UNITED STATES OF AMERICA v. MUHAMMED SAMER NASHER-ALNEAM, M.D.
CRIMINAL NO. 2:18-00151
MEMORANDUM OPINION
On July 22, 2019, the court held a hearing on defendant‘s motion to suppress. (ECF No. 258). Present at that hearing were the defendant, in person and by counsel, Isaac R. Forman, Michael B. Hissam, and Katherine B. Capito, and Assistant United States Attorneys Alan G. McGonigal, Jennifer Rada Herrald, and Steven I. Loew. On the morning of July 23, 2019, in open court, the court granted defendant‘s motion insofar as it moved to suppress certain evidence related to Counts Fifteen through Twenty-Four of the Third Superseding Indictment. This Memorandum Opinion sets out more fully the reasons for that ruling.
Factual Background
Defendant Muhammed Samer Nasher-Alneam, M.D. (“Dr. Nasher) is a medical doctor licensed to practice medicine in the State of West Virginia. See ECF No. 223 at ¶ 1 (Third Superseding Indictment). From on or about July 2013 through February 2015, Dr. Nasher owned and operated a medical practice called “Neurology &
On July 26, 2018, the grand jury returned a 15-count indictment against Dr. Nasher arising out of his activities in connection with Neurology & Pain Center, PLLC. See ECF No. 1. A twenty-two count second superseding indictment was returned on November 21, 2018, charging defendant with illegal drug distributions, in violation of
Trial on the second superseding indictment began on April 16, 2019. After the jury was unable to reach a verdict on any of the twenty-two counts, a mistrial was declared on May 7, 2019. Defendant invoked his rights under the Speedy Trial Act and the retrial was scheduled for July 22, 2019
After the declaration of a mistrial, on June 12, 2019, Dr. Nasher was charged in a forty-seven count third superseding indictment charging him with various offenses related to operation of his medical practice. Specifically, defendant was charged with the following:
- health care fraud, in violation of
18 U.S.C. § 1347 and§ 2 (Counts One through Eleven and Fifteen through Twenty-four); - health care fraud resulting in death, in violation of
18 U.S.C. § 1347 and§ 2 (Counts Twelve through Fourteen); - illegal drug distributions, in violation of
21 U.S.C. § 841(a)(1) (Counts Twenty-five through Thirty-eight); - illegal drug distributions resulting in death, in violation of
21 U.S.C. § 841(a)(1) and(b)(1)(C) (Counts Thirty-nine through Forty-one); - maintaining a drug-involved premises, in violation of
21 U.S.C. § 856(a)(1) (Counts Forty-two and Forty-three); and - international money laundering, in violation of
18 U.S.C. § 1956(a)(2)(B)(ii) (Counts Forty-four through Forty-seven).1
See ECF No. 223. The government maintains that its decision to seek a third superseding indictment arose out of adverse evidentiary rulings in the prior trial. See ECF Nos. 248 and 215-2. (noting that “its objective in seeking a third superseding indictment would be to address new circumstances occasioned by adverse evidentiary rulings during the trial of this case“).2 The health care fraud counts, Counts One to Twenty-Four, are all new.
Defendant‘s motion to suppress was two-pronged. First, defendant argued that the search warrant was overbroad and that the affidavit accompanying the application for the warrant contained several false statements. The court denied defendant‘s motion insofar as it alleged overbreadth and/or that the legitimacy of the warrant was in question based upon alleged misrepresentations in the affidavit.4
Defendant‘s second argument was that the government could not rely upon the one and only search warrant in this case to conduct searches in furtherance of its fraud investigation. See ECF No. 258 at 4. According to defendant, “the government‘s subsequent searches – in furtherance of its fraud investigation – violate
the information and evidence reviewed by the United States in formulating the Third Superseding Indictment was already in its possession as a result of the previously issued warrant and search. The health care fraud schemes now charged are directly related to and arise out of the § 841 charges that were the subject of the initial warrant. The evidence the United States seeks to introduce in the second trial of this matter includes information obtained within the scope of SA King‘s original affidavit and the warrant signed by Magistrate Judge Tinsley on February 21, 2018. The warrant‘s fourteen-day limitation in no way prevents the United States from analyzing or reviewing the evidence seized outside of that fourteen-day window. The defendant‘s argument to the contrary is meritless.
