Citations
- 713 F. Supp. 1495
Full opinion text
DECISION AND ENTRY OVERRULING THE AMENDED MOTION TO RETURN PROPERTY OP THOMAS H. McCarthy, as it relates to THE RETURN OF PROPERTY SEIZED BY PLAINTIFF ON SEPTEMBER 7, 1984 (DOC. # 48)
RICE, District Judge.
This case is before the Court on the Amended Motion of Thomas H. McCarthy, D.O., for the return of property (Doc. #48). This matter was originally before the Court on Dr. McCarthy’s Motion to Quash Search Warrant and Application for Protective Order and Motion for Return (Doc. # 1), which this Court previously determined must be treated as a Fed.R. Crim.P. 41(e) Motion to Return (Doc. # 25, at 4-6). For the reasons set forth below, Dr. McCarthy’s motion is overruled in its entirety.
At 9:45 a.m. on September 7, 1984, agents of the Federal Drug Enforcement Agency (DEA) obtained from United States Magistrate Steinberg a warrant to search the premises at 1328 North Main Street in Dayton, Ohio, described as the offices and related facilities of Dr. McCarthy. DEA agents, accompanied by state and local authorities, executed the warrant between 11 a.m. and 3:45 p.m. on September 7, 1984. At 1:46 p.m. on September 7, 1984, Dr. McCarthy filed a motion styled “Motion to Quash Search Warrant, Application for Protective Order and Motion for Return.” (Doc. # 1).
Hearings were held before Magistrate Steinberg on September 10 and September 11, 1984. Treating Dr. McCarthy’s motion as a Motion for Return of Property pursuant to Fed.R.Crim.P. 41(e), Magistrate Steinberg stated on the record that the warrant which he had issued was supported by probable cause (Doc. # 21, Transcript of Proceedings, September 11, 1984, Honorable Robert A. Steinberg, Magistrate, presiding, at 50). On September 11, 1984, Magistrate Steinberg ordered the United States to deliver to Dr. McCarthy by September 14, 1984, copies of all the documents seized pursuant to the September 7 search. Upon an amendment by Magistrate Steinberg of said Order, the United States returned to Dr. McCarthy on September 13 and September 17 both certain original documents seized from his office and copies of the remainder of the documents which had been seized.
On December 11, 1984, Dr. McCarthy filed a motion requesting that Magistrate Merz, who had taken over the case from Magistrate Steinberg, hold a hearing on disputed issues of fact and a conference to set the ground rules for final resolution of his motion. Magistrate Merz declined to hold a hearing on Dr. McCarthy’s motion. In a Report and Recommendation issued on August 6, 1985, Magistrate Merz adopted Magistrate Steinberg's finding, on the record, of probable cause and recommended that Dr. McCarthy’s Motion to Quash Search Warrant and Motion for Return of Property be denied. The Magistrate also recommended denial of Dr. McCarthy’s claim for damages for losses sustained due to seizure of his records. On August 16, 1985, Dr. McCarthy filed an objection to the Report and Recommendation of Magistrate Merz (Doc. # 19). In a Decision and Entry filed on April 2, 1986, 634 F.Supp. 1069, this Court rejected the Report and Recommendations of Magistrate Merz (Doc. #25). In said Decision and Entry, the Court determined that the decision of Magistrate Steinberg to treat Dr. McCarthy’s motion as a Rule 41(e) motion to return was correct (Doc. # 25, at 4). Further, the Court concluded that the warrant obtained by the DEA from Magistrate Steinberg was not a general warrant (Doc. #25, at 8). However, the Court determined that an evidentiary hearing was necessary with regard to the following issues:
(1) Whether there were intentional or reckless omissions (or falsehoods) in the affidavit, such as whether Dr. McCarthy was absent from his premises at certain times, and, if so, whether the affidavit’s remaining content was sufficient to establish probable cause;
(2) Whether there was probable cause to support a search of the breadth authorized by the warrant;
(3) Whether the officers executing the warrant seized items from Dr. McCarthy’s premises which were outside the scope of the warrant;
(4) Whether the officers executing the warrant acted so improperly that their conduct was constitutionally unreasonable; and
(5) Whether Dr. McCarthy is entitled to damages for the Government’s failure to comply with this Court’s Order to promptly return his documents.
The oral hearing on Dr. McCarthy’s Motion to Return Property was held on September 25, September 26, November 10, November 12, and November 14, 1986.
I. DISCUSSION
Before discussing the specific issues currently before the Court, the Court finds it necessary to make the following general observations regarding Dr. McCarthy’s Amended Motion to Return Property.
First, it must be noted that the standard upon which the validity of the DEA’s search warrant is to be judged is a probable cause standard. “It is well settled that an affidavit supporting a search warrant need not establish beyond a reasonable doubt that incriminating evidence will be found at the place to be searched.” United States v. Savoca, 739 F.2d 220, 224 (6th Cir.1984) (emphasis added), reh’g granted, 761 F.2d 292 (6th Cir.), cert. denied, 474 Ü.S. 852, 106 S.Ct. 153, 88 L.Ed.2d 126 (1985). In other words, it is not the role of the affiant to prove guilt beyond a reasonable doubt or to an absolute certainty. In Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983), reh’g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983), the Supreme Court explained what is meant by the term “probable cause”.
As early as Locke v. United States, [11 U.S. 339] 7 Cranch 339, 348 [3 L.Ed. 364] (1813), Chief Justice Marshall observed ... “[T]he term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation. ... It imports a seizure made under circumstances which warrant suspicion.” More recently, we said that “the quanta ... of proof” appropriate in ordinary judicial proceedings are inapplicable to the decision to issue a warrant. Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”
(Id.) (citations omitted). Thus, in the case at bar, the affidavit submitted in support of the warrant of September 7, 1984, need only establish that there is “a fair probability” that on September 7, 1984, the premises at 1328 North Main Street would contain “contraband or evidence of” violations of 21 U.S.C. §§ 841(a)(1) and 846. Gates, 462 U.S. at 238, 103 S.Ct. at 2332.
