Nevada County judge delays ruling in Bigelsen case
November 15, 2014
A Nevada County judge delayed ruling Thursday on a motion to suppress evidence in the case of holistic physician Harvey Bigelsen.
Superior Court Judge Candice Heidelberger, citing a need for more time to analyze the multiple briefs filed in the case in recent days, said she would rule at a 9 a.m. hearing on Nov. 25, or earlier in written form if possible.
Heidelberger announced her decision to take the case under submission after Thursday's 30-minute hearing in front of about 60 Bigelsen supporters in a packed courtroom at the Nevada County Courthouse in Nevada City.
At the hearing, Bigelsen's attorney, Mark Geragos, and Nevada County Deputy District Attorney Ray DeJesus argued over whether legal violations occurred in the March 20 raid on Bigelsen's Biological Health Institute clinic in Nevada City and at a March 4 undercover sting operation where a state investigator posed as a patient at the clinic and recorded the session with a concealed video camera.
“You just can’t eviscerate the Fourth Amendment (against unreasonable searches and seizures) because some meddlesome dentist is making a complaint.”
"The main issue is they did not have a search warrant — even though they had time to get a warrant," Geragos said.
"You just can't eviscerate the Fourth Amendment (against unreasonable searches and seizures) because some meddlesome dentist is making a complaint," said Geragos, referring to a complaint from North San Juan dentist Robert Dickter that court documents indicate was the trigger for the sting and subsequent raid.
During the raid, which shut down the clinic, investigators seized as evidence two high-powered microscopes Bigelsen had used to examine and analyze live blood cells, among other items.
DeJesus, however, told Heidelberger that the county had blanket authority to do criminal investigations under a Dec. 11 administrative authorization letter that covered such probes on a statewide basis. Also, the California Health and Safety Code allows for inspections of businesses for code violations on a statewide basis, he said.
"The (March 4) undercover operation was not considered a search," DeJesus said. "There was no physical evidence seized; just a recording was made — there is no evidence to suppress."
District Attorney Cliff Newell echoed those comments in a message later on Thursday.
"I believe the investigators in this case followed appropriate procedures and investigative techniques," Newell said.
Two briefs submitted to the court Thursday argue that no search warrant was needed for the March 20 raid and that the March 4 undercover sting recording was legal in that permission was granted to do the undercover recording by Newell's office.
Thursday's hearing was supposed to have included testimony from state investigators acting as expert witnesses.
That testimony, however, was waived after both Geragos and DeJesus told Heidelberger they had no dispute with the factual elements of the case.
Geragos, a high-profile attorney who has represented Michael Jackson and many Hollywood stars, told Heidelberger that he questioned the authority of the Dec. 11 letter to permit the undercover sting or the raid.
"The D.A.'s letter states it's only for criminal investigation," he said. "Then (on March 4) they went in and made an appointment to allow them to go into the private areas of the clinic in an attempt to frame Dr. Bigelsen.
"If this was administrative authority, then they never would have needed the surreptitious actions," he said.
As to the state health and safety code, Geragos dismissed that as authorization to seize evidence at a medical clinic, claiming it was designed for inspections of "yogurt, grains or maybe a slaughterhouse."
Both attorneys cited a 1997 case, Bradley v. California Medical Board, in which a search warrant was obtained to investigate a medical doctor.
DeJesus said the case provided precedent that no warrant was required even though one was obtained; Geragos said the case indicates that the authorities only got the warrant after securing probable cause.
"There was no probable cause here," Geragos said. He said the state and county had four months to get the search warrant between the time of the Dec. 11 letter and the March 20 raid, but failed to do so.
If the motion to suppress is denied, Bigelsen faces nine misdemeanor counts of practicing medicine without a license, advertising himself as a physician without a license, mixing homeopathic remedies without a license and related charges. If the motion is granted, then none of the evidence can be used at trial. Newell said if the motion is granted, his office would "have to reassess" where to go from there.
Bigelsen, who surrendered his MD license in a plea deal for an alleged Medicare fraud case in Arizona in the 1990s, said he is careful to act only as a consultant to naturopaths or other licensed physicians and does not treat patients himself.
All clients at the clinic, including the March 4 undercover state investigator, are required to sign a "consent to treat" form that explains that Bigelsen is only a consultant and will not provide a diagnosis or treatment.
"She tried to get me to give her a diagnosis, but I would not," said Bigelsen of the March 4 sting operation video. Bigelsen said the woman came to the office complaining of fatigue and depression.
"The naturopath stuck her with a needle, and the naturopath mixed up some remedies," he said. "I didn't touch her."
When the woman said she was taking antidepressants, Bigelsen said he told her only that if it were him, he would switch to natural remedies.
"I told her, 'This is what I take,'" Bigelsen said. "I didn't give her a diagnosis, and I didn't tell her to stop taking the drugs."
He said he was frustrated by Thursday's delay in the case because he is unable to do any work without his microscopes.
"Why can't they just take a picture?" he said of the microscopes.
Supporters volunteered stories of major health improvements they received at Bigelsen's clinic after other traditional medical treatments had failed.
"Dr. Bigelsen saved my life," said Fiona Gardner of Nevada City, a former receptionist at the Bigelsen clinic who suffered for six or seven years with an unspecified illness that mainstream doctors were unable to diagnose, she said. "They wanted to take out my bladder, then they said maybe it would help to take out my ovaries."
She said she found almost immediate relief at Bigelsen's clinic about five years ago and is now having a "vibrant and alive" lifestyle.
"My mom and dad came all the way from England to see him," Gardner said. "He's the one."
Markus Keicher of North San Juan said he was paralyzed from a motorcycle accident in 1995 and on crutches for years.
"I could hardly walk," he said.
Keicher said he began seeing Bigelsen in 2009 and saw improvement within about a year. He continued seeing Bigelsen for about three years and is now able to walk with only a slight limp.
"People see me now and they think, 'Maybe he hurt his ankle or something,'" he said. "And I used to be paralyzed."
To contact Staff Writer Keri Brenner, email firstname.lastname@example.org or call 530-477-4239.