               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0818n.06

                                   Case Nos. 13-4236/4237                           FILED
                                                                               Oct 29, 2014
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )     ON APPEAL FROM THE UNITED
v.                                                 )     STATES DISTRICT COURT FOR
                                                   )     THE NORTHERN DISTRICT OF
B. ELISE MILLER,                                   )     OHIO
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )


BEFORE: SILER, BATCHELDER, and DONALD, Circuit Judges.

       SILER, Circuit Judge. This is a search warrant case. A specialty pharmacy in Ohio was

committing health care fraud. To obtain incriminating files, agents searched the pharmacy and

later the business owner’s home. The district court denied the owner’s motions to suppress the

fruits of these two searches, and this appeal followed. We AFFIRM.


                                              I.

       B. Elise Miller owned and operated Pharmaceutical Alternatives, Inc., which did business

as Three Rivers Infusion and Pharmacy Specialists (“Three Rivers”), a “specialty pharmacy.” In

addition to providing home health services and pharmaceutical supplies, Three Rivers offered

expensive drugs not typically carried by retail pharmacies. Among the specialty drugs available
Case Nos. 13-4236, 13-4237
United States of America v. B. Elise Miller

at Three Rivers was “Synagis,” a drug for infants with respiratory disease. In May 2008, special

agents with the Federal Bureau of Investigation (“FBI”) and the United States Department of

Health and Human Services (“DHHS”) joined an ongoing investigation by the state of Ohio

involving allegations that Three Rivers was over-billing various private and government health

insurance providers, including Medicaid, for its services and drugs, particularly its dispensing of

Synagis.

       Pursuant to the investigation, special agent Benjamin Unkefer of the DHHS authored an

affidavit in support of a warrant for the search of Miller’s business premises, which consisted of

Three Rivers, located at 238 Main Street in Coshocton, Ohio, and a retail pharmacy she operated

known as Miller Pharmacy, located in an adjacent building at 234 Main Street. Unkefer’s

affidavit described several examples of fraudulent billing involving Synagis.        Investigators

deduced that these billings were fraudulent by comparing patient records to claims for

reimbursement submitted by Three Rivers. The affidavit also identified the buildings to be

searched and described each building as a two-story structure.

       The magistrate judge found probable cause and authorized a warrant to seize numerous

records. The warrant had an attachment that included a list of specific patient files, most of

which involved Synagis. Agents conducted the search in August 2008 and seized several of the

listed files. But many of the listed patient files were missing.

       In December 2008, investigators made another attempt to recover the missing patient

files by serving an administrative health care subpoena on Three Rivers. Three Rivers turned

over the records of 21 additional patients, but ninety of the subpoenaed files were missing.

       In early December 2009, Miller’s housekeeper, Mary Richard, told FBI special agent

Quentin Holmes that she had gone to an attic storage area of Miller’s house to look for a


                                                -2-
Case Nos. 13-4236, 13-4237
United States of America v. B. Elise Miller

Christmas tree. There, she found a garbage bag containing what appeared to be patient files from

Three Rivers. A few days later, Holmes asked Richard to look in the bag again and tell him

some of the patient names that were visible on the file folders. Richard complied. Agents

compared those names to the names on the administrative subpoena and found that some of them

matched.

       Agents then applied for a warrant to search Miller’s residence. Holmes authored the

supporting affidavit.   The affidavit contained information from three former Three Rivers

employees, in which the former employees described a box of Synagis files that agents left

behind in a conference room after the August 2008 search. Two of these employees noticed that

the box later vanished from the pharmacy, and one of them said the box ended up at Miller’s

house. One paragraph of the affidavit also recounted Richard’s discovery of the box of files in

Miller’s attic, but it did not mention Richard’s subsequent trip to collect names from the files.

       Based on Holmes’s affidavit, the magistrate judge issued a warrant to search Miller’s

residence. There, agents found the files just as Richard had described them.

       Miller and her co-defendants moved to suppress the evidence seized in these two

searches. The district court denied the motions after a hearing. In this appeal, Miller proffers

two arguments that were not contained in her motions to dismiss, but that emerged from the

testimony gathered at the suppression hearing.

       Regarding the search of the pharmacies, Miller suggested at the hearing that when the

agents were searching the second floor of 238 Main Street, they crossed into an adjoining

building, with the street address of 240 and 240½ Main Street. Unkefer, the agent who led the

search, testified that, although the buildings seemed bigger than he expected on the inside, he

was not aware of ever having penetrated into an adjoining building. He said his agents entered


                                                 -3-
Case Nos. 13-4236, 13-4237
United States of America v. B. Elise Miller

the building only through the doors of the 234 and 238 Main Street addresses, and that their

search was limited to areas open to and accessible from those entryways. Unkefer said he had no

idea it was possible to enter the adjoining building through the second floor.

       Regarding the search of her residence, Miller’s motion claimed that Holmes provided

false testimony in his affidavit in support of the warrant. This claim subsequently morphed into

an argument that Miller’s housekeeper was acting as a government agent when she collected the

names from the files in the attic, and that this unreasonable search invalidated the warrant.


                                                II.