Second, it is important to note that this is not a case in which the DEA is seeking to establish that a “pusher” is peddling controlled substances on the streets. Rather, in the case at bar, the DEA is seeking to establish that someone (i.e. Dr. McCarthy), who is licensed to distribute controlled substances and/or prescriptions for controlled substances, is abusing his authority and in so doing is violating the law. “While physicians are exempt from the provisions of the drug abuse statutes when they dispense or prescribe controlled substances in good faith to patients in the regular course of professional practice, they are liable for prosecution under Sec. 841, 21 U.S.C. ‘ * * * when their activities fall outside the usual course of professional practice.’ ” United States v. Kirk, 584 F.2d 773, 784 (6th Cir.1978) (quoting U.S. v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 337, 46 L.Ed.2d 333 (1975)), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 708 (1978), reh’g denied, 440 U.S. 931, 99 S.Ct. 1270, 59 L.Ed.2d 488 (1979). Dr. McCarthy’s alleged violation is evidenced by his alleged failure to examine (or properly examine) persons/patients to whom controlled substances were dispensed and/or for whom controlled substances were prescribed.
A. The Problem of Omissions
As previously noted, the first issue before the Court is whether there were any intentional or reckless omissions (or falsehoods) in the affidavit underlying the search warrant issued September 7, 1984, for 1328 North Main Street, Dayton, Ohio 45405. In his Memorandum in Support of Motion to Return Property, Dr. McCarthy asserts that the affiant, DEA Agent Kopp, concealed twenty-six (26) separate facts from the Magistrate with the intention of “deprivpng] the Magistrate of his opportunity to exercise meaningful supervision over the search.” (Doc. #43, at 10).
In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978), the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
(emphasis added). This Court has already determined that Dr. McCarthy made a sufficiently substantial preliminary showing to require an evidentiary hearing on the issue of probable cause (Doc. # 25, at 7), and has in fact held such a hearing. The question which remains is whether Dr. McCarthy has shown by a preponderance of the evidence that the affiant’s omissions, if any, were the result of bad faith or reckless disregard, and, if so, whether after said omissions are set aside, the affidavit’s remaining content is sufficient to support probable cause.
While the Franks holding itself dealt only with the problem of false statements within an affidavit, the holding “has [since] been extended to situations in which material omissions affect the probable cause determination.” United States v. Bailey, 831 F.2d 297 (6th Cir.1987) (table) (text available in WESTLAW) (emphasis added). See also United States v. Stanert, 762 F.2d 775, 780-82 (9th Cir.), op. amended, 769 F.2d 1410 (9th Cir.1985). It is important to note that not every omission is sufficient to void a search warrant. “Under Franks, a proven misstatement can vitiate an affidavit only if it is established that the misstatement was the product ‘of deliberate falsehood or of reckless disregard for the truth.... Allegations of negligence or innocent mistake are insufficient.’ [Franks v. Delaware,] 98 S.Ct. at 2685. By analogy, it must be proven that the omissions were made intentionally or with a reckless disregard for the accuracy of the affidavit; negligent omissions will not undermine the affidavit.” United States v. Martin, 615 F.2d 318, 329 (5th Cir.1980). Thus, in the case at bar, the burden is upon Dr. McCarthy to establish by a preponderance of the evidence that the affiant recklessly or in bad faith (i.e. knowingly and intentionally) omitted a material fact or facts from the affidavit which was filed in support of the warrant.
Dr. McCarthy asserts that the affiant’s testimony that he wanted certain evidence within the affidavit to convince the Magistrate that Dr. McCarthy and his wife, Mary McCarthy, were, in fact, drug pushers, indicates that any omissions were intentional (i.e. made in bad faith). (Doc. # 43, at 10). The Court concludes that the fact that the affiant hoped that certain evidence would convince the Magistrate that illegal activities were taking place at the 1328 North Main Street address in no way indicates that the affiant recklessly or in bad faith omitted facts in the hope of misleading the Magistrate. Every affiant hopes that the evidence that he or she sets forth will convince the Magistrate that there is probable cause to believe that evidence of a crime can be found at a particular location. An affiant seeks a warrant because he or she believes probable cause does exist. The fact that an affiant wishes to obtain a warrant does not prove that said affiant is willing to mislead the Magistrate in order to obtain such warrant.
While an affiant’s state of mind (i.e. culpability) may be difficult to establish, “[i]t is possible that when the facts omitted from the affidavit are clearly critical to a finding of probable cause, the fact of recklessness may be inferred from proof of the omission itself.” Martin, 615 F.2d at 329 (emphasis added). Similarly, this Court concludes that in certain extreme situations bad faith may be inferred from proof of the omission of facts which are clearly critical. Thus, it is incumbent upon the Court to examine each of the alleged omissions individually in order to determine whether that particular omission is clearly critical to the finding of probable cause.
1. Alleged Omission #1
Dr. McCarthy first asserts that the affi-ant recklessly or in bad faith omitted the fact that:
Gail Hamm, the government’s confidential informant, was a convicted felon whose release from prison the government had obtained so that the government could use and control the informant in undercover investigations. (Transcript [of proceedings, before the Honorable Walter H. Rice, Judge, ((hereinafter referred to as Transcript)) ], p. 179, lines 3-16). With respect to the informant, the affiant further failed to advise the Magistrate that Dr. McCarthy had made a professional diagnosis of the informant’s health and had concluded that the informant had an anxiety problem that was the result of a pregnancy, (Transcript, p. 180, lines 13-16), that the medical records of the informant could have been obtained upon request (Transcript, p. 180, lines 17-23), and that the affiant made no attempt to obtain the medical records of the informant or have an independent medical examination of the informant conducted (Transcript, page 180, lines 2-5, and page 180, line 24-page 181, line 1).