ECF No. 263 at 15.
After hearing the evidence at the suppression hearing, reviewing the cases cited by the parties, and conducting its own research, the court granted the motion to suppress as to evidence seized in support of the government‘s office absence health care fraud theory charged in Counts Fifteen through Twenty-Four. What follows are the court‘s findings of fact and conclusions of law.
I. The Search Warrant
On February 21, 2018, FBI Special Agent Jennifer L. King applied for a warrant to search Dr. Nasher‘s medical office at 4501 MacCorkle Avenue SE for evidence of the commission of violations of
- Property that constitutes evidence of the commission of a criminal offense, specifically violations of
21 U.S.C. § 841(a)(1) (distribution of controlled substances not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice); and property designed or intended for use or which is or have been used as a means of committing said criminal offense; - Patient files and medical charts for any patient who saw Dr. Nasher in 2013, 2014, 2015, 2016, 2017, and/or 2018 (in whatever form, including electronic medical records and audio files); that is, 2013 - 2018 patient files/charts for patients within Dr. Nasher‘s practice, which files and charts are believed to contain evidence of the distribution of controlled substances, such as oxycodone or hydrocodone, Schedule II controlled substances, not for legitimate medical purposes in the usual course of professional medical practice and beyond the bounds of medical practice; and
- Documents and other items tending to establish or hide the whereabouts of proceeds and any items constituting proceeds from violations of
21 U.S.C. § 841(a)(1) .
ECF No. 258-1 at 3.
Of the electronic evidence to be seized, Agent King‘s affidavit further provided:
Based on the foregoing, and consistent with
Federal Rule of Criminal Procedure 41(e)(2)(B) , the warrant I am applying for would permit seizing, imaging, or otherwise copying storage media that reasonably appear to contain some or all of the evidence described in Attachment B, and would authorize a later review of the media or information consistent with the warrant. The later review may require techniques, including but not limited to computer assisted scans of the entire medium, that might expose many parts of a hard drive to human inspection in order to determine whether it is evidence described by the warrant.
King Aff. ¶ 35.
United States Magistrate Judge Dwane L. Tinsley granted the application, granted the government‘s motion to seal the application and accompanying affidavit, and issued a search warrant for Dr. Nasher‘s medical practice. See ECF Nos. 2 and 4 in 2:18-mj-00021. The search warrant does not mention health care billing fraud or Dr. Nasher‘s absences from his office as evidence of a crime. Nor can health care billing fraud be inferred from any of the underlying documents, including the affidavit which does not mention it either.
II. Agent King‘s Testimony
At the suppression hearing, Agent King testified about the execution of the search warrant. See ECF No 278. According to her, paper patient files from the years 2013 to 2018 were seized as well as the files of any known overdose victims. See id. at 20. In terms of seizing the electronic records of Dr. Nasher‘s practice, Agent
Q: So if the entire server was imaged, what was done to sort out documents that were responsive included within the search as opposed to documents that would have been nonresponsive and not within the scope of the warrant?
A: I‘m not really sure of the question.
Q: If the warrant was limited, for example, to patients who had seen Dr. Nasher between 2013 and 2018, what was done to limit the review of the - - if the entire server had been seized and imaged, what was done to sort out the contents of that server to be consistent with the scope of the warrant?
A: Well, I was not able to review like medical files that were processed. We chose our patients. And then as we talked to Jamie Swartwood, she would pull those specific patients’ files and those are the ones we reviewed.
