United States v. Lazar

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0123p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
-
-
-
No. 08-5653
v.
,
>
-
Defendant-Appellee. -
RANDE H. LAZAR,
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N
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 04-20017—Bernice B. Donald, District Judge.
Argued: December 4, 2009
Decided and Filed: May 4, 2010
*
Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.

_________________

COUNSEL
ARGUED: Stephen C. Parker, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellant. Orin S. Kerr, GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL, Washington, D.C., for Appellee. ON BRIEF: Stephen
C. Parker, Kevin Whitmore, ASSISTANT UNITED STATES ATTORNEYS, Memphis,
Tennessee, for Appellant. Orin S. Kerr, GEORGE WASHINGTON UNIVERSITY
LAW SCHOOL, Washington, D.C., Steven E. Farese, Sr., FARESE, FARESE &
FARESE, P.A., Ashland, Mississippi, Marc N. Garber, THE GARBER LAW FIRM,
P.C., Marietta, Georgia, Daniel A. Clancy, CLANCY LAW FIRM, Jackson, Tennessee,
for Appellee.

*
The Honorable James G. Carr, Chief United States District Judge for the Northern District of
Ohio, sitting by designation.

1
No. 08-5653 United States v. Lazar Page 2

CARR, D. J., delivered the opinion of the court, in which GRIFFIN, J., joined.
KETHLEDGE, J. (p. 18), delivered a separate concurring opinion.
_________________

OPINION
_________________

JAMES G. CARR, District Judge. This is an appeal from an order granting the
defendant’s motion to suppress evidence seized from two medical offices. Following the
searches, a grand jury indicted the defendant, Dr. Rande H. Lazar, a pediatric
otolaryngologist, on 110 counts of health care fraud. A superceding indictment charges
him with devising and executing a scheme to defraud and obtain money from health care
benefit programs.

The defendant contended in the District Court and argues in this Court: 1) the
affidavit for the warrant did not establish probable cause; 2) the warrant did not meet the
particularization requirement of the Fourth Amendment; 3) the government’s claim of
inevitable discovery has no merit; and 4) suppression is therefore appropriate.

The District Judge, agreeing with the defendant and adopting the Report and
Recommendation of a United States Magistrate Judge [the reviewing Magistrate Judge],
granted the defendant’s motion to suppress, ordering exclusion of all evidence seized in
the challenged searches.

For the following reasons, we affirm the decision of the District Court in part,
and vacate in part.

Standard of Review

This Court reviews a district court’s ruling on a motion to suppress for clear error
on factual determinations, and de novo on legal determinations. United States v. Adams,
583 F.3d 457, 463 (6th Cir. 2009). “A factual finding will only be clearly erroneous
when, although there may be evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.”
Id. (internal quotation and citation omitted). This Court reviews the evidence “in the
No. 08-5653 United States v. Lazar Page 3

light most likely to support the district court’s decision.” Id. (internal quotation and
citation omitted). Legal determinations reviewed de novo include determinations
regarding the existence, or lack thereof, of probable cause. United States v. Leake, 998
F.2d 1359, 1362 (6th Cir. 1993).

Background

A Magistrate Judge [the issuing Magistrate Judge] signed the warrants at issue
on October 9, 2002, for searches of offices located at 777 Washington Avenue and 791
Estate Place, Memphis, Tennessee. The applications, affidavits and warrants were
duplicates, except with regard to the addresses to be searched. The affiant was Tennessee
Bureau of Investigation Special Agent/Criminal Investigator Donald F. Lee. Assistant
United States Attorney [AUSA] Kevin Whitmore was with Agent Lee when Agent Lee
presented the applications and affidavits to the issuing Magistrate Judge.

