S.D.W.Va.: Computer SW for drugs led to healthcare fraud evidence; second SW needed; exclusionary rule should apply to deter

The government had a search warrant of ESI for drugs. When the search warrant was executed, they found evidence of healthcare billing fraud. A second search warrant was required, citing the government’s own search manual [noted and linked on the sidebar on this blog]. The evidence should be suppressed to deter other such occurrences, and the good faith exception doesn’t apply because this is an Fourth Amendment execution violation, not a close question of probable cause. United States v. Nasher-Alneam, 2019 U.S. Dist. LEXIS 125576 (S.D. W.Va. July 29, 2019):

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 Controlled Substances Act. See Horton v. California, 496 U.S. 128, 140, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990) (“If the scope of the search warrant exceeds that permitted by the terms of the validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.”). Therefore, the government should have gotten a second warrant to conduct its search for evidence of healthcare billing fraud. There was no impediment to doing so as the government was “not in a rapidly unfolding situation or searching a location where evidence was likely to move or change, [and] there was no downside to halting the search to obtain a second warrant.” Mann, 592 F.3d at 786; see also Schlingloff, 901 F. Supp. 2d at 1105 (“[I]t is also important to note that there is normally no fear of degradation or dissipation of evidence or a rapidly evolving situation requiring the need to ‘shoot from the hip’ in examining seized computer files without a proper warrant”).

As to applying the exclusionary rule:

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 the ten counts affected by this ruling, Dr. Nasher still remains subject to prosecution for 33 other offenses, several of which carry the potential for a sentence of life imprisonment. Therefore, there is no danger that a dangerous and guilty defendant will go free. On the other hand, Counts Fifteen through Twenty-Four carry a statutory maximum of ten years. However, any actual sentence imposed if just those ten counts were involved would be far less. See United States Sentencing Commission, Guidelines Manual, § 2B1.1 Nov. 2018). Second, the court is not convinced that the government could not go forward on those counts even without the evidence subject to suppression.

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 U.S. Dist. LEXIS 22874, 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 Fourth Amendment that search warrants must describe with particularity the things to be seized, so that a search for specified evidence does not devolve into a generalized search for something entirely different”).