United States v. Abrams

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. 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.

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. 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.

On September 20, 1978, an indictment was returned against appellee charging him with Medicare fraud, conspiracy and mail fraud. 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.

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.

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. 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 1Ó1 (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 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. 537, 50 L.Ed.2d 616 (1976), “$5,815.25, part of which is bait money”; United States v. Scharfman, 448 F.2d 1352, 1354 (2d Cir. 1971), cert. denied, 405 U.S. 987, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972), “fur coats, stoles, jackets and other finished fur products, books, records and other fruits and instrumentalities.” We found the generic description sufficient to satisfy the particularity requirement of the fourth amendment where the affidavits established that goods described in generic terms were likely to have been stolen and constituted a dominant part of the goods on the premises. United States v. Cortellesso, 601 F.2d 28 (1st Cir. 1979). In Grimaldi v. United States, 606 F.2d 332 (1st Cir. 1979), we held that the phrase “other paraphernalia used in the manufacture of counterfeit federal reserve notes” did not render a warrant so general as to invalidate it. We quoted the accepted rule that where the property is of a specified character and that character is contraband, a description in terms of its character is sufficient. Id. at 338-339. We pointed out in Montilla Records of Puerto Rico, Inc. v. Morales, supra, 575 F.2d at 326:

These exceptions involved special contexts in which there was' substantial evidence to support the belief that the class of contraband was on the premises and in practical terms the goods to be seized could not be precisely described.

Business records, although they may contain evidence of fraud, do not fall into the category of stolen or contraband goods. The government has cited no case and we have found none in which a seizure of all records was held valid pursuant to a generally worded warrant such as we have here. In the cases we have canvassed where a seizure of records was upheld, there has been some limitation in the warrant as to the records to be seized, e. g., United States v. Scherer, 523 F.2d 371 (7th Cir. 1975) (business records relating to the purchase and sale of firearms); Shaffer v. Wilson, 523 F.2d 175 (10th Cir. 1975) (fiscal records from January 1, 1966, to December 31, 1970). Although the warrants in Scherer and Shaffer authorized seizures similar in breadth and purpose to that executed against Doctors Abrams and London, in those cases the warrant specified clearly the scope of the search and seizure and left nothing to the discretion of the executing officers. Such limitation, moreover, must be a meaningful one. In In re Lafayette Academy, 610 F.2d 1 (1st Cir. 1979), we held unconstitutional a warrant authorizing the seizure of “most every sort of book or paper at the described premises, limited only by the qualification that the seized item be evidence of violations of ‘the laws of the United States, that is 18 U.S.C. sections 286, 287, 371, 1001, and 1014.’ ” Id., 610 F.2d at 3. See also Vonder AHE v. Howland, 508 F.2d 364 (9th Cir. 1975) (warrant authorizing seizure of all business records invalid because of its generality).

In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Court dealt with the interlocking claims of violations of the fourth and fifth amendments relative to the seizure of business records. The information sought concerned fraudulent real estate settlement activities. Between two and three percent of the files from the law offices were seized and less than five percent of the corporate files were taken in a search lasting about four hours. The Court first dealt with the fifth amendment defense and, after an extensive review of the applicable cases, held “that the search of an individual’s office for business records, their seizure, and subsequent introduction into evidence do not offend the Fifth Amendment’s proscription that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ ” Id. at 477, 96 S.Ct. at 2747.

It next discussed the question of whether the warrants were so broad as to make them “general.” The claim was that, although

the warrants for the most part were models of particularity, Brief for Petitioner 28, he contends that they were rendered fatally “general” by the addition, in each warrant, to the exhaustive list of particularly described documents, of the phrase “together with other fruits, instrumentalities and evidence of crime at this [time] unknown” (emphasis added).

