would not sign the warrant and that is the position that the agents put the magistrate in here is that right i mean it's hard to imagine might the magistrate look and see if i put to one side the things you're going to tell me  were the most important aspects of probable cause particularly in light of the fact that they related to the undercover operation and the main background confidential source who was divided into two instead of one who was under investigation from claims against the united states and also for the employee of the clinic who was represented to have said that the m r eyes were outright false when really that individual had said to the agents that there was something strange there must want to have to run who was not in the first place where you should in the standing here is derived from multiple different sources first of all there's the fact that there is a source outside of property rights that provides standing here it is federal law that was and what is an it is also the american medical association ethics guidelines which state that the confidentiality between a doctor and a patient last even until after death this court in that  case in two thousand and joe versus broderick was examining patient records from a methadone clinic and in that case that this court said essentially medical records are a little bit different there was a federal statute providing an additional not with the doctor so joe is not exactly on point so does not answer the question here but it is an instructive in aware of the court looked for the source of that privacy right and that source was federal law but is there a federal law that gives doctors privacy rights and medical records well the doctors have privacy obligations and the patient's privacy rights are meaningless without that force on it was the idea that the doctor would be able to would have standing on behalf of the patients they certainly would have standing on for half of the patients there's another situation that also provide standing for doctor crittendon and that is the fact that even after physician real property interest there's no single item that must be checked off the cliff sleeve of societal recognition and that we have that with that doctor's interest in fiction for example i guess you would say that if a third party was trying to get  this particular situation has probably not been examined by this court before but that does not mean that society doesn't recognize this privacy interest rate is first illinois is just a old fashioned cat anyone could come in off the street and that's this information it is also not the sort of place where anyone who even worked there could access the files even amongst employees have a medical clinic there is limited access and the supreme court has said that in a commercial premises you know there's there is a lesser privacy interest then and for example home but it certainly still exists and just keep going down that road to thin employees would certainly have access to them because there's other medical professionals who are working there we don't know who these people are we don't but what we do know is that there are statutes that limit access to to these files and whether the clinic itself was you know the tightest place or engaging in that absolutely most desirable way of maintaining clara patient files is a access orsen for your client correct this is not a situation where he left the office and essentially through the files in the trash or left him to have anything happen this was that he had a continuing apt and an analogy and indeed in joe versus robert whether or not that case is directly on point the patient was certainly never not at the clinic when the search took place and was there very infrequently for treatment only so you know it the actual geography was not what what the issue turned on moving on to  information or exaggeration is is really surprising this is not like a frank's case where there is one false statement about the location of the trash can for trash all where you can easily do a problem with your argument is this idea that the false statements and the omissions in the exaggerations touched every part of the investigation it seems to me that even if you take out the info i are undercover investigation and you take out confidential informant and one slash eight are those numbers right now who turn out to be the same person which is more than you have to do what you should do is add in the stuff that calls into question the credibility which is take it out altogether and it just seems like don't you still have all these pharmacies calling in and saying we have these prescriptions for it was it one hundred sixty hills i mean and they pulled my tooth i got two and i needed a refill if i wanted more than that one hundred sixty eight pills from those planes and then they stopped the people trying  prescriptions and they say things like what you're talking about i paid you know five hundred dollars for this prescription let me get my pills and i got you know i don't know who my doctor is i don't remember talking to anyone and i had to come from out of state yet that's not enough for probable cause i mean i understand it's not enough me is a concession that the statements were material no no that's a concern that perhaps the concession that they might have affected the grand jury's thinking but we don't ask that about it's a different  say the bad stuff is there enough left for probable cause we don't do that when information goes to a jury we ask a different kind of question about whether it's one hundred percent clear that the jury would not have been affected by these additional statements it's a different question so it is a different question but the e the one informs the other and then in addition with respect to that to the drug addicts who were caught red handed in the in the middle of engaging in drug seeking behavior certainly a magistrate would consider that but those individuals have some significant credibility problems and it was a year and a half before and if that was if that was the source of the probable cause there might be a scope issue there's a staleness issue that staleness issue if you're looking for documentary evidence i mean i understand if you were looking to find you know drugs on the premises that might be stale but you're looking for records that go back a year and that was not a problem that's a problem because of that overall nature of the investigation that these individuals never went back to the clinic and the clinic had in fact moved in between times moved locations but all of these again are factors there's no single item to check off and when we look at just the total tonnage of the false statements and omissions it's just this warrant is reliable and while i got you what about one hundred forty two patients every day on every one of that today so the clinic is busy there's more than one medical professional working i the fact that the clinic was busy that they don't take insurance these these are things that are not fair you know that they don't give rise to probable cause  i know in my own family i'm forever filling out out of network benefits to blue cross because half of my