DEA Search Warrant: What Should I Do Now?
Effective Former Justice Department Lawyers Represent Physicians and Pharmacies Against Search Warrants and Charges Relating to Opioids
Almost no day goes by in 2018 without new reports of DEA raids against physician practices and pharmacies. The core allegations common in all of these investigations are that physicians prescribed certain types of opioids that were either medically unnecessary or excessive and that were then filled by “conspiring” pharmacies. In January 2018 alone, more than thirty search and seizure warrants were executed to that effect nationwide. The purpose of this article is to outline the specific allegations in current DEA cases and the strict requisites allowing for a federal search warrant.
Oberheiden, P.C. Is Nationally Known for Avoiding and Fighting Opioid Charges
Oberheiden, P.C. is a federal health care fraud and federal criminal defense law firm with a substantial track record of resolving health care fraud investigations without criminal charges being filed. Notably, our team of nationally working attorneys largely consists of former Department of Justice prosecutors and former Assistant United States prosecutors who were previously in charge of DEA, FBI, and OIG investigations. With more than 1000 health care fraud investigations handled and more than 500 criminal cases tried, we do not need any introduction to government prosecutors.
If your practice or your pharmacy was raided by state or federal law enforcement agents, you should immediately request to speak to one of these attorneys in a free and confidential consultation. The more time you give the government to build its case, the more difficult it is to avoid criminal charges. Act now and call Oberheiden, P.C..
The Legality of Search Warrants
Pursuant to Rule 41 of the Federal Rules of Criminal Procedure, a search warrant requires a neutral magistrate judge to find probable cause that evidence of a crime is to be found at the place of search.
The key in search warrant cases is to establish probable cause. According to an old and well-established definition, probable cause exists where “the facts and circumstances within [the agent’s] knowledge…are sufficient in themselves to warrant a man of reasonable caution in the belief that…” a crime has been or is being committed, and that tangible or intangible property is located at the place of the search that can serve the government as evidence in its investigation. See Carroll v. United States, 267 U.S. 132, 162 (1925). Mere belief or suspicion is insufficient to justify a warrant. See Brinegar v. United States, 338 U.S. 160, 176-177 (1949).
In practice, federal search warrants are typically based on the affidavit of one the investigating agents. These often-lengthy sworn written statements contain information about the agent’s background, training, and familiarity with cases of such nature; in addition, the affidavit will outline important details about the investigation. For example, in cases alleging pill mill operations, the DEA agent will typically summarize the history and status of the investigation, the agent’s personal observations, the review of patient files, potential undercover activity, patient interviews, and interviews of staff members that were conducted as part of the government’s investigation.
The Fourth Amendment mandates that the execution of a search warrant strictly follow the permissible guidance of the law. To ensure that it does so, the search warrant must define with particularity the place to be searched (not, e.g., “5555 Westheimer Street” when that address is an office building with multiple unrelated office suites) and the persons or things to be seized. On the latter, officers do not have ad hoc discretion as to what can be taken. See Marron v. United States, 272 U.S. 192, 196 (1927). For example, a search warrant that authorizes the seizure of evidence that relates to the “manufacture and possession with intent to distribute amphetamine and conspiracy” is too broad and too unspecific. See United States v. Crozier, 674 F.2d 1293, 1299 (9th Cir. 1982).
What the DEA Is Looking for in Pill Mill Investigations
Prescription “pill mills” are medical practices where addicts and drug dealers obtain prescriptions for dangerous and frequently-abused controlled substances in exchange for cash without there being any legitimate medical purpose for the prescriptions or a real doctor/patient relationship. Prescriptions are provided to patients outside the normal course of professional practice.
During pill mill investigations, the DEA looks for certain red flags: no requests of medical records for a new patient; vital signs not taken during an examination of a patient; no examinations upon increases in the amount of opiates prescribed; patients receiving prescriptions in the waiting room without seeing an exam room or being questioned about their health; patients receiving prescriptions through an intermediary, without seeing the physician; consistent cash payments upon entering the office; and physicians prescribing medication with an expired medical license — among other characteristics.
Constant prescription medications (usually narcotics) proscribed in specific amounts have been noted by the DEA, including: Percocet 10/325 mg, 120 pills; Oxycodone 15 mg, 60 pills; OxyContin 15 mg, 60 pills; Oxycodone 30 mg, 60 pills; and Zanaflex 4mg, 90 pills. These drugs are often prescribed concurrently with other, non-addictive drugs, such as Motrin or Colace.
These factors individually may not signal a red flag for the DEA. However, in conjunction with each other, the factors may be grounds for government action such as a search warrant.
Why the Time Immediately Following a Search Warrant Is Critical
The execution of a search warrant is a horrific experience. Careers and reputations appear to be shattered and the future is filled with fear of being charged with a crime. Despite this intense situation and feeling of being paralyzed in thoughts and actions, it is of critical importance not to dig a hole but to see the conducted warrant as an opportunity for experienced attorneys to turn the case around.
How? From the perspective of lawyers that routinely avoid criminal charges in federal health care investigations, a search warrant is meaningful event in a number of ways. First, it is now evident that a client is under investigation and what this investigation is about. The accompanying search warrant and affidavit will allow a trained attorney to distill the nature of the case and to weigh the type of allegations in order of significance. Second, while a search warrant is executed by law enforcement personnel, behind each federal warrant stands a case attorney, namely the federal prosecutor in charge of the investigation. Obtaining the name and contact information of that prosecutor (often referred to as Assistant United States Attorney) is paramount for a successful case resolution.
