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UNITED STATES v. BURKA

November 29, 1988

UNITED STATES of AMERICA
v.
EDWARD R. BURKA



The opinion of the court was delivered by: KATZ

 MARVIN KATZ, UNITED STATES DISTRICT JUDGE.

 In this action, a federal grand jury indicted defendant Dr. Edward R. Burka for alleged violations of 21 U.S.C. § 841(a)(1) (unlawful possession of controlled substances with the intent to distribute and dispense) (7 counts); 21 U.S.C. § 843(a)(4)(A) (furnishing false information in a required record) (1 count); and 18 U.S.C. § 1505 (obstruction of an agency proceeding) (14 counts). A DEA agent obtained an administrative inspection warrant to search defendant's premises. When the agents began to suspect criminal activity, a criminal search warrant was obtained. Defendant now moves to suppress the evidence discovered in both the administrative and the criminal searches as well as any fruits of such evidence. For the reasons that follow, this Court denies defendant's motion.

 1. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. ("Act") authorizes the Drug Enforcement Administration ("DEA") to conduct administrative inspections of controlled premises pursuant to an inspection warrant. 21 U.S.C. § 880(a)-(b). To be valid, an administrative inspection warrant must be supported by an affidavit containing evidence sufficient to meet the statutory standard of probable cause. The "totality of the circumstances" set forth in the supporting affidavit must be considered in making a probable cause determination. Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983).

 2. On May 5, 1987, Magistrate William Hall issued Administrative Inspection Warrant 87-692-M for the inspection of Dr. Burka's medical office. District court review of a magistrate's determination of probable cause is limited to the question of whether substantial evidence exists supporting the issuance of the warrant. Illinois v. Gates, 462 U.S. at 238-39. I find that probable cause did exist to support Magistrate Hall's issuance of the Administrative Inspection Warrant.

 3. Evidence of large purchases of controlled substances alone has been held to satisfy the probable cause standard for the issuance of an administrative inspection warrant. United States v. Montrom, 345 F. Supp. 1337, 1342 (E.D. Pa. 1972), aff'd without opinion, 480 F.2d 918, 919 (3d Cir. 1973) ("mammoth purchases" of a controlled substance "amply satisfied" probable cause standard); United States v. Greenberg, 334 F. Supp. 364, 367 (W.D. Pa. 1971) ("extraordinary purchases" of controlled substances satisfied probable cause standard); United States v. Schiffman, 572 F.2d 1137, 1140-41 (5th Cir. 1978) (purchases of "large" quantities of drugs satisfied probable cause standard). In this case, DEA Investigator Sheller submitted an affidavit identifying defendant's large purchases of controlled substances during the preceding two years.

 4. The Third Circuit also has held that the fact that a controlled premise had "never before been inspected to insure compliance with compulsory record keeping requirements is a circumstance that alone is sufficient to justify an administrative warrant in light of the deep public interest in enforcing compliance with record keeping requirements." United States v. Prendergast, 585 F.2d 69, 70 (3d Cir. 1978). Several courts have held that the probable cause standard is met when a substantial period of time has passed since the previous inspection. E.g. Greenberg, 334 F. Supp at 367; United States v. Goldfine, 538 F.2d 815, 818-19 (9th Cir. 1976). Here, Investigator Sheller's affidavit recited the absence of any inspection of the defendant's premises in the preceding two years.

 5. Several cases upholding probable cause determinations on the above-cited grounds involve drug purchases by pharmacies, which are "pervasively regulated" and thus have limited expectations of privacy. Defendant argues that the medical profession is not pervasively regulated and therefore a higher standard should apply in his case. At least three courts, however, have upheld administrative inspections of physicians' offices on grounds similar to those presented in this case. See Matter of Burka, 684 F. Supp. 1300 (E.D. Pa. 1988) (court upheld probable cause determination on identical grounds in a related case); *fn1" United States v. Montrom, 345 F. Supp. 1337, 1342 (E.D. Pa. 1972) ("mammoth purchases" of controlled substances "amply satisfied" probable cause standard); United States v. Voorhies, 663 F.2d 30, 33 (6th Cir. 1981) (fact that registered physician's office had never before been inspected constituted a "valid public interest" justifying the issuance of an administrative inspection warrant). In addition, I find defendant's distinction between pharmacists and physicians to be immaterial. Whether or not the medical profession is a "pervasively regulated industry," physicians who dispense controlled substances must register with the Attorney General and are on notice that the DEA is authorized to conduct periodic inspections of premises where the records mandated by the Act are kept. 21 U.S.C. §§ 822-23, 827, 880(a) and (b). As a result, physicians dispensing controlled substances have the same reduced expectation of privacy for purposes of an administrative inspection as do pharmacists.

