of any patient list presented to the issuing Magistrate Judge.
In Groh, a law enforcement officer prepared a search warrant and affidavit for a Magistrate Judge‘s approval. The search warrant “failed to identify any of the items that [the agent] intended to seize.” 540 U.S. at 554. The warrant also failed to “incorporate by reference the itemized list contained in the application [affidavit]. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause[.]” Id. at 554-55. The Magistrate Judge subsequently signed the defective warrant.
Discussing the constitutionality of the search, the Supreme Court observed: “Even though petitioner aсted with restraint in conducting the search, ‘the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.‘” Id. at 561 (quoting Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).
The Court concluded that, “[b]ecause [the officer] did not have in his possession a warrant particularly describing the
[U]nless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and tо seize, every item mentioned in the affidavit.
Quoting its prior decision in United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court further held that the good faith exception5 did not apply: “‘[A] warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.’ This is such a case.” Groh, 540 U.S. at 565.
The Supreme Court‘s recent decision in Herring does not question this statement of law.
In Herring, an individual sought to retrieve an item from his impounded truck. From a warrant check on the individual, an officer learned that a warrant for the individual‘s arrest was outstanding. Acting on that information, the officer arrested and searched the individual, finding drugs and an unlawfully possessed firearm.
There was, however, no outstanding warrant. The warrant about which the officer had been notified had, in fact, been withdrawn. Through a clerical error, the warrant had not been cleared from the system. Had the warrant been properly cleared, the officer would not have arrested or searched the individual.
The Court stated that, to require exclusion in such circumstances, the error by the police must be “reckless or deliberate.” 129 S.Ct. at 700. This is because “the benefits of deterrence must outweigh the costs” to justify exclusion of evidence, and the possible deterrence of negligent action by law enforcement does not rise to a level sufficient to trigger exclusion of evidence. Id. The Court stressed that the question of suppressiоn “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Id. at 698 (emphasis added); see also United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (explaining that the exclusionary rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect” (emphasis added)).
This case does not involve the sort of police error or misconduct present in Herring. Like Groh, it instead deals with particularization of search warrants and whether they are facially deficient. Despite the government‘s argument to the contrary,6 Herring does not purport to
Here, the warrant was particularized insofar as it described—and thus allowed seizure of—patient records based on any patient list that came before the issuing Magistrate Judge. Suppression of patient files seized pursuant to any such list was therefore erroneous, and reversal of that decision is appropriate. See United States v. Johnson, 351 F.3d 254, 260 (6th Cir.2003) (“[I]nfirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant ..., but does not require the suppression of anything described in the valid portions of the warrant[.]” (internal quotation and citation omitted)).
As regards records of patients whose names did not appear on a patient list presented to the issuing Magistrate Judge, the facts of this case mirror those in Groh and require suppression of those files. This facial deficiency was so evident, moreover, that no officer could reasonably presume the warrants valid.
Because the District Court did not make a finding as to which patient list came before the issuing Magistrate Judge, however, we cannot yet determine exactly which patient records should have been suppressed.
We therefore vacate the District Court‘s suppression of defendant‘s patient files with instructions for the District Court to determine which list—if any—came before the issuing Magistrate Judge, and to suppress only patient files seized beyond the scope of such list.
III. Suppression of the Non-Patient File Evidence is Proper
The reviewing Magistrate Judge also recommended that all nоn-patient file evidence be suppressed, and the District Court did so.
We have held that “[f]ailure to limit broad descriptive terms by relevant dates, when such dates are available to the police, will render a warrant overbroad.” United States v. Ford, 184 F.3d 566, 576 (6th Cir.1999).
Here, the reviewing Magistrate Judge reasoned: “Rather than specify exactly which documents it was seeking, the government chose to use descriptions of items to be seized that referenced no specific patients, no specific transactions, and most importantly, no time frame.” We agree with the District Court‘s decision in this regard.
We therefore affirm the District Court‘s suppression of the non-patient file evi-
IV. The Inevitable Discovery Doctrine is Inapplicable
The government argues in the alternative that the inevitable discovery doctrine prevents suppression of the evidence.
The doctrine of inevitable discovery allows admission of unlawfully obtained evidence if the government can “establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). To establish inevitable discovery, the government must show that the evidence would have been acquired lawfully through an independent source absent the government misconduct. Id. at 448.
