Petition for Writ of Certiorari — Hayes v. United States

86 ad © 48 iy Supreme Court, U.S.

as FILED

~~ NOV 24 1986

ne JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

JupbeE R. Hayes,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALE PARHAM

590 West Putnam Avenue

Porterville, California 93257

(209) 781-4100

Counsel of Record

ALAN M. DERSHOWITZ

‘232 Brattle Street

Cambridge, Mass. 02138

(617) 661-1965

Counsel for Petitioner

SUSAN ESTRICH

355 South Grand Avenue

40th Floor

Los Angeles, California 90071-3101

(213) 683-0681

Of Counsel

November 24, 1986

HOWNE OF SAN FRANCISCO INC + !1S9O NINTH ST ¢ SF CA 94103 « (415) 864-2300

4

é ;

LSE ae Se

—— a

QUESTION PRESENTED

Should this Court review the Ninth Circuit’s split decision

approving the broadest search warrant of medical records ever

approved by a federal court, a warrant which—based on suspicion

that some 58 named patients of a medica! doctor may have

received excessive prescriptions of specific Schedule II medica-

tion—authorized agents to rummage as they wish through the

medical files of al// patients, and to seize at their own sole

discretion any file in which any controlled medication had ever

been prescribed, and which another federal district court judge

found overbroad and which the prosecutor acknowledged on

appeal was a “mistake” attributable to sloppy work in his office?

ii

TABLE OF CONTENTS

Page

Question Presented... 355 see ee i

Opinions Below «266 occccanapenesaee eee eee l

pr remit rrr rare ay Be eek 2

Constitutional Provisions Involved ..............6...00. 2

Statement of the Cae ook 5 400 Se ocewes bee eeeeees 2

A. The Issuance of the Warrants..... PPE ee 2

B. The Execution of the Warrants ..............006: 5

C. Challenges to the Warrants Below ............... 6

Reasons for Granting the Wit . <6 60s dacacctanecats 8

I

The Decision Below Dramatically Expands the Exposure of

Businesses and Professional Practices to General, Explora-

tory Searches... .....i0ss 0s gnu eae 9

II

Even if General, Exploratory Searches Were Constitutional,

the Decision Below Allows Unbridled Discretion to Seize

Private Papers Regardless of Probable Cause .......... 13

Conclusion... .. 5 ss vs das 0h ae ee ee 18

Appendix

A. Onder, District COUR 035 sise.45 a eee l

B. Memorandum Decision and Order, District Court.... 28

C. Opinion, Court 6F AMOR 53 cs oe se aae tease 79

D. Osder, Court of AbQOGR *.cicsan5a cee ee 117

ili

TABLE OF AUTHORITIES

Cases

Page

Andresen v. Maryland, 427 U.S. 463 (1976) ..10, 11, 12, 15, 17

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... 10

In re Grand Jury Proceedings, 716 F.2d 493

Na 12, 16, 17

In re Lafayette Academy, 610 F.2d 1 (Ist Cir. 1979) ...12,14

Marron v. United States, 275 U.S. 192 (1927) ....... 9, 10, 13

Montilla Records of Puerto Rico v. Morales, 575 F.2d 324

ta oe se ee asses esse tsb vseede a 12

United States v. Abrams, 615 F.2d 541 (ist Cir. 1980) ..12, 13

United States v. Brien, 617 F.2d 299 (1st Cir.), cert. denied.

I os cw wanvdcncccacaccees 12

United States v. Bright, 630 F.2d 804 (Sth Cir. 1980)... 12

United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982) 14

United States v. Cook, 657 F.2d 730 (Sth Cir. 1981)..... 14

United States v. Gomez-Soto, 723 F.2d 649 (9th Cir.), cert.

Se UE, I CNUUPOD ca ccccacccccccccescecs 12

United States v. Hillyard, 677 F.2d 1336 (9th Cir. 1982) 14

United States v. Marti, 421 F.2d 1263 (2d Cir. 1970), cert.

SE ROE CEOUED cc ca caccadocscncesecces 14

United States v. Roche, 614 F.2d 6 (lst Cir. 1980) ...... 11

United States v. The Offices Known as Fifty State

Distributing Co., 708 F.2d 1371 (9th Cir. 1983) ...... 11,12

Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985)...... 11, 12

Warden v. Hayden, 387 U.S. 294 (1967) ............... 16

Constitution

United States Constitution, Amendment IV........ 2, 8, 15, 16

Statutes

ee a eka wecuatacatecnsan 3,14

ER ING a 2

Other Authorities

White Paper on Drug Abuse: A Report to the President from

the Domestic Council Drug Abuse Task Force (Govern-

PE I, UMD occ ccnsccccccvevsncnawcs 14

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

JupbeE R. HAYES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPINIONS BELOW

This petition seeks review of a decision of a divided panel of the

United States Court of Appeals for the Ninth Circuit (per

Wallace, J., and Anderson, J.; Pregerson, J., dissenting), not yet

reported, which is reprinted in the Appendix to the Petition for

Certiorari.' The opinion of the United States District Court for

the Eastern District of California (Coyle, J.) denying petiticner’s

motion to suppress, not reported, is also reprinted in the Appen-

dix, as is the decision of the United States District Court for the

Eastern District of California (Price, J.) in the related civil suit,

'The opinion of the Court of Appeals, filed on May 9, 1986, was

withheld for publication until September 30, 1986. Citations to the

Appendix filed with this Petition will be denoted “App. ___”’. Citations

to the Excerpt of Record submitted to the court of appeals will be

denoted “ER____”’.

2

holding the warrants which are the subject of this petition for

review unconstitutional.

JURISDICTION

The judgment of the Court of Appeals for the Ninth Circuit

was entered on May 9, 1986. The petition for rehearing was

denied on October 1, 1986. This Court has jurisdiction to review

the judgment of the court of appeals under 28 U.S.C. section

1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment IV of the Constitution of the United States

provides that:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the

persons or things to be seized.

STATEMENT OF THE CASE

The issue in this case is whether government agents, based at

most on suspicion that some 58 named patients of a medical

doctor may have received excessive prescriptions of specific

Schedule II medication, are entitled to rummage as they wish

through the medical files of a// his patients, and to seize at their

own sole discretion any file in which any controlled medication

had ever been prescribed by that doctor or any of the other

doctors with whom he practiced. For the warrant approved by the

divided Ninth Circuit panel below authorized just such a search

and standardless seizure more extreme, unnecessary, and intru-

sive than any ever approved by this or any lower federal court.

A. The Issuance of the Warrants

The three warrants whose overbreadth is challenged in this case

were issued on July 28, 1982, after government agents learned

3

that some 58 patients of Doctor Jude R. Hayes—less than 1% of

his practice—may have received what they considered to be

excessive prescriptions of Schedule II medications. Dr. Hayes is a

distinguished physician who has practiced medicine for 28 years

and treats patients in offices in Porterville, Farmersville, and

Ivanhoe, California. As a physician, Dr. Hayes is entitled under

the “medical exception” to the Controlled Substances Act to

prescribe controlled medications to his patients. The evidence

arousing government suspicion in no way suggested that he issued

such prescriptions on demand or invented complaints for his

patients, as do the “script” doctors who are the target of this Act's

prohibitions.

Indeed, the prosecutor conceded in his closing argument to the

jury that Dr. Hayes was not a “script doctor.” ER 642. Rather,

the evidence concerned some 58 specific patients as to whom the

Government claimed that Dr. Hayes’ prescription of Schedule II

medications—which are approved by the Food and Drug Admin-

istration as medically appropriate for the treatment of

pain—might have been “excessive.”

The warrants were not limited to records concerning the 58

patients. Nor were they limited to records concerning patients

being treated for pain, or patients being prescribed Schedule II

medications. They were not even limited to records concerning

those patients primarily treated by Dr. Hayes, as opposed to the

other nine physicians and three family nurse practitioners who

worked in his offices. Rather, the warrants authorized agents to

search for and seize:

(1) demerol (mependine), morphine sulfate and other con-

trolled substances; (2) all records which document the

purchasing, dispensing and prescribing of controlled sub-

> The standard of “excessive” prescriptions which was applied by the

Government's expert is an administrative standard applied by state

licensing authorities; it is nowhere mentioned in the Controlled Sub-

stances Act, and petitioner has vigorously contested the government's

efforts through this case to convert what is at worst a difference of

opinion within the medical community as to the treatment of chronic

pain into a basis for criminal liability.

4

stances, including but not limited to records contained in

patient charts and all relevant records required to be main-

tained by Title 21 of the Code of Federal Regulations, Part

1300 to end and Sections 11190 and 11191 of the California

Health and Safety Code; (3) patient logs, appointment

books and other records and ledgers reflecting distribution of

controlled substances;’ (4) correspondence concerning the

procuring, transferring, administering, prescribing or dispens-

ing of controlled substances by Dr. Hayes; all of which

constitute evidence of possible violations of 21 U.S.C.

§ 841(a)(1) and 21 U.S.C. § 843(a) (3).

On their face, the warrants authorized the search of every file

and every record of every one of the 10,000 patients treated in any

one of Dr. Hayes’ offices by any of the physicians in those offices.

They authorized the seizure of any record involving controlled

substances, including any prescription of any of the hundreds of

controlled medications occasionally prescribed for millions of

Americans—from Valium to Librium to Tylenol with codeine.

Nothing in any of the three warrants gave the agents executing

them the slightest guidance as to how to distinguish records

involving the potentially illegal distribution of controlled sub-

stances from records with absolutely no bearing on illegal distri-

bution at all. No standards were set forth telling the agents what

degree of frequency or quantity would indicate that a record

might be linked to prescriptions exceeding the law. No guidelines

were stated as to what symptoms or diagnosis might justify what

dosage of which medication.

> The Farmersville and Porterville warrants authorized the seizure of

such records “constituting evidence of illegal distribution of controlled

substances,” thus requiring the officers to determine—without any

guidance from the warrant—whether a particular iiem constitutes evi-

dence of illegal rather than legal distribution. See App. 108,114 ( Preger-

son, J., dissenting). The Ivanhoe warrant included no such limitation,

thus allowing for the seizure of evidence which was not even probable

evidence of any illegal activity.

5

B. The Execution of the Warrants

The three search warrants were executed the following day by

three teams totaling altogether twelve agents—one team search-

ing and seizing documents in each of Dr. Hayes’ three offices. In

the Porterville office, where the records of six to eight thousand

patients were maintained by Dr. Hayes and his colleagues, a five-

person team began searching all of them, “starting at one end.”

ER 280, 300. According to Agent Plavan, the agent in charge,

anything within the confines of the office was “fair game” for the

search. ER 424.‘ The determination of what to look for and seize

was “up to the discretion of the officer”; it “was basically assumed

each officer was to use his common sense and judgment as to

which files should be seized.” ER 424, 421. While the agents

“initially had planned to go through each and every file in the

Office,” it became “obvious” within the first four hours that the

full search and seizure authorized by the warrant could not be

completed “unless we stayed there for two or three weeks.” ER

300. At that point, the officers decided to limit their search in a

discretionary manner to 75 patients for whom drug profiles had

previously been developed and to the triplicate prescription log

maintained by Dr. Hayes for Schedule II prescriptions. ER 301,

424.

In the Farmersville office, where 1200 to 1500 patient files were

kept, a three-person team reviewed each and every one, as well as

all appointment books and ledgers. ER 332, 388. Agent Horn, the

team leader, testified that they were particularly looking for charts

evidencing Schedule II abuse, but that “there was really no

convenient way for us to set out a particular manner” of defining

abuse, so that he and the other agents operated with no specific

standards as to amount or frequency of prescriptions. ER 387.

In the Ivanhoe office, a four-agent team searched each of some

1,000 files in the office, with each agent making his own decisions

as to what to seize. Agent Conner, the team leader, acknowledged

*It was not only medical files that were examined. The agents

searched through confidential legal files in a locked file cabinet in a

separate conference room, and through the briefcase of a financial

consultant who happened to be present. ER 177-179, 182; App. 17.

6

that most of the agents involved in the search had limited if any

experience with physicians’ prescribing practices, but stated that

they were nonetheless given no specific guidelines as to what to

seize. So long as “‘it fit the guidelines of the warrant,” a file could

be seized if it might warrant further review. ER 406.

All told, Agent Conner testified that 217 medical files were

seized by the 12 officers who each spent all day searching Dr.

Hayes’ offices. Of those, 18 included no prescriptions for any

controlled substances at all, and somewhere between: one-quarter

and one-half included no prescriptions for Schedule II medica-

tions. ER 412-413.

C. Challenges to the Warrants Below

Following the searches of his offices, petitioner brought suit in

the United States District Court for the Eastern District of

California seeking return of his records. The District Court, in an

opinion by Judge Price, concluded that while there was probable

cause for the issuance of a search warrant, there was no probable

cause for the issuance of a search warrant “of the all-encompass-

ing breadth and scope of the instant warrant.” App. 23. Noting

that the “most usual remedy for Fourth Amendment violations is

the suppression of evidence in the criminal proceeding,” Judge

Price ordered the return of all seized evidence by February 1,

1983, unless the plaintiff was indicted prior to that time. Dr.

Hayes was indicted on January 28, 1983.

In the criminal proceeding in the same district court, but before

a different judge, petitioner sought suppression of the seized

evidence. In denying that motion to suppress, Judge Coyle appar-

ently agreed with Judge Price that the warrant standing a/one was

overbroad. Judge Coyle refused suppression instead on the basis

that government affidavits had described a narrower range of

documents than did the warrants—even though those affidavits

were never attached to the warrants, and even though, as Judge

Coyle acknowledged, the “general rule” is that affidavits cannot

correct excessive generality in warrants to which they were never

attached. The evidence was introduced at trial, and Dr. Hayes

was convicted of violating the Controlled Substances Act with

respect to prescriptions issued to twelve of his patients.

7

On appeal, the Ninth Circuit affirmed the denial of suppres-

sion, and affirmed the convictions. None of the three judges on

the panel, however, agreed with Judge Coyle’s novel argument

that the unattached affidavits could supply the particularity that

was missing from the warrant. Rather, the two judges in the

Ninth Circuit majority upheld the search and seizure solely on

the basis that the warrants themselves satisfied the particularity

requirement of the Fourth Amendment. The only reason offered

by the majority was its conclusion that the magistrate, based on

the 58 suspect cases, had somehow found probable cause to

search and seize all records of all patients for any prescription of

any controlled medication, in any amount and with whatever

degree of frequency. From this conclusion, the court below

apparently reasoned that no limits at all on the scope of the search

or the discretion of the officers were necessary.

Judge Pregerson dissented, finding that the actions of federal

authorities “demonstrate a cavalier disregard for the Fourth

Amendment’s particularity requirement.” App. 105. The warrants

used were characterized by “flagrant overbreadth,” App. 107, and

“do not even come close to satisfying the Fourth Amendment’s

particularity requirement.” App. 116. The warrants mandated

that the agents determine without any standards whether a

particular item constitutes evidence of illegal distribution, an

inquiry which is “especially problematic” because Dr. Hayes was

legally entitled to prescribe controlled medications, so long as

those prescriptions were not “excessive” or for a “non-medical”

purpose. App. 108 n.3. The overbreadth of the warrants “not only

permitted discretionary rummaging and seizure, but in fact neces-

sitated it,” a result which should not be tolerated given that “the

search could have been, but was not, restricted to the files

pertaining to the particular patients or drugs referred to in the

affidavits.” App. 110, 115. Moreover, Judge Pregerson found that

the failure to limit the warrants was “particulariy troublesome”

because the documents were primarily patients’ medical records:

“Information contained in patient files is extremely personal and

potentially embarrassing to innocent third parties.” App. 112.

Judge Pregerson, while alone in dissent below, was not alone in

viewing the warrants as overbroad. While neither of Judge

8

Pregerson’s colleagues took this view, the Assistant United States

Attorney assigned to this case himself admitted at length at oral

argument that the failure to limit the warrants was a “mistake,”

attributable only to sloppy work in his office. As Judge Pregerson

details:

At oral argument, the United States attorney assigned to this

case repeatedly acknowledged that the failure to limit the

search warrants to records involving Schedule II drugs or

specific patients was a “mistake” on the part of the agents

who drafted the warrants. Government counsel conceded

that “in hindsight” the warrants should have been limited to

the suspect patient files referred to in the affidavits.

This error was apparently due to counsel’s failure adequately

to assist the agents in drafting the warrants. Counsel noted

that the agents typed up the warrants and affidavits and that

he failed to review them before they were presented to the

magistrate because “for some reason I was not available.”

He further acknowledged that his failure to review the

warrants was a departure from “customary practice.”

