In a health care fraud investigation, the E.D. Pa., following Third Circuit precedent, evaluates the good faith exception first and finds that it applies. As to a particularity challenge, just because “agents conducting the search stripped her medical offices bare and took all of her patients’ files, including those from the spa and cosmetic business, financial paperwork, procedural manuals, and other documents” did not mean that the search was overbroad; it depends upon what is being investigated. United States v. Comite, 2006 U.S. Dist. LEXIS 84121 (E.D. Pa. November 17, 2006):
Initially, concerning particularity, Defendant asserts that while Yusuf notes “the government is to be given more flexibility regarding the items to be searched” in complex financial investigations such as money laundering, Yusuf, 461 F.3d at 395, the same is not true for a fraudulent claim case against a physician. The Court rejects this distinction and finds that an investigation into a physician making false claims to an insurance company can be just as, if not even more, complex than other financial-based investigations into federal crimes. See United States v. Christine, 687 F.2d 749, 760 (3d Cir. 1982) (“flexibility is especially appropriate in cases involving complex schemes spanning many years”). It is obvious from both the pretrial papers and the arguments made at the hearings before this Court that the government went through painstaking detail to gather the evidence that led to the search and grand jury indictment in this case. This is also reflected in the evidence submitted to the Court at the hearings, including the summary charts referenced above. Proving beyond a reasonable doubt that a physician committed fraud is not an easy undertaking, and investigators with probable cause must have the flexibility noted in Yusuf to complete their task.
Defendant is correct that Attachment B to the search warrant, which lists the types of documents to be seized, is very broad and includes, without limitation, all patient records. Defendant asserts that the agents should have selected specific patient files since the investigation by the agents had given them reason to know the names of the patients for whom Defendant made reimbursement requests when she was out of the office and for whom she upcoded the requests for reimbursement. Instead of making selective seizures of these records, the agents apparently took all of Defendant’s files and computers. The government does not dispute this fact, and the photographs taken of the Defendant’s office after the agents left corroborate Defendant’s account.
While this may seem overly broad in the abstract, the nature of the investigation allowed the government to secure and review data on all of Defendant’s patients. It was not required to limit its seizure to the specific patient records which a preliminary investigation had shown might show fraud. As in United States v. Christine, the warrant in this case does not “vest the executing officers with unbridled discretion to conduct an exploratory rummaging through appellees’ papers in search of criminal evidence.” 687 F.2d at 753. Instead, the warrant describes “in both specific and inclusive generic terms what is to be seized” as determined by the magistrate. Id. The Affidavit suggests Defendant had a pattern and practice of overcharging third-party payors on a regular basis. The extent of Defendant’s practice, even the total universe of her patients, may be probative as to Defendant’s intent or motive before a jury, even if there is no specific charge in the indictment with respect to every patient. Otherwise, the jury might not get a full picture of the Defendant’s intent, an element the government must prove at trial. Because of this, a more precisely enumerated list of items was not feasible. Even though the government had evidence that certain patient records were likely to show fraud, it could not know precisely what other documents and information would assist it in proving Defendant’s intent or motive. See United States v. Rankin, 442 F. Supp. 2d 225, 230 (E.D. Pa. 2006).
Plaintiff, identified in the press as a possible serial killer because he refused to provide a DNA sample when he had an alibi which led to a search warrant for his DNA which was publicly filed, stated a claim for relief based on the affidavit for the DNA search warrant which failed to show probable cause. The plaintiff was cleared two months later when the DNA did not match. Also, his shoe size did not match the suspect’s footprint. The police had a tip line, and plaintiff’s name was provided by two anonymous sources. The officer threatened plaintiff with disclosing that he was uncooperative with the press if plaintiff did not consent, and he still did not. Kohler v. Englade, 470 F.3d 1104 (5th Cir. November 21, 2006).
“Plaintiff alleges that the confiscation of his religious materials [in prison] constitutes a ‘cruel and unusual seizure.'” This fails to state a claim for relief. Kitchen-Bey v. Hoskins, 2006 U.S. Dist. LEXIS 84090 (W.D. Mich. November 20, 2006).*
Motion to suppress denied in child porn case based on the affidavit. Probable cause was shown and the allegations of a Franks violation were not material enough to warrant suppression. United States v. Gaynor, 2006 U.S. Dist. LEXIS 83929 (D. Conn. November 9, 2006):
There is . . . a presumption of validity with respect to the affidavit supporting [a] search warrant.” Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). “In certain circumstances, however, a defendant may challenge the truthfulness of factual statements made in the affidavit, and thereby undermine the validity of the warrant and the resulting search or seizure.” United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). “However, every statement in a warrant affidavit does not have to be true.” United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (internal quotation marks omitted).
