Petition — Pennsylvania v. Santner

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Supreme Court of the United States

OCTOBER TERM, 1983

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

-“VS-

FLOYD SANTNER, M.D.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

VRAM NEDURIAN, JR.

Assistant District Attorney

€ Counsel of Record )

DENNIS C. McANDREWS

Assistant District Attorney

JOHN A. REILLY

District Attorney

Delaware County

Court House

Media, PA. 19063

(215) 891-4210

THE SUPERIOR APPELLATE PRINTING COMPANY

? © 80x 383 AREA CODE 609

CRANBURY NJ 0852 443-42Q2

QUESTIONS PRESENTED

l. Do the Fourth and Fourteenth

Amendments to the United States Constitution

require that a search warrant set out with

exacting particularity the precise items

to be seized where it is only reasonably

possible to relate the generic class of

such items, especially where the subjects

of the search are business records of a

pervasive criminal enterprise?

2. Whether the Fourth and Fourteenth

Amendments to the United States Constitutions

mandate that where a search warrant is

arguably overbroad, i.e. permits siezure of

items whose precise identity is not

adequately particularized in the probable

cause affidavit to the warrant, that all

items seized via the warrant must be

suppressed, including those items for

which particularized probable cause was

plainly established?

3. Whether a Writ of Certiorari

should issue to resolve the above questions

upon which conflicting decisions have been

rendered by the Circuit Courts of Appeals

and by the highest state courts of the

nation?

4. Whether the Fourth and Fourteenth

Amendments to the United States Constitution

mandate suppression of articles siezed by a

police officer in good faith reliance upon

a lengthy and detailed search warrant

approved by a magistrate, but later held

to be overbroad by an appellate court?

TABLE OF CONTENTS

Page

Opinions Below 2

Statement of Jurisdiction 2

Constitutional Provisions Involved 3

Statement of the Case 4-8

Reasons for Granting the Writ

A. The Fourth ane’ Fourteenth

Amendments to the United

States Constitution do not

require that search warrants

set out with exacting parti-

cularity the precise items

to be seized where it is reason-

able to described such articles

by generic class. 9-16

B. The Fourth and Fourteenth

Amendments to the United

States Constitution do not

require that where a search

werrant is overbroad, i.e.

permits seizure of items

beyond those particularized

in the probable cause section

of the warrant, that all

articles seized be suppressed,

including those items for

which particularized probable

cause was plainly established;

only those items improperly

seized need be suppressed. 17-23

iii

Page

C. Where police officers act

ir. good faith reliance

upon a search warrant duly

approved by a magistrate,

evidence should not be

suppressed upon a later

finding by another court

that the search warrant was

d-fective 24-26

Conclusion 27

Footnotes 28-30

APPENDICES

Appendix A: Search warrant and Affidavit la

Appendix B: Judgement and Opinion of the

Superior Court of Pennsyl-

vania 7a

Appendix C: Opinion of the Trial Court

of Delaware County, Pennsyl-

vania 36a

Appendix D: Order of the Pennsylvania

Supreme Court dated March

3, 1983 6la

Appendix E: Order of the Pennsylvania

Supreme Court dated May

18, 1983 62a

TABLE OF AUTHORITIES

Federal Cases Page

Andresen v. Maryland, 427 U.S. 463

96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) 10,16,18,20

Gates v. Illinois, U.S. °

$.¢t. ’ L.Ed. 2d (filed

June 8, 1983) 24

Grimaldi v. United States,

606 F.2d 332 (lst Cir. 1979) 15

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961) 25

Montilla Records of Puerto Rico, Inc.

v. Morales, 575 F.2d 324

(lst Cir. 1978) 28

Search Warrant Dated July 4, 1977, In re,

187 U.S. App. D.C. 297, 572 F.2d 321

(D.C. Cir. 1977), 667 F.2d 117

(D.C. Cir. 1981), cert. denied

a U.8. » 308 S.C. 23a.

