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United States v. Chang

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

July 31, 2018

United States of America, Plaintiff,
v.
Zongli Chang, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

          Sean F. Cox United States District Court Judge

         Armed with a warrant, federal agents searched Defendant's residence on the morning of June 12, 2017. Their objective? To find and seize Defendant's cell phone, for which they had a second search warrant. They did so, and, after seizing the phone, they asked Defendant to unlock it using his passcode, which he did. Because agents had observed patient files in plain view, which they believed to be possible evidence of the suspected crimes, they also obtained Defendant's consent to conduct a full search of the home.

         Defendant has now moved to suppress all evidence seized from the search of his home and cell phone. He argues that the warrant for his cell phone lacked particularity, that the agents obtained his passcode in violation of Miranda, and that he did not voluntarily consent to the search of his residence. The Court disagrees and, for the reasons below, shall deny the motions.

         BACKGROUND

         Defendant, Zongli Chang, is charged with one count of conspiracy to distribute and possess with intent to distribute controlled substances, 21 U.S.C. §§ 841(a)(1), 846; thirty-nine counts of unlawful distribution of controlled substances, 21 U.S.C. § 841(a)(1); and three counts of health care fraud, 18 U.S.C. § 1347 (Doc. # 1). In June 2018, he filed two motions to suppress (Doc. # 106, 115). The Court held a hearing on these motions on July 13, 2018.

         At the hearing, the Government presented two witnesses-United States Department of Health and Human Services Officer of Inspector General Special Agent Michael Pemberton and Federal Bureau of Investigation Special Agent Andrew Crump. It also introduced several exhibits: a sign-in log for the execution of the search warrant at Defendant's residence, numerous pictures from the execution of that warrant, and an affidavit from FBI Special Agent Brent Toboy. The defense presented one witness-Defendant's son Jeffrey Chang-along with Defendant, who testified on his own behalf. The defense also introduced one exhibit-phone records from the day of the search.

         Now, having heard and observed the witnesses who testified at the evidentiary hearing, allowing for the Court to assess credibility, having considered the exhibits submitted by the parties, having considered the arguments presented by counsel, and having applied the governing legal principles, the Court makes the following findings of fact and conclusions of law.[1]

         FINDINGS OF FACT

         On June 9, 2017, Special Agents Michael Pemberton and Andrew Crump applied for search warrants for a cell phone, residence, and office, all associated with Defendant, Dr. Zongli Chang. At issue here are the warrants for the residence and the cell phone.

         Crump was the affiant for both warrants. In them, he averred that Defendant had written medically unnecessary prescriptions for controlled substances and had billed Medicare and other insurers for services that were not medically necessary and/or were not provided. Defendant had used the cell phone at issue to make appointments with patients who wanted to buy narcotic prescriptions. Crump also averred that, based on his experience and training, the phone would contain evidence of communication between co-conspirators and other materials relating to the crimes. More specifically, the affidavit noted that electronically stored information could serve as direct evidence of the specified crimes and that forensic evidence could establish how the phone was used, the purpose of its use, who used it, and when.

         Based on the affidavits, agents obtained both search warrants. The warrant for Defendant's residence specified only one item to be seized-Defendant's cell phone. The warrant for the cell phone authorized the seizure of:

All records and information on the Subject Devices described in Attachment A that constitute fruits, evidence, and instrumentalities of violations of Title 18, United States Code, Section 1347 (Health Care Fraud), and Title 21 United States Code, Section 841(a)(1) (Unlawful Distribution of Controlled Substances)., including but not limited to:
1. Content of all call logs, contact lists, text messages, emails (including those sent, received, deleted and drafted), instant messages, social media account activity (including browser history, web page logs, and search terms entered by the user), photos, WhatsApp content and other electronic media constituting evidence, fruits, or instrumentalities of the violations described above;
2. Evidence of user attribution showing who used or owned the devices at the time the things described in this warrant were created, edited, or deleted, such as for example, logs, phonebooks, saved usernames and passwords, documents, and browsing history;
3. Evidence of the times the devices were used;
4. Passwords, encryption keys, and other access devices that may be necessary to access the devices;
5. Contextual information necessary to understand the evidence described in this attachment, all of which constitute evidence, fruits and instrumentalities ...

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