Broad warrant in diet pill case was not unconstitutionally overbroad

Diet pill overprescription case with 476 counts resulted from a search warrant for voluminous medical records, and the inclusiveness did not make the warrant defective. It was broad, but not unconstitutionally overbroad. United States v. Kofsky, 2007 U.S. Dist. LEXIS 64161 (E.D. Pa. August 28, 2007):

2. The List of Items to Be Seized Did Not Render the Warrants Executed on April 13, 2006 General Warrants

In the first Motion to Suppress, defendant argues that the five warrants executed on April 13, 2006 were unconstitutional “general warrants” in violation of the Fourth Amendment. In support of this argument, defendant asserts that the twenty-six categories of evidence to be seized were “[t]oo [a]ll-[i]nclusive” to satisfy the Fourth Amendment. The Court disagrees.

The five warrants at issue contained identical lists of twenty-six “Items to Be Seized.” This list of items described “in both specific and inclusive generic terms what is to be seized.” Christine, 687 F.2d at 753. Indeed, the Third Circuit has held that warrants authorizing the seizure of similar items are permissible. Specifically, the court has held that a warrant authorizing the seizure of “[a]ll drugs, drug paraphernalia, cash money, [and] weapons” is not “constitutionally infirm.” United States v. Williams, 3 F.3d 69, 71 n.1 (3d Cir. 1993). Likewise, the Third Circuit ruled that the seizure of “all folders … all checks … all general ledgers (and) all correspondence” is valid under the Fourth Amendment. Christine, 687 F.2d at 753. Under this authority, the list of items to be seized in this case was constitutionally permissible.

In reaching this conclusion, the Court recognizes that the list of items to be seized was extensive, and included “[a]ll controlled substances,” “[a]ll patient charts, logs and/or profiles,” and “[a]ll financial records, documents and materials relating to the personal finances of Albert Kofsky,” without time limitations. Def.’s Mot. Suppress Evidence Seized April 13, 2006, Ex. 1 PP1, 2, 16. However, the fact that the warrants at issue authorized the seizure of a long list of items does not make them unconstitutional general warrants. See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002) (“Although the scope of the warrant was certainly extensive, the warrant was not general.”); see also United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) (“[U]se of the word ‘all’, in and of itself, does not render a warrant a general warrant.”). In short, the list of items to be seized was descriptive and did not “vest the executing officers with unbridled discretion to conduct an exploratory rummaging” through defendant’s belongings. Christine, 687 F.2d at 753.

B. The Failure to Specify the Alleged Criminal Activity Is Not Fatal

The search warrants executed on April 13, 2006 did not describe the alleged criminal activity on their face, or in either of the two incorporated attachments (descriptions of the premises to be searched and items to be seized). In the first Motion to Suppress, defendant argues that this “failure to specify the crime, in the warrant itself or by incorporation, is fatal.” Def.’s Mem. Law Supp. at 8. The Court disagrees with this characterization of the law.

. . . Specifically, a description of the criminal activity alleged serves to limit the discretion of the agents performing the search, and in this way may support the position that a search warrant is not a general warrant. . . .

The court also conflated the question of probable cause and the good faith exception, which is the norm in the Third Circuit. It found probable cause and good faith exception as to each challenge to the warrant, including looking for cash because the affidavit for the warrant referred to alleged under reporting of income.