The Franks Motion: How a Flawed Search Warrant Affidavit Can End a Healthcare Fraud Prosecution — and Start a Civil Case

By Daniel Horowitz, Law Offices of Daniel Horowitz, and Drew Bruff, Bruff Law PLLC

Most criminal defense motions chip at the edges of a case. A Franks motion goes at the foundation.

In a healthcare fraud prosecution, virtually everything the government has flows from one document: the affidavit that persuaded a magistrate to authorize the search of a medical practice. The seized patient charts, the billing databases, the imaged servers and phones, and — critically — every expert review, coding analysis, and loss calculation built afterward from those materials all trace back to that affidavit. If the affidavit was obtained through false statements or material omissions, the warrant is void and the fruits are suppressed. In a document-driven case, there is often nothing left.

The work for a Franks motion can be daunting. In the case we presently have in San Diego with Dr. Ghada Kassab, it is our contention that the arrest warrant and the search warrant affidavits have major errors that have improperly caused our doctor's arrest. For example, we know (from our experience) that time dependent billing is an option but not a requirement for bills. Orthopedists may prefer time billing as their exams take a long time and it takes (more time!) to document what they did for a complexity billing. It is easier to bill in time increments. However, dermatologists can see a lot of patients in a short time and for them complexity billing is the way to go. In Dr. Kassab's case we are contending that the investigators made an error by confusing this OPTION and thinking that time billing was a requirement. So then the was this. How do you raise this point before trial.

We raised the point by using a Franks motion to showcase that error (in our view) and to raise other issues as well. Not just in Dr. Kassab's case but in any medical fraud case where you truly believe that your client is innocent and the case was filed in error, consider using a Franks motion to put the issues before a judge. This blog ws primarily authored by Drew Bruff and it reflects our joint work on the Kassab case. Feel free to use this work (current as of 9/2/2026)

The Franks standard

Under Franks v. Delaware (1978) 438 U.S. 154, a defendant may challenge the truthfulness of statements in a warrant affidavit. To obtain an evidentiary hearing, the defense must make a substantial preliminary showing that:

the affidavit contains statements that were deliberately false or made with reckless disregard for the truth; and
the affidavit, purged of those falsehoods, is insufficient to establish probable cause.

Id. at 155–56. If the defendant then proves the allegations at the hearing by a preponderance of the evidence, the warrant is voided and the evidence obtained through it is suppressed. Id. at 171–72.

Omissions count. This is the point defense counsel most often leaves on the table. California law is explicit that material omissions support a Franks challenge. Facts "must be disclosed if their omission would make the affidavit substantially misleading," and are material "if, because of their inherent probative force, there is a substantial possibility they would have altered a reasonable magistrate's probable cause determination." People v. Sandoval (2015) 62 Cal.4th 394, 409–410, quoted in People v. Beck and Cruz (2019) 8 Cal.5th 548, 593–594.

The Ninth Circuit applies the same principle to technically accurate statements rendered misleading by what surrounds them. A defendant need not produce conclusive proof of deliberate deception at the threshold stage; it is enough to make a substantial showing that the affiant intentionally or recklessly omitted facts necessary to prevent technically true statements from misleading the magistrate. United States v. Stanert (9th Cir. 1985) 762 F.2d 775, 781; see also United States v. DeLeon (9th Cir. 1992) 979 F.2d 761.

And on the question of the affiant's state of mind, the Ninth Circuit has identified the most commonsense evidence of recklessness: that the omitted or misstated facts were within the affiant's own personal knowledge. Chism v. Washington State (9th Cir. 2011) 661 F.3d 380, 388. An agent who personally conducted the interviews cannot credibly attribute a gap between what he heard and what he swore to negligent summarization by someone else.

Why Franks is disproportionately powerful in provider fraud cases

Three structural features of healthcare fraud investigations make these cases unusually vulnerable.

The affidavit is doing translation work, not just fact-reporting. A magistrate evaluating a bank robbery affidavit understands the underlying facts. A magistrate evaluating a dermatology billing affidavit does not know what CPT 10040 covers, how phototherapy is dosed, or what a comedone extractor is. The affiant is not merely reporting evidence — he is interpreting a technical domain for a lay reader. That creates enormous latitude to shade, and it means that a mischaracterization the affiant might defend as "just how I understood it" can be devastatingly material.

The evidence base is recorded. Patient interviews in these cases are typically audio-recorded, and investigative reports are written contemporaneously with billing summaries attached. That means the affidavit's characterizations can be checked line by line against primary source material. This is a rare gift. In most suppression litigation the defense is arguing about an officer's memory. Here the defense can put the recording next to the sworn statement.

The government's strongest evidence usually postdates the search. The loss calculations, the "impossible day" analyses, the retained medical expert reviews — these are almost always built from records seized under the warrant. They are derivative. If the warrant falls, they fall with it, and the prosecution is left with whatever it independently possessed before the search, which in a billing dispute is usually a disagreement with a payor about reimbursement.

The recurring categories of defect — and what to look for

Across provider fraud affidavits, the same patterns appear.

1. A favorable review featured, an unfavorable one buried. Where more than one entity has reviewed the provider's billing, ask which review the affidavit describes and which it omits. Pay particular attention to who conducted each review and what question each was asked. A dermatologist retained by a health plan to opine on treatment volume is answering a utilization question, not a fraud question. A certified professional coder asked whether billed codes match documented services is answering the exact question at issue in a fraud case. An affidavit that features the former and conceals the latter has inverted the evidentiary hierarchy.

2. An understated witness universe. Count the interviews. If the affidavit says twenty and the discovery reveals thirty-six conducted before the affidavit was sworn, the affiant has not merely been imprecise — he has concealed the denominator against which his characterizations should be measured.