(Doe. #43, at 6). This Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 1 is clearly critical, and thus, bad faith or recklessness cannot be inferred from said omission.
The fact that the confidential informant (or cooperating individual) is a convicted felon does affect her trustworthiness. However, the affiant did indicate that the confidential informant is reliable and that she has provided the DEA with accurate information on at least twenty (20) occasions (Affidavit of Gerald R. Kopp, September 7,1984, ((hereinafter Kopp Affidavit)), at 3-4). Affiant further indicated that the confidential informant has provided information to local police departments which has resulted in at least fifteen (15) arrests (Kopp Affidavit, at 4). The confidential informant’s reliability with regard to other cases is sufficient to overcome any inference of untrustworthiness which could be drawn from the fact that the confidential informant is a convicted felon.
In addition, the Court concludes that the affiant’s failure to advise the Magistrate of Dr. McCarthy’s diagnosis is irrelevant to the finding of probable cause, and, thus, not clearly critical. The confidential informant indicated that prescriptions had been issued by Dr. McCarthy and Mary McCarthy without any physical examination or after only a cursory examination (Kopp Affidavit, at 4, 49-50). Further, the confidential informant indicated that she told Dr. McCarthy and Mary McCarthy that she traded, sold, or abused the substances which Dr. McCarthy and/or Mary McCarthy prescribed (Kopp Affidavit, at 6). The key fact which the affiant is attempting to establish is not necessarily that Dr. McCarthy failed to provide a diagnosis, but, rather, that he failed to properly examine his patients before prescribing controlled substances. Even if a person is legitimately ill, a doctor’s office or pharmacy is not a candy store at which controlled substances may be obtained (through purchase or prescription) at will. The failure to provide a proper physical examination can be evidence that controlled substances are not being prescribed for legitimate ethical, medical uses.
Finally, the Court concludes that the affiant’s failure to inform the Magistrate that the medical records of the informant could have been obtained upon request and/or that affiant made no attempt to obtain the medical records of the informant or have an independent medical examination of the informant conducted is also irrelevant. Once again, it is important to remember that it is Dr. McCarthy’s alleged failure to examine which is important, not the state of his patients’ health.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 1 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
2. Alleged Omission #2
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate of the fact that “[a]ny and all drugs which Dr. McCarthy had prescribed had legitimate, ethical, medical uses. (Transcript, p. 183, lines 9-11).” (Doc. #43, at 6). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #2 is clearly critical, and thus, bad faith or recklessness on the part of the affiant cannot be inferred from said omission.
The affiant did not say that the drugs prescribed lacked legitimate medical, ethical uses, nor did he imply that such is the case. There is nothing in the affidavit which would indicate to the Magistrate that Dr. McCarthy was prescribing and/or selling “street” drugs. The affiant could reasonably have assumed that the Magistrate would believe that the controlled substances to which the affidavit referred had legitimate, medical, ethical uses.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #2 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
3. Alleged Omission #3
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate of the fact that “[t]he affiant made no attempt to inquire of the other individuals, who the informant had identified as being recipients of prescriptions for non-therapeutic purposes, as to the state of their health (Transcript, p. 182, line 18 through page 183, line 4).” (Doc. # 43, at 6). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #3 is clearly critical, and thus, bad faith or recklessness on the part of the affiant cannot be inferred from said omission.
It is important to note that the affiant did not mislead the Magistrate as to the state of the health of the “other individuals”. Nowhere in the affidavit does the affiant indicate that he had inquired of their health. Further, it is quite probable that such an inquiry would have been futile. If a person is obtaining prescriptions for non-medical purposes, that person is hardly likely to inform an agent of the DEA that he or she is in perfect health.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #3 is clearly critical to the Magistrate’s finding of probable cause, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
4. Alleged Omission #J¿
Dr. McCarthy next asserts that the affiant acted recklessly or in bad faith in failing to apprise the Magistrate of the fact that “[t]he affiant could have obtained the medical records of John Hamm, one of the four other individuals identified by the informant, by requesting same (Transcript, p. 182, lines 1-5).” (Doc. #43, at 6). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 4 is clearly critical, and thus it cannot be inferred that affiant acted recklessly or in bad faith with regard to said omission.
As previously discussed, it is not the role of the affiant to prove guilt beyond a reasonable doubt or to an absolute certainty. Dr. McCarthy would require more of the affiant in the way of proof than the law requires. The affiant in no way misled the Magistrate. He never stated that he could not have obtained Mr. Hamm’s medical records, nor did he state that he had obtained Mr. Hamm’s medical records. The key allegation with regard to Mr. Hamm is the fact that he was given controlled substances without a physical examination. The DEA was simply not required to complete its investigation prior to seeking a search warrant.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #4 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
5.Alleged Omission #5
Dr. McCarthy further asserts that the affiant recklessly or in bad faith omitted the fact that “[t]he affiant had knowledge that the only individual who received a prescription for Dilaudid, without physically presenting himself in Dr. McCarthy’s office (see pages 33 and 34 of the Affidavit), was suffering from terminal cancer (Transcript, p. 184, lines 6-18) and has since expired.” The Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 5 is clearly critical, and thus, the Court may infer that said omission was recklessly made.
