substances and a statutory mandate exists allowing the Government to do so.
12. On the record before me, I cannot find that the administrative inspection was a subterfuge to obtain evidence for a criminal prosecution. No criminal activity was contemplated at the time of the administrative inspection. Investigator Sheller reviewed patient charts in an attempt to verify the information he discovered in Dr. Burka's computer records. Investigator Sheller believed, in good faith, that the Administrative Inspection Warrant authorized him to inspect any record that reflected defendant's dispensation of controlled substances. The patient charts which he inspected did contain such information. DEA Investigators typically inspect the "primary records" of registrants, whatever those primary records may be. In Investigator Sheller's view, defendant's patient charts constituted Dr. Burka's primary records. When the patient files failed to corroborate the computer records, Investigator Sheller suspected that defendant was engaging in criminal activity. This suspicion was bolstered by other information uncovered through the administrative inspection and through interviews of Dr. Burka's patients and staff conducted after the conclusion of the inspection. As a result, the matter was referred to the United States Attorney General's Office in June, 1987, almost a month after the administrative inspection. Investigator Sheller in no way communicated with any person in the United States Attorney's office during the course of the administrative inspection or at any time before July, 1987. Investigator Sheller served as the affiant for the Criminal Search Warrant simply because he had the greatest familiarity with the facts constituting probable cause in the case.
13. The Criminal Search Warrant was obtained and executed in accordance with Federal Rule of Criminal Procedure 41. The warrant was authorized by Assistant United States Attorney ("AUSA") Hayes and issued to the DEA Special Agents, who were under the supervision of the AUSA Hayes. Fed. R. Crim. P. 41 (a) ("Rule 41") states that a search warrant may be issued "upon request of a federal law enforcement officer or an attorney for the government." AUSA Hayes drafted the search warrant, including Sheller's affidavit, after she thoroughly reviewed the facts with Investigator Sheller. The warrant and supporting affidavit were reviewed by AUSA Hayes' supervisor. AUSA Hayes presented the warrant to the Magistrate. Sheller was present to swear out his affidavit in accordance with standard practices of both the DEA and the United States Attorney's office. AUSA Hayes, working with Investigator Sheller, applied for the warrant. The warrant was executed by DEA Special Agents and the actual return of the warrant was made by Special Agent Frank Marrero. No diversion investigators participated in the search. Even if DEA Investigator Sheller, who applied for the Criminal Search Warrant, is not a "federal law enforcement officer" as defined in Rule 41, not every violation of the procedures prescribed in Rule 41 should result in the suppression of seized evidence. United States v. Hall, 505 F.2d 961 (3d Cir. 1974); United States v. Hooker, 418 F. Supp. 476 (M.D.Pa. 1976), aff'd without opinion, 547 F.2d 1165, cert. den. 430 U.S. 950, 51 L. Ed. 2d 799, 97 S. Ct. 1591 (1977). A motion to suppress should be granted "only when the defendant demonstrates prejudice from the [Rule 41] violation. . . . The suppression remedy remains viable where a sufficient showing of prejudice is made, that is, prejudice in the sense that it offends concepts of fundamental fairness or due process." Hall, 505 F.2d at 964.
The only cases to decide the issue have denied motions to suppress where a search warrant was issued upon the request of a person not authorized under Rule 41(a). United States v. Luk, 859 F.2d 667 (9th Cir. 1988) (no prejudice caused by fact that warrant was requested by Office of Export Enforcement agent); United States v. Johnson, 641 F.2d 652 (9th Cir. 1980) (no prejudice caused by fact that state agent applied for warrant).
I find that DEA Investigator Sheller's participation in the application for the Criminal Search Warrant in no way prejudiced defendant. In this case the warrant application contained the statement "[AUSA] Hayes authorizing." Although an AUSA does not have the power to transform an unauthorized agent into an authorized one, the courts have held that even minimal involvement by an AUSA is sufficient to prevent a finding of violation of Rule 41(a). United States v. Schuster, 777 F.2d 264 (5th Cir. 1985), vacated for death of defendant, 778 F.2d 1132 (1985) (no violation of Rule 41 where warrant was requested by an unauthorized state officer but was prepared under the supervision of an AUSA); United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988) (no violation of Rule 41 where warrant was requested by an unauthorized state agent but an AUSA accompanied him to the magistrate); United States v. Massey, 687 F.2d 1348 (10th Cir. 1982) (no violation of Rule 41 where warrant was issued to a state agent but was requested by telephone by an AUSA); United States v. Carra, 604 F.2d 1271 (10th Cir. 1979) (no violation of Rule 41 where state officer requested warrant but did so under the supervision of a state officer). Here, the AUSA's involvement in authorizing the application for a warrant and supervising the investigation was substantial. There is no evidence of (a) an intentional or deliberate disregard of Rule 41(a); (b) prejudice in the sense that the search might not have occurred or might have been different if the Rule were more strictly followed; or (c) reckless disregard or conscious indifference to the Rule. On the contrary, the government's conduct was objectively reasonable and in good faith. Hence, assuming a violation arguendo, it was not a fundamental one or one of constitutional magnitude. U.S. v. Martimez-Zayas, 857 F.2d 122, 136 (3d Cir. 1988); U.S. v. Luk, 859 F.2d 667 (9th Cir. 1988).
14. Because the administrative inspection was valid, evidence derived from that inspection properly served to demonstrate probable cause for the Criminal Search Warrant.
15. There was probable cause to support the issuance of the criminal search warrant under the totality of the circumstances. Defendant's purchases of Dilaudid were so large that in 1985 he ranked number one among all physicians in the nation, buying nearly three times the amount purchased by the second ranked physician. In 1985, defendant also was the largest purchaser of Tuinal, the third largest purchaser of morphine and the fourth largest purchaser of Percodan and Percocet in the nation. Defendant's computer records showed that certain of his patients were receiving extremely high dosages of controlled substances. Charts corresponding to the fifty-five patients who received the largest amount of such drugs did not match defendant's computer records. Defendant's records indicated that he was dispensing drugs on days when, by his own admission, he was out of the office. Thirty-one of defendant's patients denied receiving the controlled substances listed in defendant's computer records. Members of defendant's staff stated that defendant was altering patients' charts retroactively. Moreover, defendant contacted patients to instruct them as to what to tell DEA investigators who might contact them during the investigation.
16. The criminal warrant was obtained in good faith. The affidavit contained correct information and specifically identified the names of the 180 patients of Dr. Burka whose files were listed as subject to seizure in the criminal warrant.
The search warrant was authorized by the Assistant United States Attorney and approved by a neutral Magistrate.
17. The criminal search was authorized and supervised by an Assistant United States Attorney. Investigator Sheller was supervised during the criminal phase of the investigation by the DEA agents acting under the supervision of the Assistant United States Attorney.
18. The agents executing the Criminal Search Warrant seized only records and controlled substances authorized by the warrant. The DEA agents had a good faith belief that entire patient files were within the scope of the warrant, and in fact the warrant did authorize the search and seizure of patient file folders in their entirety. The controlled substances that were seized but not listed in the warrant will not be suppressed because these drugs were generic versions of those named in the warrant.
An appropriate order follows.
AND NOW, this 29th day of November, 1988, upon consideration of defendant's Motion to Suppress, the Government's response thereto, defendant's reply, the government's reply and after hearing, it is hereby ORDERED that defendant's Motion is DENIED.