Thus, although the attorney asserted that he assisted in

preparing the affidavits and warrants, it appears that he did

not give the agents meaningful guidance on how the docu-

ments should be worded. In fact, counsel candidly admitted

that, “I was quite surprised that [the warrant] ended up

reading the way it did.”

App. 105 n.i. The issue in this case is not whether two judges of

the Ninth Circuit can forgive these mistakes; it is whether the

Fourth Amendment to the Constitution can tolerate them.

REASONS FOR GRANTING THE WRIT

The warrants approved below all but eliminated the Fourth

Amendment’s particularity requirement, permitting government

agents to rummage at will among the intimate medical records of

nearly 10,000 patients. For all that appeared on the face of the

warrants, the only thing these patients could have been accused of

doing was seeking their doctor’s advice. The decision below

9

tolerating this flagrantly general search imperils all businesses and

professional practices, who now must beware, at least in the

Ninth Circuit, that a small tail of “suspicion” —here as to 1% of

the patients in a doctor’s extensive, 28-year, tricity practice—may

wag the entire dog. To be sure, the decision below adds one more

approach to the struggles of the circuits to fashion rules for the

sweep of general business records searches. But those piecemeal

and inconsistent struggles cry out for authoritative guidance from

this Court.

Even if the particularity and probable cause requirements were

not deemed to prohibit a general search of 10,000 patient records

based, at most, on suspicion as to 58, review would nonetheless be

required in this case. For the warrants upheld below authorized

not only a general search, but also utterly standardless seizures in

flat violation of this Court’s insistence that, “as to what is taken,

nothing is [to be] left to the discretion of the officer executing the

warrant,” Marron v. United States, 275 U.S. 192, 196 (1927).

THE DECISION BELOW DRAMATICALLY EXPANDS

THE EXPOSURE OF BUSINESSES AND PROFES-

SIONAL PRACTICES TO GENERAL, EXPLORATORY

SEARCHES.

The government in this case knew the names of the 58 patients

whom it suspected had received excessive prescriptions of Sched-

ule II medications. Rather than limiting itself to a search for the

files of those 58 patients, the Government sought and received the

authority to conduct a sweeping exploratory search in Dr. Hayes’

three offices in the hopes of collecting evidence of some other

wrongdoing.° Ignoring the requirements of probable cause and

* Petitioner has never conceded even that the government had proba-

ble cause to search for those 58 files, based on no more than a conclusion

that the prescriptions issued might have been “excessive” —a standard

which has been applied by California authorities in licensing proceedings

but had never, at least until this case, been considered the standard for

criminal penalties under federal law. But the government’s choice not to

10

particularity, the government sought and received permission to

conduct nothing less than the very sort of “general, exploratory

rummaging,” Coolidge v. New Hampshire, 403 U.S. 443, 467

(1971), that the Fourth Amendment’s requirements of probable

cause and particularity were intended to make “impossible,”

Marron v. United States, 275 U.S. 192, 196 (1927).

The Ninth Circuit not only approved such a general search in

the case below; it- did so in circumstances where a narrower

targeting was entirely possible—as the prosecutor acknowl-

edged—and the records at issue peculiarly private in nature. At a

minimum, this decision compounds the confusion and disparity

that has developed among the circuits over the constitutionality of

business records searches in the decade since this Court’s decision

in Andresen v. Maryland, 427 U.S. 463, 479 (1976). At worst, it

authorizes a search that takes the generality sometimes tolerated

by some lower courts to dramatic new heights.

Andresen involved warrants that, after an “exhaustive list of

particularly described documents” relating to the crime of false

pretenses with respect to a certain lot (Lot 13T) in a stated

development (Potomac Woods), included the phrase “together

with other fruits, instrumentalities and evidence of crime.” This

Court concluded that the warrants did not authorize an unconsti-

tutionally general search, but only in light of their implicit

reference to the highly particularized descriptions found earlier in

the warrant. The Court wrote that the final phrase “must be read

as authorizing only the search for and seizure of evidence relating

to ‘the crime of false pretenses with respect to Lot 13T’... The

warrants, accordingly, did not authorize the executing officers to

conduct a search for evidence of other crimes but only to search

for and seize evidence relevant to the crime of false pretenses and

Lot 13T.” 427 U.S. at 480-82 (emphasis added).

Andresen should have made clear that probable cause to

believe there is particular evidence of particular wrongdoing

cannot constitutionally be translated into a warrant to rummage

through all of a person’s papers and effects in the hopes of finding

restrict its search and seizure to those 58 patients renders the question of

probable cause as to them wholly academic.

11

other, unknown evidence of other, unknown crimes. But in the

decade since Andresen, what began as a limited exception to the

particularity requirement has expanded in this case so as to

threaten the Constitutional rule.

At least two circuits, including the Ninth before this case, have

sought to limit approval of general warrants for searches of

business records to cases where there is particularized reason to

suppose a search will turn up “pervasive” evidence of crimes, or

where the evidence sought of illegal activity cannot be segregated

in advance by any standard from nearby innocent records. In

United States v. The Offices Known as Fifty State Distributing

Co., 708 F.2d 1371 (9th Cir. 1983), the court held that an

affidavit suggesting a pervasive scheme of fraudulent activity was

sufficient to justify a search of and seizure of all of a business’

records. In doing so, the court then emphasized that while the

search and seizure was “extraordinarily broad, and in this sense

‘general’... [i]t was not possible through more particular

description to segregate those business records that would be

evidence of fraud.” A similar argument was accepted by the

Court of Appeals for the First Circuit in United States v. Brien,

617 F.2d 299 (1st Cir.), cert. denied, 446 U.S. 919 (1980). The

following year, however, that court as well made clear that such

broad searches and seizures would be tolerated only where it was

impossible to segregate legitimate activity from fraudulent activ-

ity. United States v. Roche, 614 F.2d 6 (1st Cir. 1980).

But such creative glosses on the Fourth Amendment's straight-

forward particularity requirement have not been universally en-

dorsed. In Voss v. Bergsgaard, 774 F.2d 402 (10th Cir. 1985), for

example, the government secured a warrant to search a com-

pany’s three offices based on allegations of a scheme of tax fraud.

In holding the warrant unconstitutionally overbroad, the court

emphasized that it authorized agents “to rummage through all of

the [company’s] customer files, bank records, employee records,

precious metal records, marketing and promotional literature, and

more, seeking any information pertaining to any federal crime.”

These warrants, the court concluded, “allowed precisely the kind

of rummaging through a person’s belongings, in search of evi-

dence of even previously unsuspected crimes or of no crime at all,

12

that the fourth amendment prohibits.” Jd. at 405. To the extent

that United States v. The Offices Known as Fifty State Distribut-

ing Co., and United States v. Brien suggested an opposite result,

the Tenth Circuit specifically declined to follow those cases. Jd. at

406. See also United States v. Bright, 630 F.2d 804, 812 (Sth Cir.

1980) (upholding generic classifications in warrant where more

precise description not possible); United States v. Gomez-Soto,

723 F.2d 649, 652-54 (9th Cir.), cert. denied, 104 S.Ct. 2360

(1984) (upholding warrant to the extent it related to criminal

activity that was the sole business of defendant, and striking down

remainder of warrant as overbroad); Montilla Records of Puerto

Rico v. Morales, 575 F.2d 32 (1st Cir. 1978) (striking down

warrant as unnecessarily broad); Jn re Grand Jury Proceedings,

716 F.2d 493, 499 (8th Cir. 1983) (striking down warrant for

exceeding limits of probable cause); Jn re Lafayette Academy,

610 F.2d 1 (lst Cir. 1979) (striking down warrant as overbroad

and standardless).

In short, Andresen left in its wake uncertainty about the

circumstances in which general exploratory searches of business

records may be constitutionally tolerable, and the circuits have

spawned confusion and disparity in that wake. That confusion

calls out for uniform guidance from this Court.

This case provides a particularly appropriate vehicle for such

clarification because the government’s wholesale rummaging

through Dr. Hayes’ offices was far more extreme than any search

countenanced in the cases just described. First, there was no basis

to suspect “pervasiveness” here as there was found to have been

in Fifty State Distributing. If suspicion as to less than 1% of a

doctor’s practice is sufficient to give rise to a fishing expedition

through records concerning all 10,000 patients—as even the

prosecutor could not justify—then the very notion of “pervasive-

ness” loses all meaning, and suspicion as to any criminality is

sufficient to justify general rummaging. Faced with facts in many

respects identical to this case—a search of doctors’ offices based

on some 50 suspected cases of fraudulent overbilling—the Court

of Appeals for the First Circuit held similar warrants to violate

both the probable cause and the particularity requirements of the

fourth amendment. United States v. Abrams, 615 F.2d 541 (lst

13

Cir. 1980). As that court properly recognized, “were we to hold

the search in this case to be justified by the affidavit [pointing to

50 suspected cases], we can see no basis for invalidating in a

future case a search and seizure of all records of payables and

expenditures relying on an affidavit that some unspecified per-

centages of a business’s expenditures exceeded the relevant bills

payable.” /d. at 544 n.7.

Second, what is involved here is not simply records of business

activity, but the most private and personal and embarrassing kind

of records. As Judge Pregerson recognized:

The failure to limit the warrants so as to minimize intrusions

upon patient’s privacy interests is particularly troublesome

because the documents to be searched were primarily medi-

cal records. Information contained in patient files is ex-

tremely personal and potentially embarrassing to innocent

third parties. Unlike the cases cited by the majority, in which

the searches generally involved a narrow class of business

transactions, the search in this case encompassed personal

medical history contained in thousands of patient files. The

Magistrate’s failure to narrow the scope of the search re-

sulted in massive intrusions on personal privacy interests.

App. 112-113. This Court should review the judgment below in

order that the exposure of any business or professional practice to

general, rummaging searches will no longer depend on the acci-

dent of its location in one federal circuit or another.

II

EVEN IF GENERAL, EXPLORATORY SEARCHES WERE

CONSTITUTIONAL, THE DECISION BELOW ALLOWS

UNBRIDLED DISCRETION TO SEIZE PRIVATE PA-

PERS REGARDLESS OF PROBABLE CAUSE.

Even if the agents were constitutionally entitled to search all

10,000 of the medical files in petitioner’s offices, the constitu-

tional question remains as to what they were entitled to seize. “As

to what is to be taken, nothing is [to be] left to the discretion of

the officer executing the warrant.” Marron v. United States, 275

U.S. at 196.

14

Until this decision, the Court of Appeals for the Ninth Circuit,

like every other Court of Appeals, had ensured the absence of

such prohibited discretion by requiring “objective, articulated

standards for the executing officers to distinguish between prop-

erty legally possessed and that which is not.” United Staies v.

Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982). See also United

States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982); United States

v. Marti, 421 F.2d 1263, 1268 (2d Cir. 1970), cert. denied, 404

U.S. 947 (1971); In re Lafayette Academy, 610 F.2d 1 (Ist Cir.

1979); United States v. Cook, 657 F.2d 730 (Sth Cir. 1981). That

requirement was abandoned in this case.

Two of the warrants demanded discretion on their face. The

warrants covering more than 9,000 files in the Farmersville and

Porterville offices authorized the seizure of those patient logs and

records “constituting evidence of illegal distribution of controlled

substances.” But neither of these warrants contained so much as a

single guideline, in terms of frequency or dosage or patient

condition, as to what constitutes illegal rather than legal

distribution.

Nor is it a simple matter to distinguish between legal and

illegal distribution of all controlled substances by a physician. All

of the medications listed in Schedules II-V of the Controlled

Substances Act have recognized, legitimate medical uses. The

government itself has estimated that one in four adult Americans

uses stimulants, sedatives, or tranquilizers encompassed in these

schedules during a year. And this 25% figure does not include the

use of other controlled substances—such as paregoric, Demerol,

Tylenol with codeine, or codeine cough syrup—which are com-

monly, legally prescribed medications.°

Yet even apart from the specific language of the warrants,

which the majority of the panel simply chose to ignore, see App.

99, 101, 103 n.1, 104 n.3, discretion was a necessity. The breadth

of the searches authorized and the number of medical files

involved left the agents no alternative, and the terms of the

° See White Paper on Drug Abuse: A Report to the President from

the Domestic Council Drug Abuse Task Force (Government Printing

Office, 1975).

bern

15

warrants admittedly provided them no guidelines. As one agent

put it, everything was “fair game,” with the decision whether to

search and seize a particular file “up to the discretion of the

individual officers.” ER 423-424.

Such unbridled discretion is more offensive still given the

nature of the search involved. The requirement of specificity in a

warrant is particularly exacting where the search is of a person’s

papers, for “there are grave dangers inherent in executing a

warrant authorizing a search and seizure of a person’s papers that

are not necessarily present in executing a warrant to search for

physical objects whose relevance is more easily ascertainable.”

Andresen v. Maryland, 427 U.S. at 482 n. 11. And if that is so as

to the business records at issue in Andresen, it is even more

compelling where the records involve not matters of business but

of individual health, and where the determination of relevance

must turn on an officer’s lay evaluation of the medication that

individual needed to deal with illness.

The majority’s only justification for this wholesale grant of

discretion is to claim that since the magistrate’s finding, “unchal-

lenged on appeal,” was of probable cause to seize “all documents

concerning controlled substances,” there was no need for any

guidelines. That assertion, however, wholly misunderstands not

only petitioner’s argument on appeal but the very law of probable

cause and particularity under the Fourth Amendment.

First, appellant never conceded that there was probable cause

to search 10,000 patient files for any and all controlled substances.

Quite the contrary, as appellant argued in his main brief to the

Court of Appeals: “Here, as Judge Price held [in the initial civil

suit], the government did not have probable cause to search all of

Dr. Hayes’ papers, files and records in all of his offices. At most,

the government had reason to suspect, on the basis of an investi-

gation which covered more than 5,000 prescriptions at 15 phar-

macies, violations with respect to less than one percent of Dr.

Hayes’ patients. See United States v. Abrams, 615 F.2d at 544

n.7.” Brief for Appellant at 41 and n.42.

Second, even apart from these specific assertions, the claim

that these warrants were unconstitutionally general necessarily

16

encompasses a claim that they were unsupported by probable

cause. What made the description in these warrants “general” as

a matter of law was precisely the fact that they encompassed

patients and medications as to which the government lacked the

particularized suspicion required by the Fourth Amendment. The

warrants constituted nothing less than a blank check to the

constable to search at will for unknown and undescribed evidence

of crime.

Third, however general the search, the Fourth Amendment

limits seizures of property to items which are at least probable

evidence of illegal behavior. “There must, of course, be a

nexus—automatically provided in the case of fruits, instumentali-

ties or contraband—between the item to be seized and criminal

behavior. Thus in the case of “mere evidence,” probable cause

must be examined in terms of cause to believe that the evidence

sought will aid in a particular apprehension or conviction™

Warden v. Hayden. 387 U.S. 294 (1967). The majority in this

case flatly ignores that requirement. It upholds possibie seizure of

any record with any legal prescription for Tylenol with co-

deine—and then converts this vice of the warrants into a virtuc

which makes standards unnecessary. In order to climinate the

need fo: standards to distinguish between legitimate and ilicgal

prescriptions, the majority violates the Supreme Court's require-

ment of a nexus between the evidence and illegal behavior.

In In re Grand Jury Proceedings. 716 F 2d 493 (8th Cir. 1983).

the Government sought to persuade the Court of Appeals for the

Eighth Circuit that where a scheme of criminal activity far more

pervasive and far more complex than that involved here was

suspected, it had authority to seize all of the company’s business

records, regardless of any more particularized probable cause.

The Eighth Circuit rejected the argument, in language which

conflicts squarely and directly with the approach of the Ninth

Circuit here:

17

Neither Andresen nor any other case supports the basic

proposition on which the Government's position de-

pends—that where complex criminal activity is suspected,

the scope of a search warrant is not limited by probable

cause. As for the Government’s argument that the search

warrant in the instant case left nothing to the discretion of

the officers, this is true only in the most perverse sense. .

Where the warrant allows a seizure of everything, the items

seized necessarily will correspond to the scope of the war-

rant. The crucial question is whether the warrant authorized

too much under the law.

716 F.2d at 499.

If the majority is correct that the warrants here authorized the

seizure of all medical records involving the prescription of con-

trolied medication, regardless of the legality of the particular

prescriptions or treatment they are surely wrong that such

seizures are authorized by the Fourth Amendment. The warrant

in this case, like the warrant im Jn re Grand Jury Proceedings.

authorized too much. If such warrants are allowed to stand. then

the privacy of millions of businesses, and doctors and their

patients, are in clear jeopardy.

