N.D.Ohio: There was a fair inference business records would be at def’s house

When a white collar investigation is underway, the staleness inquiry is more flexible because records, as opposed to drugs, are regularly kept for a long time. It was reasonable here to conclude that business records would be found at defendant’s home because that’s not unusual and there was an indication some records had been removed from work. United States v. Hills, 2018 U.S. Dist. LEXIS 57563 (N.D. Ohio Apr. 4, 2018):

According to the government, the Master Affidavit establishes a “fair probability” that evidence of criminal activity would be found at Alqsous’ residence. It underscores the fact that an affiant need not offer direct proof of illicit activity in a location to establish a nexus to search it. Graham, 275 F.3d at 503. “Instead, as the search concerned records that were likely to be kept and maintained in a residence, and were likely to remain as they were not susceptible to dissipation or degradation, the affidavit established a sufficient nexus to the location.” (Opp’n at 1573-74.) The Master Affidavit described evidence that the residence was used as the return address for checks written to further the conspiracy, and that business records of financial transactions supporting the conspiracy are likely to be kept at a residence. See Abboud, 438 F.3d at 572 (“One does not need Supreme Court precedent to support the simple fact that records of illegal business activity are usually kept at either a business location or at the defendant’s home.”); see, e.g., United States v. Bradley, 644 F.3d 1213 (11th Cir. 2011) (evidence of Medicaid fraud likely to be found at defendant’s residence, and no need for the crimes to have taken place at defendant’s residence to establish nexus); United States v. Linares, No. 13-20368, 2015 U.S. Dist. LEXIS 81956, 2015 WL 3870959, at *7-8 (E.D. Mich. May 4, 2015) (sufficient nexus to search defendant physician’s residence for business records establishing Medicaid fraud) (relying on cases, such as Abboud, that business records likely to be kept at a defendant’s residence).

Given the nature of the criminal enterprise and the evidence sought by the warrant, not to mention the fact that Alqsous and his employees were alleged to have removed files from the only other likely place where such evidence might be kept, the Master Affidavit demonstrated more than a “fair probability” that evidence of the conspiracy would be found at Alqsous’ residence. Accordingly, based upon the “totality of the circumstances,” the Court finds that the Master Affidavit supplied the necessary nexus between Alqsous’ residence and the evidence sought by law enforcement.