L.Ed.2d 29, 30

Sovereign News Company v. United States,

690 F.2d 569 (6th Cir. 1982) 30

United States v. Brien, 671 F.2d 299

(lst Cir. 1980) cert. denied,

446 U.S. 919, 100 S.Ct. 1854, 64

L.Ed.2d 273 14, 15

United States v. Bright,

630 F.2d 804 (Sth Cir. 1980) 29

United States v. cardwell,

680 F.2d 75 (9th cir. 1982) 30

United States v. Christine,

687 F.2d 749 (3rd Cir. 1982)

United States v. Cook,

657 F.2d 730 (5th Cir. °.981)

United States v. Cortelleso,

601 F.2d 28 (lst Cir. 1979)

United States v. Dennis,

625 F.2d 782 (8th Cir. 1980)

United States v. Dunloy,

584 F.2d 6 (2nd Cir. 1978)

United States v. Forsythe,

560 F.2d 1127 (3rd Cir. 1977)

United States v. Honore,

450 F.2d 31 (9th Cir. 1971)

United States v. Jacobs, 657 F.2d 49

(4th Cir. 1981), cert. denied 455 U.S.

942, 102 S.Ct. 1435, 71 L.Ed.2d 653

(1982)

United States v. Ketterman,

276 A.2d 243 (D.C. App. 1971)

United States v. Mendoza,

473 P.2d 692 (5th Cir. 1972)

United States v. Scharfman,

448 F.2d 1352 (2nd Cir. 1971)

United States v. Waugneux,

683 F.2d 1343 (llth Cir. 1982)

VonderAhe v. Howland,

508 F.2d 364 (9th Cir. 1974)

Page

11, 30

28, 30

15, 29

29, 30

14,29,30

14, 29

Pennsylvania Cases Page

Commonwealth v. Barba, Pa.Super. ’

A.2d (Filed April 12, 1983) 25

Commonwealth v. Santner, Pa.Super. ’

454 A.2d 24 (1982), opinion below

68 Del. Co. Rep. 366 (1980) 7

Commonwealth v. Smyser, 205 Pa.Super. 599,

211 A.2d 59 (1965) 25

Other Cases

Aday v. Superior Court of Alaneida County,

55 Cal. 2d 789, 13 Cal. Rptr. 415,

362 P.2d 47 (1961) 30

Butler v. State, 130 Ga. App. 469,

203 S.E. 2d 1224 (1981) 30

Commonwealth v. Kenneally, 383 Mass. 269,

418 N.E. 2d 1224 (1981) 28

Gonzalez v. State, 577 S.W. 2d 226,

(Tex. Crim. 1979), cert. denied

444 U.S. 853, 100 S.Ct. 109, 62

L.Ed.2d 71 29

Kinsey v. State,

602 P.2d 240 (Okla. Crim. 1979) 28,29

Lockridge v. Superior Court, 275 Cal. App.