18

CONCLUSION

For the foregoing reasons, petitioner respectfully requests that

this Court grant certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

DALE PARHAM

590 West Putnam Avenue

Porterville, California 93257

(209) 781-4100

Counsel of Record

Aan M. DersHowrtz

232 Brattle Street

Cambridge, Massachusetts 02138

(617) 661-1965

Counsel for Petitioner

Susan Estricu

355 South Grand Avenue

40th Floor

Los Angeles, California 90071-3101!

(213) 683-0681

Of Counsel

(Appendices follows)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SEQUOIA PHYSICIANS MEDICAL GROUP,

a professional corporation, and

JUDE R. HAYES, M.D., Plaintiffs

‘- D.C. HO.:

, CV F 82-371 EDP

DONALD AYER, as U.S. ATTORNEY for

The Eastern District of California,

ORVE HENDRIX, as Special Agent in

Charge of the Department of

Justice Drug Enfcercement Adminis-

tration, Fresno Office, Defendants

ORDER (Price, J.)

Filed January 17, 1983

I

FACTS

From the verified first amended complaint

on file herein the court finds the following

facts with reference to this controversy:

2

Plaintiff Sequoia Physicians Medical

ee Oe ee) ee

Group is a professional corporation engaged

in the practice of medicine in the towns of

Porterville, Farmersville and Ivanhoe,

California, all of which are situate within

the Eastern District of California. The

plaintiff, Jude R. Hayes, M.D. is a medical

doctor duly licensed to practice medicine in

the State of California, and is associated

with the Sequoia Physicians Medical Group in

the practice of medicine. The court has not

been able to determine from the evidence

adduced at the hearings in this matter -how

many other physicians are likewise associated

with the group.

From the testimony adduced at the

evidentiary hearing, the court finds the

following facts with reference to the

controversy:

A. The Pre-Search Warrant Investigation

On or about the first of 1982, Dr. Hayes

became the target of a multi-faceted investi-

RN

3

gation by the authorities of the State of

California. Directly involved in that inves-

tigation was the Bureau of Medical Quality

Assurance which concerns itself with the

licensure of physicians and surgeons, as well

as the Bureau of Narcotics Enforcement of the

State of California which concerns itself

with the illegal dispensing of controlled

substances by physicians and surgeons and

other persons licensed to prescribe such

substances.

Part of the investigation which the

State Agents launched consisted of the

compilation of prescriptions of Schedule II

substances which had been written by Dr.

Hayes and filled by various Tulare County

pharmacies. The court takes judicial notice

that the State of California requires phar-

macists to keep such prescriptions on file

for a specified period of time and to allow

the same to be inspected by appropriate

officials of the State of California.

4

After collecting these prescriptions, the

Bureau of Medical Quality Assurance submitted

them to physician-experts which they retained

for purposes of preparing drug abuse profiles

of each person named in the prescriptions.

As a result of this operation, a substantial

list of suspected drug abusers and persons

addicted to habit-forming drugs (particularly

Schedule II substances) were identified.

Approximately one week prior to July 29,

1982, Special Agent Craig Winstead of the

California Bureau of Narcotics Enforcement

contacted certain agents of the Department

of Drug Enforcement of the United States

government, and requested their help in the

investigation.

B. The Search Warrant

On July 28, 1982, Richard E. Combs,

United States Magistrate in this District,

issued a search warrant authorizing a seizure

of certain property, namely:

(1) demerol (mependine), morphine sulfate

5

and other controlled substances.

(2) all records which document the pur-

chasing, dispensing and prescribing of con-

trolled substances, including but not limited

to, records contained in patient charts and

all relevant records required to be main-

tained by Title 21 of the Code of Federal

Regulations, Part 1300 to end and Sections

11190 and 11191 of the California Health and

Safety Code.

(3) patient logs, appointment books and

other records and ledgers reflecting distri-

bution of controlled substances.

(4) correspondence concerning the pro-

curing, transferring, administering, prescrib-

ing or dispensing of controlled substances by

Dr. Hayes.

Finally, the search warrant concluded

with the following conclusionary statement:

"all of which constitute evidence of

possible violations of 21 USC 842(a)(1) and

21 USC 84364)(3}.”

6

The issuing Magistrate, prior to the

issuance of the search warrant, received

affidavits from Ann Lawson Clark, Compliance

Investigator with the Drug Enforcement

Administration, presently stationed in

Washington, D.C. Her affidavit is ‘a ver-

batim recital of the language quoted from

the search warrant. The affidavit indicates

a reliance of Craig C. Winstead, previously

identified as the source of her information.

Special Agent Winstead's affidavit

indicates the following:

Your affiant was told by James Pell,

Special Agent for the Bureau of Narcotics

Enforcement, State of California, that on or

about December 3, 1981 he received, from the

Bureau of Narcotics Enforcement files in

Sacramento, duplicates of prescriptions issued

by Dr. Hayes and filled over a period from

February 1981 through September 1981. These

prescriptions were for Schedule II drugs and

pharmacies filling these prescriptions are

required by law to file a copy of the

prescription with the Bureau of Narcotic

Enforcement, State of California.

Based on these duplicate prescriptions,

drug profiles were prepared. A drug profile

shows the date of the prescription, the drugs

that were prescribed, the quantity of drugs

prescribed, the number of days which elapsed

ee ee

7

between each prescription and the average

daily use that would result from this interval

as well as the pharmacy at which the prescrip-

tion was filled.

Between May 3, 1982 and May 5, 1982 your

affiant, along with other investigators,

removed 5211 prescriptions issued by Dr. Hayes

for controlled substances from 15 pharmacies

in Tulare County. Seventy-five drug profiles

were made from both these prescriptions and the

aforementioned profiles made by Agent Pell on

December 3, 1981. The seventy-five profiles

were sent to H. H. Schwamb, M.D., a licensed

physician in the State of California, employed

as a medical consultant for the Board of

Medical Quality Assurance, Department of

Consumer Affairs, State of California, by

Investigator Keszler.

After reviewing the drug profiles, Dr.

Schwamb sent a declaration back to

Investigator Keszler in which he found 58 pro-

files that caused him to believe that “it is

highly probable Dr. Hayes caused, abetted, or

prolonged addition [sic] or habituation to

controlled substances." (emphasis added)

The affidavits for the search warrant also

related a follow-up investigation upon a

complaint by one Greg Baker indicated that

Baker had become addicted to Percodan as a

result of this drug being prescribed for him

without prior physical examination or other

medical work-up. Baker's complaints were

verified by examination of triplicate

8

prescriptions filed with the Bureau of

Narcotics Enforcement pursuant to California

law.

The affidavits likewise related that a

female deputy sheriff of Tulare County acting

in an undercover capacity obtained a prescrip-

ton for 50 tablets of vicodin without the

Doctor performing a physical examination, and

without any medical indication therefor. The

same undercover agent was able to obtain a

prescription for 50 tablets of Percodan from

Dr. Hayes on July 27, 1981, October 15, 1981,

November 12, 1981, and December 10, 1981. On

each occasion, the prescription was for 50

tablets, and each prescription was written

without the Doctor performing any physical

examination or demonstrating any medical need.

Special Agent Winstead's affidavit related

the preparation of the drug profile previously

alluded to; of the 75 profiles prepared by the

agents, Dr. H. H. Schwamb, medical consultant

of the Board of Medical Quality Assurance,

- t= ll

ae |

9

Department of Consumer Affairs of the State

of California identified 58 profiles that

caused him to believe that "it is highly

probable Dr. Hayes caused, abetted or pro-

longed addition [sic] or habituation to

controlled substances."

At some point in time prior to the issu-

ance and service of this search warrant,

Agent Winstead, pursuant to Cutiteeate law,

searched the federal 222 order forms for

Schedule II narcotics at plaintiffs' Porter-

ville clinic, as well as the narcotics log

in which Dr. Hayes kept records of demerol

and morphine that was administered to

patients at the clinic. In that log, Win-

stead indentified names of patients to whom

Hayes was issuing prescriptions for Schedule

II drugs.

Agent Winsted's investigation led him to

believe that doctors other than Dr. Hayes

located at the Sequoia Physicians Medical

Group were also issuing prescriptions for

10

Schedule II drugs to patients identified in

the foregoing 58 profiles. However, he stated

under oath that his inquiry indicated that

such doctors were employed personally by Dr.

Hayes.

The foregoing information contained in

Agent Winstead's affidavit was not contra-

dicted or disputed at the evidentiary hearing

in this matter. The affidavit of Special

Agent Winstead, however, contains the follow-

ing statement:

Your affiant was told by Donna Hamilton, who

was a receptionist employed by Dr. Hayes at

his Porterville clinic that one-half of Dr.

Hayes patients currently or at one time were

heroin addicts and that this information was

noted in the patient charts.

This statement was contradicted by testi-

mony under oath given at the evidentiary

hearing by Donna Hamilton. She did testify,

however, that the patients' charts were color

coded in such a manner that patients who had

problems with medication, i.e., allergies,

potential abuse, etc., could be identified by

such codes.

11

Based upon the foregoing affidavits, the

search warrants were issued in the form indi-

cated. This court has previously held, and

reaffirms, that there was probable cause for

the issuance of a search warrant. The court

notes however, that the factual allegations

of the affidavits were not incorporated into

the search warrants by reference.

C. The Pre-Search Briefing

Prior to the search, all three search

parties attended a 45 minute briefing by

Complaince Investigator Carter and State BNE

Agent Winstead at which they were told the

purpose of the search and the history of the

prior investigation. All the witnesses agreed

that they were told to look at each patient's

background, the amount, frequency and type of

drugs prescribed. Some of the search party

members were given copies of the summons, a

list of 75 “drug profile" patient names, and

a list of over 100 Schedule II narcotics.

Agent Plavan testified that he was looking

12

for "excessive" use or prescription of speci-

fic controlled substances.

Investigator Connors Stated that they were

looking for former or current heroin addicts

and/or prescriptions of frequent and substan-

tial quantities of Schedule II substances over

a period of at least one year.

Agent Horn stated that they were looking

for prescriptions only of Schedule II sub-

stances, specifically, Dilaudid, Percodan and

codeine.

A nurse practitioner at the Ivanhoe office

Stated that the agents said they were looking

for abuse in Prescription of Schedule II

Substances. A medical assistant in Porterville

testified that a Tulare County Sheriff's Deputy

assisting in the search, whom she had shown

where in the chart to look for medication,

had said that he didn't know what he was

looking for.

Investigator Connors Stated that they

Seized files which "might have been relevant"

13

for later examination of relevance, and that

50-75% of the files seized were later deter-

mined to be relevant. He admitted that four

or five files seized from the three offices

were later determined to have no indication

of prescription of controlled substances at

all. The medical assistant in Porterville

stated that three of the files returned to

Porterville, which was by far the largest

office, contained no indication of prescrip-

tion of controlled substances. She also

described several instances in which she

corrected the agents who had removed files

in which Dilantin for seizure control was

prescribed, thinking that Dilaudid had been

prescribed.

From the foregoing, it would appear that:

(1) There was no clear direction from

those who conducted the briefing as to pre-

cisely what the search party was to look for

and sieze.

(2) That is such a "clear direction" was

14

attempted by those briefing the search party,

there was a serious breakdown in communication;

’

and

(3) There was no attempt by the officers

in charge of the search to instruct the search

party to limit the search and seizure to those

items described in the affidavit which showed

that the officers had probable cause to secure

the search warrant.

D. The Search

Search warrants were served simultane-

ously on the three clinics on July 29, 1982.

Compliance investigators such as Ann Carter

and Ray Connors, who testified at this hearing,

do not have authority to execute search

warrants. However, they do, by training,

have particular expertise that is helpful in

identifying information that would tend to

indicate potential violations of federal drug

laws by persons licensed to dispense such

drugs. Accordingly, the compliance investi-

gators who formed a portion of the search

— Se

3

party, were more or less in charge of the

search at the Porterville and Ivanhoe offices.

Porterville

The search party, which consisted of

Special Agent Plavan, Fresno office of the

DEA, Compliance Investigator Carter, and

officers from the Tulare County Sheriff's

Office, arrived at Porterville at about 10:30

a.m. on July 29th. They secured the premises

and searched each examination room. The

search party then began the laborious task

of inspecting each of the approximately 6,000

active medical files. According to one wit-

ness, one group started "at one end of the

files, and another started at the other end

of the files," and inspected each of the

patient's files, page by page, or sheet by

sheet as the case may be. Apparently, by the

time that they inspected between 300 and 400

files, it became obvious that the task that

they had undertaken was insurmountable.

According to the evidence, Compliance

16

Investigator Connor then conferred by tele-

phone as to how they should overcome the

insurmountable obstacle of sheer numbers.

Apparently the decision was made, at Porter-

ville at least, to seek out the files of

the persons who had been named in the

profiles previously mentioned. Some other

patient files were identified and seized.

Special Agent Plavan testified that 110 files

were seized; Donna Hamilton placed the figure

at 101.

In addition, the agents seized appoint-

ment books, past and future, ledger cards,

prescription records, patients" ledger

accounts and other documents. Since neither

party has seen fit to furnish the court with

copies of the inventories, it is not possible

to list the items with any more accuracy.

In making the search, the officers went

through all of the cupboards and drawers in

the entire building complex, including the

administrative offices of the medical group.

det nm

17

In the course of the sweep through the Porter-

ville building, the briefcase of an Investment

Advisor of Dr. Hayes in no way connected with

the plaintiff's clinic was searched.

Likewise, the testimony is uncontradicted

that Dr. Hayes "legal file" was searched.

This was identified as the file which contained

all communications from attorneys representing

various patients of the medical group. It

contained, according to the testimony, letters

addressed to the doctors employed in the group,

as well as answers thereto. So far as the

relevant witnesses could tell, none of the

documents from the legal file were seized.

Farmersville

DEA Agent Horn was in charge of the

Farmersville search. Employees were enlisted

to help and the search party inspected all of

the 1200 to 1500 active files at this location.

There is a discrepancy in the testimony as to

how many files were seized at Farmersville,

but the court places the number as somewhere

18

between 58 and 71. Horn indicated that in

determining what files to seize, the search

party focused on the drug background of the

patient, if any, the frequency with which the

patient was receiving Schedule II prescrip-

tions, the amount of Schedule II prescrip-

tions received on each occasion, and the type

of drug. Apparently these seizures were

without reference to the drug profiles.

Ivanhoe

Compliance Investigator Connors headed

the search team at Ivanhoe. At Ivanhoe 55

charts were seized out of the over 1,000

charts inspected. According to Connors, each

chart was inspected to see whether or not the

chart contained an indication as to whether

or not the patient was a confessed heroin

addict and whether or not the chart indicated

excessive prescriptions of Schedule II sub-

stances, both as to time and amount.

E. The Relationship of Files of Persons

Identified in the Drug Profiles and

Number of Files Seized.

19

Connors testified that from his subse-

quent inspection of the charts seized, they

obtained the charts of all of those identified

in the pre-search profiles, except possibly

one or two.

As was noted above, Winstead's affidavit

stated that 58 drug profiles were developed

by Dr. Schwamb. According to the testimony,

somewhere between 236 and 214 files were

seized. The government offered no evidence

to establish that probable cause existed to

seize any files above the 58 belonging to the

persons identified in Dr. Schwamb's profiles

or the files belonging to the complainant

Baker and the undercover Sheriff's Deputy

from Tulare County.

Ps Use Made of the Seized -Documents

To date, the court is not aware of any

complaint, information or indictment having

been filed against any of the plaintiff Medi-

cal Group, Dr. Hayes or any other employee

of the group. With few exceptions, copies

20

have been made of the patients' files and the

plaintiff group has received these copies.

No complaint was made at the evidentiary

hearing that the group was not able to function

using these substitutes. There was no listing

of the files not copied and returned; nor

specific complaint made about their unavail-

ability.

Neither has the court received any request

from any patient whose file has been seized,

seeking return of the file.

II

LAW

A. Jurisdiction.

The jurisdiction of a United States

District Court to entertain a pre-indictment

civil action calls into question the propriety

of the issuance or execution of a search war-

rant is founded in Hunsucker v. Phinney, 497

F.2d 29 (5th Cir. 1974). There, the court

observed: 7

A substantial body of precedent

establishes that federal district courts

“a hile aaa

(dae

9) eon niall

21

have power to order the suppression

or return of unlawfully seized property

even though no indictment has been

returned and thus no criminal prosecution

is yet in existence. Though firmly estab-

lished, this jurisdiction is an exceptional

one. Judge Friendly has observed that one

may search the jurisdictional statutues,

28 U.S.C. §§ 1331-1358, in vain for a grant

of such power in cases where the jurisdic-

tional amount required by § 1331(a) is not

satisfied, Grant v. United States, 282 F.2d

165, 168 (CA2, 1960), and Judge Wyzanski

has referred to the power as “the anomalous

jurisdiction," Lord v. Kelley, 223 F.Fupp.

