thank you your honor may it please this court my name is jeff for e and with mr fisher i represent the plaintiff doctors and employees of the door in medical practice the district court committed reversible error by holding that exculpatory evidence known to the officer at the time of the arrest can be excluded from a probable cause and the district court held that were a doctor is accused of dealing in a controlled substance in the form of selling prescriptions that evidence that the doctor wrote that prescription with a legitimate medical purpose and in the ordinary course of his medical practice and that this evidence is an affirmative defense that it has bearing only at the guilt phase of criminal proceedings and has no bearing on whether the doctor was arrested for probably without probable cause affidavit or there were it seems to me ok that you want to argue guilt or innocence rather than pop up of cause your honor st of all there were material misstatements and omissions in the probable cause affidavit the lead investigator completely misstated the applicable revelent regulation that covers when a doctor needs to examined a patient in order to prescribe medication and eliminating in its in his explanation to the reviewing magistrate exceptions that covered the conduct for which honor the st of all the patient is always examined thoroughly at the commencement of of treatment but also that's not that's not what the evidence is that your honor the guy in the experience of the undercover agents was of the undercover agents may have characterized this examination as an interview or a lecture but they were to act physically examined or not tease me not physically but they were questioned by dr way about their medical histories in the expert witnesses even admitted at the trial of larry lay that they too would not necessarily conduct a physical examination of a patient in an addiction clinic because addiction is a cycle social condition of these folks were being treated for pain they were not being treated for pain your honor there were being under reported the prescriptions were being written for pain management in cases where there the prescriptions were written for what was described as pain management that which avoids the one hundred dollars patient p the relevance to whether a patient was addicted through street drugs or pain treatment chiefly came from the fact that in an addict who is undergoing pain treatment may be on medication for the rest of his life but to answer judge returned to judge rove ners question the probable cause affidavit contains no what scope atory evidence whatsoever the under the franks v delaware standard the district court was required to consider the material emissions that vary ms was in hand made in the probable cause affidavit because he uncovered quite a bit of of exculpatory evidence showing that the doctors did believe that they were treating patients for it with  identification and these brief you're on hundreds or others no need for it for a patient present an identification ordered in order to get a script because the patient has to show identification at the pharmacy when he fills the script to get the produce the prescription without without an id at the pharmacy the scrip is just a worthless piece of paper so there was no need for the the doctors to police that at their office they did not give that the suboxone themselves they they gave the patients scripts so that they could fill them in pharmacy weren't there   a patient received a prescription without a doctor present this was an highly unusual situation in most cases they occurred where the staff the brief certainly in the evidence that in many instances the success of prescriptions were pretty signed by a physician they didn't see just as judge trial noted and often the stated reason for the prescription change from dependency to pain that the chairman or vice versa without any explanation whatsoever your honor  ethical your honor in this instance the plaintiff doctors had been charged with writing prescriptions to them at medical purpose i think probable cause is concerning those facts that explain was the medication appropriate for that patient was it in an appropriate dosage was  was the patient examined and in all these cases the answer is that they were as as the trial court noted in larry lay's criminal case every patient was an appropriate patient in other words an addict in need of a treatment the only medication ever prescribed to them was suboxone on an f d a approved medication for the treatment of drug addiction and every prescription was written in a therapeutic dose in fact when the undercover agents infiltrated the practice and presented the doctors with false medical histories they received prescriptions for the amount of medication that was appropriate for the false histories that they presented to the doctors that everybody got the same dose no your honor every patient was placed on a taper schedule the taper schedules were similar but where a patient appeared on that tape or schedule dependent depended on the amount of drugs he was using and the the type of drugs that he was using and patients were moved on that taper schedule to slowly reduce the amount of suboxone those right schedules are the other documents documented schedules for the on the record yes your honor they were not in the probable cause affidavit for all the the charts figures and photographs that that does the government placed in the probable d cause affidavit they never put the taper schedule which they never had access to the apartment with the investigators would have access absolutely yes opiates prescribed by another physician without telling the dohrn clinic that he will taint counseling this was all from known to the investigator and and left out by that simil taper schedule they each received the pledge they i think