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United States v. Rathburn

United States District Court, E.D. Michigan, Southern Division

October 11, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ARTHUR RATHBURN, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED FROM 8640 GRINNELL STREET, DETROIT, MICHIGAN PURSUANT TO A SEARCH WARRANT

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         On January 19, 2016, a Federal Grand Jury indicted Defendants Arthur Rathburn and his wife Elizabeth Rathburn. Defendant Arthur Rathburn was charged in all 13 counts; Elizabeth Rathburn was charged in only the first nine counts. The charges were as follows:

Both Defendants: Counts 1-9: Wire fraud, aiding and abetting; 18 U.S.C. §§1343 and 2
Defendant Arthur Rathburn: Count 10: Transportation of Hazardous Material, 49 U.S.C. §46312;
Counts 11-13: False Statements, 18 U.S.C. (§1001(a)(3)

         BACKGROUND

         The instant search warrant, signed by Magistrate Judge Mona K. Majzoub on December 6, 2013, is for a building located at 8640 Grinnell Street, Detroit, MI 48213: a single story brick and concrete warehouse. There is a 53-page affidavit in support of the search warrant. The search at issue is limited to the search of the Grinnell Street warehouse.

         The items to be seized include, inter alia, dead human bodies and human body parts including organs, tissues, bones, and parts thereof; records or documentation associated with bodies or body parts, fingerprints, DNA tissue samples or swabs, willed-body donor files; records associated with funeral homes, crematories in reference to bodies, domestic and international records of training attendance, shipping records, federal and state government records, any and all items related to, inter alia, International Biological, Inc. (a company owned by Mr. Rathburn), Rathburn Properties LLC, Rathburn Brothers LLC, Arthur Rathburn, Elizabeth Rathburn, including photos or videos, travel records, phone records, and barcode scanners. This includes computer evidence and storage media, software, passwords, hardware, etc.

         On August 3, 2016, Defendant Arthur Rathburn filed a Motion to Suppress the evidence seized accompanied by a 35-page brief. Co-Defendant Elizabeth Rathburn did not join in this Motion. On September 16, 2016, the Government filed its response in opposition to Defendant Arthur Rathburn's Motion to Suppress. Pursuant to E.D. Mich. L. R. 7.1(f)(2), the Court concludes that it is proper to rule without a hearing based on the four corners of the search warrant and the affidavit.

         PRELIMINARY ANALYSIS[1]

         A recent Sixth Circuit opinion authored by Judge Jeffrey Sutton, United States v. Raglin, F.App'x ___, 2016 WL 5754008, (6th Cir. Oct. 4, 2016) (unpublished), discusses the legal issues facing this Court in this Motion to Suppress:

Probable Cause. To justify a search, an officer must demonstrate "why evidence of illegal activity will be found in a particular place." United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). There must be a connection between the location of the search and the subject of the search.
* * *
Particularity. The Fourth Amendment requires a search warrant to "particularly describe[] the place to be searched, and the... things to be seized." The chief concern of the requirement is to prevent "[g]eneral warrants, " which "create a danger of unlimited discretion in the executing officer's determination of what is subject to seizure." United States v. Henson, 848 F.3d 1374, 1382 (6th Cir. 1988) (quotation omitted). The chief answer to that concern is to "require[e] a neutral judicial officer to cabin the scope of the search to those areas and items for which there exists probable cause that a crime has been committed." Baranski v. Fifteen Unknown Agents of the Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 441 (6th Cir. 2006) (en banc).
The degree of specificity required in a search warrant varies depending on (1) "what information is reasonably available to the police, " United States v. Ford, 184 F.3d 566, 575 (6th Cir. 1999), (2) "the crime involved, " as well as (3) "the types of items sought, " United States v. Richards, 659 F.3d 527, 537 (6th Cir. 2011).

