MEMORANDUM RE: MOTIONS TO SUPPRESS
Defendant in this case has filed two motions to suppress evidence he alleges was unlawfully obtained. Specifically, Defendant seeks to suppress the following: (1) statements he made to law enforcement agents during a search of Defendant's office on February 5, 2008; (2) statements he made at a Drug Enforcement Agency ("DEA") Administrative Hearing on April 7, 2008; and (3) physical evidence obtained as a result of a search of Defendant's office and vehicle on February 5, 2008. After considering Defendant's suppression motions and the arguments contained therein, the Court denies Defendant's motions to suppress.
I. Factual and Procedural Background
Defendant, Dr. Laurence T. McKinney ("Dr. McKinney"), is a physician licensed in Pennsylvania who operated the McKinney Medical Center, a solo practice located at 7514 Frankford Avenue in Philadelphia, Pennsylvania. Dr. McKinney was registered with the DEA, DEA registration number BM7201267, to dispense to patients certain controlled substances. His registration was set to expire on January 31, 2010.
In November 2007, the DEA began receiving complaints from several local pharmacies about receiving an excessive amount of prescriptions for Percocet and Xanax from Dr. McKinney. Also in November 2007, the Philadelphia Police Department received a complaint from an anonymous citizen regarding Dr. McKinney's prescribing practices. The DEA's Diversion Unit and the Philadelphia Police Department's Intensive Drug Investigative Squad ("IDIS") subsequently launched an investigation into Dr. McKinney's prescribing practices. During the investigation, numerous surveillances, including audio and video surveillances, were conducted. Also during the investigation, undercover IDIS agents visited Dr. McKinney's medical office posing as patients in order to acquire prescriptions for controlled substances.*fn1
These undercover visits were recorded with a "Hawk8A" transmitter/microphone/camera, and DEA and IDIS agents who were positioned across the street from Dr. McKinney's office during the undercover office visits monitored the audio feed in real-time.
Also during the investigation, DEA obtained a Commonwealth of Pennsylvania Bureau of Narcotics Investigation "BD6 report," which identified more than 3,000 prescriptions for certain controlled substances dispensed by pharmacies in Pennsylvania on the order or prescription of Dr. McKinney from October 5, 2004 until November 30, 2006. DEA later sought an opinion from an expert, a physician named "Dr. Woodie," who concluded that Dr. McKinney's prescribing patterns, as evidenced in the BD6 report, were not consistent with the dispensing of controlled substances for a legitimate medical purpose. Additionally, IDIS agents observed Dr. McKinney and another individual making trips on multiple occasions from Dr. McKinney's office to his vehicle -- a 1997 Mercedes-Benz sedan -- and placing unidentified items in the vehicle's glove compartment and trunk, or accessing the trunk area. The agents also observed Dr. McKinney driving from his medical office to local banks during business hours.
As a result of the DEA/IDIS investigation, DEA Diversion Investigator James Corbett ("DI Corbett") prepared and compiled affidavits for search warrants for Dr. McKinney's office and vehicle. The search warrants were issued by United States Magistrate Judge Linda K. Caracappa.
On February 5, 2008, shortly after 5:00 p.m., a team of approximately twenty (20) law enforcement officers, including DEA and IDIS agents (the "agents"), executed the search warrants upon Dr. McKinney's medical office and vehicle. During the search, Dr. McKinney was not handcuffed or restrained in any way, and was not isolated to any particular area of his office. Dr. McKinney was specifically told that he was not under arrest, and he was not read his Miranda rights. (2/4/10 Hearing Audio File #1 at 21:44-22:00 (Doc. No. 44).) When asked, the agents told Dr. McKinney that he was free to leave at any time, but that the agents preferred he remain in order to observe the search and secure his business and personal belongings that were not the subject of the search. (2/4/10 Hearing Audio File #1 at 22:36-23:47 (Doc. No. 44).) DI Corbett noted that Dr. McKinney appeared to be under the influence of alcohol or narcotics, as he appeared to be sluggish and drowsy, and was slightly slurring his speech. When asked about this, Dr. McKinney stated that he was not under the influence of alcohol or narcotics, but instead was tired.
At approximately 6:00 p.m., the agents asked Dr. McKinney to voluntarily surrender his DEA Certificate of Registration, which authorized Dr. McKinney to dispense certain controlled substances. Dr. McKinney responded that he wanted to speak with counsel before surrendering his registration, but he was unable to reach counsel via telephone. Directly thereafter, agents served Dr. McKinney with a notice of Immediate Suspension of Registration, which prohibited Dr. McKinney from ordering, administering, prescribing, possessing, or dispensing any controlled substance with his DEA registration.
During the search, Dr. McKinney assisted the agents by identifying patient files that were closed and not covered by the warrant, and by identifying the supplier or distributor of the controlled substances and medications found in his office. At some point during the search, DI Corbett began conversing with and questioning Dr. McKinney. Dr. McKinney eventually told DI Corbett that he no longer wished to speak to him or answer his questions.
Sometime after 9:00 p.m., DI Corbett approached Dr. McKinney and presented him with a target letter informing Dr. McKinney that he was the target of a federal drug investigation. Dr. McKinney again asked if he was being arrested, and DI Corbett responded that Dr. McKinney was not being arrested at that time, although he stated his belief that Dr. McKinney could face criminal charges at some point in the future. DI Corbett and Dr. McKinney then had a conversation which lasted somewhere between thirty (30) and forty-five (45) minutes, in which Dr. McKinney provided information about how he ran his medical practice.