684 (D.Mass. 1963), appeal dismissed, 334

F.2d 742 (CA 1, 1964), cert. denied, 379

U.S. 961, 85 S.Ct. 650, 13 L.Ed.2d 556

(1965). The theory articulated by most

of the cases is that jurisdiction to order

suppression or return prior to indictment

exists not by virtue of any statute but

rather derives from the inherent authority

of the court over those who are its officers.

Hunsucker v. Phinney, supra, at 32.

All of the authorities are in agreement

that although the jurisdiction exists it

should be exercised sparingly. In Richey v.

Smith, 515 F.2d 1239 (5th Cir. 1975), the

Fifth Circuit collected the considerations

that should guide the District Court in

determining whether or not to exercise such

jurisdiction.

22

In Hunsucker we listed some of the

considerations that should govern the

decision by the district court whether

to exercise this "anomalous" jurisdiction.

First, and perhaps foremost, is the ques-

tion whether the motion for return of

property accurately alleges that government

agents--in this case agents of the IRS--

in seizing the property displayed " ‘a

callous disregard for the constitutional

rights of the taxpayer.' " 497 F.2d at

34. Other factors to be considered are:

whether the plaintiff has an individual

interest in and need for the material

whose return he seeks; whether the plain-

tiff would be irreparably injured by denial

of the return of the property; and whether

the plaintiff has an adequate remedy at

law for the redress of his grievance.

Richey v. Smith, supra, at 1243-44.

Parenthetically, the court notes that

the prior cases almost uniformly concerned the

use of the search warrant in connection with

income tax prosecutions. However, neither

counsel has pointed, nor has the court found

any logical distinction between a prosecution

for income tax violation and a prosecution

for other crimes. We analyze the facts of

this case in light of the foregoing cate-

gories.

B. Does the evidence demonstrate that

government agents seizing the property sought

23

to be returned displayed a callous disregard

for the constitutional rights of the taxpayer?

The court has previously held, and

reaffirms, that there was probable cause for

the issuance of a search warrant. There was,

however, no probable cause to issue a search

warrant of the all-encompassing breadth and

scope of the instant warrant. As the Ninth

Circuit has observed under similar circum-

stances:

Upon the information available to it,

the government knew exactly what it needed

and wanted and where the records were located.

There was no necessity for a massive reexami-

nation of all records bearing on income and

expenses. Were this the law, the Commissioner,

upon finding any suspicious deficiency, could

order a seizure of every such taxpayer s

records upon the mere allegation thast the

omission or an inaccurate statement of one

item might bespeak inaccuracies as to others

which, in his opinion, necessitates a seizure

of all records, at office and home. Impor-

tant as it is to enable the government to

obtain information to assure itself of the

correct reporting of taxes, it is difficult

to believe that the draftsmen of the Fourth

Amendment did not insert "unreasonable" to

avoid just such an in terrorem state as the

Agents created and wreaked here.

Moreover, just as "unreasonable" can

be applied to the breadth of the warrant,

so much the more can it be applied to the

24

manner of execution because it is the "manner™

which, as vividly illustrated by the facts of

the case, can create and constitute the pro-

hibited invasion. As previously mentioned,

the Agents could have sought the allegedly

concealed records by other means. If they

had desired to question the accuracy of

patient payments, they could have made a

patient check. All this could have occurred

in an orderly way without the sudden assault

causing not only damage to the doctor's

finances and prestige but undoubtedly incon-

venience and possibly pain and suffering to

the many patients who could not be treated

for weeks due to the disruption.

VonderAhe v. Howland, 508 F.2d 364, at 370.

Even as here, the search exceeded the

permissible bounds of the supporting affida-

vits, it should not signal an automatic

application of the court's jurisdiction in

granting the petitioner the desired relief.

The court must ever bear in mind that the

most usual remedy for Fourth Amendment viola-

tions is the suppression of the evidence in

the criminal proceeding. Here, the litigation

has not reached the stage where a criminal

violation has been charged.

Had the affidavits been incorporated by

reference into the body of the search warrant,

eine —"

25

the court might have been able to save the

warrants and the fruits of the search by deter-

mining, item by item, which were validly

seized and which were not legally seized.

Cf. In Re Search Warrant Dated July 4, 1977,

etc., 572 F.2d 32 (D.C.Cir. 1977). In that

case, unlike here, the general descriptions

of the search warrant were cross-referenced

to the more particular statements contained

in the affidavit. Neither has the government

offered to return all files except the 60

identified above.!

In conclusion, the court is left without

tools by which it can segregate out the tainted

from the untainted material.

C. Does the plaintiff have an adequate

remedy at law?

. The court expresses no opinior as to whether such

an offer would cure the deficiencies in the warrant

or the search I have previously identified. It does,

however, in the court's opinion, impinge upon the

bona fides of the government agents in pursuing this

investigation.

i

26

Since the jurisdiction which the plain-

tiff seeks the court to exercise is equitable

in nature, the adequacy of plaintiff's legal

remedies is paramount. See Richey v. Smith,

Supra. In the instant case, plaintiff has

failed to show any irreparable damage that

cannot be compensated in money damages. As

grievous as their complaint may be, until such

a showing is made, this court is reluctant to

exercise its equitable jurisdiction in an un-

controlled manner, such as is requested by

the plaintiffs.

The court recognizes that the Situation

here involved is fluid in that circumstances

may change. Hence, the order made by the

court is without prejudice to the plaintiff

to renew its application upon proper showing.

III

ORDER

1. Defendants’ motion to dismiss as to

the defendant Ayer is granted. Defendants'

motion to dismiss as to the remaining defen-

————————————ii.

27

dants is denied.

2. The plaintiffs’ motion for return

of all seized documents and other tangible

things is granted conditionally, as follows:

Unless an indictment is filed

against person or persons, the prosecution of

which necessitates the use of the seized

evidence, all of the evidence seized from

plaintiffs' medical offices on July 29, 1982,

shall be returned no later than 12:00 Noon,

Pacific Standard Time, February 1, 1983.

Plaintiff's requests for suppression,

temporary injunctive relief and mandamus are

denied save and except as hereinabove ordered.

3. Plaintiffs are granted 30 days in

which to amend their complaint to seek monetary

damages should they so desire.

4. The granting or denial of all further

relief shall await the final orders and deter-

mination of the case.

Dated: January 17, 1986

EDWARD DEAN PRICE

United States District Jud

28

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA, Plaintiff

NO.:

ial CR-F-83-016 REC

JUDE R. HAYES, Defendant

MEMORANDUM DECISION AND ORDER

(Coyle, J.)

Filed September 28, 1983

Defendant's Motion for Suppression and

Return of Evidence came on for hearing before

the Honorable Robert E. Coyle on Monday, June 6,

1983. Plaintiff was represented by Brian C.

Leighton, Assistant United States Attorney and

defendant was represented by Dale Parham.

Following the hearing at which testimony

and evidence was presented, the court requested

further briefing by defendant on the issue of

LOD A MBI .

29

defendant's reasonable expectation of privacy,

said brief to be filed within ten days of the

hearing with plaintiff's reply, if any,

within seven days thereafter. Defendant's

brief was filed four days late. However,

because of the importance of the issue, the

court will accept the brief as timely filed.

Upon due consideration of the written

and oral arguments of the parties, the court

enters its order denying the motion for the

reasons set forth herein.

By this motion, defendant seeks the

suppression and return of patient medical

charts and files, appointment books relating

to past and future appointments, ledger cards,

prescription records, patients' ledger accounts,

documents and all other items and things

seized by persons who conducted the search

on July 29, 1982 of the offices of defendant

and Sequoia Physicians Medical Group, a pro-~

fessional corporation, located at 590 West

Putnam, Porterville, California; 684 East

30

Visalia Road, Farmersville, California; and,

33025 Road 159, Ivanhoe, California. The

motion further seeks suppression of the

observations of the persons conducting the

search and the fruits of the seizures and

observations. The motion asserts. as grounds

justifying granting the motion that (1) the

search warrants were unlawful, defective and

without probable cause in that: (A) the search

warrants were overbroad and constituted general

warrants in failing to specify with particu-

larity the items to be seized; (B) no probable

cause is stated to believe a federal crime has

been committed; (C) no probable cause is stated

to seize patients’ records; (D) no probable

cause is stated to search all three offices

of Sequoia Physicians Medical Group; and, (E)

the affidavit deliberately conceals and mis-

States material facts; and (2) the searches

and seizures in this case were unlawful and

violative of the Fourth Amendment because they

were general, exploratory, overbroad, and

31

unlimited in scope and territorial limits.

The search yarrante” at issue in this

case permitted the search and seizure of:

(1) demerol (mependine), morphine sulfate

and other controlled substance; (2) all

records which document the purchasing,

dispensing and prescribing of controlled

substances, including, but not limited

to, records contained in patient charts

and all relevant records required to be

maintained by Title 21 of the Code of

Federal Regulations, part 1300 to end

and Sections 11190 and 11191 of the

California Health and Safety Code; (3)

patient logs, appointment books and

other records and ledgers reflecting

distribution of controlled substances;

(4) correspondence concerning the pro-

curing, transferring, administering, pre-

scribing or dispensing of controlled sub-

stances by Dr. Hayes; all of which consti-

tute evidence of possible violations of

21 USC 841(a)(1) and 21 USC 843(a)(3).

lmere is a separate search warrant for each of

the three locations of the Sequoia Physicians Medical

Group. However, other than the recitation of addresses,

the search warrants and accompanying affidavit are

identical. Therefore, except as may be specifically

required, this memo will refer to the search warrant

in the singular.

32

Deliberate Concealment and Misstate-

ment of Material Facts.

In challenging that the affidavit provides

probable cause, defendant contends that the

affidavit deliberately conceals that Greg Baker

was employed as an informant by the Bureau of

Narcotics Enforcement, that he was known as an

addict with a long history of drug abuse unre-

lated to any treatment prescribed by defendant,

and that his various allegations against

defendant were in fact false. Defendant

further contends that the following averment

in the affidavit: that:

Your affiant was told by Donna Hamilton, who

is a receptionist employed by Dr. Hayes at his

Porterville clinic that one half of Dr. Hayes'

patients currently or at one time were heroin

addicts and that this information was noted in

the patient charts . . . Miss Hamilton also

told your affiant that Dr. Hayes used to run

the Methadone Clinic in Tulare County and

patients he had at the Methadone Clinic were

seeing him as patients as [sic] this time.

completely distorts what Miss Hamilton actually

&

said.

Turning to the contentions concerning

rite Abie ERS: WAR aaah le ies

a2

Greg Baker, a failure to disclose personal

information about an informant may constitute

a false statement within the meaning of Franks

v. Delaware, 438 U.S. 154 (1978), United

States v. Strini, 658 F.2d 593, 597 (8th

Cir. 1981); United States v. Martin, 615 F.2d

318, 329 (5th Cir. 1980); United States v.

Marcello, 531 F.Supp. 1113, 1118 (C.D.Cal.

1982). As explained in Franks v. Delaware,

supra at 155-156, 171-172:

[W]here the defendant makes a substantial

preliminary showing that a false statement

knowingly and intentionally, or with reck-

less disregard for the truth, was included

by the affiant in the warrant affidavit, and

if the allegedly false statement is necessary

to the finding of probable cause, the Fourth

Amendment requires that a hearing be held at

the defendant's request. In the event that

at that hearing the allegation of perjury

or reckless disregard is established by the

defendant by a preponderance of the evidence,

and, with the affidavit's false material set

to one side, the affidavit's remaining content

is insufficient to establish probable cause,

the search warrant must be voided and the

fruits of the search excluded to the same

extent as if probable caues was lacking on

the face of the affidavit.

In sum, and to repeat with some embellishment

what we stated at the beginning of this

34

opinion: There is, of course, a presumption

of validity with respect to the affidavit

supporting the search warrant. To mandate

an evidentiary hearing, the challenger's

attack must be supported by more than a

mere desire to cross-examine. There must

be allegations of deliberate falsehood or of

reckless disregard for the truth, and those

allegations must be accompanied by an offer

of proof. They should point out specifically

the portion of the warrant affidavit that is

claimed to be false; and they should be accom-

panied by a statement of supporting reasons.

Affidavits or sworn or otherwise reliable

statements of witnesses should be furnished,

or their absence satisfactorily explained.

Allegations of negligence or innocent mistake

are insufficient. The deliberate falsity or

reckless disregard whose impeachment is per-

mitted today is only that of the affiant, not

of any nongovernmental informant. Finally,

if these requirements are met, and if, when

material that is the subject of the alleged

falsity or reckless disregard is set to one

side, there remains sufficient content in the

warrant affidavit to support a finding of

probable cause, no hearing is required. On

the other hand, if the remaining content is

insufficient, the defendant is entitled,

under the Fourth and Fourteenth Amendments,

to his hearing.

The record here does not substantiate that

Baker was a paid informant of B.N.E., that

either Agents Jones or Winstead knew of his

history of drug abuse other than that relayed

to Agent Jones by Baker during the March 10,

1980 telephone conversation or that his

35

allegations against defendant were false.

Baker impressed the court as a man with little,

if any, regard for the’ truth. However, the

transcript of the recorded telephone conver-

sation between Baker and Agent Jones belies

Baker's declaration and his testimony that he

did not tell Agent Jones that defendant had

prescribed Dilaudid, Percodan or Demoral to

him without a prior physical examination or

medical work-up or that defendant's pre-

| scriptions had caused Baker to become ad-

dicted to Percodan or any other medication.

The fact that Baker now denies the truth of

| these allegations does not establish that

| they were false when made or that Agents

Oe | yep ee te

Jones or Winstead should have known they were

false. In fact, the affidavit establishes

that defendant did prescribe for Baker the

controlled substances named by Baker in his

conversation with Agent Jones. Accordingly,

the court does not feel that defendant has

made a sufficient showing under Franks v.

36

Delaware, supra to require the court to disre-

gard the averments in the affidavit concerning

Greg Baker.

Defendant also argues that the affidavit's

averments concerning Greg Baker are insuffi-

cient to establish probable cause. because

Baker's reliability as an informant is not

established by the affidavit. In making this

argument, defendant, citing Aguilar v. Texas,

378 U.S. 108 (1964) and Spinelli v. United

States, 393 U.S. 410 (1969) contends that a

search warrant affidavit relying upon informa-

tion from an informant must inform the Magis-

trate of some of the underlying circumstances

from which the informant obtained his informa-

tion and some of the underlying circumstances

from which the affiant concluded that the

informant was credible or his information

reliable.

However, wo days after this motion was

argued, the United States Supreme Court decided

Illinois v. Gates, U.S.

, 76 L.Ed.2d

Wa ie aieiccbbataa Scpmiutia

37

527 (1983). Thus, the first question to be

answered is whether defendant's challenge

should be governed by the two-pronged test

of Aguilar/Spinelli or whether it should be

governed by the approach set forth in Illi-

nois v. Gates. Because Illinois v. Gates

makes no mention whether its decision should

be applied to the analysis of search warrant

affidavits executed prior to June 8, 1983,

the proper analysis to determine retroactive

application should be as set forth in Desist

v. United States, 394 U.S. 244, 248-248

(1969):

Ever since Linkletter v. Walker...

established that ‘the Constitution

neither prohibits nor requires retro-

spective effect' for decisions expounding

new constitutional rules affecting

criminal trials, the Court has viewed

the retroactivity of such decisions as

a function of three considerations! : ]

"The criteria guiding resolution of the

question implicate (a) the purpose to be

served by the new standards, (b) the

extent of the reliance by law enforcement

authorities on the old standards and (c)

the effect on the administration of justice

of a retroactive application of the new

standards. '

ts

38

The Supreme Court also noted that "[f]Joremost

tion become Significant ' . _ . only when the

Purpose of the rule in question did not Clearly

favor either retroactivity of Prospectivity,'"

Desist v. United States, id. at 249, 251. In

addition, the United States Supreme Court

recently has addressed the issue of retro-

activity in United States Vv. Johnson, ya Pt

U.S, ~trnn? €0 bac oe 202 (1982), In Johnson,

it was held that the rule announced in Payton

Vv. New York (Fourth Amendment Prohibits the

consensual entry into a Suspect's home to

make a routine ‘@lony arrest) applies to a

Case which was Pending on direct appeal when

Payton was decided, Payton not having applied

settled Precedent to a new set of facts, nor

having announced an entirely new or unantici-

pated Principle of law, nor having held €ither

39

that the trial court lacked authority to con-

vict the defendant nor that the Fourth Amend-

ment immunized his conduct from punishment.