The testimony of the affiant, Gerald Kopp, at the evidentiary hearing held by this Court indicates that the testimony at pp. 33 and 34 of Mr. Kopp’s affidavit concerned Mr. Gaskey, the confidential informant’s uncle. The crux of the testimony presented at pp. 33 and 34 of the affidavit is that the confidential informant was able to obtain a prescription for sixty (60) Dilau-did for a sick relative without bringing said relative in for a physical examination. Although the affiant was aware that Mr. Gaskey was suffering from cancer, he failed to inform the Magistrate of this fact (Transcript, at 184). Dr. McCarthy testified that Mr. Gaskey had previously been diagnosed as being terminally ill and that the only reason why the confidential informant was given Mr. Gaskey’s medication was that Mr. Gaskey himself was too ill to visit Dr. McCarthy’s office (Transcript, at 322).
As previously noted, affiant’s key allegation in this case is that Dr. McCarthy was dispensing and/or prescribing controlled substances without conducting a proper physical examination. With regard to the vast majority of patients, under such a theory or allegation, diagnosis is not material to the finding of probable cause. As a general rule, regardless of a patient’s diagnosis, the prescription of controlled substances without a proper physical examination indicates that there may well be no medical purpose for the prescription. Mr. Gaskey, however, provides the exception to the general rule. The fact that Mr. Gaskey had terminal cancer is critical to the determination of the propriety of Dr. McCarthy’s actions with regard to Mr. Gaskey. The Court is not saying that the knowledge of Mr. Gaskey’s illness would necessarily have convinced the Magistrate that Dr. McCarthy’s actions were proper. However, the Court finds that this is definitely a fact of which the Magistrate would have wished to have been made aware.
Based upon the foregoing, the Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission #5 is clearly critical, and thus, it can be inferred that said omission was recklessly made. Accordingly, this Court concludes that all material pertaining to Mr. Gaskey must be set aside, and the Court must determine whether “the affidavit’s remaining content is [sufficient or] insufficient to establish probable cause....” Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77. The Court further concludes that the information related to Mr. Gaskey is contained on pp. 5, 33, and 34 of Agent Kopp’s affidavit.
6. Alleged Omission #6
Dr. McCarthy further asserts that the affiant recklessly or in bad faith omitted the fact that “[t]he affiant made absolutely no effort to learn the status of the health of the remaining 1,150 (or 1517) patients whose charts were ultimately removed from the premises prior to the execution of the Affidavit (Transcript, p. 185, lines 1-4).” (Doc. # 43, at 7). This Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 6 is clearly critical, and thus it cannot be inferred that said omission was made recklessly or in bad faith.
The affiant did not claim to know the status of the health of Dr. McCarthy’s remaining patients. The very purpose of obtaining the search warrant was to enable the DEA to investigate Dr. McCarthy’s relationship with his other patients. Further, any inquiries as to the health of the remaining patients would probably have been futile. It is doubtful that very many persons would admit that the prescriptions which they were obtaining were unnecessary.
Once again, it appears that Dr. McCarthy would have this Court require the affiant to produce proof of guilt beyond a reasonable doubt or guilt to an absolute certainty before obtaining a search warrant. As previously noted, neither standard nor degree of proof is required for the issuance of a search warrant.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #6 is clearly critical, and thus this Court cannot conclude that the affiant made this omission recklessly or in bad faith.
7. Alleged Omission #7
Dr. McCarthy next asserts that the affiant recklessly or in bad faith omitted the fact that “[t]he affiant had ‘no idea’ whether or not Dr. McCarthy’s remaining patients (other than the five identified patients) were receiving drugs for ethical, medical purposes (Transcript, p. 185, lines 5-9).” (Doc. #43, at 7). For the same reasons discussed with regard to Alleged Omission # 6, this Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 7 is clearly critical, and thus, this Court cannot con-elude that said omission was made recklessly or in bad faith.
8. Alleged Omission #8
Dr. McCarthy also asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he affiant had reviewed search warrant paperwork which indicated that the Dayton Police Department had already seized the medical records of Gail Hamm, John Hamm, Roger Taylor, and Robert Taylor, the individuals suspected of having received prescriptions for non-therapeutic purposes from Dr. McCarthy (Transcript, page 215, line 3 through page 216, line 7, and Exhibit A and Exhibit B).” (Doc. # 43, at 7). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #8 is clearly critical, and thus, the Court cannot infer that said omission was made recklessly or in bad faith.
The medical records of Gail Hamm, John Hamm, Roger Taylor, and Robert Taylor were confiscated by the Dayton Police Department in 1979 (Transcript, at 213). The affiant was seeking a search warrant in September, 1984. Clearly, five year old records would not have greatly aided the Magistrate in determining whether probable cause existed in 1984.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #8 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
9. Alleged Omission #9
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he informant never purchased drugs from Dr. McCarthy, but received prescriptions (Transcript, page 189, lines 5 & 6).” (Doc. # 43, at 7). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #9 is clearly critical, and thus, the Court cannot infer that said omission was made recklessly or in bad faith.
This Court concludes that the affiant was quite specific with regard to the fact that the confidential informant generally received prescriptions for various controlled substances, and not the controlled substances themselves. (See Kopp Affidavit, at 4, 5, 7, 8, 42, 43, 44, 45, and 49). This Court does not believe that Agent Kopp’s testimony that the confidential informant did not purchase anything from Dr. McCarthy was intended by Kopp to indicate that the affidavit incorrectly stated that the confidential informant had received controlled substances themselves from Dr. and Mrs. McCarthy on occasion (Transcript, at 189). This Court concludes that what Agent Kopp was trying to convey was that Dr. McCarthy was basically involved in dispensing prescriptions and not controlled substances themselves and that when prescriptions were issued, the confidential informant received the actual controlled substance elsewhere. Further, even if the occasions upon which the confidential informant allegedly received controlled substances themselves from Dr. or Mrs. McCarthy are disregarded, there is still substantial evidence with regard to improprieties in the prescription of controlled substances.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #9 is clearly critical to the Magistrate’s finding of probable cause. Thus, this Court cannot conclude that said omission was made recklessly or in bad faith.