kids you know medical providers don't take any insurance whatsoever that's not it's just simply not evidence of malfeas e you know it when you look at the importance of the different aspects of the investigation year old addicks engaged in drug seeking behavior you know maybe that could give rise to a hunch that something is wrong but is it probable cause for the scope of the search that happened no it is talking about the scope of the search is that an argument that you're raising here that the search warrant was too broad no not in general i'm just saying that if we then look at single items that might provide probable cause then then you then there's other potential issues raised we're also in a situation where we did not have a franks hearing didn't even get to have the opportunity to cross examine the pharmacists and we know that the agents exaggerated what the physician's assistant said and exaggerations like that have no place in the next part take hearing where a probable cause determination also requires the totality of the circumstances and that's i think what i'm trying to get at that when you look at overall the total weight of what is in this affidavit and what is important and what nature of the two part frank worry that we do i mean the whole inquiry presupposes there will be cases where there's an outright falsity or a very misleading admission and nevertheless we're supposed to excise that and ask whether there's enough or not allowed to infer from that that the rest of it must not be true also we're supposed to put that on side and look at what's left well i want to refer to lull in that instance where the omission of related to that  confidential source stealing money during the course of a controlled by and a controlled by happens there is no question that that but this court decided that the credibility information that was missing disability as an injury and whether he was himself feeling pain at the moment he told the doctor that he was in he presented an m r i that showed so many problems with his back doctor crittendon said had you considered what that i don't have any pain doctor but i just want the ox i know that so you know that's an extreme example but i think what you have here is a search warrant where you have to sort of look at it in the totality that's what the law says and you started building  you know your first block is as judge floyd said one hundred forty two patients ok that looks like a busy place but let's let's keep talking what's our next break oh there's people coming from out of state kentucky ohio you mentioned a busy col billing law and then we get our next brick the idea that these patients iesus two through four have a lot of money in their pockets cash they have cut straws they said we used to go down to florida but florida was shut down so then they went elsewhere and maryland was sort of ground zero while this place was in operation so that's our third brick fourth you get c s six and he's a very important witness to us this is the individual who interviewed at this place he's a doctor he knows what a clinic should look like he goes in there and sniffs around and says places the pill mill i'm not going to take employment here again that's a huge brick then you get  nine this was an individual who went in and they have someone who said i'm not going to work you know so he's brought it is because i think a doctor went in there and you know just like you would know if you were in a crooked legal office a doctor kicked the tires and said this place is illegitimate and so you put all those bricks together and to judge harris's question take out c s one in c s a that's fine take out that you see information the affidavit we still have all these other bricks and we put in our brief we think there's thirty five separate facts which show probable cause here and that's why we think the district judge made absolutely the right decision in denying this frank's motion so i think you have to kind of look at the constellation of activities here are found out about him and he reported to the board of physicians and said i think there's something fishy here are seeing in the board of physicians got into their investigation and they told the government well you know the power frankly to see whether or not that's correct well ex parte it may not be announced right so i guess i'll say your honor i actually don't think that's accurate in terms of how we need to evaluate frank's issues i think it's their burden to say we think c s one is bad we think c s aid is bad we think you know give me a substantial showing as to what's bad and then we can have our hearing if the balance of it is you know not enough i'm not overspending issues yet how about tell me what you so thank you i think on that and i really do think that's the basis on which this court can and should affirm standing we think there are six reasons why there's no standing here first and foremost you've got a commercial business it means a lower expectation of privacy number two this business was in a highly regulated field health care da the state could come in there and evaluate those files at any reasonable hour the third fact and this is actually very crucial this employee left eight months before the search warrant was executed and i'll say i've researched exhaustively to try to find a case which has an ex employee still having standing over the search of a business i didn't find one and i think that goes for a very good reason you can't still have standing in places that you left it months ago fourth factor is this employee was an impending contractor think that's important fifth this employee as you said judge ford expressly disavowed proprietary interest in these documents that's joint appendix page three sixty three and if this court were to affirm on a very narrow ground i think that's actually the best way to do it in other words to say in this case under these facts this person said those aren't my documents and he said that in the contract and if they're not his he has no right to exclude and if he has no right to exclude he has no fourth amendment interest them thanks i ask you who would have standing to challenge the search of medical records  a doctor's office so it's a good question your honor i think the person arguably that had the most to say the best chance would be the owners of healthy life themselves they owned a business and under the contract they own the documents but i think my argument to you would actually be to say i don't know if they did and the reason i would say that is because this is a closely regulated was in that a little troubling i mean this is we're really highly personal information of my medical file a sitting in that office i'd like to think someone would have ownership gun shop and they basically said this is such a highly regulated field that government can come in and look at those business records and each time they want and even more people thought that gun records were really incredibly private well true but it 's a supreme court case which is binding here and on the books so i cite it in this idea that i think if you get into this field also note that in order to prescribe these opioids these narcotics