615 F.2d 541 (1st Cir. 1980), 79-1073, United States v. Abrams

Docket Nº:79-1073.
Citation:615 F.2d 541
Party Name:UNITED STATES of America, Appellant, v. Maurice ABRAMS, Defendant-Appellee.
Case Date:January 22, 1980
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 541

615 F.2d 541 (1st Cir. 1980)

UNITED STATES of America, Appellant,

v.

Maurice ABRAMS, Defendant-Appellee.

No. 79-1073.

United States Court of Appeals, First Circuit

January 22, 1980

Argued June 8, 1979.

Paul F. Healy, Jr., Asst. U. S. Atty., Deputy Chief, Crim. Div., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellant.

Albert F. Cullen, Jr., Boston, Mass., with whom Marshall F. Newman, Newman & Newman, P. C., and Cullen & Wall, Boston, Mass., were on brief, for defendant-appellee.

Page 542

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The issue before us is the validity of a search warrant. The government has appealed a suppression order of the United States District Court, pursuant to 18 U.S.C. § 3731. 1 The court found the warrant invalid on two grounds:

(1) that the magistrate was not given an opportunity to exercise his discretion on passing on the warrant because the affidavit failed to state that the information on which it was based was, for the most part, four or five years old; and

(2) that the form of the warrant called for a general exploratory search. 2

Since we affirm on the basis that the warrant violated the fourth amendment requirement that the things to be seized must be particularly described, our focus is on that aspect of the case.

The Department of Health, Education and Welfare (HEW) received information from former employees of defendant-appellee, Dr. Abrams, and his associate, Dr. London, that in 1972 and 1973 Medicare bills had been submitted for laboratory tests not actually done. Further information was received in September of 1976 indicating that Dr. Peter Braun, who shared office space with Abrams and London, had submitted a false claim for Medicare payments of laboratory tests or that his name was used on such claim.

HEW commenced an active investigation of the matter in March of 1976. The investigation was referred to the United States Attorney's office in October of 1976 with the recommendation that the records of Abrams and London be subpoenaed. A warrant was obtained and executed on April 20, 1977. 3 The warrant, after describing the location of the doctors' offices, states:

(T)here is now being concealed certain property, namely evidence of a crime, to wit, certain business and billing and medical records of patients of Doctors Abrams, London, Braun, and Abrams, London and Associates, Inc. which show actual medical services performed and fraudulent services claimed to have been performed in a scheme to defraud the United States and to submit false medicare and medicaid claims for payments to the United States or its agents; in violation of Title 18, United States Code, Section 1001(.)

In executing the warrant, all of the Medicare and Medicaid records in the doctors' offices were seized. In addition, approximately twenty medical records of non-Medicare-Medicaid patients were seized. The search and seizure started at 2:40 P.M. and was terminated at 5:57 P.M. on the same day.

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On September 20, 1978, an indictment was returned against appellee charging him with Medicare fraud, conspiracy and mail fraud. 4 On December 28, 1978, the district court, after a lengthy hearing, granted appellee's motion to suppress. This appeal followed.

The general warrant and the unrestricted search that follows have been condemned by Americans since Colonial days.

The Fourth Amendment declares that the right to be secure against unreasonable searches shall not be violated, and it further declares that "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." General searches have long been deemed to violate fundamental rights. It is plain that the amendment forbids them.

Marron v. United States, 275 U.S. 192, 195, 48 S.Ct. 74, 75, 72 L.Ed. 231 (1927). See also Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 509, 13 L.Ed.2d 431 (1964); Boyd v. United States, 116 U.S. 616, 625-26, 6 S.Ct. 524, 529-530, 29 L.Ed. 746 (1886).

There can be no doubt about the particularity requirements of the fourth amendment.

The requirement that warrants shall particularly describe the things to be seized makes general searches under them 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, supra, 275 U.S. at 196, 48 S.Ct. at 76.

The warrant at issue fails to meet the requirement of particularity. The officers' discretion was unfettered, there is no limitation as to time and there is no description as to what specific records are to be seized. As a result of this general description, the executing officers seized all of the Medicare and Medicaid records of the three doctors and, in addition, records of non-Medicare-Medicaid patients. It seems clear that the executing officers could not or made no attempt to distinguish bona fide records from fraudulent ones so they seized all of them in order that a detailed examination could be made later. This is exactly the kind of investigatory dragnet that the fourth amendment was designed to prevent. 5

The government argues that if the warrant is read in a common sense fashion as required by United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), it calls for all of the Medicare and Medicaid records in the doctors' offices. It seeks to support this position by the affidavit information received from three of the informants, which it says "established a large-scale scheme to defraud the Government, a scheme of such proportions that it was reasonable to believe that it could encompass all the doctors' Medicare patients' records and billings." Brief at 16. 6

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We observe first that it is the affidavit, not the warrant which is to be read in a common sense fashion under the teaching of Ventresca. The use of "common sense" does not eliminate the requirement for specificity in the warrant. Using the rubric "common sense," the government would return us to the general warrant era. If, as the government urges, the affidavit information called for all of the Medicare-Medicaid records in the offices, then the warrant should have said so. 7 The warrant as drawn left it entirely up to the discretion of the officers to determine what records to seize. Since they had no guidance at all, they seized them all. This may have been prudent, but it was also unconstitutional. Even if there were probable cause to seize all of the doctors' Medicare and Medicaid files, the mere fortuity that the officers seized records that could have been within the permissible scope of an adequately drafted warrant cannot rehabilitate this particular warrant. See In re Lafayette Academy, 610 F.2d 1 (1st Cir. 1979); 2 W. LaFave, Search and Seizure 101 (1978).

The warrant here suffers from the same constitutional infirmities which we held invalidated the warrant in Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324 (1st Cir. 1978). As in Montilla Records, the warrant was amorphously worded so as to

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result in an indiscriminate seizure of relevant and nonrelevant material. And, as in Montilla Records, the affidavit contained definite information that could have been used to specify the records to be seized. Two of the informants, Pascal and Coleman, stated that the medical records were separate from the billing records and did not list the services or tests falsely billed. As pointed out by the district court, the warrant could have instructed the officers to seize those files in which the billing record showed a higher total than the medical record. A time frame should also have been incorporated into the warrant. In United States v. Klein, 565 F.2d 183 (1st Cir. 1977), we held that a warrant that failed to provide any before the fact guidance to the executing officers was unconstitutionally issued. That is the same situation as we have here.

Since this problem is a continuing one, we make two observations suggested by the facts of this case without assuming to proffer an advisory opinion. In the first place, if an affidavit contains an averment by an employee that fraudulent practices were regularly pursued during his or her employment, and the term of such employment is set forth, the warrant could authorize the seizure of all records of Medicare and Medicaid services billed and purportedly performed during that period. In the second place, if the means of identification required some analysis and matching, e. g., by comparing patients' invoices with records of actual tests performed, this is a sufficient guarantee of particularity. Should the process be deemed too disruptive by the occupant of the premises, he would have the option of agreeing that documents or copies thereof be taken from the premises for the necessary scrutiny. In other words, the person whose premises are to be searched could insist on a search in situ rigorously restricted to the directions in the warrant, with the right to consent to means less physically disruptive.

It is true, as the government points out, that courts have approved warrants describing the things to be seized in generic terms but, in most instances, the material to be seized was contraband or stolen property. See, e. g., Steele v. United States No. 1, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925), "cases of whiskey"; United States v. Davis, 542 F.2d 743, 744 (8th Cir.), cert. denied, 429 U.S. 1004, 97 S.Ct....

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