2d 612, 80 Cal. Rptr. 223 (1969) 28

Mann. v. State,

389 N.E. 2d 352 (Ind. App. 1979) 29

1969 Plymouth Roadrunner, In re,

455 S.W. 2d 466 (Mo. 1970) 28

vii

Page

People v. Haas, 55 App.Div. 2d

683, 390 N.Y.S.2d 202 (1976) 28

People v. Russell, 45 Ill. App. 3rd

961, 4 Ill. Dec. 579, 360 N.E. 2d

515 (1977) 28

People v. Schmidt,

172 Col. 285, 473 P.2d 698 (1970) 28

People v. Wolski, 83 Ill. App. 3rd 17,

38 Ill. Dec. 297, 403 N.E. 2d 528

(1980) 28

State v. Brown,

205 Kan. 457, 470 P.2d 805 (1970) 29

State v. Carmel, 169 N.J. Super. 370,

404 A.2d 1227 (1979) 28, 29

State v. Clark,

281 N.W. 2d 412 (S.D. 1979) 28, 30

State v. Flood,

301 So.2d 637 (La. 1974) 29

State v. Foye,

14 N.C. App. 200, 188 S.E. 2d 67 (1972) 28

State v. Halverson,

21 Wash. App. 35, 584 P.2d 408 (1978) 30

State v. Hoffman,

273 Ark. III, 617 S.W.2d 16 (1981) 28

State v. Johnson,

160 Conn. 28, 373 A.2d 702 (1970) 30

State v. Kealoha,

62 Hawaii 166, 613 P.2d 645 (1980) 28,30

viii

State v. Maddasion,

130 Ariz. 306, 636 P.2d 84 (1981) 30

State v. Quintana,

87 N.M. 414, 534 P.2d 1126 (1975) 29

State v. Rund,

259 N.W. 2d 567 (Minn. 1977) 29

State v. Sagner,

120 Or. App. 459, 506 P.2d 510 (1973) 30

State v. Salsman,

112 N.H. 138, 290 A.2da 618 (1972) 28

State v. Sweatt, 427 A.2d 940 (Me. 1981),

Appeal after remand, 444 A.2d 361,

cert. denied, U.S. __, 103 S.Ct.

471, __—«-« LL. BG.20 28

State v. Withers,

8 Wash. App. 123, 504 A.2d 1151 (1972) 28

Strauss v. Stynchcombe,

224 Ba. 859, 165 S.E.2d 302 (1968) 28

Walthall v. State,

594 S.W. 2d 74 (Tex. Crim. App. 1980) 30

Constitutional and Statutory Provisions

United States Constitution, Amendment Four 3

United States Constitution, Amendment

Fourteen 3

28 U.S.C. §$1257(3) 2

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1983

NO.

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

vs.

FLOYD SANTNER, M.D.,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

Petitioner, the Commonwealth of Penn-

sylvania, respectfully requests that a

Writ of Certiorari issue to review the

Judgment and Opinion of the Superior

Court of Pennsylvania entered in this case.

OPINIONS BELOW

The Opinion below and Judgment of the

Pennsylvania Superior Court, which is un-

officially reported at 454 A.2d 24 (Pa.Super.

1982), but which has not yet been official-

ly reported, is set forth in full in

Appendix B infra at . The Opinion

below of the Delaware County Court of

Common Pleas is reported at 68 Del.Co.

Rptr. 366 (1980), and is set forth in

Appendix C, infra at

STATEMENT OF JURISDICTION

The judgment of the Pennsylvania

Superior Court was entered on July 9, 1982.

The Pennsylvania Supreme Court refused

review of this matter by Orders dated March

3, 1983, and May 18, 1983. The juris-

diction of this Court is invoked pursuant

to 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Amendment

Four, which provides:

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seiz-

ures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath

or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized.

United States Constitution, Amendment Four-

teen, Section One, which provides:

All persons born or naturalized

in the United States, and subject

to the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No State shall make or enforce any

law which shall abridge the priv-

ileges or immunities of citizens

of the United States; nor shall

any State deprive any person of

life, liberty, or property, without

due process of law; nor deny to

any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

Beginning in the fall of 1977, the

Upper Darby Police Department received

complaints from residents in the neighbor-

hood of Dr. Floyd Santner's office regarding

the large number of young patients and

friends frequenting the office [R. 60la,

644a, 650a, 779a],* some of whom appeared

to be intoxicated. [R. 63la]. Police

surveillance revealed that many of the

people who entered and left Dr. Santner's

office went immediately to the Long Lane

Court Pharmacy where prescriptions were

tendered and filled by the pharmacist.

[R. 628a, 754a].

Examination of the Long Lane Court

Pharmacy records indicated that Dr. Santner

was prescribing a huge volume of Class II

drugs, drugs defined at 35 P.S. §780-104(2)

* "R" refers to the Trial Notes of Testimony.

as drugs with a high potential for abuse.

During the month from September 16 to

October 18, 1977, 595 prescriptions for

such Class II drugs were filled in that

single pharmacy pursuant to Dr. Santner's

orders. For the same time period, only 65

prescriptions for Class II druys were

filled in the same pharmacy pursuant to

orders from all other doctors. [R. 943a].

Furthermore, several dozen of Dr. Santner's

patients obtained prescriptions for Class

II drugs on a continuous basis over a

period of many months. [R. 2327a].

Upper Darby police officers executed

a search warrant* on February 28, 1979,

and secured patient records, financial

ledgers and billing information from Dr.