When submitted, the warrant applications included—as part of the affidavit—
Attachment A, describing the premises to be searched, and Attachment B, captioned
“Description of the Items to be Seized.” Attachment B listed the items subject to seizure
in eight paragraphs, stating, in summary:

1. “Any and all documents and records . . . including but not
limited to patient charts, files, medical records . . . concerning
the treatment of any of the below listed patients, claim forms,
billing statements, records of payments received . . . for the
following patients:”;
2. “Any and all information and data, pertaining to the billing of
services . . . .”;
3. “Any and all computer hardware . . . .”;
4. “Any and all computer software . . . .”;
No. 08-5653 United States v. Lazar Page 4

5. “Any computer related documentation . . . .”;
6. “Any computer passwords . . . .”;
7. “If a determination is made during the search, by the Special
Agent assigned to the computer aspect of this search, . . . that
imaging or recreation of the computer hard drives will damage
the seized information, you are authorized to seize the computers
. . . .”; and
8. “All other records or property that constitutes evidence of the
commission of the offenses outlined in the search warrant
. . . .”

In addition to the warrant applications, the supporting affidavits, Attachments A
and B, and the warrants themselves, the “packet” submitted for the issuing Magistrate
Judge’s review included a list of patient names. [5/26/2005 Suppression Hearing Tr.
145] [Hearing Tr.].

According to the reviewing Magistrate Judge’s Report and Recommendation
advising suppression:

AUSA Whitmore testified [at the suppression hearing] that he
was present when the affidavits and applications, attachments A and B,
and the warrants were presented to [the issuing Magistrate Judge].
Whitmore told the court [at the suppression hearing] that he created a list
of names of specific patients for whom records were to be seized and
gave the list to Agent Lee, who in turn presented it to the magistrate
judge. Whitmore claimed [at the suppression hearing] that he and [the
issuing Magistrate Judge] had a discussion concerning the patient list
before the warrants were signed. The substance of this conversation is
unknown; however, there was some indication by Whitmore that he
discussed with [the issuing Magistrate Judge] the idea of not attaching
the patient list to the affidavits and applications and the warrants out of
concern that the names of minor children would be made public. In
addition, Whitmore testified that at the time that Agent Lee was under
oath, the patient list was a part of the search warrant package presented
to the magistrate.

[Dist. Ct. Doc. 342, at 6-7].1

1
The substance of the conversation between the issuing Magistrate Judge, AUSA Whitmore and
Agent Lee is unknown for three reasons: 1) the issuing Magistrate Judge did not record the proceedings;
2) the reviewing Magistrate Judge sustained the defendant’s objection to testimony by Whitmore at the
No. 08-5653 United States v. Lazar Page 5

The reviewing Magistrate Judge first noted that “there were no patient names
listed after the colon in paragraph one of Attachment B,” and that the applications,
affidavits, and warrants, which incorporated the affidavits, did not include any patient-
specific identifiers. [Id. at 7].

suppression hearing about his conversation with the issuing Magistrate Judge about the patient list; and
3) the reviewing Magistrate Judge also refused the government’s request to call the issuing Magistrate
Judge. [Hearing Tr. 139-45, 169-70].
The reviewing Magistrate Judge refused to permit Whitmore to testify because she perceived his
testimony about patient files to be offered as “oral supplementation” [Id. at 145] that she would not
consider “in determining whether there was probable cause to issue the warrant.” [Id. at 143]. This was
so because Whitmore was not under oath when before the issuing Magistrate Judge, and “any oral
supplementation would have to be under oath or affirmation.” [Id. at 145].
The reviewing Magistrate Judge also declined to permit the government to call the issuing
Magistrate Judge, because she perceived that he would be asked about “matters he considered” in issuing
the warrants. [Id. at 170].
This exclusion of “the discussion about the patient files” was erroneous. That testimony likely
would have explained why the patient list was not attached to the warrants when issued: “[T]here was a
discussion as relates to the concerns of the privacy issue concerning these children, that if it were to remain
a part of the public record that it would be put in the public domain. And it was at that point there was a
discussion whereby it was not part of the permanent record.” [Id. at 164].
His testimony thus likely would not have related to the issue of probable cause for the warrant,
but to the administrative matter of why the patient list was not attached to the warrants. Rule 41 of the
Federal Rules of Criminal Procedure does not require an individual to take a preliminary oath before
describing what happened after a warrant issued. There was no basis, therefore, for the reviewing
Magistrate Judge to exclude evidence about why the patient lists became detached from the warrants when
the lists were in front of the issuing Magistrate Judge at the time he issued the warrants.
Despite the error in excluding testimony at the suppression hearing about the conversation
between the issuing Magistrate Judge, Whitmore and Agent Lee, reversal on that basis is improper for
three reasons. First, Whitmore failed to point out to the reviewing Magistrate Judge that he was not
offering his own testimony to supplement the probable cause showing, but rather to show what happened
to the patient list after the warrants issued. Second, Whitmore did not point out that the issuing Magistrate
Judge’s testimony would not have related to the Magistrate Judge’s thought processes, but simply to
whether the warrant package included a patient list, and if so which list. Third, Whitmore failed to make
a proffer of the contents of his or the issuing Magistrate Judge’s testimony, except to indicate that it was
about the patient lists.
No. 08-5653 United States v. Lazar Page 6

