NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0818n.06

Case Nos. 13-4236/4237

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

B. ELISE MILLER,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: SILER, BATCHELDER, and DONALD, Circuit Judges.

SILER, Circuit Judge. This is a search warrant case. A specialty pharmacy in Ohio was 

committing health care fraud. To obtain incriminating files, agents searched the pharmacy and 

later the business owner’s home. The district court denied the owner’s motions to suppress the 

fruits of these two searches, and this appeal followed. We AFFIRM.

I.

B. Elise Miller owned and operated Pharmaceutical Alternatives, Inc., which did business 

as Three Rivers Infusion and Pharmacy Specialists (“Three Rivers”), a “specialty pharmacy.” In 

addition to providing home health services and pharmaceutical supplies, Three Rivers offered 

expensive drugs not typically carried by retail pharmacies. Among the specialty drugs available 
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at Three Rivers was “Synagis,” a drug for infants with respiratory disease. In May 2008, special 

agents with the Federal Bureau of Investigation (“FBI”) and the United States Department of 

Health and Human Services (“DHHS”) joined an ongoing investigation by the state of Ohio 

involving allegations that Three Rivers was over-billing various private and government health 

insurance providers, including Medicaid, for its services and drugs, particularly its dispensing of 

Synagis. 

Pursuant to the investigation, special agent Benjamin Unkefer of the DHHS authored an 

affidavit in support of a warrant for the search of Miller’s business premises, which consisted of 

Three Rivers, located at 238 Main Street in Coshocton, Ohio, and a retail pharmacy she operated 

known as Miller Pharmacy, located in an adjacent building at 234 Main Street. Unkefer’s 

affidavit described several examples of fraudulent billing involving Synagis. Investigators 

deduced that these billings were fraudulent by comparing patient records to claims for 

reimbursement submitted by Three Rivers. The affidavit also identified the buildings to be 

searched and described each building as a two-story structure. 

The magistrate judge found probable cause and authorized a warrant to seize numerous 

records. The warrant had an attachment that included a list of specific patient files, most of 

which involved Synagis. Agents conducted the search in August 2008 and seized several of the 

listed files. But many of the listed patient files were missing.

In December 2008, investigators made another attempt to recover the missing patient 

files by serving an administrative health care subpoena on Three Rivers. Three Rivers turned 

over the records of 21 additional patients, but ninety of the subpoenaed files were missing.

In early December 2009, Miller’s housekeeper, Mary Richard, told FBI special agent 

Quentin Holmes that she had gone to an attic storage area of Miller’s house to look for a 
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Christmas tree. There, she found a garbage bag containing what appeared to be patient files from 

Three Rivers. A few days later, Holmes asked Richard to look in the bag again and tell him

some of the patient names that were visible on the file folders. Richard complied. Agents 

compared those names to the names on the administrative subpoena and found that some of them 

matched.

Agents then applied for a warrant to search Miller’s residence. Holmes authored the 

supporting affidavit. The affidavit contained information from three former Three Rivers 

employees, in which the former employees described a box of Synagis files that agents left 

behind in a conference room after the August 2008 search. Two of these employees noticed that 

the box later vanished from the pharmacy, and one of them said the box ended up at Miller’s 

house. One paragraph of the affidavit also recounted Richard’s discovery of the box of files in 

Miller’s attic, but it did not mention Richard’s subsequent trip to collect names from the files.

Based on Holmes’s affidavit, the magistrate judge issued a warrant to search Miller’s 

residence. There, agents found the files just as Richard had described them. 

Miller and her co-defendants moved to suppress the evidence seized in these two 

searches. The district court denied the motions after a hearing. In this appeal, Miller proffers

two arguments that were not contained in her motions to dismiss, but that emerged from the 

testimony gathered at the suppression hearing. 

Regarding the search of the pharmacies, Miller suggested at the hearing that when the 

agents were searching the second floor of 238 Main Street, they crossed into an adjoining 

building, with the street address of 240 and 2401⁄2 Main Street. Unkefer, the agent who led the 

search, testified that, although the buildings seemed bigger than he expected on the inside, he 

was not aware of ever having penetrated into an adjoining building. He said his agents entered 
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the building only through the doors of the 234 and 238 Main Street addresses, and that their 

search was limited to areas open to and accessible from those entryways. Unkefer said he had no 

idea it was possible to enter the adjoining building through the second floor.

Regarding the search of her residence, Miller’s motion claimed that Holmes provided 

false testimony in his affidavit in support of the warrant. This claim subsequently morphed into 

an argument that Miller’s housekeeper was acting as a government agent when she collected the 

names from the files in the attic, and that this unreasonable search invalidated the warrant.

II.

When we review a district court’s decision on a motion to suppress, we review findings 

of fact for clear error and conclusions of law de novo. United States v. Cochrane, 702 F.3d 334, 

340 (6th Cir. 2012). When a district court has denied a motion to suppress, we review the 

evidence “in the light most likely to support the district court’s decision.” United States v. 

