Dr. Farid Fata, who was indicted in the Eastern District of Michigan after he allegedly billed Medicare for patients’ medically unnecessary cancer treatments, has moved to suppress evidence gathered from his personal email account. Fata argues that a search warrant issued to Microsoft seeking “[a]ll stored electronic mail” and certain associated data from his Hotmail account was overbroad. Although Fata concedes that “[a]rguably, the allegations of the [affidavit in support of the warrant application] do provide probable cause to believe that at least some evidence of some criminal conduct would be contained in the emails sought,” he says the “difficulty with the affidavit, and with the warrant predicated on its allegations, is the breadth of the search they contemplate.”
Fata’s motion is based on the Fourth Amendment requirement that a warrant “particularly describe[e] the . . . things to be seized,” preventing the government from engaging in the type of “wide-ranging rummaging searches” that violate “the Constitution’s proscription against unreasonable searches and seizures.” Fata argues the search authorized here, one through all of his emails, is analogous to the type of “all records” searches of a business “that are ordinarily understood to be constitutionally overbroad and infirm unless ‘the government establishes probable cause to believe that the entire business is merely a scheme to defraud or that all of the business’s records are likely to evidence criminal activity.’” According to Fata, no facts alleged in the affidavit support such a wide-ranging search. Instead, it “would not have been a difficult task to limit the scope of the e-mail search to match the limited scope of the showing of probable cause. Easily searchable, filterable subject line and ‘header’ information would have allowed the searchers to retrieve only communications which pertain to particularly pertinent matters, came from or were sent to particular persons or places, and otherwise to narrow the scope of the intrusion.” Absent any such limitations, Fata claims the warrant violates the Fourth Amendment’s particularity requirement and the fruits of the search must be suppressed.