The government claims that it would have obtained the files suppressed by the District Court through use of a Department of Justice or grand jury subpoena. It pоints out that it had already used a subpoena to inspect some of the defendant‘s records. It asserts that it resorted to search warrants to diminish the
risk that, if it subpoenaed the files, the defendant might either decline to produce or alter the subpoenaed files.
Complications can readily arise from use of a subpoena.9 As the Second Circuit stated in United States v. Roberts, 852 F.2d 671, 676 (2d Cir.1988):
The mere fact that the government serves a subpoena, however, does not mean that it will obtain the documents it requests. A subpoena can be invalid for a variety of reasons, as when it is unduly burdensome, when it violates the right against self-incrimination, or when it calls for privileged documents. Moreover, we can deplore but not ignore the possibility that the recipient of a subpoena may falsely claim to have lost or destroyed the documents called for, or may even deliberately conceal or destroy them after service of the subpoena.
Accord Ctr. Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 754-55 (9th Cir.1989) (following Roberts).
The government, citing United States v. Keszthelyi, 308 F.3d 557 (6th Cir.2002), United States v. Ford, 184 F.3d 566 (6th Cir.1999), and United States v. Stamper, 91 Fed.Appx. 445 (6th Cir.2004) (unpublished disposition),10 contends that the
This Court has held that “the inevitable discovery exception to the exclusionary rule applies when the government can demonstrate either the existence of an independent, untainted investigation that inevitably would have uncovered the same evidence or other compelling facts establishing that the disputed evidence inevitably would have been discovered.” United States v. Kennedy, 61 F.3d 494, 499 (6th Cir.1995) (emphasis added).
In Ford, this Court stated: “The government can satisfy its burden by showing that routine procedures that police would have used regardless of the illegal search would have resulted in the discovery of the disputed evidence.” 184 F.3d at 577. Though some speculation as to how events would have unfolded, absent an illegal search, may be necessary, “we must keep speculation at a minimum by focusing on demonstrated historical facts capable of ready verification or impeachment.” Id. (quotation omitted) (emphasis added); see also Keszthelyi, 308 F.3d at 574.
A court assesses the likelihood that “routine procedures” would have led inevitably to acquisition of the evidence as of the time of the unlawful search. United States v. Alexander, 540 F.3d 494, 502 (6th Cir.2008) (holding that a court is “to determine, viewing affairs as they existed at the instant befоre the unlawful search, what would have happened had the unlawful search never occurred“).
The record in this case shows that the government had used third party subpoenas during its investigation before seeking the warrants, and the government represented that it had reason to believe that if it continued to do so, at least regarding Dr. Lazar‘s records, he would likely attempt to alter those records. [Dist. Ct. Doc. 153, at 17]. That concern appears to have prompted the government to get the search warrants.
The record does not show that the government, at the time it obtained the warrants, concurrently contemplated issuing subpoenas for any records in Dr. Lazаr‘s possession. The government‘s brief talks a good bit about how common subpoenas are in health care fraud and other white collar investigations. The government, however, presents no evidence establishing that it likely would have sought to acquire Dr. Lazar‘s records by subpoena, much less procured them in the same condition and as promptly as by seizing them with a warrant.
Even if the government need not show that it would likely have obtained the records as quickly and completely with a subpoena, it must at least show that it was ready to obtain them in that manner if, for any reason, it could not have done so—or would have chosen not to do so—with a search warrant. See Roberts, 852 F.2d at 676.
As the Second Circuit stated in United States v. Eng, 971 F.2d 854, 860-61 (2d Cir.1992):
In view of the need to prevent the inevitable discovery exception from swallowing the exclusionary rule, special care is required on the part of a district court when the government relies on the subpoena power. While we decline to draw a bright line, it is essential that there be a substantial degree of directness in the government‘s chain of discovery argument, rather than a hypothesized “leapfrogging” from one subpoena recipient to the next until the piece of evidence is reached. Further, the government must show that both issuance of the subpoena, and a response to the subpoena producing the evidence in
Most simply put, here, as in Ford, “the record does not substantiate the government‘s claim that it was hot on the trail of the disputed evidence. The government has not carried its burden of proving the inevitability of discovery.” 184 F.3d at 578.
The government asks us, in effect, to find that discovery—i.e., acquisition—of the suppressed evidence was inevitable simply because the law allows subpoenas to issue. Were we, or any court, to accept this contention, the mere possibility that a subpoena could or might issue would always trump suppression.
We conclude, accordingly, that the government did not meet its burden of showing that, despite the partial invalidity of the warrants, retrieval of the unconstitutionally seized set of patient files and records was inevitable, whether by means of a subpoena or otherwise.