In so holding, the Supreme Court stated at

213-216:

At the outset, we must first ask whether

respondent's case presents a retrospectivity

problem clearly controlled by existing prece-

dent. Reexamination of the post-Linkletter

decisions convinces us that in three narrow

categories of cases, the answer to the retro-

activity question has been effectively deter-

mined, not by application of the Stovall

factors, but rather, through application of

a threshold test.

First, when a decision of this Court merely

has applied settled precedents to new and

different factual situations, no real question

has arisen as to whether the later decision

should apply retrospectively. In such cases,

it has been a foregone conclusion that the

rule of the later case applies in earlier

cases, because the later decision has not in

fact altered that rule in any material way.

Conversely, where the Court has expressly

declared a rule of criminal procedure to be

"a clear break with the past,’ ..., it

almost invariably has gone on to find such

a newly-minted principle nonretroactive. . .

In this second type of case, the traits

of the particular constitutional rule have

been less critical than the Court's express

threshold determination that the ' "new"

constitutional interpretatio[n] . .. so

change[s] the law that prospectivity is

40

arguably the proper course,’ . . . Once

the Court has found that the new rule was

unanticipated, the second and third Stovall

factors -- reliance by law enforcement

authorities on the old standards and effect

on the administration of justice of a retro-

active application of the new rule -- have

virtually compelled a finding of non-retro-

activity. ...

Third, the Court has recognized full

retroactivity as a necessary adjunct to a

ruling that a trial court lacked authority

to convict or punish a criminal defendant

in the first place. The Court has invali-

dated inconsistent prior judgments where

its reading of a particular constitutional

guarantee immunizesd a defendant's conduct

from punishment, . . . or serves ‘to

prevent [his] trial from taking place at

all, rather than to prescribe procedural

rules that govern the conduct of [that]

trial," . . . In such cases, the Court has

relied less on the technique of retroactive

application than on the notion that the

prior inconsistent judgments or sentences

were void ab initio... .

Respondent's case neatly fits none of

these three categories. First, Payton v.

New York did not simply apply settled pre-

cedent to a new set of facts. In Payton,

the Court acknowledged that the ‘important

constitutional question presented’ there

had been ‘expressly left open in a number of

our prior opinions.’ ...

By the same token, however, Payton also

did not announce an entirely new and unan-

ticipated principle of law. In general,

the Court has not subsequently read a

decision to work a ‘sharp break in the web

of the law,’ . . . unless that ruling caused

"such an abrupt and fundamental shift

~ aed ae ane

41

se aha cron lencallial

in doctrine as to constitute an entirely

; new rule which in effect replaced an older

| one,’ . . . Such a break has been recog-

nized only when a decision explicitly over-

rules a past precedent of this Court, ...

or disapproves a practice this Court arguably

has sanctioned in prior cases, . .. or

overturns a longstanding and widespread

practice to which this Court has not spoken,

but which a near-unanimous body of lower

court authority has expressly approved... .

Payton did none of these. Payton expressly

overruled no clear past precedent of this

Court on which litigants may have relied.

Nor did Payton disapprove an established

practice that the Court had previously sanc-

tioned. To the extent that the Court earlier

had spoken to the conduct engaged in by the

police officers in Payton, it had deemed it

of doubtful constitutionality. The Court's

own analysis in Payton makes it clear that

its ruling rested on both long-recognized

principles of Fourth Amendment law and the

weight of historical authority as it had

appeared to the Framers of the Fourth Amend-

ment. Finally, Payton overturned no long-

standing practice approved by a near-

unanimous body of lower court authority.

Payton therefore does not fall into that

narrow class of decisions whose nonretro-

activity is effectively preordained because

they unmistakably signal ‘a clear break with

| are

Professor La Fave comments that prior to

Johnson nonretroactivity is the conclusion in

applying decisions which expand Fourth Amend-

ment protections. However, in applying

42

decisions which constitute a narrowing of

previously recognized Fourth Amendment rights,

he suggests that retroactivity is proper since

these decisions do not conflict in any meaning-

ful way with the deterrence objective of the

Fourth Amendment exclusionary rule. -He states:

Mose recent decisions have utilized such

analysis in applying retroactively Supreme

Court decisions which are less beneficial

than the cases they overturn. The recent

Johnson decision . . . should not be read

as disapproving of those cases, for

Johnson was concerned with decisions of

the Court which broadened Fourth Amendment

protections.

La Fave, 3 Search and Seizure, § 11.5(d),

pp. 698-699, Supp. 1983, p. 204.

The court's conclusion is that Illinois

v. Gates is applicable here if only because

the Magistrate's decision that probable cause

existed with regard to this search warrant was

made with Aguilar/Spinelli in mind, a test

more stringent than that set forth in Illi-

nois v. Gates. If the Magistrate's conclusion

passes muster under Aguilar/Spinelli, it

certainly will pass muster under Illinois v.

43

Gates. If the Magistrate's conclusion would

not pass muster under Aguilar/Spinelli, the

criteria used by the Supreme Court would not

seem to be offended by the retroactive appli-

cation of the new test. Illinois v. Gates

does not appear to represent a sharp break

with the past even though past precedent of

the Supreme Court has been overruled, see

especially Illinois v. Gates, supra, at 543

n.6. The purpose to be served by the new test

clearly is to permit magistrate's and reviewing

courts to determine probable cause from the

totality of the circumstances and not get

enmeshed in the technical niceties inherent

in the Aguilar/Spinelli approach. While law

enforcement undoubtedly relied upon Aguilar/

Spinelli in preparing this affidavit, appli-

cation of the new test will not result in any

prejudice or detriment to their investigations

since the new test is less stringent than the

old one. And, finally, application of the new

test should have no effect on the administra-

44

tion of justice as would have been the case

if the decision adopting the exclusionary rule

had been given retroactive effect, See Link-

letter v. Walker, 381 U.S. 618 (1965), or if

the decision that electronic eavesdropping

of private conversations constitutes a search

and seizure had been given retroactive effect,

Desist v. United States, supra, at least inso-

far as the court is faced with a motion to

suppress pertaining to a search warrant issued

prior to June 8, 1983. Thus the court will

analyze defendant's objections with Illinois

v. Gates in mind.

Turning to Illinois v. Gates, the new

test is set forth at 548:

In its place [the two-pronged test of Auilar/

Spinelli] we reaffirm the totality of

circumstances analysis that tradidionally

has informed probable cause determinations

- - » The task of the issuing magistrate

is simply to make a practical, common sense

decision whether, given all the circumstances

set forth in the affidavit before him,

including the ‘veracity’ and ‘basis of

knowledge’ of persons supplying hearsay

information, there is a fair probability

the contraband or evidence of a crime will

be found in a particular place. And the

duty of a reviewing court is simply to

i

Ware eee -

45

ensure that the magistrate had a 'sub-

stantial basis for . . . conclud[ing]'

that probable cause existed.

As the court interprets the import of

this, it means that the court should do its

usual analysis of the affidavit to determine

if probable cause existed, taking into account

the strength or weakness of the information

in the affidavit concerning a confidential

informant, but not necessarily throwing out

the search because that information is not as

detailed as may have been necessary under the

Aguilar/Spinelli test.

Here, the court is satisfied that the

affidavit sets forth sufficient information

to satisfy Illinois v. Gates. Baker actually

met with defendant andwas prescribed controlled

substances without a prior physical exam or

medical work-up. These prescriptions are

stated to be on file with the Bureau of Nar-

cotics Enforcement. The observations and

reports of Deputy Jones and the opinion of

Dr. Schwamb based on his review of the medical

46

profiles corroborate the veracity of Baker's

information. Accordingly, the search warrant

may not be challened on this ground.

Defendant's contention that the averment

in the affidavit concerning Miss Hamilton's

information is distorted is not supported by

the record and has not been shown to be false.

Agent Keszler, Special Investigator for the

Department of Consumer Affairs, Board of

Medical Quality Assurance, Division of Medical

Quality Enforcement, testified that he was

present during the conversation between Agent

Winstead and Donna Hamilton and that Miss

Hamilton stated that approximately half of

defendant's current patients were addicted

patients and she explained the notation system

on those files. Miss Hamilton testified that

she was referring to approximately twelve

patients and that she told Agent Winstead that

none of these patients were currently addicted.

The court is persuaded that Agent Keszler's

recollection is accurate. Accordingly, the

47

court declines to delete the averments con-

cerning Miss Hamilton's information from the

affidavit.

2. Absence of Probable Cause.

In urging that the affidavit does not

provide probable cause, defendant raises

several other contentions.

Because at this point in the proceedings

the court is examining the search warrant

facially as opposed to executionally, certain

general guidelines should be keptin mind. The

court, when reviewing the validity of an

affidavit underlying a search warrant, must

give great deference to the determination of

the Magistrate that probable cause existed

and is guided by the principle that an affi-

davit must be tested in a common sense and

realistic fashion, United States v. Johonson,

641 F.2d 652, 568 (9th Cir. 1980). Moreover,

if “in a particular case it may not be easy

to determine when an affidavit demonstrates

the existence of probable cause, the resolution

48

of doubtful or marginal cases .. . should be

largely determined by the prefernece to be

accorded warrants," United States v. Ventresca,

380 U.S 102, 109 (1965); United States v.

Mulligan, 488 F.2d 732, 735-736 (9th Cir.

1973), cert. denied 417 U.S. 930 (1974).

Probable cause means evidence, though not

necessarily admissable, as would persuade a

man of reasonable caution to believe that an

offense was or is being committed and that

evidence of assistance in securing an appre-

hension or conviction of the perpetrator

likely will be found in the place to be

searched, United States v. Nilsen, 482 F.Supp.

1335, 1338 D.N.J. 1980). And the Magistrate

is entitled to draw reasonable inferences

from the facts stated in the affidavit, United

States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.

1980), cert. denied 441 U.S. 963 (1980).

Defendant argues that the search warrant

is deficient because the affidavit does not

establish probable cause to believe a federal

weeone,

49

crime has been committed.

Defendant argues that the affidavit

contains no facts from which it may be in-

ferred that he was directly dispensing con-

trolled substances to his patients. From

this he argues that no probable cause exists

that he violated 21 U.S.C. § 843(a)(3) making

it unlawful for any person knowingly or

intentionally " . . . to acquire or obtain

possession of a controlled substance by mis-

representation, fraud, forgery, deception or

subterfuge." If the dispensing of controlled

substances can be a violation of Section

843(a)(3), it appears that defendant's

contention is without merit.” The affidavit

states in pertinent part:

2initially and sua sponte, the court was

concerned whether the dispensing of controlled sub-

stances is an element of a violation of Section

843(a)(3). The court's research and that of the

parties did not locate a decision or jury instruction

which detailed the necessary elements for a violation

of this section. However, upon further reflection,

the court has decided that its concern is at the least

50

When your affiant was checking Dr. Hayes'

Federal 222 order forms for Schedule II

narcotics at his Porterville office, he

also saw a narcotic log in which Dr. Hayes

kept records of Demerol and morphine that

was administered to patients at his clinic.

In that log your affiant saw the names of

patients that Dr. Hayes was issuing pre-

scriptions to for Schedule II drugs.

21 CFR 1306.7(b) specifies that ‘nothing

in this section shall prohibit a physician

who is not specifically registered to con-

duct a narcotic treatment program from

administering (but not prescribing) narcotic

drugs to a person for the purpose of re-

lieving acute withdrawal symptoms when

necessary while arrangements are being made

for referral for treatment.’ This section

further specifies that ‘not more than one

day's medication may be administered to the

person or for the person's use at one time.

Such emergency treatment may be carried out

for not more than three days and may not be

renewed or extended.'

Your affiant has been advised by Drug

Enforcement Investigator Ann L. Carter

that neither Dr. Hayes nor his employees

nor the Sequoia Physicians Medical Group,

Inc. is registered with the Drug Enforce-

ment Administration as a narcotic treat-

ment program.

irrelevant since the affidavit does provide probable

cause that 21 U.S.C. § 841(a)(1) has been violated,

see infra.

51

21 U.S.C. § 841(a)(1) provides that it

is unlawful for any person knowingly or inten-

tionally " .. . to manufacture, distribute,

or dispense, or possess with intent to manu-

facture, distribute, or dispense a controlled

substance . .. " except as provided by Title

21. As defendant notes, because he is a duly

licensed physician, one of the elements which

will have to be proved at trial beyond a

reasonable doubt is that the prescribing or

distributing of controlled substances was not

for a legitimate medical purpose in the usual

course of his medical practice, see United

States v. King, 587 F.2d 956 (9th Cir. 1978);

United States v. Black, 512 F.2d 864 (9th Cir.

1975). Defendant contends that there are no

facts in the affidavit from which a reasonable

suspicion of lack of legitimate medical purpose

or lack of usual medical practice may be

inferred and further suggests that probable

cause cannot be found to exist without an

expert medical opinion as to these elements.

tooo eee

52

However, as plaintiff notes, the court is

faced with a question of probable cause, not

a question of proof at trial. In fact, even

at trial, it is not always necessary that an

expert testify to the necessary elements of

§ 841(a)(1), United States v. Smurthwaite,

590 F.2d 889 (10th Cir. 1979). In this case,

the affidavit establishes that controlled

substances were prescribed on at least seven

separate occasions without a physical exam-

ination of the patient by defendant and on

at least four occasions without true need

on the part of the patient. On at least one

occasion, defendant requested that Deputy

Jones get X-rays so that defendant could

document the medical need for the prescription

of Percodan. Although the affidavit does not

reveal conduct as extreme as that set forth

in United States v. Moore, 423 U.S. 122 (1975)

(attached to the search warrant affidavit),

one of the omissions in that case was the

failure to conduct a physical examination

53

prior to prescribing controlled substances.

Furthermore, the affidavit sets forth the

opinion of Dr. Schwamb that in at least 58

cases defendant caused, abetted, or prolonged

addiction to controlled substances. While

none of this constitutes proof of a viola-

tion of § 843(a)(1), it is certainly suffi-

cient to warrant a man of reasonable suspicion

that the crime had been committed.

Defendant further argues that there was

no probable cause to seize patients’ records

other than possibly those of Greg Baker,

Sandra Jones and the 58 cases referred to by

Dr. Schwamb, the names of which are not set

forth in the affidavit. He contends that the

search warrant purports to authorize the

seizure of all patients’ records at the

medical offices. This latter contention is

without merit since the affidavit and the face

sheet of the search warrant clearly relate to

those patients’ records involving the pres-

cription or distribution of controlled

54

substances. The affidavit establishes

probable cause to believe that files other

than those set forth in the affidavit would

contain evidence of unlawful prescriptions

of controlled substances. It would defy

common sense to conclude that probable cause

was limited solely to the records specifically

referred to in the search warrant affidavit

because of the inferences which may be drawn

that defendant was prescribing controlled

substances in violation of law over a period

of several months at least amd to many people.

The patients set forth in the affidavit

clearly are not meant to be exclusive but

rather reflect the results of the investi-

gation as it had progressed by the time the

affidavit was prepared

Defendant contends that there is no

probable cause to search the Farmersville or

Ivanhoe offices of the Sequoia Physicians

Medical Group because there is no factual

basis to assume that the desired records would

55

be in those offices and the averment that

defendant ran those offices is insufficient

to provide a nexus between his alleged acti-

vities at the Porterville office and the

other two offices. The court cannot agree

with this position. The affidavit sets forth

‘that defendant ran the three offices and that

patient records normally were stored at the

office to which the patient went for treatment.

As plaintiff argues, a common sense reading

of the affidavit leads to the inference that

defendant saw patients at all three offices

and that allegedly unlawful prescribing of

controlled substances would not be confined

to just one office of the medical group.

3. Lack of Particularity of Search

Warrant.

Defendant challenges each of the cate-

gories of items to be seized set forth on the

face sheet of the search warrant as lacking

the particularity of description of items to

be seized required by the Fourth Amendment.

56

He argues that the search warrant authorized

the seizure of virtually all records of all

patients of the three clinics, with no limita-

tions as to time, treating physicians, diag-

nosis or course of treatment, or type of con-

trolled substance being sought.

The Fourth Amendment requires that a

search warrant particularly describe the things

to be seized. This particularity requirement

makes “general searches under [a warrant]

impossible and prevents the seizure of one

thing under a warrant describing another. As

to what is to be taken, nothing is left to

the discretion of the officer executing the

|

warrant." Marron v. United States, 275 U.S.

192, 196 (1927).