another fact that was left out of the probable cause affidavit that is of critical importance is that the dorn doctors routinely dismiss patients who fail to comply with the dorrance requirements such as not taking street drugs and attending counseling the patients were although the probable cause affidavit does acknowledge that two of the undercovers were were dismissed from the program for either refusing a drug screen or for taking one and no suboxone showing up leading the doctors to suspect that they were selling it rather than using it although these are briefly mentioned nowhere in the probable cause affidavit does it say this was a policy of dorne that this who refused to comply with the program and there was a critical reason that that was left out because if you if you acknowledge that patients are dismissed from fee for failing to comply with the program then you have to admit there is a medical program they are receiving ample medical treatment they are being closely monitored and with they for if the patient fails to live up to their or the doctor's expectations they will be dismissed  for example that they even in their own practice they would not typically conduct a physical examination of someone claiming to be a drug addict because drug addiction is a cycle so psychosocial condition that  is determined by observing behavior over time not something that you can test by doing a blood draw or something like that they take the government's own experts say that they do we determine addiction by conducting a mental status exam which is mostly looking at the patient in talking with him and not not touching the nampa hammer to the knee and see seeing if he gets a reaction so judge rower's point they were cvs suboxone prescriptions for chronic pain pain management for addiction treatment with chronic pain pain management without what looks to me like at least a physical exam right your honor a physical exam would not have been conducted for pain management but durham did not provide pain management treated individual that's what it's prescribing for that that what am i missing here because all patients at dorn were drug addicts and that is what they were being treated for d was not a pain management clinic dorn physicians sometimes referred their patients for pain management elsewhere but the prescription  was to treat the the addiction so quote from the p c a at the conclusion of the approximate two hour visit both undercover officers receive suboxone prescriptions for quote chronic pain that they did not risk the prescription for three hundred dollars they received the prescription as i suppose as part of their treatment for three hundred dollars that included no physical examination correct correct and or with a prescription for chronic pain and pain management your honor under that part correct it is thank you under if i may give one explanation or risk include with this final remark yes or under some circumstances the door and physicians did treat for pain that is incident to the heightened sensitivity to pain that opioid addiction  your honor i want to address the pain issue because i think the court does not understand the way that this clinic operated this is an addiction detoxification clinic that is all that it does it takes addicks it gets them off their it their addiction to once you get addicted the painkillers themselves produce pain that is one of the reasons why you can't be on oxycontin for pain for four forever because in many patients three assault of that will be you will have pain coming from your addiction to the opioid the only test to determine whether you're suffering from opioid hyper elegy is yet but as a heightened sensitivity to pain caused by your addiction is to reduce your addiction and that's why this clinic does it if it identifies a patient with pain that they suspect is pain produced by their addiction the treatment of that or the diagnostic notice of that comes from reducing their level of opioid dependency by the treatment for their addiction pain if you come into their clinic you're not an opioid addict you say i have my back's been hurting forever you're referred to a pain clinic they don't treat you they don't treat pain they treat addiction they do in fact write prescriptions for pain secondary to addiction but not for pain management as the price as the sole diagnosis or their duty those are those statements in the probable cause affidavit for what they should be that's one of the reasons why we lawsuit is because had the judge known that when he was issuing problem cause after reviewing the probable cause affidavit he they well have no no no found probable cause you didn't let me complete my question i'm questioning was are these statements about what the prescriptions were for the undercover agents true or false i believe their faults and i believe the prescription themselves say pain pain management secondary to opiate addiction and i think yeah those are the record get it i believe they are on the record the prescriptions are in the individual where we see rosters are with ariel's that are in the record where do we find them i can't give you the exhibit numbers but the packets including the prescriptions were all placed addiction and of course that's quite different than pain secondary to an old back injury or pain secondary to something else it's the addiction itself which is what they're treated that is the source of the suspected pain and your honor i would agree with you that but by good by taking advantage of using this diagnosis of pain secondary to addiction maybe that was a means of getting around the one hundred limit but that isn't a crime that's done these are patients who had a problem who had pain and who had addiction were going to a clinic that would treat their addiction that would get them off of the medication off of the opioids and in many