The Fourth Amendment provides two interrelated protections for persons subjected to searches and seizures: (1) they must be reasonable; and (2) there must be some proper basis for warrants to authorize searches and seizures. These provisions are related in that the reasonability of a search or seizure is usually defined by reference to whether it was performed with a proper warrant. Warrants are issued by a judge who reviews the evidence presented by the police or prosecutor on the basis for the probable cause that the warrant will lead to evidence and what that evidence is. Probable cause can be an informant’s tip, the statement of a witness, or leads developed by the police or others who are investigating the case.

The courts have carved out some exceptions to the requirement of a warrant. One deals with searches of the immediate vicinity of the suspect made for the purpose of finding weapons that might endanger the officers or others. Another is plain view exception: the police do not need a warrant for evidence that is in plain view. This can be on the car seat next to the driver, assuming that the car was stopped for a proper reason. It can be in a house if the officer is otherwise properly in the house. (The difficult cases for the plain view exception are those that involve technological aids such as telescopes, satellite cameras, infrared sensors, and other techniques that extend surveillance beyond the unaided eye.) Administrative searches, such as routine health and safety inspections, do not require a probable cause warrant. Although these can be done without a warrant, they are restricted to the public health purpose of the inspection—if the rat inspector finds a stash of cocaine, it cannot be used as evidence in a criminal prosecution. [Camara v. Municipal Ct. of San Francisco, 387 U.S. 523 (1967) .]

Search and seizure protections extend to everything that is not testimony. Blood samples, writing samples, records, phone taps, email, and every other form of physical evidence is protected by the Fourth Amendment. With a proper warrant, even confidential information such as patient records is subject to search and seizure. The seizure is literal: the police will physically take away any evidence that they find, with little regard for the impact on the defendant’s business. Medical records, business records, even computers that contain records are subject to seizure. In some Medicare fraud investigations, the government has gone into hospitals and practices with moving vans to haul away evidence.

The remedy for an improper search is the exclusion of the evidence from the trial. This exclusionary rule extends to all evidence that was found because of the original improperly obtained evidence—the “fruit of the poisoned tree” doctrine. The rationale for the exclusionary rule is that there is no other appropriate remedy because it is impossible to mitigate the damage that the evidence might do to the defendant’s case. In a sense it punishes the police for failing to get proper warrants or for not sticking to the terms of their warrants.

Evidentiary issues are complex in medical care because there are overlapping claims on who controls medical information. For example, a physician may own the paper that a medical chart is written on or the computer it is stored in, but patients also have a right to the information in their medical records. Patients can give permission for the police to have access to their medical records, even if those records will incriminate their physician. When medical care practitioners participate in Medicare or Medicaid, the terms of participation give the government inspectors access to the records that the claims are based on. The OIG can get these records without a warrant and refer any wrongdoing it finds to the DOJ for prosecution. Medical care practitioners should not expect to be able to protect any medical or business records from search and seizure in a criminal investigation. The best they can hope is to convince the judge to limit access to confidential information such as individual medical records.

If police or the FBI want to search a medical business, it is critical that all efforts be made to not give up any legal privilege or right of confidentially. If they do not have a search warrant, then they should not be allowed to enter the premises without your attorney present. If they push their way in, do not attempt to interfere with their actions, but stress that they are there without your permission. If they do have a search warrant, ask them to wait until you can talk to your attorney. They will probably not wait, but you must ask. Once the search is started, you should carefully monitor it. For an example of a protocol for monitoring a search, see Appendix 3–A.