you need a da license and with this well really says is if you're going to sign up for something that requires a federal d e a license you've got to be expecting the idea that the da might come knocking at your door when i didn't sign a law license i'm the patient who's whose personal information is in those files i think and a license i just went to the doctor and you're telling me nobody if the government decides if they just want to take a look at those files it's open season there's nobody who has standing to challenge that well again maybe i would say maybe the patient as well you know there was a mention of this dover says brodrick case what i want to point out is that the person that sued there john doe was the patient and so this court did say well yes there is some privacy interest there but i think butting up against that is the supreme court's miller case when you had the  financial records the idea that you know the bank secrecy act says people can't get your bank account either but the supreme court has said look at standing of the account holder you know you're revealing that information to a third party i e the bank so you're revealing avalanche of information that we had through the witnesses this was a three and a half week trial some more or less there were attics there were doctors there were business owners all of these people provided information that was separate and apart from the records you know one of the business owners described the scene in a kind of gets your question chief judge gregory about you know the subjectivity of this this business owner said if you just looked at these people and did the surveillance and as this business owner saw these are the roughest courses people he saw people taking you know your unveiled instruments in the parking lot snorting up in the parking lot was a circus and i think the jury heard that information and that really moved them certainly the patient records were discussed at trial they were discussed by our expert but what's interesting here we actually had two experts and i think that sort of helps us to your question judge hoyt about the harmlessness here one expert look to the medical records that were seized in the search  so let's take him off the board for a second the second expert was dr matsunaga and he was a person hired by the board of physicians and they did their own separate search of these records and he looked at those records and opined at trial  didn't meet the standard of care and based on that evidence this court in the lawyer said that's enough for the jury to convict so i think if you look at all the things we have patient testimony everything that was divorced from the  picture of what these files looked like and it was just a common file room and they were sort of in disarray and they were done by patients which i think is interesting in other words patients would see multiple doctors so let's say one day they see  crittendon the next month they come back they see dr alexander things of that nature but they're kept by patient which is just kind of how any doctor's office work so why that's important to our standing issue this idea that these weren't d files it wasn't like he kept all of his patients in one area they were just sort of all mixed up all together and so when you're going in and doing a search you're going to search for the patients and they're going to understandably have dr kryten files in there  i think the case that comes the closest to sort of our scenario and again i think skelton's right this court hasn't dealt with this specific issue i e ex employee doctor's office  patient files i don't think there's a case in this circuit that deals with that but the two that i would commend of the panel's consideration is one united states versus torch that's a commercial business case that's one that for circuit hundred seventy nine will dated but in the sense that it that employee didn't have fourth amendment standing there was a current employee search was at a warehouse it's cited in horowitz because another case we cited the other one is this williams coons case it's out of the fifth circuit it's one thousand nine hundred six and they said expressly to your point about the haphazard files there's no reasonable expectation of privacy in a corporate records maintaining a common file room and i think that makes  sense everybody could go in there and look at information and you know i think the other thing about standing that we need to talk about is to show that first prong under katz it was dr crittenden's burden to show that he was doing something subjective to hide these documents from view in other words you know putting a lock on something putting them in his desk saying do not touch my files he did make that showing here they offered no evidence at our motion motions hearing and of course he couldn't because he was gone it left that place eight months ago so there was nothing that he was doing subjectively to say don't look at these documents and i think that's important to show that he can show standing here  a couple other facts that i do want to talk about my colleague misc elton talked about the source of their belief standing and she indicated that she believed it was hipaa and the a m a ethics standards in my view that is bootstrapping the privacy rights of another person on to dr kryten and i don't think under fourth amendment jurisprudence we can do that in other words fourth amendment says it's personal rights if you look at the text of the fourth  it says they were privacy interested in their persons their houses their papers their effects and that were th e i are there is important here so i don't think he can assert under hipaa any sort of privacy right court said and horowitz that issue this idea of well it's my work product and therefore i have a fourth man interest in it this court rejected that notion and said yes maybe you created it but after you created it it was then sent to another area over which you're not exercising exclusive rights the other case that looked directly i believe that that issue but she would be not that after the physician finished with that process i just talked about in the non physicians who only at the speed of their facilitating a physician's office so how has she lost the control access to the effects because of that i think the answer is you've got to do something subjectively to continue to ensure that those are being safeguarded but whether is wielding a lock on it or you know putting it behind a closed door you've got to do something that would have been enough if she'd put in her or her the hypothetical and her has found proprietary rights by themselves aren't sufficient but they're certainly one factor that's that looms very importantly so i think if he had said yeah these are mine i think the analysis on standing would be much closer question so nine that's why we left just you oppose him not in the test the truth because we will have won so the question is on the other side of your you know you know sort of one time when i believe that you want to question is here this is a physician we're not talking about somebody making a widget and putting the moment a shelf and you come in as i want to