The reviewing Magistrate Judge’s Report and Recommendation, however, made
no finding as to which, if any, patient lists came before the issuing Magistrate Judge.2
It instead focused on the absence of any original patient lists at the suppression hearing:3

During the course of AUSA Whitmore’s testimony [at the
suppression hearing], it was discovered that there were several patient
lists in existence. See Exh. 6a, 6b, 6c, 10, and 15. None of the lists
entered into evidence at the hearing were the actual list presented to the
magistrate and none of them were identical. In fact, AUSA Whitmore

2
This is problematic due to the numerous patient lists in the record and our determination, see
infra, that whichever patient list the issuing Magistrate Judge saw particularized the search warrants in
part.
The parties submitted eight lists at the suppression hearing:
• Exhibit 6a was an alphabetical list of 125 patients (with patient file numbers
written on it by the defendant’s staff member on the date of the search), which
Whitmore testified “was a list of patients that I developed from a – that I
reduced to a letter-size for the purpose of presenting it to the agent and it
would be presented to the judge, part of the search warrant application”
[Hearing Tr. 147];
• Exhibit 6b, captioned “Lazar Search Warrant by Patient Name,” was an
alphabetical list of patients different from those listed in Exhibit 6a; and
• Exhibit 6c, captioned “Lazar Search Warrant by Date of Service,” contained
the same names as listed in Exhibit 6b, but sorted by dates of “service” (i.e.,
treatment by the defendant).
• Exhibit 8: an inventory of sixty-eight patient files seized during the search of
777 Washington Avenue [Hearing Tr. 66], thirty-one individuals from Exhibit
6a, thirty-six from Exhibits 6b and 6c, and one individual on none of the lists;
• Exhibit 10: a patient list—the one used during the search of 777 Washington
Avenue according to Agent Geasley [Id. at 76]—of sixty-eight patient files
consisting of the same individuals as Exhibits 6b and 6c;
• Exhibit 12: an inventory of, inter alia, sixty-nine patient files and sixty
CATSCAN films seized during the search of 791 Estate Place [Id. at 116-18];
all of these files and films belong to patients listed in Exhibit 6a except for
eight, four of which come from Exhibits 6b and 6c, and four of which are of
individuals on none of the lists;
• Exhibit 13: an inventory list identical to Exhibit 12 but less detailed and more
narrowly spaced; and
• Exhibit 15: a list of patient names—consisting of the same individuals as
Exhibit 6a—attached as Attachment A to the government’s response to the
defendant’s motion to suppress and represented by Whitmore to be the
“working copy” of the patient list used. [Hearing Tr. 156-59].
3
To the extent that the reviewing Magistrate Judge was concerned about the absence of the
original list given to the issuing Magistrate Judge, her concerns were not well-founded. As noted in United
States v. Posey, 501 F.2d 998, 1002 (6th Cir. 1974), a court may consider a duplicate (in that case, of a
missing affidavit), even one that contains later-added material, when determining whether a search warrant
lawfully issued.
No. 08-5653 United States v. Lazar Page 7

testified that he did not have copy of the original patient list that was
presented to the magistrate judge. Whitmore referred to the patient list
attached to the government’s response to the present motion as a
“working copy” and stated the attached copy was not the one presented
to the magistrate judge. Nor are there any patient lists in the clerk’s files
[containing the search warrants].

[Id. at 7-8] (emphasis added).

The reviewing Magistrate Judge avoided determining which patient list came
before the issuing Magistrate Judge because she believed it did not matter: “The fact that
the [issuing] magistrate judge may have viewed a patient list before signing the warrants
does not save the warrants from its [sic] facial invalidity.” [Id. at 12].