Id. Of the process for deciding which patient charts were pulled for review, Agent King stated that a DOMEX analysis was used to tell the government “what patient was getting high opioids, what patient was getting benzos and opioids, and then we would have a list of patients that way. . . . Based on that, we were like, hey, we want to look at A, B, and C. And then they pulled up medical files and we‘d look at it.” Id. at 23-24. Agent King testified that somewhere between 19 and 50 or so patient files were eventually pulled for review. See id. at 25, 27. According to her, those charts were pulled somewhere between the execution of the search warrant in February 2018 and the filing of the first indictment. See id. at 27-28. Agent King further testified that “[w]e might have extracted additional ones after he was arrested.” Id. at 28.
As for the timing of the search of medical records to support the billing fraud charges, Agent King testified:
Q: Did you work with DOMEX on extracting any charts during that time period on - - related to the issue of billing fraud?
A: Billing fraud, no. The billing fraud did not come - - we weren‘t working on billing fraud at that time.
Q: When did you start working on billing fraud?
A: After the trial.
Q: After the first trial?
A: Yes.
Id. at 28. Agent King later qualified her answer.
A: You know what. There was billing. And Donna Taylor of the West Virginia Insurance Commission was working on a bunch of this stuff throughout the case. I‘m sorry. That - - let me correct myself.
Q: Did Donna Taylor have any - - to your knowledge, did Donna Taylor have any charts extracted by DOMEX in connection with billing fraud?
A: That I don‘t know.
Id. at 28-29.
Regarding the issue of probable cause to search for evidence of billing fraud, Agent King admitted that the issue of billing fraud, specifically as it related to defendant‘s absences from his office, was never presented to Magistrate Judge Tinsley in obtaining a search warrant. See id. at 30.
Q: Your affidavit to Magistrate Judge Tinsley, it didn‘t contain any allegations
of probable cause as to billing fraud; correct? A: There‘s nothing in it that contains that, no.
Q: Right. You didn‘t present anything on the issue of billing fraud to, to the magistrate?
[Objection]
* * *
Q: On the issue of the defendant‘s absences from the office, the patients in these counts, Fifteen through Twenty-Four, did you present any allegations in your affidavit to Magistrate Judge Tinsley about the defendant‘s absences from the office?
A: No.
Q: Okay. Do you know whether a second warrant was ever obtained on the issue of the defendant‘s absences from the office?
A: From the office? No, there was only one search warrant.
Q: Okay.
* * *
A: We did know about his travel prior to the trial. We did look into that. So it wasn‘t just something that came up. We were looking at it before.
Q: And I was just trying to pin down that despite the fact that you may have known about it, it wasn‘t, it wasn‘t presented as part of the probable cause for the search warrant?
A: No.
Id. at 30-31.
III. Jamie Swartwood‘s Trial Testimony
Jamie Swartwood, a Drug Enforcement Administration (DEA) IT specialist, testified at Dr. Nasher‘s first trial. See ECF No. 135 at 139-55. Swartwood testified that she was “involved in the extraction of files in this case.” Id. at 140. After the search warrant was executed, Agent King provided a “forensic digital image of [Dr. Nasher‘s] IT systems” to her. Id. at 140-41. Of her role in searching for evidence, Swartwood testified “I was asked to export patient records, schedules, and to search for a specific patient.” Id. at 141. Of the process for doing so, Swartwood further testified: “It‘s pretty straightforward. When you have the image of the computer, you basically just open the same software and you search for a patient. And the name - - the chart comes up. You export the patient charts. Very cut and dry.” Id. at 142. Swartwood could not recall how many patient files she had retrieved. See id. at 144.
IV. Representations of the Attorneys
Once it became clear that Agent King did not have a full recollection of exactly what data was seized in the second search, counsel for defendant and the government conferred to clarify the record. Based upon those representations, the court finds that, prior to the first trial, Dr. Nasher‘s server was accessed to retrieve approximately 55 patient files (collectively “the first search“). See ECF No. 278 at 55-57. After the first trial and in connection with the billing fraud charges set forth in Counts Fifteen through Twenty-Four, twelve patient files and schedules were extracted from the server (“the second search“). See ECF No. 278 at 56-57; ECF No. 275-3; ECF No. 282 at 2-8. Nine or ten of those twelve extracted patient files are for the individuals named in Counts Fifteen through Twenty-Four. See id.6 The second search was to retrieve evidence solely related to the billing fraud/office absence charges in Counts Fifteen through Twenty-Four.