       When we review a district court’s decision on a motion to suppress, we review findings

of fact for clear error and conclusions of law de novo. United States v. Cochrane, 702 F.3d 334,

340 (6th Cir. 2012). When a district court has denied a motion to suppress, we review the

evidence “in the light most likely to support the district court’s decision.” United States v.

Pritchett, 749 F.3d 417, 435 (6th Cir. 2014) (quoting United States v. Adams, 583 F.3d 457, 463

(6th Cir. 2009)).


                                                III.

       We turn first to whether the search warrant for Miller’s residence was invalid. Miller

argues on appeal that her housekeeper was acting as an agent of the government when she found

the files in Miller’s attic, which renders the discovery an unreasonable government search in

violation of the Fourth Amendment.        If we redact the housekeeper’s information from the

affidavit supporting the warrant, Miller argues, then the affidavit fails to provide probable cause

to search her house.




                                                -4-
Case Nos. 13-4236, 13-4237
United States of America v. B. Elise Miller

       We have no need to address this argument because Miller did not properly present it to

the district court. Miller failed to raise this argument in her motions to suppress or their

supporting memoranda. Miller waived closing arguments at the suppression hearing, so the legal

argument was never developed there. Miller’s husband, her codefendant, submitted a post-

hearing “addendum” to his motion to suppress on December 5, 2012, which contained this

agency theory. But the district court declined to consider the addendum, and its twelve-page

order (dated December 7, 2012, and filed December 10) nowhere addresses Miller’s late-

blooming government agency argument. We deem it waived.


                                               IV.

       Miller also attacks the search of her two adjacent pharmacy businesses. She alleges that

the agents executing the warrant—which was issued for 234 and 238 Main Street—also entered

the adjoining building, 240 and 240½ Main Street, and therefore exceeded the scope of the

authorized search. All three buildings are what the district court described as “contiguous.”

       To determine whether a warrant describes with sufficient particularity the place to be

searched, courts must consider “(1) whether the place to be searched is described with sufficient

particularity as to enable the executing officers to locate and identify the premises with

reasonable effort; and (2) whether there is reasonable probability that some other premises may

be mistakenly searched.” Knott v. Sullivan, 418 F.3d 561, 568 (6th Cir. 2005) (quoting United

States v. Gahagan, 865 F.2d 1490, 1497 (6th Cir. 1999)). If agents exceed the scope of a valid

warrant, we will only exclude the seized evidence if the unauthorized portion of the search was

done in bad faith. See United States v. Leon, 468 U.S. 897, 919-22 (1984) (describing the “good

faith” exception to the Fourth Amendment exclusionary rule). When government agents act with

an “objectively reasonable good-faith belief,” or where their actions involve only simple

                                               -5-
Case Nos. 13-4236, 13-4237
United States of America v. B. Elise Miller

“isolated” negligence, exclusion of the evidence is not warranted. Davis v. United States, 131 S.

Ct. 2419, 2427-28 (2011) (internal quotation marks omitted).

       The district court made three explicit rulings on this argument. First, the court found that

the search warrant was constitutionally valid to the extent that it described with particularity the

place to be searched. Miller does not challenge this finding. The district court also considered

the witness testimony and found it “far from certain” that a third building was searched at all.

Even if a third building had been searched, the district court found that the agents acted in good

faith because they had an objectively reasonable belief that they remained at all times in the

locations delineated by the warrant.

       At the suppression hearing, special agent Unkefer, who led the search of the businesses,

reviewed a diagram of the search locations that was drawn by another agent for the benefit of the

search team. Unkefer agreed with defense counsel that it was possible that the notation on one

page of the drawing stating “stairs to the third floor” may have been a reference to stairs in the

adjoining building, 240 and 240½ Main Street. But, as Unkefer noted, the same page of the

diagram also labeled the search area as “Three Rivers: 238 Main St., Coshocton, OH, 2nd Floor

(East side of 3-Rivers).”

       Unkefer further testified that the search team entered the search locations only through

the front doors at 234 and 238 Main Street, not through the door of either 240 or 240½ Main

Street. He explained that, with respect to the second floor of Three Rivers, agents “moved

. . . fluidly through the building from one room to the other” and that no walls or other barriers

obstructed their access. Agents did not knock holes in any walls to access the space they

searched, nor did they remove any locks to do so. To the contrary, as Unkefer reiterated, the

agents were “not aware that we were moving to another address outside of 234 or 238 Main


                                               -6-
Case Nos. 13-4236, 13-4237
United States of America v. B. Elise Miller

Street during any time during the [execution of the] warrant.” The district court accredited this

testimony.

       It was by no means clear error for the district court to conclude that Miller did not meet

her burden of showing that agents entered the adjoining building. Nothing in the record leaves

us “with the definite and firm conviction that a mistake has been committed.” United States v.

Pritchett, 749 F.3d 417, 435-36 (6th Cir. 2014) (quoting United States v. Sanford, 476 F.3d 391,

394 (6th Cir. 2007)).

       We also agree with the district court’s legal conclusion that, even if the agents’ search of

the business premises violated the Fourth Amendment’s particularity requirement, any evidence

seized in violation of the warrant would remain admissible under the good-faith exception to the

warrant requirement. See Leon, 468 U.S. at 919-22. The uncontradicted testimony of the agent

who led the search was that, if members of his team passed into another building, they were

unaware of doing so.

       AFFIRMED.




                                               -7-
