United States v. 1328 North Main Street

• Citation: 634 F. Supp. 1069
• Decision Date: 02 April 1986
• Docket Number: 84-135M.,No. MS 3-84-60,MS 3-84-60
• Parties: UNITED STATES of America, Plaintiff, v. 1328 NORTH MAIN STREET, DAYTON, OHIO 45405, Defendant.
• Court: U.S. District Court — Southern District of Ohio

634 F. Supp. 1069

UNITED STATES of America, Plaintiff, v. 1328 NORTH MAIN STREET, DAYTON, OHIO 45405, Defendant.

Nos. MS 3-84-60, 84-135M.

United States District Court, S.D. Ohio, W.D.

April 2, 1986.

COPYRIGHT MATERIAL OMITTED

D. Michael Crites, Asst. U.S. Atty., Dayton, Ohio, for plaintiff.

Konrad Kuczak, Dayton, Ohio, for defendant.

DECISION AND ENTRY REJECTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE; EVIDENTIARY HEARING SET; PLAINTIFF'S MOTION FOR AN ORDER PERMITTING DISCLOSURE OF DOCUMENTS (DOC. # 23) SUSTAINED

RICE, District Judge.

This case comes before the Court for resolution of the objections of Thomas H. McCarthy, D.O., to the Report and Recommendation of United States Magistrate Merz.

At 9:45 a.m. on September 7, 1984, agents of the Federal Drug Enforcement Agency (DEA) obtained from United States Magistrate Steinberg a warrant to search the premises at 1328 North Main Street in Dayton, described as the offices and related facilities of Dr. McCarthy. DEA agents, accompanied by state and local authorities, executed the warrant between 11 a.m. and 3:45 p.m. on September 7, 1984. At 1:46 p.m. on September 7, 1984, Dr. McCarthy filed a motion styled "Motion to Quash Search Warrant, Application for Protective Order and Motion for Return."

Hearings were held before Magistrate Steinberg on September 10 and September 11. Treating Dr. McCarthy's motion as a Motion for Return of Property Pursuant to Fed.R.Crim.P. 41(e), Magistrate Steinberg stated on the record that the warrant which he had issued was supported by probable cause (Tr. 50),¹ and directed the parties to brief other issues raised by Dr. McCarthy. On September 11, 1984, Magistrate Steinberg ordered the United States to deliver to Dr. McCarthy by September 14, 1984, copies of all the documents seized pursuant to the September 7 search. Upon an amendment by Magistrate Steinberg of this Order, the United States returned to Dr. McCarthy on September 13 and September 17 both certain original documents seized from his office and copies of the remainder of the documents which had been seized.

On December 11, 1984, Dr. McCarthy filed a motion seeking that Magistrate Merz, who had taken over the case from Magistrate Steinberg, hold a hearing and a conference to set the ground rules for resolution of his motion. On February 6, 1985, Dr. McCarthy moved for an oral hearing to be held on whether unlawful electronic eavesdropping devices had been used in connection with the affidavit underlying the search warrant for his premises.

Magistrate Merz declined to hold a hearing on Dr. McCarthy's motion. In a Report and Recommendation issued on August 6, 1985, Magistrate Merz denied Dr. McCarthy's Application for an Oral Hearing on the issue of use of unlawful electronic surveillance devices. Adopting Magistrate Steinberg's finding, on the record, of probable cause, Magistrate Merz recommended that Dr. McCarthy's Motion to Quash Search Warrant and Motion for Return of Property be denied. As the Government had not opposed Dr. McCarthy's Application for Protective Order, the Magistrate recommended that the DEA be ordered to refrain "from sharing, divulging, distributing, disseminating or revealing any patient medical records and records of any communications made to a physician seized under the search warrant issued in this case, to any other agency, person, or police department, pending further order of this court." (Doc. # 17 at 7). The Magistrate also recommended denial of Dr. McCarthy's claim for damages for losses sustained due to seizure of his records.

Dr. McCarthy has filed objections to the Magistrate's Report (Doc. # 19). The United States has moved for an Order to permit it to reveal to two individuals all documents seized from Dr. McCarthy (Doc. # 23). For the reasons set forth herein, this Court rejects the Report and Recommendation of Magistrate Merz and orders that an evidentiary hearing be held in this cause. The Court sustains the motion of the United States to reveal to the two individuals named in the motion the documents seized from Dr. McCarthy's office on September 7, 1984.