V. Legal Principles
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As noted above, the Fourth Amendment requires that a warrant identify the specific crime(s) thought to have been committed. See Oloyede, 982 F.2d 138; see also United States v. Galpin, 720 F.3d 436, 445 (2d Cir. 2013) (“First, a warrant must identify the specific offense for which the police have established probable cause“); United States v. Castro, 881 F.3d 961, 965 (6th Cir. 2018) (“A warrant that empowers police to search for something satisfies the particularity requirement
The particularity requirement is fulfilled when the warrant identifies the items to be seized by their relation to designated crimes and when the description of the items leaves nothing to the discretion of the officer executing the warrant. . . . When a search is conducted pursuant to a warrant, it “is limited in scope by the terms of the warrant‘s authorization.” United States v. Phillips, 588 F.3d 218, 223 (4th Cir. 2009); . . . But the terms of the warrant are not to be interpreted in a “hypertechnical” manner. United States v. Robinson, 275 F.3d 371, 380 (4th Cir. 2001). Rather, they should be read with a “commonsense and realistic” approach, to avoid turning a search warrant into a “constitutional straight jacket.” Phillips, 588 F.3d at 223. . . .
United States v. Williams, 592 F.3d 511, 519 (4th Cir. 2010); see also Castro, 881 F.3d at 965 (“This interpretation also respects another imperative in reading warrants: They need not meet the rigors of Roget, Merriam, Webster, Strunk, and White. A commonsense contextual reading usually suffices, and usually gets the point the magistrate and officer sought to express.“).
Courts have noted several additional considerations that should inform the Fourth Amendment analysis in the context of electronically-stored information. As one court explained:
First, as the Second Circuit has recognized, “[w]here . . . the property to be searched is a computer hard drive, the particularity requirement assumes even greater importance.” Galpin, 720 F.3d at 446. That is because the “seizure of a computer hard drive, and its subsequent retention by the government, can give the government possession of a vast trove of personal information about the person to whom the drive belongs, much of which may be entirely irrelevant to the criminal investigation that led to the seizure.” United States v. Ganias, 824 F.3d 199, 217 (2d Cir. 2016) (en banc). As such, “[t]he potential for privacy violations occasioned by an unbridled, exploratory search of a hard drive is enormous“—a “threat [that] is compounded by the nature of digital storage.” Galpin, 720 F.3d at 447. Indeed, the Government, once it has obtained authorization to search a hard drive, may in theory “claim that the contents of every file it chose to open were in plain view and, therefore, admissible even if they implicate the defendant in a crime not contemplated by the warrant,” thus presenting a “`serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.‘” Id. (quoting United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176 (9th Cir. 2010) (en banc) (per curiam)); cf. Riley v. California, —— U.S. ——, 134 S. Ct. 2473, 2489-91 (2014) (recognizing that cell phones “differ in both a quantitative and qualitative sense from other objects
that might be kept on an arrestee‘s person” owing to their “immense storage capacity” and their ability to “contain[] in digital form” both “many sensitive records previously found in the home” and “a broad array of private information never found in a home in any form—unless the phone is“); Ganias, 824 F.3d at 231 (Chin, J., dissenting) (noting that “[v]irtually the entirety of a person‘s life may be captured as data” on a computer or smartphone). Accordingly, a “heightened sensitivity to the particularity requirement in the context of digital searches” is necessary.” Galpin, 720 F.3d at 447.
As the foregoing makes clear, it is imperative that searches of electronic information strictly comply with the parameters outlined in the warrant to avoid effectively converting a search warrant supported by probable cause into the sort of general warrant forbidden by the Fourth Amendment. See United States v. Mann, 592 F.3d 779, 786 (7th Cir. 2010) (“[W]e simply counsel officers and others involved in searches of digital media to exercise caution to ensure that warrants describe with particularity the things to be seized and that searches are narrowly tailored to uncover only those things described.“; United States v. Schlingloff, 901 F. Supp. 2d 1101, 1105 (C.D. Ill. 2012) (“The promise of the Fourth Amendment to be free from unreasonable searches and seizures contemplates a warrant that sets forth with specificity the area to be searched and the subject matter of the search. So if a warrant authorizes an officer to look in all files on a computer, should the courts care how it is done? This Court believes so.“).