cases if not most cases eliminate or reduce the chronic pain condition once the once the patient is no longer addicted they're referred out we don't treat pain that dorm door and treats addiction that's what it's for just rest or get you suggested that we did not dispute much of the evidence in the affidavit i couldn't disagree more i think the anonymously posted their roger perry information on the internet we disagree with almost everything in there we disagree that there was no medical examination understand the structure of this in order to get a prescription you had to be admitted to the program you had to appear before dr lay who is a certified expert on addiction for a two hour interview you had to fill out a seven page long questionnaire concerning details of your history of drug use both legal and  illegal part of the two hours was spent in explaining the program and explaining addiction but an hour of that was spent in questioning the witness or questioning the patients about their history of drug use that's how you diagnose addiction is you hour questioning three people about their history of drug use you're spending a pretty fair amount of time questioning and interacting with each one on what they're taking how long you've been taking them why they're taking it you simply can't spend an by the evidence most favorable to the to the not moving party and not by the spend most favorable to prosecution placed on it by an undercover agent all of the you see these at mit it that they were required to attend that two hour session with the doctor after filling out the details like use before they would be admitted the program and given a personalized tailored program of teeth substitute these sa very unsafe drugs they were taking and to taper schedule get them off of it even so you would have for instance three people being questioned at the same time yes  regulation concerns or scripture and it looks like the maybe i'm wrong but the principle of mission from your point of view was the so called cross coverage yes the reference right my question is how important is that actually given the just the focus on dr lay and his his practices here as for dr lay as for his case it's not important at all what is important to you are the three clinic doctors who because those three clinic doctors are entitled by the indiana regulations to rely upon the dog diagnosis of the patient made by dr lay these clinic visits aren't visits to for a new patient to get a prescription these are are limited to compliance testing to make sure that the patients who have been put on the program are some are complying with the rules of the program it is the only purpose of seeing them is so that you don't give medication for more than thirty days you make them seen by a doctor now the regulations require you to see the patient only once every four months ago and they saw them every month you have an opportunity to ask questions of the doctor you have an opportunity to he where does that eighty the one hundred come from what they what the undercover agents did say sat outside and counted the number of people who walked into the clinic yeah they counted the patient the patient's brother the patient's father the patients wife none of the clinic doctors exceeded one hundred counting both pain and addiction the only one who did exceed that number was dr dr like dr lake seat at that number because he wrote the initial prescription for every patient because they all came hell i had to come see and be examined by him before they'd be admitted and so with respect to my client dr galpagos for example he never treated more than one hundred patients at a top twenty go back to this issue of opi d hyper helgi zero the new phrase for me but if a patient is complaining of pain how does a doctor differentiate that as the cause of pain for other physical sources pain that shouldn't happen if the pain is some underlying condition that is and indeed that is the diagnostic your differential diagnosis what happens when we start to taper and what have been some kind of physical exam eastwood's and i represent gary wissen hand in the united states of america i'd like to address the probable cause arguments that the appellant's have made and then if i have time briefly qualified immunity which the appellant did not the probable cause affidavit judge hamilton had a question about the exact language of the prescription i can't point to the actual prescription in the record but if you look at and twenty six of the probable cause affidavit it does refer to one of these secondary opioid opiate dependency pain diagnoses that are written on one of the prescriptions for the under cover so we would posit that the quotes by mr was in hand in the probable cause affidavit about prescriptions are true today is the st time i've heard the argument that they are not  they are correct in our bait on what is in the prescription in fact the entire probable cause affidavit is based on largely the undercover videos of these undercover visits and if you track the probable cause af davit side by side with those undercover videos it just lays out exactly what you see on that video it's undisputed and mr whiz in hand did include information in the probable cause affidavit about those visit that counsel today say was not included for example he included the fact that one or two of the undercovers were dismissed from the program for refusing to take the drug screens that they admit that that is true and it's in there and it's it's not favorable to the state's case there was also a question about the number i think from judge fly the number of prescriptions being written and where did dr king get this information and in the probable cause affidavit mr was in hand reviewed and relied on inspector reports these this is a database maintained by the state of indiana about the number of