The search warrant issued by the Magis-

trate states in pertinent part:

[There is now being concealed certain pro-

perty, namely (1) demerol (mependine), mor-

phine sulfate and other controlled substance;

(2) all records which document the purchasing,

dispensing and prescribing of controlled sub-

stances, including, but not limited to,

records contained in patient charts and all

relevant records required to be maintained

57

by Title 21 of the Code of Federal

Regulations, part 1300 to end and

Sections 11190 and 11191 of the

California Health and Safety Code;

(3) patient logs, appointments books

and other records and ledgers reflect-

ing distribution of controlled sub-

stances; (4) correspondence concerning

the procuring, transferring, adminis-

tering, prescribing or dispensing of

controlled substances by Dr. Hayes;

all of which constitute evidence of

possible violscions of 21 USC 841(a)

(1) and 21 USC 843(a)(3) and as I am

satisfied that there is probable

cause to believe that the property

so described is being concealed on

the . . . premises . . . and that

grounds for application for issuance

of the search warrant exist as stated

in the supporting affidavit(s).

The threshold issue in connection with

plaintiff's contentions is whether the affi-

davit may be referred to in resolving whether

the warrant satisfies the particularity

requirement of the Fourth Amendment.

As a general rule, specificity in an

affidavit may not be relied upon to correct

undue generality in a warrant unless the

affidavit accompanies the warrant and the

warrant uses suitable words of reference which

incorporate the affidavit, United States v.

58

Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982);

Matter of Property, Etc., 644 F.2d 1317, 1319

(9th Cir. 1981). The purposes for these

requirements are to limit the discretion of

the executing officers and to give notice to

the person subject to the search what the

officers are entitled to seize, Matter of

Property, Etc., id.; United States v. Marti,

421 F.2d 1263, 1268 (2d Cir. 1970), cert.

denied 404 U.S. 947 (1971). As explained

in United States v. Hillyard, id. at 1339:

Limiting discretion in this sense is the

requirement that officers’ actions be

sufficiently circumscribed so that the

Magistrate issuing the warrant is fully

apprised of the scope of the search, and

can make the determination that the

search in all of its dimensions is based

upon probable cause and particular des-

criptions.

Defendant states that the warrants do not

incorporate the affidavits and thus cannot be

used to refine the scope. The government urges

the contrary. The form of warrant used in

these cases does not have any language

specifically incorporating by reference’

59

an affidavit. The form of warrant does state

immediately following the description of the

property to be seized " .. . and as I am

satisfied that there is probable cause to

believe that the property so described and

that grounds for application for the issuance

of the search warrant exist as stated in the

supporting affidavit(s)." Whether this phrase

constitutes “suitable words of reference which

incorporate the affidavit" is not clear because

apparently the Ninth Circuit has not defined

this term except by implication. In Matter of

Property, Etc., supra, the Ninth Circuit

reversed the district court:

The warrants in this case commanded the

executing officers ‘to seize only the above

specified property as described in the affi-

davits attached to this search warrant .. .'

and ‘to seize only those books, magazines,

and films which depict the specific sex acts

described in the affidavits.

The warrants expressly limited the property

subject to seizure to that described in

detail im the incorporated affidavits;

60

"[a]s to what [was] to be taken, nothing

[was] left to the discretion of the officer

executing the warrant.' . .. Since the

affidavits were physically attached to the

warrants, the persons on the premises at

the time of the search were provided with

notice of which items the officers were

authorized to seize.

We conclude that any generality in the

warrants was cured by the incorporation

and attachment of the affidavits.

While the incorporating language in the war-

rants at issue here is much weaker than that

discussed in Matter of Property, Etc., the

affidavits are specifically referred to and,

because the Magistrate signed both the search

warrants and the affidavits, the Magistrate

was aware of the contents of the affidavits

when he executed the warrants. It is not too

strained a construction that the language in

these search warrants satisfies United States

v. Hillyard and Matter of Property, Etc., at

least absent an indication from the Ninth

Circuit that the language approved in Matter

of Property, Etc. was intended to be defini-

tive. In addition, the First Circuit has held

that a court may consider whether the affidavit

61

presented to the Magistrate supports the use

of a generic description in a warrant, United

States v. Cortellesso, 601 F.2d 28, 32 (1st

Cir.), cert. denied, 444 U.S. 1072 (1980).

Thus, the court concludes that the affidavit

may be used to supply any particularity which

may be missing from the warrant insofar as

defendant is raising this challenge facially.

The court considers that the requirement that

the affidavit accompany the warrant is more

appropriately relevant to defendant's chal-

lenge that the searches themselves were over-

broad.

The court further is persuaded that a

generic description of the records sought by

the search warrant is permitted since a more

precise description was not possible, United

States v. Cortellesso, 601 F.2d 28 (1st Cir.),

cert. denied, 444 U.S. 1072 (1980). This

position is taken in response to defendant's

contention that the search warrant should have

authorized the search and seizure of the 58

62

patient profiles which Dr. Schwamb had found

probable that defendant had caused, abetted

or prolonged addition or habituation to con-

trolled substances. Plaintiff argues that it

would be unreasonable to assume that only

these patient files would contain the evi-

dence sought since the initial review of the

prescription forms for Schedule II controlled

substances by pharmacies lodged with the

Bureau of Narcotics Enforcement comprised

only a seven month period during 1981 and

involved only fifteen pharmacies in Tulare

County. Plaintiff also points to the averment

in the affidavit:

While your affiant was checking prescrip-

tions written by Dr. Hayes at various

pharmacies in Tulare County, your affiant

observed several prescriptions for Schedule

II drugs issued by doctors, who work for

Dr. Hayes at his offices, to patients who

Dr. Schwamb said he felt were addicted to

controlled substances. These patients

were getting prescriptions primarily from

Dr. Hayes but it appeared that these

patients would get prescriptions from Dr.

Hayes' associates part of the time.

as further indicting that more than the 58

files previously reviewed would contain the

63

records sought by the warrant. In so arguing

plaintiff relies on United States v. Bright,

630 F.2d 804, 811-812 (5th Cir. 1980). In

Bright, the Fifth Circuit held:

Hamilton, of course, does have standing to

contest the validity of the search of his

house. He argues that inasmuch as the FBI

had Jenkins' list of relevant serial numbers,

it should have listed those numbers on the

warrant and thus been permitted to seize

only currency which appeared on that list.

Hamilton argues the failure to do so

resulted in a search warrant which violated

the particularity requirement of the Fourth

Amendment .

be sik ic Nin i

The Eighth Circuit was faced with similar |

arguments in United States v. Davis, 542

| F.2d 743 (8th Cir.), cert. denied, 429 U.S.

: 1004, 97 S.Ct. 537, 50 L.Ed.2d 616 (1976),

and er v. United States, 398 F.2d 91

(8th Cir. 1968), cert. denied, 393 U.S. 1119,

89 S.Ct. 995, 22 L.Ed.2d 124 (1969). In both

cases the court rejected the defendant's

argument that the search warrant was insuf-

ficiently particular because it did not list

the serial numbers it knew were subject to

seizure.

The result reached in those cases was correct,

but should be limited to cases where listing

the serial numbers will not further the

interests sought to be protected by the par-

ticularity requirement. See Stanford v.

Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d

431 (1965). If the police have only a partial

list of relevant serial numbers, listing those

numbers in a search warrant as a non-conclusive

list of currency subject to seizure gives the

party searched no more protection against a

64

general serach than is present if the warrant

permits simply ‘seizure of currency.' If,

however, the police have a conclusive list

of serial numbers so that other currency is

not relevant to their inquirty and not pro-

perly subject to seizure, the listinf of

those numbers does give the party searched

added protection. It is settled law that

generic classifications in a warrant are

acceptable only when a more precise des-

cription is not possible. See James v.

United States, 416 F.2d 467, 473 (Sth Cir.

1969), cert. denied, 397 U.S. 907, 928, 90

S.Ct. 903, 938, 25 L.Ed.2d 87, 108 (1970).

Accordingly, to the extent the police can

only legitimately seize currency of known

serial numbers, those serial numbers must

be listed in the warrant.

The question thus becomes whether it would

have been consistent with the purpose of

this search to have seized currency other

than that which appeared on the Jenkins'

list. We find that it would have been.

Because the police believed Hamilton was

accepting kickbacks from many people besides

Fran Jenkins, we cannot say their search

for currency should have been limited to

that which they knew came from her. There-

fore, we hold the search warrant in this

case was sufficiently particular to satisfy

the Fourth Amendment.

Similarly, in this case it is clear that the

list of 58 patient profiles was not intended

to be conclusive. At the very least the

references in the affidavit to the files of

Greg Baker and Sandra Jones establish this

inference.

65

4. Overbreadth of Search.

Assuming that the search warrant is suf-

ficiently particular to satisfy the Fourth

Amendment, defendant urges that the searches

of the respective offices violated the Fourth

Amendment because they were general, explora-

tory, overbroad, undirected and unlimited in

scope and territory.

Even when a search warrant satisfies

both the probable cause and particularity

requirements of the Fourth Amendment, the

search itself must be conducted in a reasonable

manner, appropriately limited to the scope and

intensity called for by the warrant, Terry v.

Ohio, 392 U.S. 1, 17-18 (1968); United State

v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978).

It is at this point that the other

aspect of the general pre-conditions to the

use of an affidavit to supply particularity

to a warrant, the affidavit accompanying the

warrant, becomes relevant. Ann Carter, a

diversion investigator with the Drug

66

Enforcement Administration who conducted the

pre-search briefing, testified that the affi-

davit was available at the briefing to whom-

ever of the searching officers wanted to read

it but that she did not read it out loud

during the briefing. There is no testimony

that any of the searching officers actually

read the affidavit and there is no testimony

was taken to the respec-

bee

cr

that the affidav

tive search sites. Moreover, Agent Carter,

who had read the affidavit, and the affiant.

Special Agent Craig C. Winstead of the Drug

rh

Enforcement Administration, were members of

the teams searching the Porterville and

Farmersville offices, respectively. The

officers who would be conduocting the searches

were divided into three teams, each of which

was headed by a Special Agent with the Drug

Enforcement Administration. The special agent

in charge of each team was given the original

and a copy of the search warrant and the loca-

tion to be searched by that team. During the

i AO OO eee.

67

briefing, Agent Carter discussed in detail each

of the items listed on the search warrant. In

conducting the briefing she made reference to

a 3-page briefing memorandum, a copy of which

was given to each of the persons present. The

briefing memorandum states in pertinent part:

Property authorized to be seized pursuant to

federal search warrant:

(1) controlled substances ...

(2) records, documentation purchasing

controlled durgs . . . e.g.,

- DEA forms 222

- invo’ ces showing the receipt of any

controiled drug

- narcotic administration logs for

Schedule II narcotics (e.g., demerol.

morphine )

- any other logs showing the dispensing

of any controlled drug

- DEA forms 41

- DEA forms 106

- patient charts for adult patients who

have received (by prescription, adminis-

tration or direct dispense any Schedule

II drug - including, but not limited to:

amphetamine

codeine

dexedrine

dilaudid

methadone

morphine

percobarb

- percodan

prellidin

quaalude

ritalin

68

(3) miscellaneous records such as patient

logs, appointment books, any records not

previously mentioned showing the distribu-

tion of controlled drugs

(4) any correspondence concerning the

procuring, transferring, administering,

prescribing or dispensing of controlled

drugs.

In addition, the special agent in charge of

each team was given a copy of the list of 75

patient names which Dr. Schwamb had reviewed

in connection with the investigation. The

court feels that these circumstances are

sufficient to satisfy the purpose for the

requirement that the affidavit accompany the

warrant, see United States v. Waugneux, 683

F.2d 1343, 1351 0.6 (ilth Cir. 1982).

Defendant, citing United States v.

Heldt, 668 F.2d 1238, 1261, 1261 n.37 (D.C.

Cir 1981), cert. denied, 102 S.Ct. 1971 (1982),

also argues that the record shows a complete

lack of adequate preparation on the part of

the searching agents thereby invalidating the

searches. In addition to the facts just

alluded to supra, at the briefing, Agent

MS

a

69

Carter explained that the agents were to

search primarily for documents listed on the

search warrant or the briefing memorandum

pertaining to the prescribing or dispensing

of Schedule II controlled substances even

though the search warrant authorized the

seizure of items pertaining to Schedules

I-1V controlled substances. Although no

specific guidelines were set forth at the

briefing, the agents were told to concen-

trate on patient files indicating possible

excessive prescriptions of Schedule II con-

trolled substances by looking to the fre-

quency of the prescription and its amount.

It also was brought out at the briefing that

those patient files tagged with a yellow or

Orange sticker or marked on the left hand

side as a drug abuser were narcotics addicts.

Howver, the agents were not told to seize

these files irrespective of the controlled

substance prescribed. In addition, the

special agent in charge of each team was

70

given a copy of the list of 75 patient names

which Dr. Schwamb had reviewed in connection

with the investigation. In United States v.

Heldt, id, the search and seizure operation

at issue on appeal involved over 200 F.B.I1.

agents and government personnel who spent

over 20 hours examining the files and papers

maintained in two California offices of

Scientology pursuant to a search warrant

which specified 162 separate descriptions of

seizable documents relating to several offen-

ses. The majority of the agents spent the

day before the search being thoroughly

briefed on the operation. They were provided

with copies of the affidavit and the search

warrant, and questions regarding the warrant

and the law of search and seizure were

answered by their team leaders and by Assis-

tant United States Attorneys. The court stated

in pertinent part:

Warrants are not self-executing; they

require agents to carry them out. In

order for a warrant's limitations to be

effective, those conducting the search

71

must have read or been adequately

apprised of its terms. Where, as

here, the terms are numerous, complex,

and potentially overbroad unless

limited by the specifications of an

extensive affidavit, the need for

careful preparation on the part of

those searching is essential. In

this case we are convinced that most

of the agents conducting the search

were provided with as much preparation

as was reasonable under the circum-

stances to enable them to carry out

the warrant's complicated terms.

In this case, the court believes the record

reveals adequate preparation of the searching

officers. Heldt cannot be read as stating a

minimum standard for the degree of agent pre-

paration required to validly execute a search

warrant. The sheer magnitude in terms of num-

bers of officers and seizable items undoubtedly

required the type of briefing conducted in

Heldt. The case before the court is not

comparable.

Defendant further argues that the

searches were overbroad in operation because

the searching officers understood they were

to use their discretion in determining which

patient files to seize because of possible

72

excessive prescribing and because certain

files were seized in order that they be

examined subsequent to the searches. In

response to the first point, the testimony

establishes that the purpose for focusing on

patient files indicative of excessive pre-

scribing was an attempt to limit the number

of files seized but that the searching offi-

cers were authorized to seize any files of

patients to whom Schedule II controlled sub-

stances had been prescribed. Thus, if the

seizure of patient files containing docu-

mentation of prescriptions or dispensations

of Schedule II controlled substances is valid,

the court has difficulty in finding a Fourth

Amendment violation because the definition of

excessive prescribing of Schedule II controlled

substances was not specifically set forth at

the briefing. Plaintiff does not respond to

this particular argument and defendant cites

no authority that an otherwise valid descrip-

tion of items to be seized can be invalidated

I a

i2

merely because the searching agents attempt

to circumscribe the number of those items to

be seized. While it would have been better

practice to set forth at the briefing the

specific parameters of excessive prescribing,

the court cannot see that the failure to do

so is sufficient to invalidate the searches.

Turning to the defendant's second point,

that the agents seized patient files in order

to examine them subseugent to the searches,

the record indicates that the primary cri-

terion for the seizure of patient files used

by the agents searching at the respective

offices were the prescription or dispensation

of Schedule II controlled substances, the list

of 75 patient names and the triplicate pre-

scription forms. There is no testimony that

the agents deliberately were seizing patient

files not encompassed by these criterion. The

only testimony that files were seized which

the agent felt would merit further review was

that of Special Agent Raymond Conner who

74

assisted in the search of the Ivanhoe office.

However, the context of that testimony is that

such files were seized in accordance with the

primary criterion set forth above. Defendant's

citation to United States v. Heldt, supra at

1267 is not controlling. At that portion of

the opinion, the Court of Appeal was concerned

with the application of the plain view excep-

tion to the requirement of a search warrant.

Here, it appears that the seizures were

attempted to be made in accordance with the

search warrant.

Finally, defendant, citing VonderAhe v.

Howland, 508 F.2d 364 (9th Cir. 1974), argues

that the manner in which the searches were

conducted violated the Fourth Amendment. In

VonderAhe, Treasury Agents acting pursuant to

a search warrant, entered Dr. VonderAhe's

office at 8:15 a.m. They took over the premi-

ses and continued their search untii 1:15 p.m.