Id. at 479, 96 S.Ct. at 2748. In discussing this claim, the Court noted:

General warrants, of course, are prohibited by the Fourth Amendment. “[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. . . . [The Fourth Amendment addresses the problem] by requiring a ‘particular description’ of the things to be seized.” Coolidge v. New Hampshire, 403 U.S. 443, 467 [91 S.Ct. 2022, 2038, 29 L.Ed.2d 564] (1971). This requirement “ ‘makes general searches . . . 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’.” Stanford v. Texas, 379 U.S. 476, 485 [85 S.Ct. 506, 13 L.Ed.2d 431] (1965), quoting Marron v. United States, 275 U.S., at 196.

Id. at 480, 96 S.Ct., at 2748.

It then went on to limit the challenged phrase “as authorizing only the search for and seizure of evidence relating to ‘the crime of false pretenses with respect to Lot 13T.’ ” Id. at 480, 96 S.Ct. at 2748. The Court noted that the challenged phrase “appears in each warrant at the end of a sentence containing a lengthy list of specified and particular items to be seized, all pertaining to Lot 13T.” Id. at 480, 96 S.Ct. at 2748. The warrants in Andresen specified in great detail the particular items to be seized. Id. at 480-81 n.10, 96 S.Ct. at 2748. Here, in contrast, there is no specificity at all, only the general command to seize:

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[.]

We read Andresen to mean that the “general” tail of the search warrant will be construed so as not to defeat the “particularity” of the main body of the warrant. Andresen reiterates the Court’s continued recognition that general warrants are prohibited by the fourth amendment. The continued vitality of that prohibition is more essential than ever because of the dilution to the point of extinction of the holding of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that all government attempts to procure a person’s private papers were unconstitutional under both the reasonableness clause of the fourth amendment and the self-incrimination clause of the fifth. In Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1647, 18 L.Ed.2d 782 (1967), the Court held that the language of the fourth amendment does not support any distinction between “ ‘mere evidence’ and instrumentalities, fruit of crime, or contraband.” This holding wounded Boyd mortally. The coup de grace was delivered with the removal of business records from the self-incrimination protection of the fifth amendment by Andresen, Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). The particularity command of the fourth amendment, along with probable cause, is the only protection a citizen now has against a general search of his private papers.

In a case involving the detailed examination of voluminous business records of a person being investigated for possible criminal activity, the usual method for obtaining such records is by subpoena. We note that in this case HEW recommended that the doctors’ records be subpoenaed. We realize that the issue of a subpoena always entails the risk that the records will be tampered with or even destroyed before they are delivered. The government’s only alternative to this procedure, however, is strict compliance with the fourth amendment’s requirement of a particularized warrant. The Supreme Court has put the issue in proper perspective. “Our society is better able to tolerate the admittedly pornographic business of petitioner than a return to the general warrant era; violations of law must be dealt with within the framework of constitutional guarantees.” Lo-Ji Sales, Inc. v. State of New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 60 L.Ed.2d 920 (1979).

Affirmed.

. 18 U.S.C. § 3731 provides in relevant part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

. “THE COURT: A more important consideration, however, is that the form of the warrant called for a general search and was not limited in any manner which permitted the executing officer to pick those records which were properly subject to the warrant by objective criteria. The warrant called for the officers to make a legal distinction between fraudulent records and records that were not fraudulent, which they were not qualified to do. The officers took that to mean they should bring back all of the medicare records, and, in fact, did so. The search, as authorized by the warrant and in fact carried out, was a general exploratory search and, therefore, invalid under the Fourth Amendment.”

. On April 15, 1977, F.B.I. agents went to a building that they mistakenly thought contained the doctors’ offices. On April 19, 1977, a warrant was obtained for the building, but the agents discovered when they attempted to execute this warrant that the offices had been moved to another building.

. On April 11, 1978, Abrams and London waived indictment and entered guilty pleas to a one count information of Medicare fraud. At the time set for sentencing, Abrams was allowed to withdraw his gulity plea.