prescriptions for controlled substances being written in a year if you look at for example paragraph thirty eight dollars of the probable cause affidavit it sets out the number of prescriptions for suboxone be written under dr larry lace number and it eighty five was another day assuming dr lay worked an eight hour day which he admitted in his deposition that he did not these clinics were only open a couple of hours he would have had to have written one prescription every one nine minutes and so dr king's opinions about the number of patients being seen was informed by surveillance at the clinics about patients going in and out and carrying a piece of paper in their hands also witness statements about the number of patients being seen and also this inspected and so getting to probable cause the district court engaged in the problem in the proper probable cause analysis for a th amendment case the judge looked at the probable cause affidavit and he determined based on the evidence in that affidavit none of which was established to be false was there a probable cause to believe that these doctors and  the employees in these clinics might be engaging in dealing under the indiana statute and in fact the evidence overwhelmingly supported probable cause as a court has pointed out patients were able to walk into a clinic and within about a minute to a minute and a half sometimes walk out of there with a prescription in exchange for cash the clinics only accepted they did not accept insurance the patients in many cases never ultimately did at any point in time these patients receive any sort of medical diagnosis or actual and as you pointed out charge hamilton many of these patients were written prescriptions for pain or chronic pain when there was no actual diagnosis of that made in fact what happened to this was could i ask you a couple of other question yes i'm trying to think of a case in which i've seen the federal agent provide this kind of detail probable cause affidavit for state or local prosecution a prominent so i would say quite common and judge that's because  this was a case that was initially being run through the u s attorney's office mr was in hand was working with an assistant united states attorney to taint a court order for the undercover investigations ultimately the u s attorney's office declined prosecution i mean i would say that mr was in hand would have submitted such a detailed affidavit even if it had only been a state case from the beginning because they were charging four doctors with dealing  which was not unprecedented by any stretch unfortunately becoming more common let me raise if i could a couple of concerns about the the affidavit one is the  misquotation of the right relevant regulations which troubles me i'd like you to address that if you could and also maybe a more fundamental problem i think i understand at least the general contours of the case that was being laid out regarding dr away and the other doctors the clerical staff i don't see much probable cause regarding the non medical  folks i mean you know if the doctors telling right this prescription issues prescription why isn't that perfectly legal your honor i'll start with the the citation to the indiana administrative  code st of all if you go back to franks to be delaware the supreme court held that the warrant affidavit cannot contain a false statement of fact which is made knowingly or reckless disregard to the judge i am not aware of the case and i looked where a court has held that any sort of misstatement of law to a judge is a misstatement of fact that would invalidate probable cause is committed to the judge who is presumed to know the law and to apply it in making his decision so i think what the plaintiffs are asking for here is a finding that  this kind of one would expect highly professional probable cause affidavit from a federal agent who's supposed to cite check his legal references yes that's true or is that your proposition well he is he is tasked with so let me offer a nd argument that might be going to you know the question would be did mr whiz in hand knowingly or recklessly withhold critical information from the studs that he knew would negate probable cause the doctors dr lay in his criminal trial argued this what we call a cross coverage defense that is at this initial examination i'm using that term loosely this meeting with him in a conference room could be imputed to the other doctors but they were allowed to rely on that and then write prescriptions for controlled substances later sometimes even a year later without ever seeing that patient there would have to be evidence that mr whiz in hand knew that this is the defense that the doctors were going to raise that there was evidence supporting this defense and he withheld that evidence from the court there are no facts establishing that it all you know the appellants have tried to say in this case based on statements from mr was in hands deposition that he knew all along that they were providing legitimate medical services that is not true he confirms on multiple in response to multiple questions what to do you believe what you do not believe that he believed that they were committing a crime there's a series of questions about yes in their regard yes sorry judge in their reply brief they say was in hand admitted that all the doctors likely believed that they were providing appropriate medical care that is not what mr was in hand said if you go to those pages in his deposition he was asked and that's the reason they were peers prescribing suboxone is as a tool to help these people presenting as addicts to get off their addiction he responded that's what it's used for and they asked him and that's what the doctors believe they were doing isn't it and he said i can't say exactly what the doctors were believing but i would say that's that's that's what they