Santner's office. [R. 1237a]). The infor-

mation contained in Dr. Santner's records

* This search warrant is reproduced in

full at Appendix A.

further documented the fact that the

doctor prescribed huge amounts of control-

led substances on a continuous basis,

including Quaaludes, Doriden, Robitussen,

Valium, [R. 2672a], and the information

also revealed that the high volume of

patients who visited the office neces-

sarily precluded anything but cursory

examination of the patients at the time

the prescriptions were written. [R. 1327a].

As a result of this investigation,

Dr. Santner was arrested on February 28,

1978, and charged with 1) Prescribing Con-

trolled Substances to Drug Dependant Persons,

35 P.S. §$780-113(a)(13), 2) Prescribing

Controlled Substances in the Course of

Professional Practice Outside the Scope

of Patient Relationship and Outside of

Responsible Treatment Principles, 35 P.S.

§780-113(a)(14), and 3) Criminal Conspiracy,

18 P.S. §903.

Dr. Santner was arraigned on April

5, 1978, and an omnibus pre-trial motion

alleging that the search warrant was overly

broad and in viclation of Dr. Santner's

federal constitutional rights was filed

on July 1l, 1978. Following a hearing on

the notion on April 2-4, 1979, the motion

was dismissed on June 22, 1979. The matter

was tried before the Honorable Robert F.

Kelly, sitting with a jury from September

7, 1979 until October 5, 1979, when the

jury returned guilty verdicts as to the

charges under 35 P.S. §780-113(a)(13) and

(14).

Post-verdict motions were filed on

October 15, 1979, and supplemental motions

were filed together with Dr. Santner's brief

on April 16, 1980. These motions were

denied on July 21, 1980, Commonwealth v.

Santner, 68 Del. Rep. 366 (1980), and Dr.

Santner was sentenced on October 14, 1980,

to a minimum period of incarceration of

two years and a maximum of four years

together with a fine of $20,000.

Notice of appeal to the Superior

Court of Pennsylvania was filed on October

16, 1980 On July 9, 1982, the Superior

Court at 454 A.2d 24 (1982) reversed Dr.

Santner's conviction on the sole basis

that the search warrant which gave rise

to the seizure of the defendant's records

was overly broad and violative of the

Fourth Amendment to the United States

Constitution. The Pennsylvania Supreme

Court denied the Commonwealth's Petition

for Allowance of Appeal on March 3, 1983.

The Commonwealth then timely filed an

Application For Reconsideration of Denial

of Petition For Allowance of Appeal, and

the Pennsylvania Supreme Court denied

that Application on May 18, 1983. The

Commonwealth of Pennsylvania now seeks

this Court's review of the Superior Court's

Opinion and Order.

REASONS FOR GRANTING THE WRIT

A. THE FOURTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTITUTION DO

NOT REQUIRE THAT SEARCH WARRANTS SET OUT

WITH EXACTING PARTICULARITY THE PRECISE

ITEMS TO BE SEIZED WHERE IT IS REASONABLE

TO DESCRIBE SUCH ARTICLES BY GENERIC CLASS.

The question presented here is whether

the United States Constitution requires

that search warrants for the seizure of

items within a particular generic class

describe those items with precision and

exacting particularity. In the instant

case the items to be seized were the business

records of a medical doctor; the investigation

as set forth in the affidavit of probable

cause to the search warrant revealed that

the doctor's "practice" was actually a

pervasive criminal activity in the form of

a "drug mill" wherein "patients" would

enter the doctor's offices and promptly

receive a prescription for controlled

substances with a high potential for abuse.

The Commonwealth respectfully contends that

the seizure of the doctor's records was

justified under the extensive investigation

as set forth in the affidavit of probable

cause, and under this Court's prior interpre-

tation of the “overbreath doctrine” as set

forth in Andresen v. Maryland, 427 U.S.

