United States v. Russo, Crim. A. No. 81-80081.

• Decision Date: 29 April 1981
• Docket Number: Crim. A. No. 81-80081.
• Citation: 517 F. Supp. 83
• Parties: UNITED STATES of America, Plaintiff, v. Joseph RUSSO, D.O., Defendant.
• Court: U.S. District Court — Western District of Michigan

517 F. Supp. 83

UNITED STATES of America, Plaintiff, v. Joseph RUSSO, D.O., Defendant.

Crim. A. No. 81-80081.

United States District Court, E. D. Michigan, S. D.

April 29, 1981.

Ross Parker, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Myron F. Poe, Poe & Stanesa, Royal Oak, Mich., for defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

PATRICIA J. BOYLE, District Judge.

The sole issue before the Court is whether a seizure of evidence, pursuant to an administrative search warrant issued without full probable cause, should be suppressed because the seizure was, in fact, a seizure for purposes of criminal prosecution. Movant raised this issue at oral argument, and the Court subsequently conducted an evidentiary hearing, from which I make the factual conclusions necessary for resolution of this issue.

On July 6, 1978, Special Agent Ralph Burch of the Drug Enforcement Administration (DEA) secured an inspection warrant for Dr. Russo's office, pursuant to the provisions of Section 510 of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 880.

The statute authorizes inspection of any records, reports and other documents required to be kept under the subchapter. It allows inspection of equipment and finished and unfinished drugs and "all other things" appropriate for verification of the required records and permits inventory of any stock of any controlled substance. 21 U.S.C. § 880(b)(3)(A), (B), (C).

The warrant was executed the same date, and among the items seized were numerous controlled substances and other drugs, documents, and three patient file folders containing patient records for Daniel Gilchrist, Marcus De Lean, and Willie Maxwell. De Lean and Maxwell were the undercover names of two law enforcement officers who allegedly had previously obtained methamphetamine from Dr. Russo (on June 23, June 30, July 5, and July 6). Daniel Gilchrist is an individual who was arrested after leaving Defendant's office either several days before the date the warrant was issued or on the same day. When arrested Gilchrist was in possession of a large quantity of methamphetamine. He was charged with possession of a controlled substance with intent to distribute.

At the evidentiary hearing, Agent Ralph Burch testified that he is the liaison officer to the Diversion Investigation Unit and that he works through the unit with federal and state officials functioning to enforce compliance with both the administrative and criminal laws of the affected state licensing board and the state and federal criminal law. Mr. Burch testified that the persons who act with him as federal agents are compliance investigators who work only on regulatory aspects of registration and who have no police powers. The state agency representatives likewise are both police officers and persons without police powers. Members of the drug investigation unit have dual responsibilities for regulation and enforcement.

Burch identified the purpose for the warrant as an accountability audit. He conceded that, while seizure of the patient records in question was not really relevant to the administrative audit authorized by the statute, it was "an example of the way in which Dr. Russo explained the dispensation of controlled substances."

Mr. Burch also testified that it is standard procedure to employ undercover agents, all of whom have police power, to make contacts with doctors or other registrants in the course of an administrative investigation and subsequently to seize the patient record files representing undercover contacts with the doctors or other registrants. Mr. Burch's testimony also established that in the instant case the law enforcement officials were advised prior to June 29, 1978, that Dr. Russo had purchased and received a substantial quantity of controlled substances and that from June 29 forward to the date of obtaining the warrant, July 6, 1978, continuous surveillance of Dr. Russo's office was conducted. In addition, Agent Burch candidly admitted that such surveillance was unusual in the context of administrative proceedings and that nine or ten of every twelve cases on which he works ultimately involve criminal investigations.

Finally, Agent Burch testified that, on the same day the administrative warrant issued, a search warrant for Dr. Russo's home was issued on the basis of statements made by the Defendant that records relating to the dispensation of controlled substances were kept there. This warrant was a traditional search warrant since Section 510 of the Act does not authorize the use of an administrative warrant to enter a private home.

Agent Burch also testified that as of the time the warrant was obtained no determination had been made relative to criminal prosecution and that an audit was, in fact, conducted by compliance officers and action was taken by the Michigan Board of Osteopathy and the DEA registration section. It is clear, however, from his testimony that his function related to both criminal and civil investigations and that the primary purpose for securing the administrative warrant in the instant case was to allow seizure of evidence relevant to a possible criminal prosecution.

Supreme Court authority dealing with regulatory inspections reveals that the Court has never departed from the requirement that a search for the fruits and instrumentalities of crime requires a traditional search warrant or the presence of exigent circumstances.

In Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), the Court held that the fourteenth amendment does not require a warrant for inspection of homes for health code violations. Justice Frankfurter, speaking for the Court, rested this conclusion on an analysis of the constitutional protection against official invasion of privacy, finding that it encompasses two protections: the right to be secure from intrusion and the right to self-protection.

The second, and intimately related protection is self protection: the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual, information which may be used to effect a further deprivation of life or liberty or property .... It was on the issue of the right to be secure from searches for evidence to be

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