Pritchett, 749 F.3d 417, 435 (6th Cir. 2014) (quoting United States v. Adams, 583 F.3d 457, 463 

(6th Cir. 2009)).

III.

We turn first to whether the search warrant for Miller’s residence was invalid. Miller

argues on appeal that her housekeeper was acting as an agent of the government when she found 

the files in Miller’s attic, which renders the discovery an unreasonable government search in 

violation of the Fourth Amendment. If we redact the housekeeper’s information from the 

affidavit supporting the warrant, Miller argues, then the affidavit fails to provide probable cause 

to search her house. 
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We have no need to address this argument because Miller did not properly present it to 

the district court. Miller failed to raise this argument in her motions to suppress or their 

supporting memoranda. Miller waived closing arguments at the suppression hearing, so the legal 

argument was never developed there. Miller’s husband, her codefendant, submitted a posthearing “addendum” to his motion to suppress on December 5, 2012, which contained this 

agency theory. But the district court declined to consider the addendum, and its twelve-page 

order (dated December 7, 2012, and filed December 10) nowhere addresses Miller’s lateblooming government agency argument. We deem it waived.

 

IV.

Miller also attacks the search of her two adjacent pharmacy businesses. She alleges that 

the agents executing the warrant—which was issued for 234 and 238 Main Street—also entered 

the adjoining building, 240 and 2401⁄2 Main Street, and therefore exceeded the scope of the 

authorized search. All three buildings are what the district court described as “contiguous.”

To determine whether a warrant describes with sufficient particularity the place to be 

searched, courts must consider “(1) whether the place to be searched is described with sufficient 

particularity as to enable the executing officers to locate and identify the premises with 

reasonable effort; and (2) whether there is reasonable probability that some other premises may 

be mistakenly searched.” Knott v. Sullivan, 418 F.3d 561, 568 (6th Cir. 2005) (quoting United 

States v. Gahagan, 865 F.2d 1490, 1497 (6th Cir. 1999)). If agents exceed the scope of a valid 

warrant, we will only exclude the seized evidence if the unauthorized portion of the search was 

done in bad faith. See United States v. Leon, 468 U.S. 897, 919-22 (1984) (describing the “good 

faith” exception to the Fourth Amendment exclusionary rule). When government agents act with

an “objectively reasonable good-faith belief,” or where their actions involve only simple 
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“isolated” negligence, exclusion of the evidence is not warranted. Davis v. United States, 131 S. 

Ct. 2419, 2427-28 (2011) (internal quotation marks omitted).

The district court made three explicit rulings on this argument. First, the court found that 

the search warrant was constitutionally valid to the extent that it described with particularity the 

place to be searched. Miller does not challenge this finding. The district court also considered 

the witness testimony and found it “far from certain” that a third building was searched at all. 

Even if a third building had been searched, the district court found that the agents acted in good 

faith because they had an objectively reasonable belief that they remained at all times in the 

locations delineated by the warrant.

At the suppression hearing, special agent Unkefer, who led the search of the businesses,

reviewed a diagram of the search locations that was drawn by another agent for the benefit of the

search team. Unkefer agreed with defense counsel that it was possible that the notation on one 

page of the drawing stating “stairs to the third floor” may have been a reference to stairs in the 

adjoining building, 240 and 2401⁄2 Main Street. But, as Unkefer noted, the same page of the 

diagram also labeled the search area as “Three Rivers: 238 Main St., Coshocton, OH, 2nd Floor 

(East side of 3-Rivers).” 

Unkefer further testified that the search team entered the search locations only through

the front doors at 234 and 238 Main Street, not through the door of either 240 or 2401⁄2 Main 

Street. He explained that, with respect to the second floor of Three Rivers, agents “moved 

. . . fluidly through the building from one room to the other” and that no walls or other barriers 

obstructed their access. Agents did not knock holes in any walls to access the space they 

searched, nor did they remove any locks to do so. To the contrary, as Unkefer reiterated, the 

agents were “not aware that we were moving to another address outside of 234 or 238 Main 
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Street during any time during the [execution of the] warrant.” The district court accredited this 

testimony.

It was by no means clear error for the district court to conclude that Miller did not meet 

her burden of showing that agents entered the adjoining building. Nothing in the record leaves 

us “with the definite and firm conviction that a mistake has been committed.” United States v. 

Pritchett, 749 F.3d 417, 435-36 (6th Cir. 2014) (quoting United States v. Sanford, 476 F.3d 391, 

394 (6th Cir. 2007)).

We also agree with the district court’s legal conclusion that, even if the agents’ search of 

the business premises violated the Fourth Amendment’s particularity requirement, any evidence 

seized in violation of the warrant would remain admissible under the good-faith exception to the 

warrant requirement. See Leon, 468 U.S. at 919-22. The uncontradicted testimony of the agent 

who led the search was that, if members of his team passed into another building, they were 

unaware of doing so. 

AFFIRMED.