S.D.Fla.: “Immediately apparent” in records search is defined by what a specially trained investigator would see in them

In a Medicaid fraud investigation, the affidavit showed probable cause for search of defendant’s house for evidence of the crime. The search for records could be intensive to look for the incriminating nature of the documents which would be readily apparent to a trained Medicaid fraud investigator. United States v. Gil, 2011 U.S. Dist. LEXIS 20638 (S.D. Fla. January 12, 2011)*:

Here, the federal agents inside defendant’s residence satisfied all three requirements for seizure of the subject documents under the “plain view” exception. First, they were lawfully inside defendant’s residence with a properly obtained search warrant as explained above. Second, the subject documents, including insulin logs, weekly visits/time records, and patient evaluation forms, were discovered inadvertently in files and in other locations where a passport might be found. Third, and most critically here, the “incriminatory character” of the subject documents was immediately apparent to Special Agent Shimpeno based on her extensive experience with identical documents in other Medicare investigations. Special Agent Shimpeno testified that she came across these documents while looking for defendant’s passport in files located in the residence and immediately recognized their relevance as evidence merely by “glancing” at the documents and noting that they were incompletely filled out and lacked required information. In the agent’s experience, such documents with missing information are frequently used to submit false Medicare claims. Special Agent Shimpeno did not need to read or closely examine the documents to determine their incriminatory character. Rather, she knew “from a glance” that the items were evidence relevant to this particular Medicare investigation.

Defendant’s Fourth Amendment claim as to his arrest was barred in § 2255 because of his guilty plea and Stone v. Powell. Castillo-Perez v. United States, 2011 U.S. Dist. LEXIS 20492 (M.D. Fla. February 17, 2011).*

Defendant’s motion to suppress consent to recordings was denied without prejudice. The government claims that the motion should be denied because the CI was hidden by it and this was a mere fishing expedition, but the defense has to file a motion to suppress before trial. Crediting that there is some fear for the witness, the issue can be brought up at trial. United States v. Speciale, 2011 U.S. Dist. LEXIS 20187 (N.D. W.Va. February 14, 2011).*