Against this backdrop, the court considers the government‘s actions in this case. The question this court must answer is whether the government‘s second search of Dr. Nasher‘s records—-occurring approximately 15 months after the records were seized and after Dr. Nasher had already gone to trial once—-to retrieve evidence to support its new claims of health care billing fraud outlined in Counts 15 through 24 exceeded the scope of the warrant issued on February 21, 2018. The
VI. Wey and Loera
Two recent cases proved especially helpful to the court in resolving the suppression motion. The first of these, United States v. Wey, 256 F. Supp. 3d 355 (S.D.N.Y. 2017), was cited by defendant in his suppression motion.
In Wey, the FBI sought warrants to search defendant‘s business office and residence. See id. at 361-66. The FBI Agent‘s Affidavits in support of the applications for the warrants “asserted that there was probable cause to believe that fruits, instrumentalities, and evidence of violations of the federal securities, mail, and wire fraud laws were located within the scope of the premises.” Id. at 361, 363. The applications were approved and search warrants were issued on January 24, 2012, and January 25, 2012. See id. at 363-66. Materials to be seized included, among other things, “[c]omputers, flash drives, internal and external hard drives, diskettes and other magnetic storage media, and files, data and information contained thereon. . . .” Id. at 364. The searches of Wey‘s business office and home were executed on January 25, 2012. See id. at 368-73.
A number of electronic devices and computer equipment were seized from both the business and the residence, either by copying the device in its entirety onsite or taking the original device. See id. at 370, 373. A review of the electronic data seized was completed by the FBI in early September 2013 and copies of all documents deemed pertinent were provided to the prosecution team. See id. at 377. The government did not confine its search to evidence related to the offenses discussed in the affidavits. See id. at 377, 405. Also, “[i]n the weeks leading up to Wey‘s indictment . . . FBI personnel conducted additional searches across all electronic materials recovered from both locations.” Id. at 377.
The court granted Wey‘s motion to suppress based upon its conclusion that the warrants lacked particularity and were overbroad. See id. at 410-11. In determining that the government agents in that case had not acted in good faith, the Wey court made several observations that are particularly pertinent in this case:
This case presents still another factor . . . for evaluation in determining the Government‘s level of culpability and, correspondingly, its susceptibility in this context to deterrence. And it is one worth emphasizing: belying any argument that it sought to limit executions of the Warrants according to the parameters of the applications, the Government evinced no hesitation to subject the electronic Search fruits to continuing and, at
least to some extent, expanding searches as its investigation and charging theories developed over the months and years following the initial Searches and preceding Wey’s indictment.
As discussed above, AUSA Massey and Agent McGuire candidly testified at the Hearing that they had no qualms, for example, about searching the electronically stored evidence—well over a year after the Searches and prior to any sorting for pertinence—for evidence of tax evasion, an “alternative” charging theory not discussed in the Affidavits, apparently not developed until after McGuire took over as case agent well after the Searches, and never presented to a judge. Similarly, they considered it within their authority to search the unsorted electronic materials for documents pertaining to a number of individuals and entities not identified or discussed in the Warrants or the applications but whose potential relevance to
The Government maintains that this approach to reviewing the electronic evidence was entirely appropriate so long as its novel search terms were designed to identify documents that would otherwise fall within the Warrants’ (inappropriately expansive terms). . . .
* * *
Wey argues that this conduct is independently violative of the
* * *
Furthermore, the Government cites, and the Court is aware of, no authority suggesting that simply because it has retained all originally searchable electronic materials, the Government is permitted to return to the proverbial well months or years after the relevant Warrant has expired to make another sweep for relevance, armed with newly refined search criteria and novel case theories.