. Our brother in his concurrence observes that warrants are often drafted under conditions of exigency and urges that minor drafting errors should not be a reason for vitiating a warrant. Whatever validity this comment may have, it is clearly not pertinent to the situation in this case. There was a four year investigation here. The warrant was not drafted under conditions of exigency. There was no reason for the magistrate to act in haste. The government should have known exactly what records it wanted and there was ample time to draft a warrant that would meet the requirements of the fourth amendment and avoid the proscription against generality.

. AFFIDAVIT

I, Paul M. Conrad, Special Agent, Federal Bureau of Investigation, being duly sworn, do hereby depose and say as follows:

On or about April 15, 1977, Brian J. McMenamin, Health Insurance Program Specialist, Bureau of Health Insurance, Department of Health, Education, and Welfare, stationed in Boston, Massachusetts, advised that:

A. Ms. Erica Pascal, a former employee of Abrams, London and Associates, Inc., responsible for preparing medicare forms to be submitted for payment on behalf of Maurice Abrams, M.D., Abraham London, M.D., and Abrams, London and Associates, Inc., in an affidavit to the Department of Health, Education, and Welfare stated that Doctors Abrams and London would add many tests to the billing back of patient’s laboratory schedule that were never performed and that Doctors London and Abrams would add additional tests to the medicare forms in order to secure additional payments. Ms. Pascal further stated that the patients’ medical records which are separate from the billing records do not list the services falsely billed nor the false diagnoses. Ms. Pascal further stated that the laboratory itself could not have physically performed all of the tests billed. Ms. Pascal also stated that on occasion she was instructed to trace the patient’s signature from the record or to sign the patient’s name and in parenthesis add “By daughter” or something similar.

B. Ms. Pascal has provided to the Department of Health, Education, and Welfare, Social Security Administration, a number of SSA-1490 forms containing handwritten additions.

C. Mrs. Elizabeth Michaud, formerly employed as a laboratory technician for Doctors London and Abrams, stated to representatives of the Department of Health, Education, and Welfare that tests that were neither performed by the office or BIORAN (an outside laboratory) were added to the bill.

Mrs. Michaud also said that Doctors London and Abrams exaggerated diagnoses to justify the extensive laboratory work.

D. Mrs. Constance L. Coleman, formerly employed as a secretary-receptionist for Doctors London and Abrams, was responsible for, among other things, completing billing forms such as the medicare forms. In an affidavit to the Department of Health, Education, and Welfare, Mrs. Coleman stated that she completed medicare forms using the information recorded on the billing cards which the doctor completed in conjunction with the, medical histories. She was instructed to list on the medicare claim form all the services that were listed on these cards. Mrs. Coleman also stated that after the medicare forms were typed she sent the form to the doctors for their signatures and that frequently these forms were returned with lab tests added. She was also told to add the additional tests to the billing cards but as far as she knew the medical records were never changed to reflect these additional tests.

Mrs. Coleman further states that these tests added to the claims forms were not performed according to the medical history and that during her employment there she checked the medical records for laboratory results on a number of beneficiaries and found about 50 incidents where the doctors were billing for laboratory tests that were not performed.

. We do not believe that the affidavit here would support a search and seizure of all the doctors’ Medicare and Medicaid records. In the first place, we are told only that the three informants were former employees; the periods of their employment are nowhere suggested. In the second place, we have no license to assume that all or even nearly all Medicare beneficiaries’ claim forms listed tests and services that were never performed. The doctors’ former secretary, Coleman, said that she checked records- for an unspecified number of Medicare beneficiaries and found “about 50” incidents of inflated billing. If Coleman’s tenure was a long one, the extent of her findings diminished the likelihood of pervasive fraud; if her tenure was short, her findings do not cover the entire time span for which records were seized. We add that, were we to hold the search in this case to be justified by the affidavit, 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 percentages of a business’s expenditures exceeded the relevant bills payable.