4A4C 2006: Dr. Feelgood's Dope-Slinging Justified Seizure Of All Patient Records

UNITED STATES v. HURWITZ, USCA-4 No. 05-4474, 459 F.3d 463, 2006 U.S.App. LEXIS 21425, on appeal from USDC-VAED, before Circuit Judges Widener and Traxler and USDJ-SCD Currie, opinion by Traxler, dissent by Widener, filed 22 Aug 2006.

LONG STORY SHORT: Attachments to the search warrant affidavit did not have to accompany the officers who served the search warrant, and when the offense in question involves a physician overprescribing controlled substances to many patients, the business is so permeated with crime that all patient records were subject to seizure. Binding in MD, NC, SC, VA, WV.

FACTS: In 2002, an unusual number of people in the McLean, Virginia area were arrested for illegal sale of prescription opoids, and several arrestees named Defendant, a medical doctor, as the source of their products. High-dose opoid therapy normally allowed a patient 195mg of morphine or 100mg of Oxycontin daily, but investigation indicated that Defendant was prescribing median dosages of 2,000mg per day to his patients, and some patients received up to 10,000 pills per month. Defendant charged his patients $1,000 "initiation fees" and $250 monthly "maintenance fees." Cooperating arrestees secretly taped Defendant admitting that it was not inconceivable that some of his patients were selling their meds. Medical authorities had disciplined Defendant twice before for overprescribing controlled substances.

Agent Lucas of DEA swore to a search warrant affidavit setting forth those facts, and in the warrant application wrote "See Attachment A of Affidavit" for a description of the property to be seized. Attachment A specified items in Defendant's "medical practice which constitute evidence of [drug trafficking]" including "[p]atient medical and billing files," without identifying any individual patient files. The court issued the warrant and ordered Attachment A and the affidavit sealed. During the search of Defendant's office, federal agents seized all of Defendant's patients' files, and did not bring the affidavit or Attachment A with them when they searched.

PROCEDURE: The United States indicted Defendant for over 60 drug offenses in U.S. District Court for the Eastern District of Virginia. Defendant moved to suppress all evidence found in his office on grounds that the warrant was fatally overbroad and that it did not name the things to be seized with sufficient particularity. The trial court disagreed; SUPPRESSION DENIED. Defendant was convicted of most offenses at jury trial and received a 25-year sentence. He appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the search warrant was invalid and that he had not gotten a fair trial.

DECISION: The Fourth Amendment requires that warrants particularly describe the things to be seized; otherwise, officers would be entitled to a general rummaging through peoples' property to find what they wanted. This particularity requirement applies to the warrant itself, not just the application for the warrant, but referenced documents can be made part of the warrant. Though other circuits might require both a reference in the warrant and attachment of the referenced document to the warrant, the Fourth Circuit only requires one or the other. The warrant in this case satisfied the requirement by referencing Attachment A to the warrant affidavit.

The fact (which Defendant asserted in the trial court and the United States did not contest, so it was a fact on appeal) that agents brought only the warrant with them, not Attachment A, was not a constitutional problem. Though the better practice is to bring the warrant and all referenced documents, not least because the searching officers can look at it to guide their actions, the Fourth Amendment does not require officers to bring the warrant with them, even if other rules or statutes might.

Neither was the warrant overbroad. Its supporting affidavit provided probable cause that Defendant was running a huge drug trafficking enterprise under the label of a medical practice. Defendant's prescribing practices were well in excess of medically excepted bounds and many of his patients were caught selling controlled substances that he prescribed to them. Defendant's business was so permeated with drug crime that officers needed to seize all patient records. DENIAL OF SUPPRESSION AFFIRMED.

However, Defendant's argument that his trial was unfair had merit. CONVICTIONS AND SENTENCE VACATED and remanded for new trial. The dissent related only to the issues at trial and not the motion to suppress.

EDITORIAL: Good decision in a hard case. I'm giving the guy every benefit of the doubt, because some of his patients at trial testified that he made their pain go away with lots of opoids, and being allergic to pain myself, I'm glad to hear that part. However, it looks like there was waaaay too much of a good thing going down. The feds sure can get carried away with these blanket seizures, though. When I was working the Payne Stewart crash case, I was one of the lowly associates going through boxes of documents (although there are far worse ways to spend a day, I tell you) that the FBI had just turned loose almost three years after swooping in and snatching essentially the entire charter business that had owned the unlucky Lear 35. There was no possible crime in that crash and they destroyed the business for nothing. I have no idea who had the political horsepower to order the FBI in on it. I'd sure like to know though.