The search concluded at approximately 10:00 p.m. As a result of the office search, the agents seized, among other things, prescription medication, computer equipment, VHS tapes, and thirty-one (31) boxes of medical records.As a result of the vehicle search, the agents seized prescription pills and documents.The agents provided Dr. McKinney with a receipt for items that were seized.
3. DEA Administrative Hearing
On April 7, 2008, Dr. McKinney appeared before Administrative Law Judge ("ALJ") Mary Ellen Bittner at a DEA Administrative Hearing in Washington, D.C., to address the suspension of Dr. McKinney's DEA registration. Dr. McKinney was represented at this hearing by Joseph Grimes, Esq. At the hearing, Dr. McKinney did not assert his Fifth Amendment rights, and instead, testified as an adverse witness during the government's case-in-chief. On May 5, 2008, the ALJ issued her recommended decision against Dr. McKinney. On July 17, 2008, the Deputy Administrator adopted the ALJ's conclusions of facts and law, concluding that Dr. McKinney's continued registration with the DEA would be inconsistent with the public interest, and formally revoking Dr. McKinney's DEA registration.
On April 8, 2009, a grand jury returned a forty-nine (49) count indictment charging that between July 2007 and January 2008, Dr. McKinney distributed controlled substances in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and (b)(1)(D)(2), maintained a place for the illegal distribution of a controlled substance in violation of 21 U.S.C. § 856(a)(1), and aided and abetted the distribution of controlled substances in violation of 18 U.S.C. § 2.
On January 14, 2010, Defendant filed a Motion to Suppress Statements(Doc. No. 35), which he supplemented later that day (Doc. No. 36). On January 21, 2010, Defendant filed a Motion to Suppress Physical Evidence (Doc. No. 38). The government responded to Defendant's Motion to Suppress Statements on January 25, 2010 (Doc. No. 39), and to Defendant's Motion to Suppress Physical Evidence on January 28, 2010 (Doc. No. 41).
This Court held a hearing on February 4, 2010 to examine Defendant's suppression motions, at which the Court heard testimony from DI Corbett (2/4/10 Hearing Audio File #1 at 03:02-1:04:30 (Doc. No. 44), and 2/4/10 Hearing Audio File #2 at 18:27-49:35 (Doc. No. 45)) and Joseph Grimes, Esq. (2/4/10 Hearing Audio File #2, at 00:30-17:20 (Doc. No. 45)). Subsequently, the parties were instructed to submit further briefing on the suppression issues. Defendant filed a Supplemental Brief in Support of Motions to Suppress Statements and Physical Evidence on February 15, 2010 (Doc. No. 55), and augmented his Supplemental Brief via written correspondence to the Court dated February 22, 2010. The government responded to Defendant's Supplemental Brief on February 22, 2010 (Doc. No. 56).
A. Suppression of Statements Made to Law Enforcement Agents During the February 5, 2008 Search of Dr. McKinney's Office
In Defendant's Motion to Suppress Statements, Supplemental Brief, and February 22, 2010 letter to the Court augmenting his Supplemental Brief, Defendant argued that the statements he made to DEA and IDIS agents during the February 5, 2008 search: (1) were taken in violation of Dr. McKinney's rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) were involuntary because the agents continued conversing with and questioning Dr. McKinney after he asked to speak with counsel; and (3) were taken in violation of Edwards v. Arizona, 451 U.S. 477 (1981), because DI Corbett questioned Dr. McKinney on multiple occasions after Dr. McKinney requested to speak to counsel.
The central principle established in Miranda is that "if the police take a suspect into custody and then ask him questions without informing him of [his rights], his responses cannot be introduced into evidence to establish his guilt." Berkemer v. McCarty, 468 U.S. 420, 429 (1984). Thus, constitutional protections against self-incrimination under the Fifth Amendment are triggered only when a suspect is subject to "custodial interrogation." Thompson v. Keohane, 516 U.S. 99, 102 (1995). Custodial interrogation occurs when law enforcement officials initiate questioning "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. (quoting Miranda, 384 U.S. at 444). A defendant is in custody when a reasonable person in the defendant's position would perceive that he or she is not free to leave. Stansbury v. California, 511 U.S. 318, 325 (1994); see also Berkemer, 468 U.S. at 442 (when determining if a suspect is "in custody," the only relevant inquiry is how a reasonable person in the suspect's position would have understood his or her situation).
In the present case, both Defendant and the government correctly recognize that Miranda is only implicated if Defendant was subjected to custodial interrogation. Nevertheless, the parties dispute whether Dr. McKinney was in custody when he answered the agents' questions and made the statements he now seeks to suppress. It is the resolution of this question that determines whether the statements made by Dr. McKinney during the search are admissible, or must be suppressed.*fn2
A person is in custody when he or she is arrested formally, or when his or her freedom of movement is restricted to the degree associated with a formal arrest. United States v. Willaman, 437 F.3d 354, 359 (3d Cir. 2006) (citation omitted). For a person to be in custody when he or she has not been arrested, "something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so." Id. (quoting Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir. 1974)). "Custodial interrogation" is "not susceptible of an exact definition; thus, the ...