The reviewing Magistrate Judge also found that the warrants lacked probable
cause to believe that patients’ medical records would be in the defendant’s medical
offices.

Reviewing the Report and Recommendation, the District Judge—without
allowing argument or further supplementation of the record4—adopted the reviewing
Magistrate Judge’s recommendation that the evidence be suppressed. [Dist. Ct. Doc.
506]. The District Judge made no further finding as to any patient list presented to the
issuing Magistrate Judge.

Discussion

I. The Search Warrants Incorporated Any Patient List
Presented to the Issuing Magistrate Judge

The reviewing Magistrate Judge held that the language of the first paragraph of
Attachment B did not suffice to incorporate a patient list into the affidavit and warrants.

4
The District Judge rejected the government’s request that she conduct a further hearing and
consider additional evidence. In light of the confusing nature of the various and conflicting pieces of
evidence presented to the reviewing Magistrate Judge, it would have been preferable for the District Judge
to have granted the parties a hearing at which to clarify and expand the record. Had such a hearing
occurred, this appeal and our remand may not have been necessary.
No. 08-5653 United States v. Lazar Page 8

That conclusion, however, is incorrect. “Incorporation” of one thing into another
need not be by express “reference.” Cf. Northrop Grumman Info. Tech., Inc. v. United
States, 535 F.3d 1339, 1346 (Fed. Cir. 2008) (no “magic words” needed to incorporate
one document into another); Resolution Trust Corp. v. Fed. Sav. and Loan Ins. Corp.,
25 F.3d 1493, 1499 (10th Cir. 1994) (“Phrases such as ‘incorporated by reference’ are
not talismanic, without which we do not consider additional necessary documents that
effectuate the parties’ agreement.”).

Here, the first paragraph of Attachment B gave sufficient direction when it
referred to “the below listed patients” and “the following patients.” Any patient list
presented to the issuing Magistrate Judge thus was effectively incorporated into the
search warrants. If the record otherwise shows that the government seized patient files
according to the list, if any, presented to the issuing Magistrate Judge, a lack of formal
incorporation by reference into the warrants does not justify a finding of facial
insufficiency.

II. Suppression of Patient Records Seized Beyond the Scope of Whichever List
Came Before the Issuing Magistrate Judge Is Required Under Groh v. Ramirez
The Supreme Court’s decision in Groh v. Ramirez, 540 U.S. 551 (2004), rather
than its more recent, but less on point, decision in Herring v. United States, --- U.S. ----,
129 S. Ct. 695, 698 (2009), controls, and requires suppression of all patient records
seized beyond the scope of any patient list presented to the issuing Magistrate Judge.

In Groh, a law enforcement officer prepared a search warrant and affidavit for
a Magistrate Judge’s approval. The search warrant “failed to identify any of the items
that [the agent] intended to seize.” 540 U.S. at 554. The warrant also failed to
“incorporate by reference the itemized list contained in the application [affidavit]. It did,
however, recite that the Magistrate was satisfied the affidavit established probable
cause[.]” Id. at 554-55. The Magistrate Judge subsequently signed the defective warrant.

Discussing the constitutionality of the search, the Supreme Court observed:
“Even though petitioner acted with restraint in conducting the search, ‘the inescapable
No. 08-5653 United States v. Lazar Page 9

fact is that this restraint was imposed by the agents themselves, not by a judicial
officer.’” Id. at 561 (quoting Katz v. United States, 389 U.S. 347, 356 (1967)).

The Court concluded that, “[b]ecause [the officer] did not have in his possession
a warrant particularly describing the things he intended to seize, proceeding with the
search was clearly unreasonable under the Fourth Amendment.” Id. at 563. In so
deciding, the Court stated:

[U]nless the particular items described in the affidavit are also set forth
in the warrant itself (or at least incorporated by reference, and the
affidavit present at the search), there can be no written assurance that the
Magistrate actually found probable cause to search for, and to seize,
every item mentioned in the affidavit.

Id. at 560.