V. Probable Cause Supported the Warrants
The District Court found, and the defendant argues, that the warrants lacked probable cause to believe that the patients’ medical records would be found in the defendant‘s medical offices.
We reverse the District Court‘s finding on this issue.
In making a probable cause determination, an issuing Magistrate Judge‘s task is “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). A court reviewing an issuing Magistrate Judge‘s determination, moreover, is to pay “great deference” to the Magistrate Judge‘s finding of probable cause, and should uphold a warrant so long as the Magistrate Judge had a “substantial basis for ... concluding that a search would uncover evidence of wrongdoing.” Leake, 998 F.2d at 1363 (internal quotations and citations omitted).
In United States v. Word, 806 F.2d 658, 662 (6th Cir.1986), this Court held that where individuals are patiеnts of a physician, “probable cause exist[s] for believing that their medical records would be located at the [physician]‘s office.”
In light of Gates, Leake and Word, here Agent Lee‘s affidavit in the warrant applications provided a foundation for a common sense determination that there was a fair probability that evidence of health care fraud—namely, the defendant‘s patient files and records—would be found at the defendant treating physician‘s offices.
This foundation stemmed from the connection Agent Lee drew between the defendant and the offices in question. Agent Lee based his affidavit on his personal, two-year involvement in the case; the basis for his conclusion included his: 1) personal visits to each location and photographs thereof at Attachment A of each warrant; 2) review of the defendant‘s billing data and hospital records; and 3) interviews of the defendant‘s former office administrator, the defendant‘s former
We accordingly hold that Agent Lee‘s affidavit and photographs provided the issuing Magistrate Judge with a substantial basis to find probable cause to believe that the patient files and records would be found at the defendant‘s offices at the locations specified. The District Court‘s determination to the contrary was in error.11
Conclusion
For the foregoing reasons, we AFFIRM in part and VACATE in part the District Court‘s decision to suppress the evidеnce seized from the defendant‘s offices, and REMAND to the District Court for proceedings consistent with this opinion.
KETHLEDGE, Circuit Judge, concurring.
I join the court‘s opinion, and make a further observation. One of the many remarkable aspects of this case is that one of the government‘s lawyers called himself as a witness in the district court and then proceeded to write and sign a brief to this court. The lawyer acted, I am sure, in good faith; but as a result of his dual status, our task has been hampered throughout by the need to sift his sworn testimony in the district court from his unsworn testimony in his brief. Pro se cases excepted, counsel should avoid this sort of thing. Once a lawyer gets into a case as a witness, he ought to get out of it as an advocate.
JAMES G. CARR
DISTRICT JUDGE
Notes
- Exhibit 6a was an alphabetical list of 125 patients (with patient file numbers written on it by the defendant‘s staff member on the date of the search), which Whitmore testified “was a list of pаtients that I developed from a—that I reduced to a letter-size for the purpose of presenting it to the agent and it would be presented to the judge, part of the search warrant application” [Hearing Tr. 147];
- Exhibit 6b, captioned “Lazar Search Warrant by Patient Name,” was an alphabetical list of patients different from those listed in Exhibit 6a; and
- Exhibit 6c, captioned “Lazar Search Warrant by Date of Service,” contained the same names as listed in Exhibit 6b, but sorted by dates of “service” (i.e., treatment by the defendant).
- Exhibit 8: an inventory of sixty-eight patient files seized during the search of 777 Washington Avenue [Hearing Tr. 66], thirty-one individuals from Exhibit 6a, thirty-six from Exhibits 6b and 6c, and one individual on none of the lists;
- Exhibit 10: a patient list—the one used during the search of 777 Washington Avenue according to Agent Geasley [Id. at 76]—of sixty-eight patient files consisting of the same individuals as Exhibits 6b and 6c;
- Exhibit 12: an inventory of, inter alia, sixty-nine patient files and sixty CATSCAN films seized during the search of 791 Estate Place [Id. at 116-18]; all of these files and films belong to patients listed in Exhibit 6a except for eight, four of which come from Exhibits 6b and 6c, and four of which are of individuals on none of the lists;
- Exhibit 13: an inventory list identical to Exhibit 12 but less detailed and more narrowly spaced; and
- Exhibit 15: a list of patient names—consisting of the same individuals as Exhibit 6a—attached as Attachment A to the government‘s response to the defendant‘s motion to suppress and represented by Whitmore to be the “working copy” of the pаtient list used. [Hearing Tr. 156-59].