see all which is you maybe it's one of the you know that the three great professions you know of some law medicine in you know we actually want that to be the case and the usually the people of the united states the government is democracy or a constitution of the of the police police officer will who we so i think what will we counsel and i'd say collectively the persons of the united states and here's my argument your honor i say this because i don't know ok well and fair enough but i think you know the government has a role to police bad doctors and we want bad doctors to get out of the system and you want your government to find pill mill people that are giving opioids at this level and really lives to work and i think that's that's why i answer the way i do you i mean i understand these privacy interests and we understand with those that  government will only use this kind of epithet of awesome power to look at everybody's health records in the country for any reason or only use it for good right i mean don't i have a right to be concerned that i don't know there's always the prospect right that somebody there's been a lot of discussion recently from the white house about the health status of certain justices what if they just want to take a look maybe someone wants to just actually look at justice sotomayor his records and see how things are going for you're saying that go in and get  and there's nothing anyone could do well there certainly is a bit i think that the magistrate judge process and that's why we have search warrants where we don't have unfettered power we have to have a neutral independent judicial authority to say yeah you got probably cause there's a crime here but if so it goes wrong no one has there is no check no one has standing to challenge the search well i mean i think and what if we go in without a warrant who's going to have standing then well i mean i think if they go in without a warrant then then we have how would that change the standing inquiry either way your view is  medical record nothing to see here right so i think it would be a closer question on standing i would and perhaps or go there's not a warrant i don't understand that well i think perhaps doe says that there is some privacy right in the patient so again and you're just that would be true if there were a warrant also i don't understand why getting a warrant changes the privacy interests well i think getting the warrant against puts it through this neutral detached majnun thing to do with who has a privacy interests i understand that that's a it makes my concern about unbridled discretion it addresses my sort of policy concern but i if there is a real maybe i'm just misunderstanding i understand the policy implications but i don't understand right whether or not someone has fourth amendment standing is affected by whether there's a warrant either way as you said the whole question is you have a privacy interest that is personal to you in what happened in this search and the results of the search i don't remember anything about a warrant in that inquiry right now and i see your point you're i mean standing  i do think the standing issue is going to be something that i frankly don't know if we're going to have standing with an individual in those circumstances as troubling as that might be i think the idea is we  do have administrative subpoena powers we also have under twenty one u s c eighty and there's also a c a far sight in our view the idea to go into any reasonable time so in our view as long as they show their credentials and say we're we're here to look at narcotics distributions i think they have the right to go into that clinic and look at those files that's that's that's their beat but to be clear on all this we're not talking about individual patient here we're talking about an ex employee who was in there for eight months it wasn't his information it was the patients and we do respectfully submit that there is no standing here and again we just decided on the contract alone i think that's enough i think we win get the individual patient to testify at trial from the patient records the patients themselves are fruit of the illegal search so they they would be excluded they talk about two experts testifying well what we have here is a constitutional error and of course the government's burden is to prove that there's no reasonable possibility that the patient files had any impact on the jury and there's no way they could do that here they didn't the experts didn't just discuss the files these files were actually admitted into evidence and like i said the patients themselves who testified were for the the government talked about the other business owners coming to testify about a circus atmosphere while those those people had nothing to say about talk to kryten them they had something to say about the clinic but nothing about dr crittendon and his interaction with the page so there's simply no way the i have clients who have finished serving their sentences and are off supervised release and i cannot discuss what happened with them and my files are not open to all the way that files are stored and the fact that others had access to them i'm not the first lawyer on this case dr crittendon had two other lawyers in my office who were his trial counsel they still can prevent people from looking at my files that the fact that other professionals had access to the files simply doesn't defeat stand and it is true that dr crittendon cannot assert someone else's privacy rights to protect under the fourth amendment but the fact that the doctor patient relationship is so different puts that true that kind of old saw a fourth amendment law on it to front line i mentioned before that the patient's privacy interest is meaningless if other people cannot come in and  that right in the physician of i just want to it's seems to me on the two different theories i just want to understand which one you're relying on there is one that would sort of go unless the doctor can kind of a third party a privacy interest that is a privacy interest that will go unprotected entirely and then there's another one that judge gregory was alluding to which is forget the patient that this is doctor work product this is the doctor has his or her own independent privacy interest in the records are you making both of those arguments one of them what exactly i am not choosing between these two i think that under the totality of the circumstances all of these things are relevant i think the federal laws that prohibit  the need to protect the patient puts medical file in a totally different category from a corporate record so i'm not choosing between these these are all factors that are relevant and it is part of that kind of mushy the circumstances that comes into fourth amendment discussion that we could put the patient might be protected even without the doctor right if notwithstanding understand the government isn't conceding this but if i thought that the owner of the business of a clinic of a medical officer obviously has standing to challenge an entry into that business that would take care of the patient right it could that that individual but the fact that somebody else also ha