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A warrant that failed to specify a time frame for files to be seized from a dentist’s office did not violate the “overbreadth” prong of the Fourth Amendment’s prohibition against unreasonable searches and seizures, a Brooklyn federal judge has ruled. Finding a lack of controlling precedent, Eastern District Judge Frederic Block ruled that the February 2007 seizure of files from dentist Barry Cohan’s office as part of a fraud investigation satisfied the “good faith” exception to the exclusionary rule. “Since the Second Circuit has never addressed when, if at all, time-frames are a constitutional requirement in business-record search warrants, and district courts in this circuit have not converged upon a clear rule, the Court cannot say that ‘a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization,’” Judge Block ruled in United States v. Cohan, 07-CR-841. The Eastern District Court decision appears on page 31 of the print edition of today’s Law Journal. In November 2007, Dr. Cohan was charged with health care fraud, making false statements relating to health care and aggravated identity theft. The charges stemmed from the dentist’s allegedly fraudulent billing practices. Much of the evidence against Dr. Cohan was seized during a search of his dental office. Dr. Cohan moved to suppress the fruits of that search on the ground that the warrant authorizing the search was insufficiently specific, in violation of the Fourth Amendment. Among other things, the dentist argued that the magistrate’s failure to set a time restriction for the documents to be seized rendered the warrant unconstitutional. “Even though there arguably was probable cause to seize records dating back as far as 1990, the warrant contained no time frame at all; thus, it allowed the seizure of records dating back arbitrarily far, including even decades-old records of vanishingly small relevance,” Judge Block wrote. The judge added, “The case law is hardly uniform as to when, if at all, the absence of a time frame would violate the overbreadth prong of the Fourth Amendment, and the Second Circuit has yet to consider the issue.” In a survey of decisions from other jurisdictions, the court found conflicting conclusions. “In a number of out-of-circuit decisions, courts have found warrants for the seizure of business records constitutionally deficient where they imposed too wide a time frame or failed to include one altogether,” Judge Block wrote. “Still other out-of-circuit decisions have not treated a warrant’s lack of a time frame as dispositive.” District courts in the Second Circuit, he added, are in “agreement that a time frame is relevant,” though “there is no apparent consensus as to when one is required.” In the present case, the facts allowed the court to avoid “speculat[ing] as to how the Second Circuit would decide” when the lack of a time frame might render a warrant overbroad. “[T]he Court need not do so,” Judge Block concluded, “because this uncertainty triggers the ‘good-faith’ exception to the exclusionary rule.” Specifically, the judge held that where, as here, a police officer’s reliance on “the magistrate’s probable-cause determination” and on “the technical sufficiency of the warrant” is “objectively reasonable,” a subsequent determination that the warrant was “constitutionally infirm” will not trigger the exclusionary rule. On June 2, Judge Block denied the defendant’s motion to suppress. The court issued the present written decision last week to explain its reasoning. Dr. Cohan pleaded guilty on June 10 to one count of health care fraud and one count of aggravated identity theft. John N. Tasolides of Syosset and Ronald G. Russo of Schlam Stone & Dolan represented Dr. Cohan. Mr. Russo called the decision a “significant” factor in Dr. Cohan’s decision to plead guilty. “Once I realized all the evidence was going to be available,” Mr. Russo said, “I thought that entering a plea might be the wiser choice.” Charles Steven Kleinberg, Daniel D. Brownell and Richard T. Faughan represented the U.S. Attorney’s Office for the Eastern District. An office spokesman declined to comment. @

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