Quoting its prior decision in United States v. Leon, 468 U.S. 897, 923 (1984), the
Supreme Court further held that the good faith exception5 did not apply: “‘[A] warrant
may be so facially deficient – i.e., in failing to particularize the place to be searched or
the things to be seized – that the executing officers cannot reasonably presume it to be
valid.’ This is such a case.” Groh, 540 U.S. at 565.

The Supreme Court’s recent decision in Herring does not question this statement
of law.

In Herring, an individual sought to retrieve an item from his impounded truck.
From a warrant check on the individual, an officer learned that a warrant for the
individual’s arrest was outstanding. Acting on that information, the officer arrested and
searched the individual, finding drugs and an unlawfully possessed firearm.

There was, however, no outstanding warrant. The warrant about which the officer
had been notified had, in fact, been withdrawn. Through a clerical error, the warrant had

5
The good faith exception to the exclusionary rule applies when “the officer conducting the
search acted in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate
that subsequently is determined to be invalid.” Leon, 468 U.S. at 922-23.
No. 08-5653 United States v. Lazar Page 10

not been cleared from the system. Had the warrant been properly cleared, the officer
would not have arrested or searched the individual.

The Court stated that, to require exclusion in such circumstances, the error by the
police must be “reckless or deliberate.” 129 S. Ct. at 700. This is because “the benefits
of deterrence must outweigh the costs” to justify exclusion of evidence, and the possible
deterrence of negligent action by law enforcement does not rise to a level sufficient to
trigger exclusion of evidence. Id. The Court stressed that the question of suppression
“turns on the culpability of the police and the potential of exclusion to deter wrongful
police conduct.” Id. at 698 (emphasis added); see also United States v. Calandra, 414
U.S. 338, 348 (1974) (explaining that the exclusionary rule is “designed to safeguard
Fourth Amendment rights generally through its deterrent effect” (emphasis added)).

This case does not involve the sort of police error or misconduct present in
Herring. Like Groh, it instead deals with particularization of search warrants and
whether they are facially deficient. Despite the government’s argument to the contrary,6
Herring does not purport to alter that aspect of the exclusionary rule which applies to
warrants that are facially deficient warrants ab initio.7

Here, the warrant was particularized insofar as it described—and thus allowed
seizure of— patient records based on any patient list that came before the issuing
Magistrate Judge. Suppression of patient files seized pursuant to any such list was
therefore erroneous, and reversal of that decision is appropriate. See United States v.

6
See 11/24/2009 Government’s Letter to this Court Regarding Supplemental Citations (“The
United States submits the Supreme Court’s decision in Herring v. United States, --- U.S. ----, 129 S.Ct.
695, 699-700, 172 L.Ed.2d 496 (2009), greatly expanded the Good Faith Expansion [sic] and has changed
the applicable standard in determining if the Good Faith exception applies if an [sic] search warrant lacks
particularity.”).
7
The government points to the Tenth Circuit’s decision in United States v. Otero, 563 F.3d 1127
(10th Cir. 2009), to support its argument. That decision, however, does not do so. 563 F.3d at 1134 (citing
Leon and applying the “pre-Herring precedent hold[ing] that a warrant may be so facially deficient . . .
that the executing officers cannot reasonably presume it to be valid” (internal quotation omitted)); see also
United States v. Potts, 586 F.3d 823, 832-33 (10th Cir. 2009) (quoting Otero and Leon).
At oral argument, the government asserted that the Ninth Circuit’s decision in United States v.
SDI Future Health, Inc., 553 F.3d 1246 (9th Cir.), superseded by 568 F.3d 684 (9th Cir. 2009), justifies
reversal on the particularization issue. Timeliness of the government’s argument aside, SDI Future Health
does not persuade us that the District Court was in error. 568 F.3d at 706 (applying a Leon objective
reasonableness analysis, as well as unique Ninth Circuit precedent, and finding a warrant in a health care
fraud investigation to fail particularization, irrespective of the presence of an allegedly curing affidavit).
No. 08-5653 United States v. Lazar Page 11

Johnson, 351 F.3d 254, 260 (6th Cir. 2003) (“[I]nfirmity of part of a warrant requires the
suppression of evidence seized pursuant to that part of the warrant . . . , but does not
require the suppression of anything described in the valid portions of the warrant[.]”
(internal quotation and citation omitted)).