10.Alleged Omission #10
Dr. McCarthy further asserts that the affiant recklessly or in bad faith failed to inform the Magistrate of the fact that “[t]he primary access to Dr. McCarthy’s office to patients is off of the front porch off of North Main Street, and the affiant made no attempt to determine who or how many individuals came in and out the primary door or to set up any surveillance on the primary access door to the office (Transcript, page 191, line 20 through page 193, line 8).” (Doc. #43, at 1). The Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 10 is clearly critical, and thus, that it may be inferred that the affiant recklessly made said omission.
The affiant is basically alleging that prescriptions for controlled substances were issued when Dr. McCarthy was absent from his office, and that persons who were not present at Dr. McCarthy’s office were receiving prescriptions for controlled substances. Clearly, the Magistrate could not make an informed decision as to a person’s presence or absence based upon DEA surveillance without knowledge that there was another entrance which was not under surveillance.
Based upon the foregoing, the Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 10 is clearly critical, and thus, the Court may infer that said omission was recklessly made. Accordingly, this Court must determine, whether after the material cited in footnotes 3 and 4 is set aside, there remains sufficient evidence within the affidavit to establish probable cause.
11. Alleged Omission #11
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he affiant had no means of knowing whether or not the individuals to whom medication was prescribed by Dr. McCarthy were personally examined by Dr. McCarthy (Transcript, page 202, lines 8-13).” (Doc. #43, at 8). This Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 11 is clearly critical, and thus, the Court may infer that said omission was recklessly made.
The Court’s conclusion that Dr. McCarthy has met his burden of establishing that Alleged Omission # 11 is clearly critical is based upon the sanie analysis employed with regard tó Alleged Omission # 10. The Court concludes that Alleged Omission # 11 is critical only insofar as it relates to situations in which the affiant’s allegations were based solely upon the surveillance of the DEA. 1 Where there is independent evidence that a patient for whom controlled substances was prescribed was not examined, it cannot be said that the affiant had no means of knowing whether or not said patient was personally examined by Dr.' McCarthy.
Based upon the foregoing, the Court concludes that Dr.. McCarthy has met his bur: den of establishing that Alleged Omission # 11 is clearly critical as it relates to those allegations based solely upon the DEA’s surveillance. Thus, as Alleged Omission # 11 relates to said surveillance, the Court can infer that this omission was recklessly made. Accordingly, the. materials cited in footnote 4, relating to the absence of particular patients, will .be set aside, and the Court will consider the sufficiency of the affidavit’s remaining evidence in determining the existence of probable cause.
12. Alleged Omission #12
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he affiant had no idea whether or not the persons to whom prescriptions were written by Dr. McCarthy actually received the medication (Transcript, page 202, lines 14-18).” (Doc. # 43, at 8). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 12 is clearly critical, and thus, the Court may not infer that said omission was made recklessly or in bad faith.
The Court notes that affiant did not indicate to the Magistrate that the persons to whom prescriptions for controlled substances were issued did or did not receive said substances. Once again, the affiant’s key allegation is that the persons to whom prescriptions for controlled substances were issued were not present, and thus, could not have been physically examined. Whether such persons actually received the prescribed medication is irrelevant for such a fact would not establish that the controlled substances were prescribed for legitimate medical purposes.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 12 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
13. Alleged Omission #13
Dr. McCarthy further asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he affiant had no idea whether or not the persons to whom prescriptions were written actually had medical conditions which required the ethical prescription of pharmaceuticals (Transcript, page 202, lines 19-23).” (Doc. # 43, at 8). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 13 is clearly critical, and thus, the Court cannot infer that said omission was made recklessly or in bad faith.
The affiant did not represent to the Magistrate that the individuals to whom prescriptions were written did not have medical problems. Once again, the key consideration is not whether such individuals had medical problems, but instead, whether such individuals were examined prior to the issuance of a prescription for a controlled substance. In addition, Dr. McCarthy once more appears to be requesting that this Court demand proof to an absolute certainty or beyond a reasonable doubt when such is not the standard upon which the issuance of search warrants is based. In seeking the search warrant, the DEA was attempting to determine whether Dr. McCarthy was indeed prescribing controlled substances for legitimate, medical reasons.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 13 is clearly critical, and thus, the Court cannot infer or conclude that said omission was made recklessly or in bad faith.
14. Alleged Omission #14
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he affiant knew that the only rational way to determine the potency of drugs was by stating the strength in milligrams and that no attempt was made to advise the Magistrate as to the potency of any drug that Dr. McCarthy was prescribing (as opposed to purchasing) ... stated in terms of milligrams (Transcript, page 217, line 18 through page 218, line 10), not ‘unit doses’ as was stated in the affidavit.” (Doc. # 43, at 8). The Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 14 is clearly critical to the Magistrate’s determination as said omission relates to the comparison found on pages 47 through 49 of Agent Kopp’s affidavit. Accordingly, the Court concludes that it may infer that said omission was recklessly made.