2016 WL 5754008, at *2-3.

         While the Court recognizes that this search warrant lists many items to be seized, this is neither unusual nor illegal given the broad criminal investigation related to multiple bodies/body parts, and multiple individual actors, entities, and locations. The Court notes that the Grinnell Street structure appears to be a hub of the illegal activity. The items seized were clearly covered by the search warrant and relevant to the ongoing criminal investigation.

         With regard to the length of the investigation, the Court concurs with the United States description in it's Response of the ongoing criminal activities: "This is not an investigation involving ephemeral evidence [lasting briefly], such as illegal drug transactions. It is an investigation of the illegal dealings of an ostensibly legitimate business - and as such there are no staleness concerns." (ECF No. 49, p.9) (alteration added). Further ¶62 on Page 29 of the affidavit evidences Rathburn/IBI's attempt to send body parts into Canada as recently as in October, 2013, that were rejected by Canada as diseased.

         In this case the affidavit established an adequate connection between the Grinnell Street location, the nefarious criminal activity described in the affidavit, and the Federal crimes specified in the affidavit at Page 52, ¶117, Title 18 U.S.C. §§371, 1343, 2314, and 1001.

         Further, as to the challenge of the warrant being open-ended, Judge Sutton pointed out in Raglin: "Relatedly, other circuits have held that specifying that a search is for evidence of a particular crime can bring an otherwise open-ended list of items into compliance with the particularly requirement." 2016 WL 5754008, at *3. The Court recognizes that there is a legitimate market involving body donors, and commercial entities supplying cadavers and body parts to inter alia, Researchers and Universities. However, the instant search warrant affidavit is specifying criminal activity: "a vast gray and black market in dead human bodies and body parts [that] necessarily has many moving parts and players. This market is run by an organized group of international entrepreneurs buying, selling, and transporting human body parts throughout the United States and around the world." Affidavit ¶9, p.5.

         The affidavit asserts that the facts contained therein "establish probable cause that evidence, fruits, and instrumentalities of violations of conspiracy to commit wire fraud, interstate transportation of stolen property, and deception of the United States Government through false statements (Title 18, United States Code, sections 371, 1343, 2314, 1001) will be found at 8640 Grinnell Street" The affidavit defines "body-brokers" as "middlemen between those who first receive corpses and the end-users who are willing to pay handsomely for a steady supply. Although the activity of "body brokers" who buy and sell human cadavers, body parts and tissue - is not illegal, per se, - body broker business conducted in violation of Federal criminal statutes is the focus of this affidavit.

         8640 Grinnell Street is a business address of International Biological, Inc., a Rathburn-owned entity, "where human body parts are processed and stored, and ... this property is associated with International Biological, Inc. (LB.I.), and [According to Wayne County Register of Deeds website] has listed both Arthur Rathburn and Rathburn Properties, LLC as grantees." Affidavit ¶4, p.3.

         The affidavit also references "Body Broker" business entities located in other venues that have dealings with IBI: Illinois - Anatomical Services, Inc., Cremations Services Inc., and Biological Resource Center of Illinois, LLC, (BRCIL): Arizona-Biological Resource Center of Arizona (BRCAZ). Affidavit ¶¶ 5-7, p.4. Given the complexity of the criminal conduct alleged, in terms of the various entities involved and the many moving parts in this nationwide investigation, the Court concludes that the search warrant was not an illegal general warrant, nor did it authorize an over broad unlimited search.

         The Government's Response to Defendant's Motion to Suppress, contends, as is evident from reading the affidavit, that the Grinnell Warehouse was a hub of the international network of illegal buyer/seller activity relating to the buying, selling and disposing of body parts contrary to the will of donors.

         The affidavit was authored by an individual who became an FBI Special Agent in 2003, who has a Ph.D in the biological services, and prior to 2003 worked as a research scientist at the Center for Behavior Neuroscience. Affidavit ¶ 1, p.2. That background, while relevant to the credibility of the affidavit's discussion of scientific matters with regard to the business activity, doesn't give the Government a free pass in the ...


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