Com. v. Jean-Charles, JEAN-CHARLES

CourtMassachusetts Supreme Judicial Court
Writing for the CourtBefore HENNESSEY; LIACOS
Citation500 N.E.2d 1332,398 Mass. 752
PartiesCOMMONWEALTH v. Roger
Decision Date10 December 1986

Page 1332

500 N.E.2d 1332
398 Mass. 752

Supreme Judicial Court of Massachusetts,
Argued Sept. 10, 1986.
Decided Dec. 10, 1986.

[398 Mass. 753] Max D. Stern (Patricia Garin, Boston, with him) for defendant.

Joseph P. Musacchio, Asst. Dist. Atty., for Com.

Carol A. Donovan, Marjorie Heins and John Reinstein, Boston, for Massachusetts Ass'n of Crim. Defense Lawyers & others, amici curiae, submitted a brief.

Before [398 Mass. 752] HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

[398 Mass. 753] LIACOS, Justice.

This is an interlocutory appeal, authorized by a single justice of this court (Mass.R.Crim.P. 15[b], 378 Mass. 882 [1979] ), from an order denying Roger Jean-Charles's amended motion to suppress evidence

Page 1333

seized pursuant to a warrant to search his office. Jean-Charles, a Boston physician, was indicted in Middlesex County on June 27, 1985, on four indictments charging attempted larceny and insurance fraud. 1 G.L. c. 277, § 30 (1984 ed.). G.L. c. 266, § 111B (1984 ed.). The charges relate to a $3,610 bill for services rendered to a patient for injuries she attributed to an automobile accident. The Commonwealth alleges that the bill was inflated to recover $2,700 in insurance company payments for services which had never been performed. Jean-Charles moved to suppress the evidence on the ground that the affidavit supporting the warrant did not establish probable cause under the Fourth Amendment to the United States Constitution, art. 14 of the Massachusetts Declaration of Rights, and G.L. c. 276, §§ 1, 2, 2B (1984 ed.). 2 During a hearing on November 12, 1985, the motion judge ordered that the amended motion to suppress should be denied. We reverse.

[398 Mass. 754] The facts are as follows. On November 24, 1984, Marie Raphael, a long-standing patient 3 of Jean-Charles, consulted him for injuries she attributed to a November 19 automobile accident. 4 The day after the alleged accident, Raphael was treated for neck and back injuries at Carney Hospital in Boston. She received an "aftercare" instruction sheet which directed her to see her personal physician for follow-up care. Claiming that she had followed the hospital's instructions without improvement in her condition, Raphael came to Jean-Charles for evaluation and treatment. Jean-Charles conducted a physical examination, administered various tests, and made a diagnosis. 5 Thereafter, Jean-Charles prescribed ultrasound therapy to be administered by medical assistants in his office. On May 4, 1985, Jean-Charles billed Raphael for seven office visits, various tests, and twenty-seven ultrasound treatments. Jean-Charles submitted the bill, together with a report on Raphael's treatment, to the Safety Insurance Company, pursuant to the [398 Mass. 755] company's request and Raphael's authorization. 6 An attorney for Raphael submitted a bill to the Commercial Union Insurance Company (Commercial Union).

Page 1334

The Commonwealth's primary evidence against Jean-Charles consists of his 1984-1985 appointment books and the medical files of Raphael and her son, Romane Eugene, "from November 1984 to the present." All were seized from his office on June 13, 1985, pursuant to a warrant issued by a Superior Court judge. The warrant application was based on the affidavit of a State police trooper, Joseph F. Flaherty. On the basis of information indicating that claims had been made to two insurance companies for the same accident, with one claim citing a November 18, 1984, accident and the other claim reporting a November 19, 1984, accident, the trooper concluded that "it is likely that the second accident never occurred." 7 Therefore, he concluded that "it is likely that neither Marie Raphael nor Eugene Romane [sic ] was ever injured and in need of medical treatment." 8

[398 Mass. 756] With respect to Jean-Charles's potential involvement in a scheme to defraud the insurance companies, the affidavit stated that the claims listed Jean-Charles as Raphael's and Eugene's physician; that the bill and medical report were submitted to Commercial Union; and that Trooper Flaherty made an appointment with Jean-Charles under an assumed name and observed the receptionist using a black appointment book.

At the hearing on the amended motion to suppress, the Commonwealth argued that the warrant application, affidavit and exhibits "do provide probable cause and a reasonable basis to conclude that the November 19 accident never occurred, do provide probable cause and reasonable basis to believe that Marie Raphael and Eugene Romane [sic ] were never, in fact, injured, and, therefore, do provide probable cause and reasonable basis to believe that they were not, in fact, treated as they allege in their application for personal-injury-protection benefits, as Jean Charles indicated in his bills to the Commercial Union Insurance Company, calling for payment of some $3,600 or for 34 individual days of treatment."

The judge ruled: "My task is not to determine anything beyond the question of the sufficiency of the affidavit to establish probable cause to search the office of the defendant with specificity as to the items that were sought. I have read the affidavit, and I find that the issuing magistrate who issued the search warrant initially had sufficient probable cause to issue such a warrant. It was a restricted warrant in that it didn't provide solely for a general search, but, rather, provided for a search of specific records. And I presume, from what I have heard, that that is all that was taken from the office. So, the amended motion to suppress is denied."

The parties disagree as to whether the affidavit in support of the warrant to search Jean-Charles's office established probable cause to believe that the November 19 accident did not occur. For purposes of this decision, we pass, without

Page 1335

ruling on, whether there was probable cause to believe that Enayo's claim that an accident occurred on November 19 was fraudulent. Even if we assume that there was probable cause to believe that the accident never occurred, and that Raphael, [398 Mass. 757] Eugene, and Enayo were engaged in attempted insurance fraud, the affidavit still must demonstrate probable cause to believe that evidence of the crime will be found in the place to be searched. Commonwealth v. Upton, 394 Mass. 363, 370, 476 N.E.2d 548 (1985). Commonwealth v. Cefalo, 381 Mass. 319, 328, 409 N.E.2d 719 (1980). There must be a...

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