The affiant does compare the dosage units of certain controlled substances prescribed by Dr. McCarthy with those dosage units purchased by Grandview and Miami Valley Hospitals (Kopp Affidavit, at 47-49). However, information concerning the total number of milligrams is provided only with regard to the prescriptions/purchases of Valium and Placidyl (Kopp Affidavit, at 49). There is nothing in the affidavit to indicate that all dosage units of a particular drug are not equal. Without the knowledge that the potency of dosage units can differ (and as the affiant was directly comparing the prescriptions/purchases), the Magistrate may well have presumed that all dosage units of a particular controlled substance are equal. As the potency of the dosage units prescribed by Dr. McCarthy may have differed from that of the dosage units prescribed by Grandview and/or Miami Valley, such a presumption is quite simply unfair to Dr. McCarthy. Differences in dosage or potency could have a significant impact upon the comparison which the affiant is attempting to make. Dr. McCarthy might have been prescribing medication with a lower dosage. As a result, two or more of the pills prescribed by Dr. McCarthy might be the equivalent of one of the pills purchased by Grandview or Miami Valley.
Based upon the foregoing, the Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 14 is clearly critical, and that the Court may infer that said omission was recklessly made. Accordingly, the Court concludes that the material concerning the comparison of Dr. McCarthy’s prescriptions to the purchases made by Grandview Hospital and Miami Valley Hospital (with the exception of that material regarding the prescription/purchase of Valium and Placidyl) must be set aside, and the Court must determine whether the affidavit’s remaining evidence is sufficient to establish probable cause.
15. Alleged Omission #15
Dr. McCarthy next asserts that the affiant recklessly or in bad faith omitted the fact that:
Although attempting to characterize Dr. McCarthy as writing prescriptions excessively, the affiant made no attempt to relate the total number of milligrams or unit doses of any of the drugs listed to the size of Dr. McCarthy’s patient load or the manufacturer’s suggested daily dosage for any of the drugs (Transcript, page 224, line 12 through page 225, line 7). (Affiant admitted on cross examination that there was, in fact, no one substance that there were too many of during the relevant time period indicated in the Affidavit to indicate that Dr. McCarthy was prescribing to more than his patient load (Transcript, page 227, lines 8-11).)
(Doc. # 43, at 8). The Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission #15 is clearly critical, and thus, that it may be inferred that said omission was recklessly made.
On page 51 of his Affidavit, Agent Kopp provides a list of those controlled substances purchased by Dr. McCarthy between January 1,1983 and March 29, 1984. This Court concludes that the sheer number of drugs purchased by Dr. McCarthy is meaningless unless there is some indication as to the amount of drugs which could conceivably be legitimately prescribed during the purchase period. While of course relating the total number of milligrams or unit doses to the size of Dr. McCarthy’s patient load or to the manufacturer’s suggested daily dosage would not be disposi-tive (for every patient might not have a legitimate, medical need for controlled substances), this type of information could at least give the Magistrate some point of reference.
Based upon the foregoing, the Court concludes that Dr. McCarthy has met his burden of establishing that Alleged Omission # 15 is clearly critical and that the Court may infer that said omission was recklessly made. Accordingly, the Court must set aside the information provided with regard to Dr. McCarthy’s purchase of Schedule III controlled substances (Kopp Affidavit, at 51) and consider whether the Affidavit’s remaining evidence is sufficient to support a finding of probable cause.
16. Alleged Omission #16
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[a]ffiant made absolutely no comparison of Dr. McCarthy’s practice of writing prescriptions with other physicians prior to applying for the search warrant (Transcript, page 206, line 8 through page 207, line 9).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 16 is clearly critical, and thus that it cannot be inferred that said omission was made recklessly or in bad faith.
Once again, it is important to note that the affiant was attempting to establish probable cause, not proof beyond a reasonable doubt or to an absolute certainty. It might well be that evidence concerning other physicians’ practice of writing prescriptions would be relevant in a trial upon the merits. However, the inclusion of such evidence in an affidavit in support of a search warrant would probably have been unwise. One doctor’s medical practice is not necessarily comparable to that of another. The affiant could well have unintentionally misled the Magistrate by attempting to compare Dr. McCarthy’s practice of writing prescriptions with that of another physician.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 16 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
17.Alleged Omission #17
Defendant next contends that the affiant recklessly or in bad faith omitted the fact that “Thomas H. McCarthy, D.O., was a physician in good standing licensed by the Ohio Medical Board (Transcript, page 205, lines 3-5).” (Doc. #43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 17 is clearly critical, and thus, it cannot be inferred that said omission was made recklessly or in bad faith.
The Court notes that the affiant did indicate that Dr. McCarthy was a doctor of osteopathy (Kopp Affidavit, at 1), and that he was registered to administer, dispense and prescribe controlled substances (Kopp Affidavit at 51). There was no reason for the Magistrate to assume that Dr. McCarthy was unlicensed, and this Court cannot conclude that affiant was required to state the obvious.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 17 is clearly critical, and thus the Court cannot conclude that said omission was made recklessly or in bad faith.
18. Alleged Omission #18
Dr. McCarthy further asserts that the affiant recklessly or in bad faith failed to tell the Magistrate that “Mary McCarthy was a licensed, registered nurse (Transcript, page 203, lines 7 & 8 and lines 20-23).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 18 is clearly critical, and thus, that there can be no inference that said omission was made recklessly or in bad faith.
The affiant did indicate that Mary Elizabeth McCarthy did not have a medical license or a DEA registration (Kopp Affidavit, at 51). Whether Mrs. McCarthy was a registered nurse or not, she was not registered to prescribe controlled substances, and that is what is truly important about the allegations concerning Mrs. McCarthy.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 18 is clearly critical. Accordingly, the Court cannot conclude that the affiant made said omission recklessly or in bad faith.
