E.D.Mich.: In a doctor patient records search, details of ten overprescriptions supported warrant for 343 more patient records

Officers had a search warrant for 353 patient files of a doctor accused of overprescribing. The affidavit detailed 10 but included a list of 343 that it alleged followed the same pattern. The search warrant was not overbroad as to the other 343 to authorize their search. United States v. Linares, 2015 U.S. Dist. LEXIS 81956 (E.D.Mich. May 4, 2015), adopted 2015 U.S. Dist. LEXIS 80992 (E.D. Mich. June 23, 2015):

Of the 353 patient files listed in the addendum to the search warrants, Davis’s affidavit singled out the prescription histories of ten patients to demonstrate that Linares routinely prescribed high dosage units of narcotics without an objective medical basis. Contrary to Linares’s contention, however, Davis’s failure to include a prescription history analysis for the remaining 343 patients does not mean that the seizure of the related patient files violated his Fourth Amendment rights. See United States v. Hurwitz, 459 F.3d 463, 473 (4th Cir. 2006) (holding that “[t]here is no requirement that the government have evidence relating to each and every patient … to support the seizure of all of the [patient] files” in a particular case); see also United States v. Hayes, 794 F.2d 1348, 1356 (9th Cir. 1986) (where “officers possessed information concerning 58 cases of potential violations involving Schedule II drugs” the search warrant did not have to be “limited to those 58 patient files” because they “could fairly be considered as representative of more pervasive violations of the [Controlled Substances] Act.”).

In any event, Davis’s affidavit presented a detailed factual account that was more than sufficient to establish probable cause that Linares had been engaging in a wide-scale illicit prescription authorization practice including: complaints from local pharmacists; statements from one of Linares’s medical assistants; patient interviews; statements from undercover officers and confidential informants; and investigators’ first-hand observations. Viewed in the totality of the circumstances, all of this information provided the magistrate judge with sufficient probable cause to authorize the seizure of any patient files discovered at the Center or Linares’s residence. See Hurwitz, 459 F.3d at 473; Hayes, 794 F.2d at 1356.

This reasoning equally applies to Linares’s assertion that the portion of the warrants seeking “[a]ll business and personal financial information” should be invalidated on overbreadth grounds. Pursuant to the Sixth Circuit precedent:

“It is well-settled that items to be seized pursuant to a search warrant must be described with particularity to prevent the seizure of one thing under a warrant describing another in violation of the Fourth Amendment.” United States v. Wright, 343 F.3d 849, 863 (6th Cir. 2003) (citation and internal quotation marks omitted). “The chief purpose of the particularity requirement [is] to prevent general searches by requiring a neutral judicial officer to cabin the scope of the search to those areas and items for which there exists probable cause that a crime has been committed.” Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco and Firearms, 452 F.3d 433, 441 (6th Cir. 2006).

United States v. Richards, 659 F.3d 527, 536-37 (6th Cir. 2011). “[T]he degree of specificity required is flexible and will vary depending on the crime involved and the types of items sought.” United States v. Greene, 250 F.3d 471, 477 (6th Cir. 2001). Where the alleged criminal conduct involves “fraudulent activity … [that] permeates an entire organization,” the Sixth Circuit recognizes that “search warrants necessarily must authorize broad seizures of corporate records.” United States v. Speer, 419 F. App’x 562, 572 (6th Cir. 2011); see also Hurwitz, 459 F.3d at 473.

Here, the supporting affidavits provided the magistrate judge with probable cause that Linares not only engaged in unlawful distribution of narcotics and healthcare fraud, but that his fraudulent conduct pervaded the entire medical practice. This is evident from the astronomical dosage units prescribed to the patients who visited the Center from far and wide, the high percentage of patients who paid cash, the cursory medical care provided by Linares and his staff, the high dosage units of prescription narcotics dispensed to patients who exhibited patterns of drug abuse and diversion, and Linares’s alleged refusal, on multiple occasions,6 to terminate those patients who re-sold prescribed narcotics to third-parties.