 6. Investigator Sheller's affidavit contained allegations that defendant Dr. Burka purchased excessive quantities of drugs. Defendant argues that these allegations are wholly unsubstantiated and thus are insufficient to support an administrative inspection warrant. I disagree. Applications for search warrants are to be interpreted in a common sense and realistic fashion. United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Matter of Burka, 684 F. Supp. at 1304. Investigator Sheller's affidavit identifies the Automated Reports and Consolidated Order Systems ("ARCOS") Excessive Purchase Reports as the source of information indication that defendant Dr. Burka had purchased drugs in quantities greater than what is typical for registered physicians. These reports are compiled pursuant to federal regulations. See 21 C.F.R. §§ 1304.34-1304.38. A realistic reading of the application in question demonstrates that Investigator Sheller used the term "excessive purchases" to indicate a sufficient quantity of drugs to cause concern under the provisions of the Act. Magistrate Hall properly understood it as such. See Matter of Burka, 684 F. Supp. at 1304. When he issued the Administrative Inspection Warrant, Magistrate Hall did not simply ratify the bare conclusions set forth in the underlying affidavit, but properly and realistically considered the allegations it contained.

 7. Investigator Sheller acted in good faith in applying for and obtaining the Administrative Inspection Warrant. Investigator Sheller drafted both the warrant and the supporting affidavit. The facts in his affidavit were correct. *fn2" The Administrative Inspection Warrant was approved by a neutral and detached Magistrate.

 8. Balancing defendant's privacy interests against the legitimate interests of the government in securing necessary information, I conclude that Investigator Sheller's affidavit provided a substantial basis for a finding of probable cause and that the administrative inspection was proper. *fn3"

 9. The Administrative Inspection Warrant is not a general warrant because it did not vest the Investigator Sheller with unbridled discretion to conduct an "exploratory rummaging" through defendant's papers in search of evidence. Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). "In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized." Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976). *fn4" Because the warrant provided sufficient standards by which the DEA Investigator reasonably could distinguish between those documents he could inspect and those he could not, the warrant was sufficiently particular. Id.; United States v. Hayes, 794 F.2d 1348, 1356 (9th Cir. 1986). The warrant limited the DEA Investigator to the search and seizure of records required to be kept under the provisions of the Act; *fn5" records and files appropriate for verification of such records; documents concerning the dispensation, sale, administration, or distribution of controlled substances; and records that the Act requires registered physicians to keep. In addition, the scope of the search and seizure authorized by the Administrative Inspection Warrant lay within the ambit of probable cause established by the supporting affidavit. Christine, 687 F.2d at 753.

 10. The Act authorizes administrative inspections lasting longer than ten days upon a showing of need. 21 U.S.C. § 880(d)(3). Investigator Sheller's prior experience with administrative inspections of physicians' offices demonstrated that the volume and complexity of the records to be inspected necessitate an inspection period of more than ten days. The thirty day inspection period authorized by the Administrative Inspection Warrant was a reasonable one in light of the volume and complexity of defendant's records. Investigator Sheller actually was present in defendant's offices for only seven days.

 11. After balancing the six factors enumerated by the Third Circuit in In re Search Warrant (Sealed), 810 F.2d 67 (3d Cir. 1987), I find, as indeed the court found in that case, no indication on the record before me of harm to defendant's patients. Although the privacy interests of Dr. Burka's patients were invaded to some extent, the Government has a reasonable need to investigate the ...


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