As regards records of patients whose names did not appear on a patient list
presented to the issuing Magistrate Judge, the facts of this case mirror those in Groh and
require suppression of those files. This facial deficiency was so evident, moreover, that
no officer could reasonably presume the warrants valid.

Because the District Court did not make a finding as to which patient list came
before the issuing Magistrate Judge, however, we cannot yet determine exactly which
patient records should have been suppressed.

We therefore vacate the District Court’s suppression of defendant’s patient files
with instructions for the District Court to determine which list—if any—came before the
issuing Magistrate Judge, and to suppress only patient files seized beyond the scope of
such list.

III. Suppression of the Non-Patient File Evidence is Proper

The reviewing Magistrate Judge also recommended that all non-patient file
evidence be suppressed, and the District Court did so.

We have held that “[f]ailure to limit broad descriptive terms by relevant dates,
when such dates are available to the police, will render a warrant overbroad.” United
States v. Ford, 184 F.3d 566, 576 (6th Cir. 1999).

Here, the reviewing Magistrate Judge reasoned: “Rather than specify exactly
which documents it was seeking, the government chose to use descriptions of items to
be seized that referenced no specific patients, no specific transactions, and most
importantly, no time frame.” We agree with the District Court’s decision in this regard.
No. 08-5653 United States v. Lazar Page 12

We therefore affirm the District Court’s suppression of the non-patient file
evidence.8

IV. The Inevitable Discovery Doctrine is Inapplicable

The government argues in the alternative that the inevitable discovery doctrine
prevents suppression of the evidence.

The doctrine of inevitable discovery allows admission of unlawfully obtained
evidence if the government can “establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful means.” Nix
v. Williams, 467 U.S. 431, 444 (1984). To establish inevitable discovery, the government
must show that the evidence would have been acquired lawfully through an independent
source absent the government misconduct. Id. at 448.

The government claims that it would have obtained the files suppressed by the
District Court through use of a Department of Justice or grand jury subpoena. It points
out that it had already used a subpoena to inspect some of the defendant’s records. It
asserts that it resorted to search warrants to diminish the risk that, if it subpoenaed the
files, the defendant might either decline to produce or alter the subpoenaed files.

Complications can readily arise from use of a subpoena. As the Second Circuit
stated in United States v. Roberts, 852 F.2d 671, 676 (2d Cir. 1988):

The mere fact that the government serves a subpoena, however, does not
mean that it will obtain the documents it requests. A subpoena can be
invalid for a variety of reasons, as when it is unduly burdensome, when
it violates the right against self-incrimination, or when it calls for
privileged documents. Moreover, we can deplore but not ignore the
possibility that the recipient of a subpoena may falsely claim to have lost
or destroyed the documents called for, or may even deliberately conceal
or destroy them after service of the subpoena.

8
This includes the “Attorney Information” files, a file containing Medicare/Medicaid claims for
six years, three backup tapes containing billing information, and the mirror-image of a computer hard
drive.
No. 08-5653 United States v. Lazar Page 13

Accord Ctr. Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 747, 754-55 (9th Cir.
1989) (following Roberts).9

The government, citing United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002),
United States v. Ford, 184 F.3d 566 (6th Cir. 1999), and United States v. Stamper, 91
F. App’x 445 (6th Cir. 2004) (unpublished disposition),10 contends that the Sixth Circuit
takes a different, and less demanding, approach to the inevitable discovery exception.

This Court has held that “the inevitable discovery exception to the exclusionary
rule applies when the government can demonstrate either the existence of an
independent, untainted investigation that inevitably would have uncovered the same
evidence or other compelling facts establishing that the disputed evidence inevitably
would have been discovered.” United States v. Kennedy, 61 F.3d 494, 499 (6th Cir.
1995) (emphasis added).

In Ford, this Court stated: “The government can satisfy its burden by showing
that routine procedures that police would have used regardless of the illegal search
would have resulted in the discovery of the disputed evidence.” 184 F.3d at 577. Though
some speculation as to how events would have unfolded, absent an illegal search, may
be necessary, “we must keep speculation at a minimum by focusing on demonstrated
historical facts capable of ready verification or impeachment.” Id. (quotation omitted)
(emphasis added); see also Keszthelyi, 308 F.3d at 574.