463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

In adopting the rationale set forth in

the Superior Court's opinion below,

Pennsylvania has joined a minority of

states and circuit courts which have inter-

preted the Fourth Amendment to require

exacting precision of police officials in

delineating the items to be seized via a

search warrant. However, a majority of

states and circuit courts“ continue to

. Due to the relative length of the

substantive footnotes herein, these foot-

notes are identified by number and appear

at the conclusion of the Argument portion

of this Petition.

utilize a more practical and realistic

approach to the Fourth Amendment and to the

necessities of responsible law eniorcement

by requiring only a reasonable degree of

specificity considering the circumstances

of the case and any exigencies attendant

thereto. Furthermore, the opinion below

appears to place Pennsylvania at odds on

the overbreadth issue with its own Third

Circuit Court of Appeals which has enunci-

ated standards concerning search warrant

overbreadth in an Opinion released shortly

after the opinion below in the instant

case. United States v. Christine, 687

F.2d 749 (3rd Cir. 1982).

The difficulties presented by the

opinion of the lower court and by the minor-

ity view in banning searches for a general

class of items are apparrent. Law enforce-

ment officials frequently have more than

adeguate probable cause to know that a

generic class of items exists in the place

to be searched; classic examples of such

instances are drug laboratories and gambling

halls. In such cases, police are usually

able to articulate facts, often via a

variety of sources, which plainly establish

probable cause to believe that contraband

of a particular class will be found in the

place to be searched. However, given the

nature of the operation which is the subject

of the investigation, it is frequently

impossible to state with mathematical pre-

cision the precise items to be seized; in

such cases such generic terms as "controlled

substances” or “gambling paraphernalia”

should be considered reasonably particu-

larized descriptions of the items to be

seized. Along these lines, the questions

of overbreadth and the requisite particu-

larity become especially troublesome where

the criminal activity is both complex and

provasive; i.e. where, as in the instant

case, police investigation reveals that the

defendant is taking part in a pervasive

Criminal activity which can be established

via a particular class of his records.

Naturally, in these circumstances a

particular description of the exact docu-

ments to be seized is plainly impossible.

The minority of jurisdictions which hold

that a strict and particularized descrip-

tion of each item to be seized must be

given in such cases effectively negates

the "reasonableness" clause of the Fourth

Amendment, and permits criminal enterprises

to hide behind the complexity of their

schemes. These minority jurisdictions

ignore the fact that there is a vast

difference between the "general warrants”

proscribed by the Fourth Amendment, and

a carefully drafted search warrant which

does not request a general rummaging of

the defendant's effects, but rather seeks

to search only for a generic class of

items such as records indicative of

specified criminal activity, controlled

substances, or other stated forms of

contraband or evidence.

While the lower court recognized that

"the law is largely unformed in this diffi-

cult", Slip Opinion at 18, the court ignored

substantial case’ law for the proposition

that the Fourth Amendments standards of

particularity and specificity in delineating

the items to be seized via a search warrant

is lessened where the items at issue are

difficult or impossible to describe with

mathematical precision. United States v.

Sharfman, 448 F.2d 1352 (2nd Cir. 1971);

United States v. Jacob, 657 F.2d 49 (4th

Cir. 1981, cert. denied, 455 U.S. 942, 102

S.Ct. 1435, 71 L.Ed.2d 653 (1982); United

States v. Brien, 617 F.2d 299 (1980), cert.

denied 446 U.S. 919, 100 S.Ct. 1854, 64

L.Ed.2d 273. Furthermore, the lower court

refused to consider the fact that while a

large quantity of items were targeted for

seizure in the warrant, only those items

whose seizure was supported by probable

cause (i.e., those papers dealing with the

defendant's "treatment" of his "patients",

and not unrelated personal or financial

records) were subject to seizure. Addition-

ally, the lower court ignored case law from

the majority jurisdictions which hold that

where there is probable cause to believe

that a dominant portion of records or

items to be seized is evidence of crime or

fruits or instrumentalities thereof, a less

rigorous standard is demanded regarding

specification of the items to be seized.

Brien, supra; United States v. Dennis, 625

F.2d 782 (8th Cir. 1980); United States v.