* * *
For the Government to skirt that new warrant obstacle here by—appearances would suggest—intentionally taking advantage of its sweeping electronic take to look for evidence in an essentially analogous manner is inconsistent, in the Court’s view, with a claim to good faith in executing the Warrants.
* * *
[N]othing . . . permits the Government to sit on eighteen terabytes of data for years after the expiration of the authorizing warrant and intentionally mine it with searches targeting individuals and charging theories absent from the warrant application but identified as relevant by post-search developments in the Government’s investigation.
* * *
Interpreting and executing their authority expansively—in keeping, the evidence suggests, with the intention of the drafters—the agents treated the Warrants both during and after the physical Searches as, for all intents and purposes, general warrants.
A recent case from the United States Court of Appeals for the Tenth Circuit, United States v. Loera, 923 F.3d 907, 916-17 (10th Cir. 2019), explained that an ex post assessment of the propriety of a government’s search is essential to ensuring that the
Determining whether a search exceeds the scope of the authorizing warrant is, like most inquiries under the
Fourth Amendment , an exercise in reasonableness assessed on a case-by-case basis. Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) (holding that the manner of a search is subject to “later judicial review as to its reasonableness“). The generalFourth Amendment rule is that investigators executing a warrant can look anywhere where evidence described in the warrant might conceivably be located. United States v. Ross, 456 U.S. 798, 824 (1982).* * *
This limitation works well in the physical search context to ensure that searches pursuant to warrants remain narrowly tailored, but it is less effective in the electronic-search context where searches confront what one commentator has called the “needle-in-a haystack” problem. Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 301 (2005). Given the enormous amount of data that computers can store and the infinite places within a computer that electronic evidence might conceivably be located, the traditional rule risks allowing unlimited electronic searches.
To deal with this problem, rather than focusing our analysis of the reasonableness of an electronic search on “what” a particular warrant permitted the government agents to search (i.e., “a computer” or “a hard drive“), we have focused on “how” the agents carried out the search, that is, the reasonableness of the search method the government employed.
In Loera, the court held that a second search of the defendant’s electronic data, pursuant to a warrant to search for evidence of computer fraud, was unreasonable because it was directed at uncovering evidence of child pornography. See id. at 922 (“Loera accepts that the first warrant permitted the government to seize the four CDs that were found to contain some child pornography and to search the for evidence of computer fraud. Therefore, Loera challenges Cravens’ November 27 search only for exceeding that permission. Accordingly, we confine our analysis to whether the second search exceeded the scope of the first warrant. The district court concluded that it did and that neither exigent circumstances nor any other exception to the warrant requirement justified that search. We agree. . . .“). Of particular importance to the court’s ruling was the district court’s finding that the police officer was not searching for evidence of computer fraud. See id. Accordingly, the court found that the search was unlawful because it exceeded the scope of the warrant. See id. at 924.
VII. The Government Exceeded the Scope of the Warrant
Under the
Indeed, guidance from the Department of Justice counsels that “it remains prudent to seek a second warrant upon discovering evidence of an additional crime not identified in the initial warrant.” U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations 91 (2009). That guidance further provides:
Changes of Focus and the Need for New Warrants: A single computer can be involved in several types of crimes, so a computer hard drive might contain evidence of several different crimes. When an agent searches a computer under the authority of a warrant, however, the warrant will often authorize a search of the computer only for evidence of certain specified crimes. If the agent comes across evidence of a crime that is not identified by the warrant, it may be a safe practice to obtain a second warrant.
And, when they fail to do so, evidence outside the scope of the original warrant is subject to exclusion. See, e.g., United States v. Carey, 172 F.3d 1268, 1276 (9th Cir. 1998) (suppressing child pornography evidence where police, conducting search under warrant for drug offenses, continued to search for child pornography without obtaining warrant); United States v. Hulscher, 4:16-CR-40070-01-KES, 2017 WL 657436, *2 (D.S.D. Feb. 17, 2017) (suppressing evidence from second search of Iphone for evidence to support federal firearms charges where search warrant allowing seizure and search of phone was to investigate forgery, counterfeiting, and identify theft offenses because agent “should have applied for and obtained a second warrant [that] would have authorized him to search Mr. Hulscher’s cell phone data for evidence of firearms offenses“); United States v. Schlingloff, 901 F. Supp. 2d 1101, 1106 (C.D. Ill. 2012) (concluding scope of search warrant was exceeded and suppressing evidence of child pornography where law enforcement agent was searching computer for evidence of passport fraud and identify theft but, upon covering evidence of child pornography, failed to seek a second warrant).