9
Even where challenges on the basis of breadth, burdensomeness or privilege are not successful,
they are commonplace and result, at best, in delay and uncertainty. Oftentimes, delay, not discovery, is an
inevitable consequence of serving a subpoena.
10
Stamper does not, as the government contends, endorse the use of a subpoena as a way around
the consequences of unconstitutional conduct. The issue of inevitable discovery in that case involved
learning the identity of a witness found in a motel room which officers had entered unlawfully to arrest
the defendant. The court held that the officers would have learned the witness’s identity from motel
registration regardless of the unlawful entry, and that they then could have procured her testimony by
subpoena. 91 F. App’x at 459. What was to be discovered inevitably was a record, made by and located
in the hands of a third party. Even if the officers had not entered the room, the record would have led them
to the witness. The ensuing evidence—the witness’s testimony —would have come from the witness,
rather than the defendant. The defendant in Stamper, in contrast to the defendant here, thus controlled none
of the sources of information or evidence on which the government in that case based its claim of
inevitable discovery.
No. 08-5653 United States v. Lazar Page 14

A court assesses the likelihood that “routine procedures” would have led
inevitably to acquisition of the evidence as of the time of the unlawful search. United
States v. Alexander, 540 F.3d 494, 502 (6th Cir. 2008) (holding that a court is “to
determine, viewing affairs as they existed at the instant before the unlawful search, what
would have happened had the unlawful search never occurred”).

The record in this case shows that the government had used third party subpoenas
during its investigation before seeking the warrants, and the government represented that
it had reason to believe that if it continued to do so, at least regarding Dr. Lazar’s
records, he would likely attempt to alter those records. [Dist. Ct. Doc. 153, at 17]. That
concern appears to have prompted the government to get the search warrants.

The record does not show that the government, at the time it obtained the
warrants, concurrently contemplated issuing subpoenas for any records in Dr. Lazar’s
possession. The government’s brief talks a good bit about how common subpoenas are
in health care fraud and other white collar investigations. The government, however,
presents no evidence establishing that it likely would have sought to acquire Dr. Lazar’s
records by subpoena, much less procured them in the same condition and as promptly
as by seizing them with a warrant.

Even if the government need not show that it would likely have obtained the
records as quickly and completely with a subpoena, it must at least show that it was
ready to obtain them in that manner if, for any reason, it could not have done so—or
would have chosen not to do so—with a search warrant. See Roberts, 852 F.2d at 676.

As the Second Circuit stated in United States v. Eng, 971 F.2d 854, 860-61 (2d
Cir. 1992):

In view of the need to prevent the inevitable discovery exception
from swallowing the exclusionary rule, special care is required on the
part of a district court when the government relies on the subpoena
power. While we decline to draw a bright line, it is essential that there be
a substantial degree of directness in the government’s chain of discovery
argument, rather than a hypothesized “leapfrogging” from one subpoena
recipient to the next until the piece of evidence is reached. Further, the
No. 08-5653 United States v. Lazar Page 15

government must show that both issuance of the subpoena, and a
response to the subpoena producing the evidence in question, were
inevitable. Particular care is appropriate where, as here, subpoenas are
issued after or at the time of the unlawful search, an issue that Roberts
did not present. We share the Ninth Circuit’s view that subpoenas must
not serve as an after the fact “insurance policy” to “validate” an unlawful
search under the inevitable discovery doctrine. See Center Art Galleries,
875 F.2d at 755.
Most simply put, here, as in Ford, “the record does not substantiate the
government’s claim that it was hot on the trail of the disputed evidence. The government
has not carried its burden of proving the inevitability of discovery.” 184 F.3d at 578.

The government asks us, in effect, to find that discovery—i.e., acquisition—of
the suppressed evidence was inevitable simply because the law allows subpoenas to
issue. Were we, or any court, to accept this contention, the mere possibility that a
subpoena could or might issue would always trump suppression.

We conclude, accordingly, that the government did not meet its burden of
showing that, despite the partial invalidity of the warrants, retrieval of the
unconstitutionally seized set of patient files and records was inevitable, whether by
means of a subpoena or otherwise.