3. Aggregate characterizations that the individual interviews contradict. Phrases like "in most cases" and "the patients described" are the affiant's summary of underlying material. Pull the recordings. Build a chart. Code every answer as affirmative, negative, equivocal, or not discussed. The resulting distribution either supports the affidavit's summary or refutes it.

4. Leading questions built on false premises. Watch for the affiant supplying the answer he wants: "Did it look like a regular house lamp?" If witnesses reject the premise and the affidavit reports the premise anyway, that is a Franks issue.

5. Terminology-driven denials. This one is specific to billing cases and it is powerful. Investigators ask patients whether they received "acne surgery," "debridement," or "drainage of skin abscesses" — clinical billing terms that no layperson uses. Patients predictably say no. Those denials become the foundation of a loss estimate. But CPT 10040 "acne surgery" can be a ten-second comedone extraction with a small metal loop; "debridement" under CPT 96574 is a brief preparatory abrasion before photodynamic therapy that most patients would not register as a distinct event. Meanwhile the same patients describe, in their own words, being "zapped" and "frozen" — descriptions that correspond precisely to the billed procedures. A denial of terminology is not a denial of the procedure, and an investigator experienced in healthcare fraud knows the difference.

6. Billing units misdescribed. Compare the affidavit's numbers against the investigator's own attachments. A patient who reports ten visits and a billing summary showing ten dates of service do not become "fifty-eight office visits" unless someone has counted individual procedure lines as separate encounters. That conversion transforms a coding dispute into an allegation of phantom visits — a far more serious charge, and one the underlying records may not support.

7. Omitted context that negates intent. Fraud requires deception. Where the payor had already placed the provider on prepayment review — requiring documentation for every claim before payment issued — the payor was examining and approving the very claims later called fraudulent. An affidavit that presents billing data as evidence of concealment while omitting that the payor individually reviewed and paid those claims has withheld the single most exculpatory fact available. See Banerjee v. Superior Court (2021) 69 Cal.App.5th 1093.

8. Medical premises that are simply wrong. Verify the clinical claims against the literature — including the payor's own published clinical policy. If the affidavit treats a treatment frequency as excessive when the American Academy of Dermatology and the plan's own policy recommend a more frequent schedule, or implies that a therapy is a cancer treatment when cancer is a listed contraindication, the affiant either did not do basic research or chose to mislead. Either supports recklessness under Stanert.

An illustration: the pending Franks motion in People v. Kassab

A currently pending motion in San Diego Superior Court (Case No. CD307675) illustrates how these categories operate together. The following describes arguments set out in a publicly filed defense motion. They have not been adjudicated, and the motion is set to be heard later this year.

Dr. Ghada Kassab is a dermatologist who treated a predominantly low-income Medi-Cal population in San Diego County. In June 2022, agents executed search warrants at her home and two medical offices based on a sixty-page affidavit. The defense motion contends the affidavit contained false statements and material omissions across at least eight categories, including:

that a five-file audit conducted at a health plan's direction, using files the plan selected, was presented as though it characterized the practice — while an independent Special Investigations Unit review of ten patients by a certified professional coder, which concluded that all claims were billed appropriately and closed with no suspected fraud, waste, or abuse, was omitted entirely;
that the affidavit represented twenty patient interviews when thirty-six had been conducted before it was sworn;
that the representation that "in most cases" patients saw no improvement is contradicted by the recordings, in which a majority of patients who addressed the question reported that the treatment helped;
that patients characterized as describing a "regular household-type lamp" in fact described medical devices, or expressly rejected the household-lamp premise the agent supplied;
that a treatment frequency presented as excessive is substantially less frequent than the schedule recommended by the American Academy of Dermatology and by the referring plan's own clinical policy;
that patient denials of "acne surgery," "debridement," and "drainage" were the product of clinical terminology, while the same patients described "zapping" and "freezing" — procedures that correspond to the billed codes;
that an investigator's own report and billing summary contradict statements made in his affidavit; and
that the affidavit omitted Dr. Kassab was on prepayment review, in effect at the time the affidavit was sworn, under which the health plan at-issue individually reviewed and approved the claims now called fraudulent.

The motion argues that, purged of these statements and supplemented with the omitted facts, what remains is a reimbursement dispute between a managed care organization and a physician — not probable cause for a criminal search warrant.

The point for practitioners is methodological. None of that showing came from cross-examination or from a hunch. It came from doing three unglamorous things: obtaining and listening to every interview recording rather than relying on the summaries; comparing the affidavit line by line against the investigator's own reports and their attachments; and checking every clinical assertion against the published literature, including the referring payor's own policy.

Bottom line

A Franks motion is labor-intensive. It requires listening to every recording, charting every answer, cross-referencing every figure against the investigator's own attachments, and retaining an expert who can explain to a court what the billing codes actually describe. There is no shortcut.

But in a healthcare fraud case, it is the motion with the highest ceiling. Suppression of the seized records does not narrow the case; it typically ends it, because everything the government built afterward was built from what it took. And where the showing is strong enough to void a warrant, it is frequently strong enough to state a civil claim on the other side of the caption.

Daniel Horowitz is a California criminal defense attorney whose practice focuses on the defense of physicians and healthcare providers. Drew Bruff is the managing member of Bruff Law PLLC, licensed in California and Florida, handling complex litigation and white collar defense. Together they represent Dr. Ghada Kassab in People v. Kassab, San Diego Superior Court Case No. CD307675.

This article describes contentions set out in motions filed in the public record of a pending criminal case. Those contentions are allegations that have not been adjudicated, and Dr. Kassab is presumed innocent unless and until proven guilty. Nothing here is legal advice, and reading it does not create an attorney-client relationship. Past results do not guarantee or predict a similar outcome in any other matter.

The Franks Motions Can End a Healthcare Fraud Prosecution