A. Rule 41(e) Motion to Return

Magistrate Steinberg's decision to treat Dr. McCarthy's motion as a Rule 41(e) motion was based on his observation that motions to quash search warrants are not mentioned in the federal rules. (Tr. 3). Dr. McCarthy raised Rule 41(e) in the body of his September 7, 1984 motion as the authority for his Motion to Return. He also urges in his brief that the documents seized from his office be suppressed and that a protective order be issued to prevent either federal, state or local authorities "from using the unlawfully gained information in any manner in any proceeding." (Doc. # 11 at 43). After examining Dr. McCarthy's pleadings and the relief which he seeks, this Court agrees that Dr. McCarthy's pursuit of relief is governed primarily by Rule 41(e). Accord Imperial Distributors, Inc. v. U.S., 617 F.2d 892, 895 (1st Cir.1980).

A person lawfully entitled to property may file a Rule 41(e) motion in district court, alleging that his property was taken by means of an illegal search and seizure. The court is authorized to receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, Rule 41(e) provides that the property is to be restored to the person entitled to its possession and that it is not to be admissible in any hearing or trial. Rule 41(e) also provides that if an indictment or information is filed before a hearing is held on the motion to return, that the motion to return is to be treated in that situation as a motion to suppress evidence. The Court gleans from the rule and from the case law that a ruling on the merits of a Rule 41(e) motion seeking suppression as well as return of property must embrace in its analysis the various dimensions of the exclusionary rule. In Re Motion to Quash Grand Jury Subpoena, 593 F.Supp. 184, 192 (S.D.W.Va. 1984), appeal dismissed sub. nom. United States v. Regional Consulting Services, 766 F.2d 870, 873 (4th Cir.1985); United States v. Mid-States Exchange, 620 F.Supp. 358, 359 (D.S.D.1985).

In some jurisdictions, a motion to return prior to "any suggestion of criminal proceedings" has been viewed as an equitable proceeding rather than as strictly a Rule 41(e) motion. Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir.1975). The return of property under such an equitable theory does not require suppression, leaving suppression to be raised should any criminal proceeding result. Id. The Sixth Circuit has not, to this Court's knowledge, expressly adopted such a theory of equitable jurisdiction, and has shown no discomfort with Rule 41(e) motions brought by individuals prior to any indictment in an effort both to regain their seized property and to prevent the admissibility in evidence of such property in a later hearing or trial. Sovereign News Co. v. United States, 690 F.2d 569, 571 (6th Cir.1982); United States v. Giacalone, 541 F.2d 508, 512 (6th Cir.1976) ("... the grant of a motion for return of seized property serves not only to restore possession of property to its owner but also serves as a ruling that the search and seizure were illegal and" that the fruits of the search are inadmissible in any proceeding such as trial upon the merits held subsequent to the indictment. The ruling is binding upon all courts in future criminal litigation.) Consequently, a ruling on Dr. McCarthy's motion is not "non-ripe" because he has not yet been indicted; nor is such a ruling to be rendered moot by any subsequent indictment. See also United States v. Modern Bookkeeping, 780 F.2d 1023 (6th Cir.1985).

B. Challenge to Affidavit Underlying the Warrant

In his brief, Dr. McCarthy attacks the validity of the search by challenging the affidavit underlying the search warrant for his premises. He contends that the DEA agent who swore to the affidavit knowingly concealed from the Magistrate certain facts about Dr. McCarthy's method and approach in dispensing controlled substances. Such deletions were made, he argues, in order to persuade the Magistrate that probable cause existed as to Dr. McCarthy's violation of the federal narcotics laws, whereas a complete statement of the available facts would have dispelled such an indication of probable cause.

In Franks v. Delaware, 438 U.S. 154, 155-56, 198 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), the Supreme Court held that upon a substantial preliminary showing by a defendant that a false statement, necessary to a finding of probable cause, was included by the affiant in a written affidavit in support of an application for a warrant, either knowingly and intentionally or with reckless disregard for the truth, the defendant was entitled to receive an evidentiary hearing.² Suppression is an appropriate remedy if the defendant prevails at the hearing and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause. United State v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984); Franks, 438 U.S. at 156, 98 S.Ct. at 2676.

This Court finds Dr. McCarthy to have made a sufficiently substantial preliminary showing to require an evidentiary hearing on the issue of probable cause. The Court does not believe the conclusion of Magistrate Steinberg, during the initial hearings on this matter, as to the existence of probable cause to be sufficient for purposes of the Franks inquiry (Tr. 50). Dr. McCarthy had not at that time had the opportunity to brief the issues of deficiencies in the affidavit, and the Court believes an evidentiary hearing to be required by the reasoning included in his brief.

C. General Warrant

Dr. McCarthy also argues in his brief that the search of his office premises was illegal because the warrant obtained by the DEA from Magistrate Steinberg was a general warrant. For the reasons set forth herein, this Court...