V. Probable Cause Supported the Warrants

The District Court found, and the defendant argues, that the warrants lacked
probable cause to believe that the patients’ medical records would be found in the
defendant’s medical offices.

We reverse the District Court’s finding on this issue.

In making a probable cause determination, an issuing Magistrate Judge’s task is
“simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 238 (1983). A court reviewing an issuing Magistrate Judge’s
No. 08-5653 United States v. Lazar Page 16

determination, moreover, is to pay “great deference” to the Magistrate Judge’s finding
of probable cause, and should uphold a warrant so long as the Magistrate Judge had a
“substantial basis for . . . concluding that a search would uncover evidence of
wrongdoing.” Leake, 998 F.2d at 1363 (internal quotations and citations omitted).

In United States v. Word, this Court held that where individuals are patients of
a physician, “probable cause exist[s] for believing that their medical records would be
located at the [physician]’s office.” 806 F.2d 658, 662 (6th Cir. 1986).

In light of Gates, Leake and Word, here Agent Lee’s affidavit in the warrant
applications provided a foundation for a common sense determination that there was a
fair probability that evidence of health care fraud—namely, the defendant’s patient files
and records—would be found at the defendant treating physician’s offices.

This foundation stemmed from the connection Agent Lee drew between the
defendant and the offices in question. Agent Lee based his affidavit on his personal, two-
year involvement in the case; the basis for his conclusion included his: 1) personal visits
to each location and photographs thereof at Attachment A of each warrant; 2) review of
the defendant’s billing data and hospital records; and 3) interviews of the defendant’s
former office administrator, the defendant’s former medical partners, and insurance
company representatives.

We accordingly hold that Agent Lee’s affidavit and photographs provided the
issuing Magistrate Judge with a substantial basis to find probable cause to believe that
the patient files and records would be found at the defendant’s offices at the locations
specified. The District Court’s determination to the contrary was in error.11

11
Defendant argues also that the government violated 18 U.S.C. § 3731, which requires that the
“United States Attorney certif[y] to the district court that the appeal is not taken for purpose of delay and
that the evidence [suppressed] is a substantial proof of a fact material in the proceeding.” Defendant alleges
that this violation occurred when Whitmore—an AUSA and witness in the case below—signed the
government’s certification to appeal this case, thus circumventing the statute’s intended “conscientious
pre-appeal analysis.” United States v. Smith, 263 F.3d 571, 577 (6th Cir. 2001) (internal quotation and
citation omitted).
Defendant’s argument is not well taken. As the government points out, United States Attorney’s
Offices must obtain permission to appeal adverse rulings to the U.S. Courts of Appeals: The Criminal
Division of the Department of Justice reviews the case and prepares a memorandum for the Solicitor
General of the United States, who makes the final decision on whether to appeal.
As to defendant’s contention that certification signed by an AUSA such as Whitmore—as
No. 08-5653 United States v. Lazar Page 17

Conclusion

For the foregoing reasons, we AFFIRM in part and VACATE in part the District
Court’s decision to suppress the evidence seized from the defendant’s offices, and
REMAND to the District Court for proceedings consistent with this opinion.

opposed to the United States Attorney—cannot satisfy § 3731, we reject such a requirement, especially
in light of the review process outlined above. Accord United States v. Smith, 532 F.2d 158, 160 (10th Cir.
1976); United States v. Wolk, 466 F.2d 1143, 1146 n.2 (8th Cir. 1972).
These conclusions, moreover, are particularly appropriate given § 3731’s mandate that “[t]he
provisions of this section shall be liberally construed to effectuate its purposes.”
No. 08-5653 United States v. Lazar Page 18

______________________

CONCURRENCE
______________________

KETHLEDGE, Circuit Judge, concurring. I join the court’s opinion, and make
a further observation. One of the many remarkable aspects of this case is that one of the
government’s lawyers called himself as a witness in the district court and then proceeded
to write and sign a brief to this court. The lawyer acted, I am sure, in good faith; but as
a result of his dual status, our task has been hampered throughout by the need to sift his
sworn testimony in the district court from his unsworn testimony in his brief. Pro se
cases excepted, counsel should avoid this sort of thing. Once a lawyer gets into a case
as a witness, he ought to get out of it as an advocate.