The search necessitated cancellations of

patient appointments because patient cards and

#2

records were seized. In addition, Dr. Vonder-

Ahe was unable to resume his practice for

approximately two weeks when most of the

Original records were returned. The Ninth

Circuit held at 3/70:

Moreover, just as ‘unreasonable’ can be

applied to the breadth of the warrant, so

much the more can it be applied to the

manner of execution because it is the

‘manner' which, as vividly illustrated by

the facts of this case, can create and

constitute the prohibited intrusion. As

previously mentioned, the Agents could

have sought the allegedly concealed records

by other means. If they had desired to

question the accuracy of patient payments,

they could have made a patient check. All

this could have occurred in an orderly way

without the sudden assault causing not

only damage to the doctor's finances and

prestige but undoubtedly inconvenience

and possibly pain and suffering to the

many patients who could not be treated for

weeks due to the disruption.

The searches of the respective offices were

not disruptive in the sense condemned in

VonderAhe. Obviously, any search for records

in a medical office is going to cause some

disruption of normal routine. However, the

testimony in this case reveals that patients

were allowed to keep their appointments if

76

they so desired with a slight delay as exam-

ining rooms were searched or staff were inter-

viewed. The staff at the offices were allowed

to photocopy any portion of the files or

records being seized which the staff deemed

necessary to the operation of the offices and

the medical practice. Except for the first

half-hour of the search of the Ivanhoe office,

the staff were permitted to use the telephone

for outgoing calls and there was no restriction

placed on incoming calls. The half-hour res-

triction on outgoing calls from Ivanhoe office

was imposed so that the other two offices could

not be alerted to the search before the agents

arrived. While the agents were at the respec-

tive offices from approximately 10:30 a.m. to

approximately 5:00 p.m., this lengthy stay was

necessitated by the volume of files at the

offices and the photocopying. There were

approximately 6,000 to 8,000 patient files at

the Porterville office, approximately 1,200

to 1,500 patient files at the Farmersville

77

office and approximately 1,000 files at the

Ivanhoe office. At approximately 12:30 p.m.,

Agent Carter, who was directing the search of

the Porterville office, realized that the

search of all the patient files could not be

completed in one day. She therefore decided

to limit the search to those files of patients

whose names were on the list of 75 previously

submitted to Dr. Schwamb and those files for

which there were triplicate prescription forms.

This decision was communicated to the other

teams and at approximately 2:30 p.m. the

searchers so limited the search. Only a total

of 217 patient files were seized from the

three offices. Some of the files seized were

multiple files for a single patient. Of these

files, eighteen did not involve any prescrib-

ing or dispensing of controlled substances.

Of the remaining 199 patients’ files, approxi-

mately 50 did not involve the prescription

or dispensation of Schedule II controlled

substances. Of the files seized, all but 42

78

have been returned as have the patient logs

and appointment books. Given these facts, it

is difficult to equate these searches to the

type ef search disapproved in VonderAhe and

the court declines to do so.

Accordingly, defendant's motion is

denied.”

DATED: September 28, 1983.

ROBERT E. COYLE

United States District Judge

Because of the court's conclusions in this case,

it is umnecesesary to reach the issues presented by

plaintiff's assertion that defendant lacked a reasonable

expectation of privacy in the reocrds the subject of

the searches.

79

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee

No.: 84-1276

Vv. D.C. No.:

Cr83-016 MDC

JUDE R. HAYES, Defendant-Appellant

OPINION

Filed May 9, 1986

Appeal from the United States District Court

for the Eastern District of California

M.D. Crocker, District Judge, Presiding

Argued and Submitted November 12, 1985

San Francisco, California

Before: WALLACE, ANDERSON, and PREGERSON

Circuit Judges

WALLACE, Circuit Judge:

Hayes appeals from his conviction for

prescribing Schedule II drugs to patients in

violation of the Controlled Substances Act,

80

21 U.S.C. § 841(a)(1) (the Act). He contends

that the jury was improperly instructed and

that the government should not have been

allowed to introduce in evidence his office

records secured pursuant to search warrants.

We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

I

Hayes is a physician and treats patients

at his offices in Porterville, Farmersville,

and Ivanhoe, California. After receiving

information that Hayes was prescribing medica-

tion in violation of the Act, agents of the

United States Drug Enforcement Administration

obtained warrants from a federal magistrate

to search Hayes's three offices. The agents

executed the search warrants and seized over

200 medical files.

Hayes then instituted a civil action for

the return of the records, alleging that the

issued warrants were unconstitutionally over-

broad. The district court in the civil action

81

concluded that the warrants were overbroad

and ordered all of the seized records and

documents to be returned unless Hayes was

indicted by February 1, 1983. On January 28,

1983, a federal grand jury indicted Hayes on

640 counts of prescribing Schedule II drugs

to his patients in violation of the Act. The

indictment focused on Hayes's treatment of 20

patients over a three-year period; each pre-

scription of a Schedule II drug constituted

a separate count.

Prior to trial, Hayes moved to suppress

the evidence seized from his offices on the

basis that there was no probable cause to issue

the search warrants and that the warrants were

general, overbroad, and violated the fourth

amendment. A different district judge denied

his motion and held, contrary to the decision

by the judge in the civil action, that the

warrants were not overbroad. Hayes never

argued that the decision by the court in the

civil action collaterally estopped the court

82

in the criminal action from considering the

validity of the warrant. Therefore, we will

not consider that issue on appeal. See United

States v. Lasky, 600 F.2d 765, 769 (9th Cir.),

cert. denied, 444 U.S. 979 (1979); Mahoney v.

United States, 420 F.2d 253, 255 (D.C. Cir.

1969).

After an eight-week trial, the jury

returned convictions on 281 counts. Hayes was

sentenced to three years in prison with a con-

secutive three-year term of probation and was “=~

fined $100,000.

II

Hayes contends that the district court's

initial and supplemental jury instructions were

erroneous. A defendant is entitled to a jury

instruction on a defense theory if the theory

has a basis in law and in the record. See

United States v. Coin, 753 F.2d 1510, 1511

(9th Cir. 1985) (per curiam). The adequacy

of the jury instructions, however, is deter-

mined by examining the instructions as a whole.

83

See United States v. Wellington, 754 F.2d

1457, 1463 (9th Cir.) (Wellington), cert.

denied, 106 S. Ct. 592 (1985). "[I]t is not

error to refuse a proposed instruction so long

as the other instructions in their entirety

cover that theory." United States v. Kenny,

645 F.2d 1323, 1337 (9th Cir.), cert. denied,

452 U.S. 920 (1981).

The district court has broad discretion

in formulating the instructions and need not

give an instruction in the precise language

proposed by the defendant. See United States v.

Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

"Imperfectly formulated jury instructions will

serve as a basis for overturning a conviction

only upon a showing of abuse of discretion."

Wellington, 754 F.2d at 1463.

Hayes contends that the initial jury

instructions concerning the elements of the

offense with which he was charged were mis-

leading. The court instructed the jury that

the government must prove that Hayes "knowing-

84

ly did an act which the law forbids, purpose-

fully intending to violate the law." The

court read to the jury the relevant part of

21 U.S.C. § 841(a)(1) and then instructed them

that in order to convict Hayes they

must find as to each of those counts that the

Government has proven beyond a reasonable doubt

each of the elements necessary to establish

the offense: 1) That Dr. Jude R. Hayes, defen-

dant, was a registrant authorized to dispense

controlled substances for legitimate medical

purposes; 2) That the defendant knowingly and

intentionally issued a prescription; 3) That

the prescription was for a Schedule II narcotic

controlled substance as alleged; and 4) That

the prescription was issued by him other than

in good faith, for a legitimate medical purpose,

in the usual course of his professional prac-

tice.

The questions raised before us pertain to the

fourth element. The court instructed the jury

about the meaning of good faith:

[G]ood faith means an honest effort to prescribe

for a patient's condition in accordance with

the standard of medical practice generally

recognized and accepted in the country. Mis-

takes, of course, are not a breach of good

faitn. . « «

You need not agree with or believe in a

standard practice of the profession, but must

only be concerned with a good faith attempt to

act according to them. Good faith is not merely

a doctor's sincere intention towards the people

who come to see him, but, rather, it involves

—

85

his sincerity in attempting to

conduct himself in accordance with

a standard of medical practice

generally recognized and accepted

in the country.

Hayes contends that these instructions

are misleading and contrary to our holding in

United States v. Boettjer, 569 F.2d 1078 (9th

Cir.) (Boettjer), cert. denied, 435 U.S. 976

(1978). In Boettjer, we reviewed a jury

instruction which stated that to convict a

physician of distributing Schedule II drugs

in violation of the Act, the jury had to find

beyond a reasonable doubt that the prescription

was issued “other than in good faith for a

legitimate medical purpose and in accordance

with the medical standards generally recognized

and accepted in the medical profession." Id.

at 1081 (emphasis in original). We expressed

concern in Boettjer that the jury could have

interpreted this instruction in three con-

flicting ways, but concluded that there was

no persuasive showing of actual prejudice

and that a more precise instruction would not

86

have altered the jury's deliberations. Id.

at 1081-83.

Hayes raises a similar argument here.

He contends that the instructions given per-

mitted the jury to convict him if he acted

in good faith but failed to conform to stan-

dard medical practices -- that is, a convic-

tion based on negligence. Hayes's argument

is weighty only if we read in isolation the

instruction which states that a prescription

must have been issued "other than in good

faith, for a legitimate medical purpose, in

the usual course of his professional practice."

Jury instructions, however, must be viewed as

a whole in the context of the entire trial.

See Wellington, 754 F.2d at 1463. In light

of the district court's jury instructions on

specific intent and good faith, we fail to see

how the jury could interpret the instructions

as permitting a finding of guilt based on mere

negligence. Indeed, we rejected this very

argument in Boettjer after concluding that

87

"(i]t strains belief to imagine that the jury

could have been misled into finding the defen-

dant guilty if his actions were in accordance

with medical standards." Boettjer, 569 F.2d

at 1082 (emphasis in original). We emphasized

that any possible confusion was eliminated by

later instructions dealing with good faith and

its relationship to standards of medical prac-

tice. Id. at 1082. Although more precise

language could have been used, we reach the

same conclusion in this case.

The court also instructed the jury about

the Act's prohibition against prescribing

Schedule II drugs for detoxification and

maintenance of addiction:

Narcotic withdrawal or addiction is

not a sufficient medical condition justi-

fying the prescribing or administering

of a narcotic controlled substance. There-

fore, if you find that the defendant...

wrote a prescription for a narcotic control

[led] substance on a narcotic addict who did

not have a medical complaint other than

addiction or withdrawal requiring the type

of narcotic controlled substances prescribed,

then the issuance of said prescription would

not be in good faith in the usual course of

professional practice for a legitimate medical

purpose.

88

Hayes argues that this is improper "because

it imposes an objective test as to both the

existence of a medical complaint and the

appropriateness of treatment." The instruc-

tion, however, properly states the law. See

21 C.F.R. § 1306.07(c) (1985). If a patient

were a narcotic addict and the only medical

complaint was addiction or withdrawal, Hayes

could not have issued the drugs in good faith.

The instruction refers only to "a medical

complaint other than addiction or withdrawal"

as a proper basis for prescribing a Schedule

II drug to a drug addict. Any vagueness in

the instruction favored Hayes since section

1306.07(c) permits prescribing narcotic drugs

to narcotic addicts only for "intractable pain

in which no-relief or cure is possible or none

has been found after reasonable efforts." Id.

Without doubt, the instructions could

have been improved. When viewed as a whole,

however, the initial jury instructions given

by the district court relating to both the

89

elements of a section 841(a)(1) violation and

the Act's medical exception were sufficient.

But Hayes further contends that even if the

initial instructions correctly stated the law,

they were confusing, and that the district

court compounded the confusion in its supple-

mental instructions to the jury.

B.

While deliberating, the jury submitted

four substantive questions to the district

court. Hayes contends that the court's

responses misstated the medical exception and

thus created additional confusion concerning

the necessary elements for a conviction under

section 841(a). We have stated that " '[t]he

necessity, extent and character of additional

instructions are matters within the sound

discretion of the trial court.' " United

States v. Collom, 614 F.2d 624, 631 (9th Cir.

1979) (Collom), cert. denied, 446 U.S. 923

(1980), quoting Wilson v. United States, 422

F.2d 1303, 1304 (9th Cir. 1970). At the same

90

time, the district court has the responsibil-

ity to eliminate confusion when a jury asks

for clarification of a particular issue. See

United States v. McCall, 592 F.2d 1066, 1068

(9th Cir.) (per curiam), cert. denied, 441

U.S. 936 (1979).

The jury first asked:

[Assuming Hayes is an expert on drug depen-

dence and understands the consequences of

Schedule II medication, ] would Dr. Hayes be

guilty of prescribing the med's charged in

this case if after considering the above

noted assumptions we felt that Dr. Hayes

didn't prescribe them for drug maintenance

or addiction and he prescribed the med's

for other legitimate reasons such as moderate

to severe pain that he sincerely felt existed

in any individual patient [?] Would any

[doctor] be guilty of the crimes charged

under these circumstances|? ]

The district court answered the jury: “If Dr.

Hayes prescribed the drugs in good faith for

legitimate medical purpose in the usual course

of professional practice and did not prescribe

them for drug maintenance or addiction he is

not guilty." Hayes agreed to the court's

supplemental instruction, except that he felt

the "did not prescribe them for drug mainte-

|

91 2

nance or addiction" language was confusing

since the jury's question assumed that he did

not do so. This contention is meritless, for

the court's answer plainly incorporates the

question's assumption.

The jury next asked: "If we find a

patient was an addict and the doctor treated

his addiction with Sched[ule] II drugs, and

the patient experienced chronic pain, and the

doctor treated the chronic pain in a good

faith effort, how would we find -- guilty or

not guilty?" The court answered:

I can not answer this question directly.

In the case of the treatment of a patient

who is an addict, all of the factors you

have mentioned must be considered in order

to determine whether or not the Schedule II

drugs were prescribed in good faith, for

legitimate medical purpose in the usual

course of professional practice.

Hayes objected on the ground that under Boettjer

the answer should have been "not guilty." We

disagree. An answer of “not guilty” might

have misled the jury into believing that Hayes

could treat addiction with Schedule II drugs,

j ———————

92

which he could not do. Consequently, the

district judge did not abuse his discretion

in not answering the jury's question directly.

The court's restatement of the initial in-

struction was adequate. See Collom, 614 F.2d

at 631.

The jury then asked: "Is it legal for

any physician to prescribe Schedule II drugs

to relieve pain for as long a time as the

physician believes the pain to be present?"

The judge answered: "Not always. The physi-

cian must weigh the risk of addiction against

the benefits (and see the answer to other

" Hayes's counsel acknowledged

questions).

that the weighing of the risk of addiction

versus the benefits of a Schedule II drug

was relevant. He argued, however, that the

jury should also be specifically instructed

that the duration of a prescription alone

does not make the prescription illegal. We

see no error in the court's refusal to give

this additional instruction since the court's

93

response to the jury's inquiry adequately

referred the jury to the relevant considera-

tions.

Lastly, the jury asked:

The opinion has been expressed that our

decision hinges on whether we can deter-

mine, beyond reasonable doubt, whether

in fact pain existed. The conclusion

based on this opinion is that since no

human can determine the degree of another

person's pain, we cannot rule on the

exist[e]nce or nonexist[e]nce of pain.

The court answered: "The existence of pain

is not the only question involved. The jury

must determine whether or not the Doctor in

good faith believed that a painful condition

existed that warranted the prescription of

Schedule II drugs for the period of time and

dosages involved." Hayes argues that this

obscures the subjective element of Hayes's

good faith by suggesting that pain must exist.

The court's answer, however, clearly stated

that pain is not the only consideration and

that the jury must determine if the physician

in good faith believed that pain existed.

Hayes also argues that use of the term

94

“warranted the prescription" suggested to the

jury that an objective test should be applied.

When read in context that term refers only to

the doctor's subjective good faith. There was

no error.

C.

Hayes raises two other arguments related

to the jury instructions. He contends that

the instructions impermissibly shifted the

burden of proof to him. We disagree. The

jury instructions clearly stated that “the

Government has the burden of proving every

element of the charges beyond a reasonable

doubt" and that the “burden never shifts to

the defendant."

Hayes also contends that section

841(a)(1) is unconstitutionally vague as

applied. Hayes admits that the facial

validity of section 841(a)(1) has been upheld

against attacks for vagueness. See United

otates v. Moore, 423 U.S. 122, 145 (1975);

United States v. Rosenberg, 515 F.2d 190,

95

197-98 (9th Cir.), cert. denied, 423 U.S.