Oberheiden, P.C. is known for its proactive approach. From the moment we become aware of the agents’ and the prosecutor’s names (many of whom we know personally from previous cases), we strive to open a dialogue with the government to learn about their concerns and, most importantly, to introduce our side of the story.
Unlike traditional defense lawyers that are trained to wait and to “defend,” our firm pursues the opposite strategy, which is being active and intervening, in order to make a later “defense” unnecessary. In fact, we often go as far as accepting a shift of the burden of proof. While traditional lawyers sit back and tell their clients that the government has the burden of proof to show you committed a crime (which is correct), we would much rather assume the burden of proof in the investigative stage to demonstrate to the government that our client did not do anything wrong—in an effort to avoid charges altogether.
After all, the priority for all clients must be avoiding a criminal indictment, avoiding charges, and to make sure that professional state licensing boards will not see a need to suspend or revoke your medical privileges. While search warrants may be reported in the news if caught by the media, the underlying allegations and details of the warrant, unlike public criminal charges, will remain sealed and non-public.
Trusted & Determined: Oberheiden, P.C.
At Oberheiden, P.C., our attorneys have a combined track record of over a century of experience. Most of our attorneys previously worked for the Department of Justice, often in lead trial or supervisory roles in the United States Attorney’s Office. This experience gives them first-hand knowledge of the workings of the federal criminal justice system and a depth of knowledge that is incomparable. These former Department of Justice trial lawyers and former Assistant United States Attorneys now work with our skilled litigators and experienced defense attorneys to protect your rights against the government’s attempt to discredit your professional judgment. Some of the results we have achieved for our clients include:
- Avoiding indictments
- Keeping cases from being presented to the grand jury
- Avoiding criminal charges
- Dismissing charges that have been brought
- Winning at trial
- Obtaining sentences of probation rather than prison time
- Preserving professional licenses
In addition, our attorneys collectively have:
- 100 years of experience as attorneys for the Department of Justice
- Tried more than 500 criminal cases
- Handled over 1000 criminal cases
- Handled over 1000 grand jury subpoenas and search warrants
- Negotiated favorable results in innumerable cases
One common mistake that physicians and pharmacists often make is underestimating the seriousness of an executed federal search warrant. A search warrant means an investigation is underway and a charge is likely unless you obtain the right legal representation quickly. And the federal justice system is completely different from the state system. Your local criminal attorney may be the best at defending against DUI or assault charges in state court, but does he know the health care laws and the prosecutors who enforce them? Does he know who to call and how to interpret the search warrant? At Oberheiden, P.C., our attorneys know how to negotiate and how to take control of the conversation with the federal agents or government prosecutors. Call today and speak with a former federal prosecutor who knows how the government intends to build a case against you and what strategies can be used to defeat such an attempt.
FAQs: What Physicians and Pharmacies Need to Know about Controlled Substances Act Investigations
Q: Who Will Handle My Case?
At Oberheiden, P.C., we do not employ legal assistants, paralegals, or junior associates. Your case will be handled start to finish by a senior attorney who is either an experienced defense attorney, a former federal prosecutor, or both. Our attorneys work as a team to provide every client the best defense possible.
Q: How can I protect myself and/or my practice from allegations of prescription drug fraud or abuse?
In 2018, the Department of Justice announced its intention to create opioid task forces to deal with the growing epidemic of opioid abuse and addiction plaguing the United States. Even before the task force implementation, doctors who prescribe medicines for pain and pharmacists and pharmacies that fill those prescriptions are under unprecedented levels of scrutiny from the DEA, the DOJ, the FBI, and other federal agencies. If you are accused of prescription drug fraud, your job, your license, your money, your reputation, and your very freedom can be at risk. Some of the common reasons for a federal search warrant and allegations of criminal conduct are:
- Pharmacies failing to keep proper records and audits of pill counts;
- Failure to abide by regulations regarding electronic versus physical prescriptions;
- Failing to identify patients who doctor or pharmacy shop for refills;
- Failing to identify patients who do not keep appointments for clinical testing for the cause of their pain;
- Prescribing the same amount and strength of pain medicine repeatedly or for the majority of your patients
- Prescribing medicine to a patient with no medical necessity for it, or for an “off label” use for a condition it is not designed to treat
Q: What sanctions are permitted for those found guilty of health care fraud?
At one time, health care fraud was considered primarily a civil issue. Prosecutors would file a civil lawsuit seeking fines and monetary sanctions, and attempt to suspend or revoke professional licenses. Now, however, criminal prosecution for health care fraud is even more likely than a civil case. In addition to fines and loss of licenses, criminal cases can add the potential for a sentence of imprisonment in a federal institution – often for years or even decades. This possibility is why physicians, pharmacists, and other health care providers must act quickly and decisively if a search warrant has been executed at their home or place of business. Call Oberheiden, P.C. immediately to find out how we can help you respond effectively and intervene in the pending criminal investigation revealed by the warrant. We will rely on our years of experience to stop, or at the least minimize, the government’s intended result of a health care fraud conviction.
Q: What other steps can I take to safeguard myself and my practice from health care fraud investigations and prosecutions?
Each case is individual and requires its own unique response. Speak with one of our senior attorneys today to find out how we can help you deal with the aftermath of an executed federal search warrant and an investigation into your practices with respect to opioids and other medications. We may be able to help resolve your matter quickly through our unique skills in handling complex health care fraud investigations and other criminal cases. Call today to find out how a senior attorney and former government prosecutor analyzes the case that is being brought against you.