Avenues For Relief After A Law Enforcement Search Of A Medical Provider

Though the standards and procedures for obtaining search warrants are almost identical in state or federal court, the standards and procedures available to defense counsel after a warrant has been executed are vastly different. This article considers some of the differences and offers tips to defense counsel, especially with respect to searches of medical providers.

Attacking the Warrant: The starkest difference between state and federal law concerns whether the searched party even has a right to immediate judicial review. California Penal Code § 1538.5 provides that a searched party is entitled to judicial review of both the facial validity of the warrant as well as the manner in which it was executed. Specifically, the searched party is entitled to "a speedy remedy in a readily accessible court," Aday v. Superior Ct., 55 Cal. 2d 789, 800 (1961), an essentially de novo review.

In contrast, although Federal Rule of Criminal Procedure 41(g) provides that a party may file a motion for return of property, courts have discretion to - and typically do - decline to exercise jurisdiction. This is because the searched party must typically establish that law enforcement showed a "callous disregard" of the searched party's rights, United States v. Chapman, 559 F.2d 402 (5th Cir. 1977), meaning that pre-indictment challenges will typically fail unless there is clear evidence of egregious bad faith.

Asserting Privileges: Today, most seizures include electronic devices that contain electronic communications, including possibly communications with counsel. They also contain vast amounts of information unrelated to the objective of the warrant.

Federal law enforcement will typically use a "taint team," which is (supposed to be) a group of agents that do not participate in the investigation and whose role is limited to identifying and sealing privileged material. Though quite common, there is no statute or rule authorizing this solution.ome federal judges have rejected it in favor of the use of a special master or even having the searched party review the material to create a privilege log. So defense counsel should consider objecting, even if only to achieve some modification to the protocol.

California does not authorize the use of taint teams and Evidence Code § 915 (prohibiting in camera review), the State Fund rule (requiring attorneys to cease review of potentially privileged information), and Rule of Professional Conduct 4.4 (same) prohibit attorneys from reviewing (or having others review) potentially privileged material in order to determine privilege. Instead, Penal Code 1538.5 provides that the court may appoint a special master in connection with a motion for return of property. In a limited exception to California's rule prohibiting judicial review of potentially privileged material, the special master may review the potentially privileged material obtained by the search warrant. Many courts are reluctant to spend money on special masters, which means (again) that defense counsel should consider volunteering to do the review and create a privilege log.

Addressing overbreadth for electronic devices: Apart from potentially privileged material, electronic devices typically contain enormous amounts of communications irrelevant to the purpose of the search. In reaction to federal courts' expressions of concern about this, some districts have standard language in their search warrants requiring the use of a taint team to identify and forward only relevant material to the investigative team. Because this procedure is set out in the warrant, a failure to follow it means the violation of the procedure was a warrantless search. Counsel should be alert for potential failures to follow protocol and should preserve any objections arising therefrom.

California has addressed the overbreadth issue with the Electronic Communications Privacy Act, Penal Code § 1546, requiring the investigative team to seal any communications that are not "relevant to the object of the warrant." Unfortunately, this means that the irrelevant material is inevitably seen by the investigative team rather than a taint team. Also, there is no good authority on what it means to be "relevant to the object of the warrant," though it certainly sounds looser than the usual standard of particularity that a proper warrant requires. On the other hand, California is quite generous with the remedy for ECPA violations, allowing any party to suppress evidence obtained in violation of the statute, even without a showing of Fourth Amendment standing. Again, counsel should be alert for failures to follow ECPA.

Searches of medical information: Almost every search of a medical provider will result in the search and seizure of patient information.

Federal common law does not recognize a physician-patient privilege at all. Whalen v. Roe, 429 US 589 (1977). Similarly, HIPAA and similar privacy statutes do not prevent law enforcement with a warrant from reviewing otherwise protected information. 45 CFR § 164.512(f). Note, however, that one cannot voluntarily offer otherwise protected information to law enforcement if it is not within the scope of a search warrant or federal subpoena because the exceptions only apply to disclosures pursuant to warrants, subpoenas, court orders, and the like.

California recognizes the physician-patient privilege but specifically permits a law enforcement search of medical records if, and only if, the provider is suspected of criminal activity in connection with the documents. Penal Code § 1524(c). If the provider is not suspected of wrongdoing, a special master must be used. Moreover, Brillantes v. Superior Ct., 51 Cal. App. 4th 323 (1996), held that since every warrant must be "reasonable," the court must always balance law enforcement's needs against the intrusion of patients' privacy and use the "least intrusive means" to pursue their investigation. This may result in law enforcement getting narrower access to medical records than it can get for other material.

Perhaps the best advice for counsel advising a just-searched client is to sit down and read through with the relevant statutes and rules. Whether in state or federal court, there are things counsel can - and should - do to try to limit the scope of the search and seizure even after law enforcement has left the building.