19. Alleged Omission #19
Dr. McCarthy next asserts that the affiant knowingly or in bad faith failed to inform the Magistrate that “[t]he affiant intended to include a State of Ohio Medical Board investigator on the raid even though the medical records sought by the affiant were ones which were protected by a stay of execution procured by Dr. McCarthy (Transcript, page 243, line 15 through page 244, line 5, and page 254, lines 5-20).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 19 is clearly critical, and thus, that the Court cannot infer that said omission was made recklessly or in bad faith.
The persons involved in a particular search are not relevant to the issue of probable cause. The presence or absence of a State of Ohio Medical Board investigator simply did not impact upon the “probability that contraband or evidence of a crime” would be found at 1328 North Main Street. Gates, 462 U.S. at 238, 103 S.Ct. at 2332.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 19 is clearly critical, and thus, that the Court cannot conclude that the affiant made said omission recklessly or in bad faith.
20. Alleged Omission #20
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[t]he affiant had no idea as to what Dr. McCarthy was or was not charging for [i.e. whether he was charging by the prescription or by the office call] (Transcript, page 290, lines 6-9).” (Doc. #43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 20 is clearly critical, and thus, this Court cannot infer that said omission was made recklessly or in bad faith.
Whether Dr. McCarthy was charging by the office call or by the prescription, the prescription of controlled substances in the absence of a proper physical examination is evidence of a violation of 21 U.S.C. § 841.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #20 is clearly critical to the Magistrate’s finding of probable cause. Therefore, the Court cannot conclude that said omission was made recklessly or in bad faith.
21. Alleged Omission #21
Dr. McCarthy further asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[a]ffiant had no information concerning irregular billing practices employed by Dr. McCarthy (Transcript, page 290, lines 23-25).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 21 is clearly critical, and thus, that the Court cannot infer that the affiant made said omission recklessly or in bad faith.
The reasoning applied with regard to Alleged Omission # 20 is equally applicable to Alleged Omission # 21. Evidence concerning irregular billing is simply not crucial to a finding of probable cause. Once again, Dr. McCarthy would have this Court require the affiant to establish proof beyond a reasonable doubt or to an absolute certainty when all that is required is a probability. Probable cause does not require proof beyond a reasonable doubt.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #21 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
22.Alleged Omission #22
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[a]ffiant had no evidence to indicate that Dr. McCarthy was the recipient of large quantities of money (Transcript, page 201, lines 4-6).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 22 is clearly critical to the Magistrate’s finding of probable cause. Therefore, the Court cannot infer that said omission was made recklessly or in bad faith.
Nowhere is it written that all of those engaged in the illicit drug trade possess large quantities of money. Dr. McCarthy did not have to be making a large profit (or retaining any profit that he made) in order to be violating 21 U.S.C. § 841.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 22 is clearly critical, and thus, the Court cannot conclude that this omission was made recklessly or in bad faith.
23. Alleged Omission #23
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[a]ffiant had no evidence to indicate that Dr. McCarthy was disposing of large quantities of money (Transcript, page 201, lines 7-9).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 23 is clearly critical to the Magistrate’s finding of probable cause, and thus, the Court cannot infer that said omission was made recklessly or in bad faith.
The analysis applied to Alleged Omission # 22 is equally applicable to Alleged Omission #23. While possessing or spending large sums of money may be evidence of illegal drug sales, the fact that one does not possess or spend such money does not necessarily indicate that one is not engaging in such sales.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 23 is clearly critical, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
24. Alleged Omission #24
Dr. McCarthy further asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that “[tjhere was nothing about Dr. McCarthy’s personal finances that indicated that he had at his disposal large quantities of money normally associated with drug pushers (Transcript, page 291, lines 10, 23).” (Doc. # 43, at 9). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 24 is clearly critical to the Magistrate’s finding of probable cause, and thus, this Court cannot infer or conclude that said omission was made recklessly or in bad faith.
The analysis applied to Alleged Omission # 22 and Alleged Omission # 23 is equally applicable to Alleged Omission # 24. Once again, the Court must note that the affiant need not establish proof beyond a reasonable doubt or proof to an absolute certainty. In effect, Dr. McCarthy’s counsel is faulting the affiant for not raising issues that he himself would raise during any trial on the merits concerning this matter.
Based upon the foregoing, this Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 24 is clearly critical, and thus, this Court cannot conclude from said omission that said omission was made recklessly or in bad faith.
25.Alleged Omission #25
Dr. McCarthy next asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that:
The only activity of Dr. McCarthy concerning the prescribing of pharmaceuticals to patients, of which the affiant had knowledge, for fourteen (14) months proceeding the raid was Gail Hamm, whose medical records affiant could have obtained on request. Gail Hamm was sent out the day before the raid for “one more” controlled visit in order to save a search warrant and affidavit which was obviously based upon stale information (Transcript, page 190, line 20 through page 191, line 5), since all of the Affidavit had been typed out prior to sending the informant on a controlled visit on September 6, 1984 (Transcript, p. 260, lines 9-13).
(Doc. #43, at 10). The Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 25 is clearly critical, and therefore that the Court cannot infer that said omission was made recklessly or in bad faith.
The Court will discuss the “staleness” of the information provided in Agent Kopp’s affidavit in greater detail in Section B of this Decision. With regard to Alleged Omission # 25, the Court finds the amount of detail provided by the affiant to be dis-positive. The affiant clearly noted the dates on which illegal activity was suspected. No effort was made to conceal any gaps of time. Any such gaps of time were obvious to the Magistrate.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 25 is clearly critical to the Magistrate’s finding of probable cause, and thus, the Court cannot conclude that said omission was made recklessly or in bad faith.