According to the government, because the electronic records were lawfully seized in the first place “there’s no problem and no limitation to go back and look at them later.” ECF No. 278 at 37. The court disagrees. Even when a seizure of electronic data is legal, any search of that
In this case, the government exceeded the scope of the search warrant which authorized a search of defendant’s electronic data for evidence of violations of the
VIII. The Exclusionary Rule
A violation of the
As the Court stated:
[T]he benefits of deterrence must outweigh the costs. . . . We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. . . . To the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against its substantial costs. . . . The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free - - - something that offends basic concepts of the criminal justice system.
Id. at 141 (internal citations and quotations omitted).
In this case, the cost of applying the exclusionary rule is minimal for a couple of reasons. First, even if the government decided it could not go forward with
Finally, the need for deterring future similar conduct is significant in this case. Given the heightened potential for government abuse of stored electronic data, it is imperative that courts ensure that law enforcement scrupulously contain their searches to the scope of the search warrant which permitted the search in the first place. This is especially true where, as here, the illegal search was conducted at the behest of lawyers–the people in the best position to know what was allowed under the law. See, e.g., Hulscher, 2017 WL 657436 at *4 (“If the exclusionary rule is not applied, law enforcement agencies will have carte blanche authority to obtain a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated charges—-erasing the protections specifically contemplated in Riley.“); Schlingloff, 901 F. Supp. 2d at 1106 (suppressing evidence where search exceeded scope of warrant because “[a]ny other outcome would be contrary to the intent of the
IX. Good Faith Exception
The government has argued that the good-faith exception to the exclusionary rule should apply. In United States v. Leon, 468 U.S. 897, 922-23 (1984), the Supreme Court held that a court should not suppress the fruits of a search conducted under the authority of a warrant, even a subsequently invalidated warrant, unless a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. The Court explained that an officer could not be found to have acted with “objective reasonableness,” excluding application of this “good faith exception,” in any of the following circumstances:
- “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;”
- the magistrate acted as a rubber stamp for the officers and “wholly abandoned” his detached and neutral “judicial role;”
- “an affidavit [is] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable;” or
- “a warrant [is] 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.”
Id.; see also United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002).
The Fourth Circuit explained the contours of the good faith exception:
Under the good faith exception, adopted by the Court in Leon, evidence obtained pursuant to a warrant which is ultimately held invalid need not be excluded as
long as the warrant was issued by a detached and neutral magistrate and the executing officers’ reliance on the warrant was objectively reasonable. In setting forth this doctrine, the Court noted, searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.
United States v. Legg, 18 F.3d 240, 243 (4th Cir. 1994) (internal quotation marks and citations omitted).
In Loera, discussed extensively above, the district court concluded that the good-faith exception should apply. United States v. Loera, 923 F.3d 907, 925 (10th Cir. 2019). The appeals court disagreed. See id. In so holding, the court determined “that the good faith exception does not apply in a case like the one before us because the illegality at issue stems from unlawful police conduct, rather than magistrate error, and therefore the deterrence purposes of the
The rationale for the good faith exception set forth in Leon hinges on the deterrent purpose of the exclusionary rule. Leon, 468 U.S. at 920-21, 104 S. Ct. 3405. The exclusionary rule is intended to deter law enforcement officers from conducting unconstitutional searches and seizures. Id. at 916, 104 S. Ct. 3405. Exclusion is only capable of deterring officers from conducting unconstitutional searches when officers are responsible for the constitutional error.