were there for meaning the patients and look that that whole pain versus addict issue only lin's credence to probable cause right because it was never the state's theory that every patient walking into a door and clinic was just there to get a prescription and then sell it in a parking lot that was not the state's theory in fact mr was in hand and the state believe that many of these patien were seeking legitimate treatment for an opioid addiction but they weren't getting it that's the problem they were getting you know handed a prescription in exchange for cash you would see that what you deem the clerical employees were mainly office managers meaning they were running the office they were printing up prescriptions handing them to the patients sometimes they were the only employee that the patient ever saw the indiana court of appeals held in why am versus state the why am being your van morgan one of the plaintiffs in this case that there was probable cause to find that a non physician could engage in this type of criminal conduct if they knew or should have known that what they were doing was wrong and that that was an issue for the jury and so while the appellants have tried to deem the non medical employees as having very little involvement in fact they were the central in many cases they were running the office they were the only person with whom a patient ever had an interaction and this would i think that argument that you present seems to cover everybody inside the woman the vidual that i have a little pause with a parking lot attendant and i think kokomo  to make sure no violent acts or drug deals were going on in the parking lots he took on a larger role later he was bringing patients and he was involved in your correct th his involvement became more extensive as time went on and keep in mind too mr was in hand drafting the probable cause affidavit and the facts in it he had that affidavit reviewed by both prosecutors of the hamilton county prosecutor testified in his deposition that he at he made the decision to charge joe mackey and he asked mr was in hand to go back and include additional facts related to mr makki and those facts are true they they match up with the undercover videos so that was a decision made by the prosecutor ultimately to bring those charges thank supporting summary judgment for my client mr deeds all of which were fully briefed in the district court so the plaintiffs an opportunity to respond to them as this court knows the court may firm on any base of support or by the rec not in dispute is that my client had no role in drafting the probable cause affidavit he did not even review it until you hid it had been tendered to the state courts you had no knowledge as to its content therefore could have had no knowledge as to any alleged material admission or legit false fact so by definition it seems to me he cannot be guilty of violating the torrent cla a question from the media source as a rather underscored comment on i'll concede that but he did say that in response to a question he was the head of the task force for and he was the head of the hamilton county drug t affidavit there was no other evidence there was no testimony from my client he had no role whatsoever in securing these arrest warrants at least by way of providing evidence that he had no knowledge as to the content of the day it's not enough to simply say well he was the director of a drug task force and received periodic updates from his investigator that's that's not a violation of the constitution he had no role in the undercover operation and neither did the court come the police department he did nothing to initiate this prosecution by way of presenting anything to the fore so that's being the case plaintiffs offered nothing in their principle three if in my opinion including my client they offer no argument jocking the facts and reply they then come forward with a bunch of facts which they did not which in my view is not appropriate appellate practice deprives me of the opportunity to respond to those facts with those facts by and large deal with purported assertions that the drug task force would receive some forfeiture which in this case was by way of a settlement by the way a state court judge nation in the hamilton superior court issued forfeiture orders and ordered forfeiture to the da and then there was this private settlement between if you look at the probably cause affidavit there are some financial investigation which was sought by the dea in any event my point is that this argument about motive has nothing to being with is nothing to do with probable cause or an objective test moreover i request to cork consider that argument a wave it was not raised in the prince brief and i did not have a chance to respond to it and if i did i would  at least to to supply the court evidence to the fact that the forfeiture wasn't even within the mind of aaron deeds nor was it a motive or for probably at any level now let me if i may talk about qualified immunity briefly qualified immunity is the plane is burden is that they are required to come forward in their brief with cases and reasonably analogous facts qualified immunity there is no case from this th or from the supreme court that so holds therefore my client is entitled to qualified immunity and the plaintiffs that failed not only to come forward with cases but they don't even argue was stevenson can i ask you about the of the district judges reliance on this theory that usual medical practice is an affirmative defense in these cases yes it's a very clearly troubling painkillers in his or her ordinary practice for that doctor there would be probable cause to arrest and search for evidence and let the doctor explain the defen let's start with al our congress and state in that case a doctor under circumstances kind of like here is arrested cash only business