1031 (1975). He contends, however, that the

statute is vague as applied in this case

because of erroneous jury instructions that

"exacerbated" potentially ambiguous language

in the statute. We have concluded that the

initial and supplemental instructions were

not erroeous. Thus, we reject Hayes's

argument that the circumstances of this case

caused section 841(a)(1) to be unconstitu-

tionally vague as applied.

III

Hayes contends that the warrants for

the search of his three offices were facially

overbroad and authorized a general search and

seizure in violation of the fourth and four-

teenth amendments. The district court conclu-

ded that any lack of particularity in the

warrants was eliminated by the affidavits

submitted in suppoct of the warrants and,

alternatively, that the general description

in the warrants was permissible because a

96

more precise description was not possible.

We review de novo the district court's con-

clusion that the warrants were not facially

overbroad. See United States v. McClintock,

748 F.2d 1278, 1282 (9th Cir. 1984) (McClin-

tock), cert. denied, 106 S. Ct. 75 (1985).

The fourth amendment requires that

“warrants shall particularly describe the

things to be seized [and] makes general

searches under them impossible." Marron v.

United States, 275 U.S. 192, 196 (1927).

The particularity requirement ensures that

“nothing is left to the discretion of the

officer executing the warrant." Id.; see

United States v. Hillyard, 677 F.2d 1336,

1339 (9th Cir. 1982) (Hillyard). A warrant

need only be reasonably specific in its des-

cription of the objects of the search and

need not be elaborately detailed. See United

States v. Brock, 667 F.2d 1311, 1322 (9th Cir.

1982), cert. denied, 460 U.S. 1022 (1983).

Thus, when probable cause exists, "all items

97

in a set of files may be inspected during a

search, provided that sufficiently specific

guidelines for identifying the documents

sought are provided in the search warrant and

are followed by the officers conducting the

search." United States v. Tamura, 694 F.2d

591, 595 (9th Cir. 1982) (Tamura).

A.

We first examine whether the government's

affidavits can be considered in determining

if the warrant lacked particularity. An affi-

davit may be relied on to provide the requisite

particularity in an otherwise overbroad warrant

only “if (1) the affidavit accompanies the

warrant, and (2) the warrant uses suitable

words of reference which incorporate the affi-

davit therein." Hillyard, 677 F.2d at 1340;

see United States v. Property Belonging to Talk

of the Town Bookstore, Inc., 644 F.2d 1317,

1319 (9th Cir. 1981) (Talk of the Town Book-

store).

Here, it is disputed whether the warrants

98

adequately incorporated the affidavits by

reference, but it is clear that the affi-

davits did not accompany the warrants. The

district court concluded that the govern-

ment's affidavits could "be used to supply

any particularity which may be missing from

"and that the requirement that

the warrant,'

an affidavit accompany the warrant is relevant

only to a challenge that a search is overbroad.

We disagree. The purpose of the accompanying

affidavit clarifying a warrant is both to

limit the officer's discretion and to inform

the person subject to the search what items

the officers executing the warrant can seize.

Talk of the Town Bookstore, 644 F.2d at 1319.

If the needed affidavits are not attached to

the warrant, then neither purpose is served.

Consequently, in this case the affidavits may

not be considered in determining whether the

warrant is facially overbroad.

B.

We now examine whether the warrant on

99

its face is overbroad and in violation of the

fourth amendment. The magistrate issued three

warrants, one for each of Hayes's offices,

that authorized the officers to seize

(1) demerol (mependine), morphine sulfate and

other controlled substance; (2) all records

which document the purchasing, dispensing and

prescribing of controlled substances, including,

but not limited to, records contained in patient

charts and all relevant records required to be

maintained by Title 21 of the Code of Federal

Regulations, Part 1300 to end and Sections

11190 and 11191 of the California Health and

Safety Code; (3) patient logs, appointment

books and other records and ledgers reflecting

distribution of controlled substances1/; (4)

correspondence concerning the procuring, trans-

ferring, administering, prescribing or dispens-

ing of controlled substances by Dr. Hayes; all

of which constitute evidence of possible viola-

tions of 21 USC 841(a)(1) and 21 USC 843(a)(3).2/

Hayes contends that the warrants are

overbroad on their face because they permitted

the officers to examine thousands of patient

files. The number of files that could be

scrutinized, however, is not determinative.

The search and seizure of large quantities of

material is justified if the material is

within the scope of the probable cause under-

lying the warrant. McClintock, 748 F.2d at

100

1283; United States v. Gomez-Soto, 723 F.2d

649, 653 (9th Cir.), cert. denied, 104 S. Ct.

2360 (1984); United States v. Offices Known

As 50 State Distributing Co., 708 F.2d 1371,

1375 (9th Cir. 1983) (50 State), cert. denied,

465 U.S. 1021 (1984). |

The magistrate found probable cause to

issue the warrants based on an affidavit that

described a ccaenaik by one patient, state-

ments by an undercover officer, testimony by

one of Hayes's receptionists, and testimony

of a medical consultant who reviewed Hayes's

prescription records for Schedule II drugs at

15 pharmacies in Tulare County, California,

and concluded that there was a high proba-

bility that Hayes "caused, abetted, or pro-

longed addi[c]tion or habituation to control-

led substances." The magistrate found proba-

ble cause to seize all controlled substances

and all records that related to the procuring,

transferring, administering, prescribing, or

dispensing of controlled substances. On

101

appeal, Hayes does not challenge this deter-

mination of probable cause. The fact that

the officers discovered, upon arrival at the

three offices, that there were over 10,000

patient files does not detract from the

magistrate's initial finding of probable

cause.

Hayes also contends that the warrant

failed to provide standards for the officers

to distinguish between those files the

officers could seize and those they could not

and that the warrants should have been more

narrowly drawn. We disagree. In searches of

this nature "some innocuous documents will be

examined, at least cursorily, in order to

determine whether they are, in fact, among

those papers authorized to be seized."

Andresen v. Maryland, 427 U.S. 463, 482 n.11

(1976) (Andresen). Here, the officers were

limited in their seizure to documents dealing

with the distribution of controlled substan-

ces.>/ The warrants did not permit them to

102

seize any documents unrelated to controlled

siiyorstoa Casas oust

substances. See United States v. Whitten, 706

F.2d 1000, 1009 (9th Cir. 1983), cert. denied,

465 U.S. 1100 (1984). Where, as here, there

are articulated standards that "reasonably

guide the officers in avoiding the seizure of

protected property, a search warrant author-

izing such seizure is not a general warrant."

United States v. Pollock, 726 F.2d 1456, 1466

(9th Cir. 1984); see Andresen, 427 U.S. at 482

n.1i1; Tamura, 694 F.2d at 595; United States

v. Federbush, 625 F.2d 246, 251 (9th Cir.

1980); United States v. Louderman, 576 F.2d

1383, 1389 (9th Cir.), cert. denied, 439 U.S.

896 (1978). The fact that the officers did

not seize all of the materials permitted by

the warrant does not mean that they possessed

the type of unfettered discretion that violates

the fourth amendment.

We also conclude that the warrants need

not have been more narrowly drawn. Hayes con-

tends that the officers possessed information

103

concerning 58 cases of potential violations

involving Schedule II drugs and that the

warrants should have been limited to those

58 patient files. Such a conclusion, however,

ignores the magistrate's finding, unchallenged

on appeal, of probable cause to seize all

documents concerning controlled substances. “/

The 58 known cases could fairly be considered

as representative of more pervasive violations

of the Act. See 50 State, 708 F.2d at 1374-

7D

AFFIRMED.

FOOTNOTES

Be In two of the warrants, this provision read:

"patient logs, appointment books and other

records and ledgers reflecting patient visits to Dr.

Hayes or his employees, constituting evidence of

illegal distribution of controlled substances."

hin The dissent states that the United States

attorney admitted at oral argument that he did

not draft or review the warrants or affidavits and

that such a failure was a departure from normal off-

ice procedures. Dissent, p. 1, n.1. The United

States attorney, however, also stated that he assis-

ted in drafting the warrants and affidavits. The

only departure from normal office procedures was his

failure to review the final drafts of the affidavits

and warrants before they were submitted to the magistrate.

104

ae The dissent contends that we have failed to

consider language in two of the warrants in

determining if the warrants violated the particular-

ity requirement of the fourth amendment. Dissent,

p. 2. The Farmersville and Porterville warrants

contain language that the dissent interprets as

limiting the seizure of certain records to those

that constitute “evidence of illegal distribution

of controlled substances."" The Ivanhoe warrant

contains no such limiting language. All three

warrants, however, contain additional language

that authorized the seizure of all records that

"document the purchasing, dispensing, and pre-

scribing [of] controlled substances."" Hayes con-

tends, and the government concedes, that the war-

rants authorized the seizure of all records and

documents that related to transferring, procuring,

administering, prescribing, or dispensing of con-

trolled substances. Therefore, the warrants did

not require the officers to determine whether a

particular item constituted "evidence of illegal

distribution of controlled substances."

4. The dissent states that the United States

attorney admitted during oral argument that

the failure to limit the warrants to records invol-

ving Schedule II drugs was a "mistake." Dissent,

p.- 1, n. 1. However, the United States attorney

later argued that the warrants properly were not

limited to Schedule II drugs because there was

probable cause to conclude that Hayes was dispens-

ing controlled substances in violation of the law.

In any event, the United States attorney's admis-

sion of a "mistake" in response to questioning by

the court is irrelevant because the magistrate

found that there was probable cause to issue the

warrant with reference to controlled substances

- generally and not as to Schedule II drugs only.

105

PREGERSON, Circuit Judge, dissenting.

Based on information lawfully received

from various pharmacies, federal agents

determined that Dr. Hayes illegally pre-

scribed Schedule II drugs to 58 patients.

Instead of limiting the search to these sus-

pected patients and substances, the three

search warrants issued in this case broadly

authorized the agents to search each of over

10,000 patient files, located in three

medical offices, for information relating to

any controlled substance. Because the actions

of the federal authorities in this case

demonstrate a cavalier disregard for the

Fourth Amendment's particularity requirement, +

: At oral argument, the United States attorney

assigned to this case repeatedly acknowledged that the

failure to limit the search warrants to records invol-

ving Schedule II drugs or specific patients was a "mis-

take" on the part of the agents who drafted the warrants.

Government counsel conceded that “in hindsight" the

warrants should have been limited to the suspect patient

files referred to in the affidavits.

This error was apparently due to counsel's

failure adequately to assist the agents in drafting the

warrants. Counsel noted that the agents typed up the

106

I am unable to countenance the majority

opinion's approval of the search in this

case.

warrants and affidavits and that he failed to review

them before they were presented to the magistrate

because "for some reason I was not available." He

further acknowledged that his failure to review the

warrants was a departure from "customary practice."

Thus, although the attorney asserted that he

assisted in preparing the affidavits and warrants, it

appears that he did not give the agents meaningful

guidance on how the documents should be worded. In

fact, counsel candidly admitted that, "I was quite

suprised that [the warrant] ended up reading the way

it did.’

I agree with the majority opinion that the

affidavits, which were neither served with nor

attached to the search warrants, may not be relied

upon to provide the requisite specificity. It is

noteworthy that the district court believed that

the affidavits were essential to its decision to

uphold the warrants while the majority finds that

the warrants are sufficiently particular even

without the affidavits.

107

The Fourth Amendment provides that "no

Warrants shall issue, but upon probable cause

- + - and particularly describing the place

to be searched, and the persons or things to

be seized." U.S. Const. amnd. IV. The touch-

stone of the particularity requirement is

whether the warrant ensures that "[a]s to

what is to be taken, nothing is left to the

discretion of the officer executing the war-

rant.'' Marron v. United States, 275 U.S.

192, 196 (1927); Andresen v. Maryland, 427

U.S. 463, 480 (1976); see United States v.

Gomez-Soto, 723 F.2d 649, 643 (9th Cir.),

cert. denied, 104 S. Ct. 2360 (1984). The

majority, while acknowledging this fundamen-

tal principle, ignores its application in this

case. A close review of the facts demonstrates

the flagrant overbreadth of the warrant used

by the agents to search Dr. Hayes's three

medical offices.

The most obvious violation of the Fourth

Amendment's particularity requirement is found

108

in the two search warrants covering more than

9,000 patient files at the Farmersville and

Portersville medical offices. These warrants

authorized the search of “patient logs, ap-

pointment books and other records ... con-

stituting evidence of illegal distribution of

controlled substances." This provision is not

reasonably specific because the officers

executing the warrant must determine during

the search whether a particular item "consti-

tutes evidence" of illegal distribution.” In

fact, this is exactly the type of warrant pro-

vision that this court has repeatedly struck

down. *

3 Such a determination is especially problematic

in this case because of the "medical exception" to the

prohibition on prescription of controlled substances.

A file indicating that Dr. Hayes prescribed a control-

led substance would not necessarily establish a viola-

tion of the staute. The executing officers would have

to determine if the prescription was "excessive" or

for a "non-medical" purpose. In fact, the agents tes-

tified that they used their own judgment in determining

what to seize from Dr. Hayes's offices.

. See, e.g., Gomez-Soto, 723 F.2d at 653-54

(invalidating warrant provision authorizing search of

papers “evidencing failures to file currency transaction

109

The majority opinion winks at this glaring

deficiency by merely quoting, without ex-

plaining, these provisions in its footnote.

Nor do the warrant provisions addressed

in the text of the majority opinion pass con-

stitutional muster. The warrants at issue

in this case authorize the search of every

patient file in all three of Dr. Hayes's

offices. The broad language of the warrants

encompasses about 8,000 files in the Porter-

ville office, 1,500 files in the Farmersville

office, and 1,000 files in the Ivanhoe office.

The majority opinion concludes that these vast

reports . . . ."); United States v. Cardwell, 680 F.2d

75, 76 (9th Cir. 1982) (search of corporate records

"Which are the fruits and instrumentalities, of vio-

lations of [federal tax law]."); VonderAhe v. Howland,

508 F.2d 364, 366-67 (9th Cir. 1974) (search of docu-

ments “used as a means of committing and constitute

evidence" of federal tax offenses); see also United

States v. Drebin, 557 F.2d 1316, 1322-23 (9th Cir.

s of “illegally reproduced" film), cert.

denied, 436 U.S. 904 (1978); cf. Andresen, 427 U.S.

at 480-81 (provision authorizing search of “other

fruits, instrumentalities and evidence of a crime at

this [time] un " upheld only because it accom-

panied a lengthy list of specified and particular

items to be seized pertaining to specific property).

110

numbers are really insignificant, noting that

the Court in Andresen

searches of voluminous

uous documents will be

cursorily, in order to

are, in fact, amoung those papers authorized

to be seized." 427 U.S

Court in Andresen went

that in such searches "

including judicial offi

to assure that they are

that minimizes unwarran

privacy." Id. In this

to minimize unwarranted

presented itself to the

issuing Magistrate--the

but was not, restricted

acknowledged that in

records,"some innoc-

examined, at least

determine whether they

- at 482 n.11. The

on to state, however,

responsible officials,

cials, must take care

conducted in a manner

ted intrusions upon

case, an opportunity

intrusions readily

agents and to the |

search could have been,

to the files pertaining

to the particular patients or drugs referred

to in the affidavits.

I believe that “respon- |

sible" officials would have, at a minimum,

limited the search warr

ant to Schedule II

drugs, rather than to any controlled substance,

111

and the 58 suspect profiles, rather than to

the 10,000 patient files.

Moreover, the failure to describe with

particularity the items to be seized cannot

be squared with this court's repeated pro-

nouncements that a general description is not

possible." Gomez-Soto, 723 F.2d at 654; United

States v. Cardwell, 680 F.2d 75, 78 (9th Cir.

1982); see also VonderAhe, 508 F.2d at 370;

accord United States v. Bright, 630 F. 2d 804,

812 (5th Cir. 1980). Although the government

acknowledges that its investigation of Dr.

Hayes focused on excessive prescription of

Schedule II drugs, the warrant authorized a

search of documents and patient files per-

taining to every controlled substance, from

Percodan to such commonly prescribed medica-

tions as Tylenol with codeine and Valium.

Here, as in Cardwell, the results of the

governments pre-search investigation "were

not used to refine the scope of the warrant.”

5

See Cardwell, 680 F.2d at 78.

112

The failure to limit the warrants so

as to minimize intrusions upon patient's

privacy interests is particularly trouble-

some because the documents to be searched

were primarily medical records. Information

contained in patient files is extremely

personal and potentially embarrassing to

innocent third parties. Unlike the cases

cited by the majority, in which the searches

’ The governm

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