United States v. Gray, 302 F. Supp. 2d 646, 652 (S.D.W. Va. 2004) (refusing to apply the good faith exception) (Goodwin, J.).
In this case, the error was not with the warrant itself but, rather, the government’s execution of that warrant. See United States v. Mowatt, 513 F.3d 395, 405 (4th Cir. 2008) (“The Leon exception does not apply here because Leon only prohibits penalizing officers for their good-faith reliance on magistrates’ probable cause determinations.“); see also United States v. Fuccillo, 808 F.2d 173, 177 (1st Cir. 1987) (“The good faith exception, therefore, will not be applied unless the officers executing search warrants, at the very minimum, act within the scope of the warrants and abide by their terms.“). Therefore, the good-faith exception is inapplicable. In any event, the court cannot conclude that the government’s actions were taken in good faith. See United States v. Zimmerman, 277 F.3d 426, 438 (3d Cir. 2002) (“Good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.“); United States v. Gallegos-Espinal, Criminal Action H-17-678, 2019 WL 2225025, *18 (S.D. Tex. May 23, 2019) (noting that “[c]ourts should resist the temptation to frequently rest their Fourth Amendment decisions on the safe haven of the good-faith exception, lest the courts fail to give law enforcement and the public the guidance needed to regulate their frequent interactions“) (quoting United States v. Molina-Isidoro, 884 F.3d 287, 293 (5th Cir. 2018) (Costa, J., specially concurring)).
X. Inevitable Discovery
“The inevitable discovery doctrine may apply where additional routine or factually
But when evidence could not have been discovered without a subsequent search, and no exception to the warrant requirement applies, and no warrant has been obtained, and nothing demonstrates that the police would have obtained a warrant absent the illegal search, the inevitable discovery doctrine has no place. In those circumstances absolutely nothing suggests, let alone proves by a preponderance of the evidence, that the illegally obtained evidence inevitably would have been discovered. The inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant. Any other rule would emasculate the
Fourth Amendment .
Id. at 841-42; see also United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995) (“We reject the contention that [the inevitable discovery] doctrine applies where the police had probable cause to conduct a search but simply failed to obtain a warrant. . . . If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant.“).
In Loera, the court ultimately denied defendant’s motion to suppress on the basis of the inevitable discovery doctrine. United States v. Loera, 923 F.3d 907, 928 (10th Cir. 2019). In so doing, the court found that the government had shown “by a preponderance of the evidence that the FBI would have inevitably discovered the child pornography evidence in Loera’s electronic devices through lawful means independent” of the illegal search. Id. Of particular importance to the Loera court in concluding the doctrine should apply was the government’s showing that probable cause existed to get a warrant as well as the FBI agent’s testimony that he would have gotten a warrant. See id. at 928-29.
In this case, the government did not present any evidence to show by a preponderance of the evidence that it had probable cause to obtain a warrant to search Dr. Nasher’s records for evidence of health care fraud related to his absences from the office. But even if probable cause did exist for issuance of a second warrant, the government did not present any evidence that it was prepared to seek a second warrant. Under these circumstances, the inevitable discovery doctrine does not apply. See, e.g., United States v. Cobb, Criminal No. 1:18CR33, 2018 WL 4907764, *6 (N.D.W. Va. Oct. 10, 2018) (declining to apply inevitable discovery doctrine where there was no evidence officers would have obtained a search warrant); United States v. Jones, Case No. 3:17cr71, 2018 WL 935396, *15 n.23 (E.D. Va. Feb. 16, 2018) (noting government could not establish by a preponderance of the evidence that evidence would have ultimately been discovered by lawful means where “the officers believed their warrant comported with the
Defendant also contends that the government violated
Warrant Seeking Electronically Stored Information. A warrant under
Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant.
The court agrees with defendant that the government’s second search violated
XII. Conclusion
Based on the foregoing, defendant’s motion to suppress was granted.
The Clerk is directed to send a copy of this Memorandum Opinion to counsel of record and to the Probation Office of this court.
IT IS SO ORDERED this 29th day of July, 2019.
ENTER:
David A. Faber
Senior United States District Judge