what have you he's arrested and asserts well i had an absolute i have an absolute defense by virtue of the fact that i can write a prescription court appeal says no you don't it's not absolute it's qualified it's a qualified never so it's couched in terms of the defense rather in that case that's where i think the district court concluded that it's that what they are offering by way of the legitimacy of their practice is the defense putting out a kind of side  the prosecution in this case didn't then simply say well you know i've proven that you wrote a prescription for a controlled substance i rest my case they put on a lot of evidence in the trial of dr lee to suggest and to try to prove that the prescriptions were invalid and even had experts who offered opinions in support so but the district or was doing it simply saying everything you're telling me is not to seek probable your honor the issue here is whether these were valid prescriptions really boils down to that these were scription issued by a qualified licensed doctor in the course and scope of his practice of his medical practice if they were issued for a valid medical reason then they are valid prescriptions and that's should eliminate any possibility of with respect to dr lay the question the only only question raised is was his initial exam the two hours spent with each of these patients sufficient to diagnose them as addicks in need of treatment if it was then there is no probable cause for his arrest if it was if his examination was criminally deficient so that you could infer from the deficiency of his exam that he was acting as a pusher not as a doctor then there's probable cause the evidence is that he spent two hours with each of these patients here had them fill out detail questionnaires he question them about their drug use about their drug history about their feelings about their drugs and nothing to diagnose them as addicks there is no suggestion that he did anything other than diagnose addiction and treated this is an extraordinary case because the state agreed that all the treatment provided was appropriate treatment for the condition that been presented the prescriptions were in the appropriate drug in the appropriate amount with an appropriate requirement for counseling with an appropriate taper schedule that would result if they follow the program in the elimination of their addiction it's a medical treatment and a medical approach but with respect to the clinic doctors there's an additional issue that has to be shown it has to be shown that they did not have a right to rely on the examination and diagnosis made by dr life sure if somebody could walk in off the street to one of these clinics and get a prescription with no more interaction they had i would agree that that be probable cause  arrest but that's not the dorm structure the dorrance structure is that only patient clinics or only only patients of the program were allowed to come to the clinic to obtain a refill prescription they had to have already been examined have already passed the diagnostic and been fitted with an appropriate medical treatment what do those doctors perform then if the doctor lays the gateway what do you have other doctors compliance they're there to make sure that the rules of the program  followed every laid one of those one of those rules for well those rules include you will not take any other drugs and you will take this drug as prescribed that's why your integrity and doctors would make that encouraged before they wrote the script yes they would because the patients who came there were required random basis but multiple times a year to pass a urine screen to the undercovers didn't get their prescriptions they were kicked out of the program one because they didn't pass the urine screen because they had no suboxone in their system the other because you tried to they did by refusing to take it so yes they were in fact making sure they were complying with those programs before the patient a ride that the doctors checked the inspector report to make sure that there were no other prescriptions for medications they were obtaining from some other doctor they were observed to make sure that they didn't display any and unusual signs and they were asked do you have any issues with the medication do you have any questions about the program you need to see or want to see a doctor they weren't required to go to these clinics at all for medical treatment these clinics were for compliance for misses that's the rules and regulations applicable to doctors concerning programs like this is that you had the face to face meeting three times a year you had to do a urine test once a year dorn's did more than that they did every all of these every month because of that this is these monthly visits for compliance purposes have been twisted into making it appear as if those were the only medical treatments or medical this is provided what was happening here is that they were making sure that the people who were getting prescriptions before they got another of month's worth of prescriptions were demonstrating a commitment from these prescriptions were for roughly a month at a time yes sometimes they did it for two weeks if they were at it unusual concern but but a month at a time otherwise and with respect to the staff we've got yet another layer that needs to be added on to the burden of proving probable cause for the staff to have committed a crime they had there have had to be probable cause for them to believe the prescriptions were invalid that means they had to know what exam doctor lay performed to know whether it was criminally insufficient and they had had the medical knowledge to know that the exam he performed was or wasn't sufficient there is a shred of evidence of that as to any of the clinics thank you for thanks to all counsel of cases taken under advisement