26. Alleged Omission #26
Finally, Dr. McCarthy asserts that the affiant recklessly or in bad faith failed to inform the Magistrate that:
The affiant knew the total quantity of drugs prescribed by Dr. McCarthy (Transcript, page 228, lines 4-13), which was admitted to be less than enough to supply a medical practice of 1,500 patients. The attribution of the distribution of 50 percent of the illicit controlled substances in Dayton and 10 percent in Hamilton (Transcript, page 227, lines 21-23), when the affiant made no attempt to determine the total (Transcript, page 229, lines 12-19) or consider the numerous substances which fit that description, was a blatant attempt to conceal and/or distort what the, affiant knew to be true in order to procure the acquiesence of the Magistrate to the characterization of Dr. McCarthy as a drug pusher (Transcript, page 231, line 1 through page 233, line 20).
(Doc. #43, at 10). This Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission # 26 is clearly critical to the Magistrate’s finding of probable cause, and thus, the Court cannot infer that said omission was made recklessly or in bad faith.
In his affidavit, Agent Kopp merely states that he was told that Dr. McCarthy supplied 50 percent of the controlled substances illicitly sold in Dayton, Ohio (Kopp Affidavit, at 2), and that he was told that Dr. McCarthy supplied 10 percent of the controlled substances illicitly sold in Hamilton, Ohio (Kopp Affidavit, at 3). Agent Kopp does not indicate that these figures were the result of a scientific survey, nor does he indicate whether he feels that these figures are accurate. The affiant could safely assume that the Magistrate was not going to place great reliance upon these figures.
Based upon the foregoing, the Court concludes that Dr. McCarthy has not met his burden of establishing that Alleged Omission #26 is clearly critical to the Magistrate’s finding of probable cause and thus, the Court cannot conclude that the affiant made said omission recklessly or in bad faith.
1. The Existence of Probable Cause and the Remaining Content of the Affidavit
“The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively.” Stanert, 762 F.2d át 782. Thus,' this Court is faced with determining whether taken cumulatively, Alleged Omission # 5 (which relates to Dr. McCarthy’s treatment of Mr, Gasky), Alleged Omission # 10 (which relates to the reliability of the DEA’s surveillance of Dr. McCarthy’s office), Alleged Omission # 11 (which also relates to the reliability of the DEA’s surveillance of Dr. McCarthy’s office), Alleged Omission # 14 (which relates to the comparison of Dr. McCarthy’s prescriptions to the purchases made by Grandview Hospital and Miami Valley Hospital), and Alleged Omission # 15 (which relates to Dr. McCarthy’s purchase of Schedule III controlled substances) were material to the Magistrate’s determination of probable cause. Franks, 438 U.S. at 156, 98 S.Ct. at 2676-77. The Court concludes that even when those portions of the Affidavit which were effected by said omissions are set to one side, the Affidavit’s remaining content is sufficient to establish probable cause.
First, even after the information based solely upon the DEA’s surveillance (Alleged Omission # 10, Alleged Omission # 11) is set aside, there is evidence that even during periods in which Dr. McCarthy was absent from his office, large quantities of controlled substances were prescribed and/or dispensed. Detective Mark J. Varv-el of the Dayton Police Department Organized Crime Unit indicated that he visited Dr. McCarthy’s offices as a patient on February 18, 1983 (Kopp Affidavit, at 33). At that time, Mary McCarthy stated that Dr. McCarthy was home sick with the flu (Kopp Affidavit, at 33). However, Mary McCarthy dispensed tablets to both Detective Varvel and the confidential informant (Kopp Affidavit, at 33). Said tablets were later analyzed at the Miami Valley Regional Crime Laboratory and found to be a Schedule III controlled substance known as SBP (Kopp Affidavit, at 34). Further, when the affiant reviewed the prescriptions seized from Kalt Rexall Drugs, he discovered “108 prescriptions for controlled substances, dated February 18, 1983 [the same date as Varvel’s visit to Dr. McCarthy’s office], bearing Dr. McCarthy’s signature and listing Dr. McCarthy as the issuing physician.” (Kopp Affidavit, at 34). The affidavit also indicates that on May 10, 1983, Detective Varvel and the confidential informant once again visited Dr. McCarthy’s office and once again were informed that Dr. McCarthy was home sick (Kopp Affidavit, at 38-39). Mary McCarthy informed Detective Varvel and the confidential informant that Dr. McCarthy would not return until May 12, 1983 (Kopp Affidavit, at 39). Detective Varvel and the confidential informant returned to Dr. McCarthy’s office on May 12,1983, only to be informed that Dr. McCarthy was still ill and would be out of the office until May 16, 1983 (Kopp Affidavit, at 39). When the affiant reviewed the prescriptions seized from Kalt Rexall Drugs for the dates May 10, 1983, May 11, 1983, May 12, 1983, and May 13, 1983, (dates upon which Dr. McCarthy was supposedly home sick) the affiant discovered 58 prescriptions for controlled substances, dated May 10, 1983 and listing Dr. McCarthy’s signature or naming Dr. McCarthy as the issuing physician; 43 prescriptions for controlled substances, dated May 11, 1983, and listing Dr. McCarthy’s signature or naming Dr. McCarthy as the issuing physician; 84 prescriptions for controlled substances, dated May 12,1983, and listing Dr. McCarthy’s signature or naming Dr. McCarthy as the issuing physician; and 45 prescriptions for controlled substances, dated May 13, 1983, and listing Dr. McCarthy as the issuing physician. (Kopp Affidavit at 35-38).
Further, even after the information relating to Mr. Gasky (Alleged Omission # 5) and the information based solely upon the DEA’s surveillance (Alleged Omission # 10 and Alleged Omission # 11) are set aside, there is evidence that Dr. McCarthy was prescribing controlled substances for persons who were not even present at his office. The confidential informant told the affiant that she had been gett