Cortelleso, 601 F.2d 28 (lst Cir. 1979);

Grimaldi v. United States, 606 F.2d 332 (lst

Cir. 1979). Finally, the lower court places

great significance upon the fact that the

Commonwealth selected only the strongest

pieces of evidence and introduced those

exhibits at trial as showing that the

Commonwealth took vast quantities of irrele-

vant documents; such a determination ignores

the particular and peculiar facts of the

instant case, the practical requirements of

trial tactics and advocacy, and Supreme

Court authority for the proposition that the

mere fact that some items seized may not,

in the final analysis, be of evidentiary

value does not render an entire search

invalid. Andresen v. Maryland, 427 U.S.

463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) at

n.ll.

B. THE FOURTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTITUTION DO

NOT REQUIRE THAT WHERE A SEARCH WARRANT IS

OVERBROAD, i.e. PERMITS SEIZURE OF ITEMS

BEYOND THOSE PARTICULARIZED IN THE PROBABLE

CAUSE SECTION OF THE WARRANT THAT ALL

ARTICLES SEIZED BE SUPPRESSED, INCLUDING

THOSE ITEMS FOR WHICH PARTICULARIZED

PROBABLE CAUSE WAS PLAINLY ESTABLISHED;

ONLY THOSE ITEMS IMPROPERLY SEIZED NEED BE

SUPPRESSED.

In the opinion and Order of the Court

below, the Pennsylvania Superior Court

ordered the suppression of all items seized

via the execution of the purportedly over-

broad warrant in question; the Superior

Court did this despite an express finding

on the part of that Court that the warrant

presented adequate probable cause and

particularity to seize many items named

within the four corners of the warrant and

which were seized by the officers in the

execution thereof. Santner, 454 A.2d at 30.

In so doing, the Superior Court adopted the

position of a small minority of states?

which hold that an overbroad warrant may

not be severed into two catego-ies - those

items seized via adequate probable cause and

particularity, and those items seized as a

result of the overbreadth. However, a

majority of jurisdictions’ permit such

severence of an overly broad warrant so as to

permit the evidentiary use of properly

seized items (i.e. those adequately de-

scribed and particularized within the

warrant), and the suppression of only those

items improperly seized. While this Court

in Andresen v. Maryland, supra, at n.1ll,

appeared to approve of the severance practice

utilized in the majority of jurisdictions,

a significant division among the states and

circuit courts has arisen nonetheless re-

garding this practice.

The practice of severing, or as it is

sometimes called, “redacting", Christine,

supra, those items which were improperly

seized as a result of overbreadth and search

warrant from those items which were properly

seized under the more particularized portions

of the warrant, is a reasonable and common-

sense approach to dealing with warrants

which are largely sufficient and proper,

yet which include an area of generality or

impropriety. The United States Court of

Appeals for the Third Circuit synopsized

the principle of severance, or redaction,

in Christine, supra, where it stated as

follows:

"By redaction, we mean striking

from a warrant those severable

phrases and clauses that are

invalid for lack of probable

cause or generality and pre-

serving those severable phrases

and clauses that satisfy the

Fourth Amendment. Each part of

the search authorized by the

warrant is examined separately

to determine whether it is

impermissibly general or un-

supported by probable cause.

Material seized under the

authority of those parts of the

warrant struck for invalidity

must be suppressed, but the

Court need not suppress materials

seized pursuant to the valid

portions of the warrant."

Christine, 687 F.2d at 754.

The concept of severance, or redaction,

of overbroad warrants is an efficacious and

constitutionally sound practice for a number

of reasons. First, the suppression of only

those items seized in contravention of the

defendant's constitutional rights is well

grounded hisrotically, See, e.g., United

States v. Dunloy, 584 F.2d 6, 11 n.4 (2nd

Cir. 1978); United States v. Forsythe, 560

F.2d 1127 (3rd Cir. 1977); United States v.

Mendoza, 473 F.2d 692, (Sth Cir. 1972);

Andresen v. Maryland, 427 U.S. at 482 n.1l,

96 S.Ct. at 3749 n.1l, and served the pur-

poses of the exclusionary rule. Under such

a practice, items which have been improperly

seized from the defendant are suppressed,

and law enforcement officials are thus

deterred from further violations of the

defendant's constitutional rights; however,

those items which have been properly seized

are permitted to be used by law enforcement

officials against the defendant, thus pre-

venting the defendant from receiving a

windfall benefit for what is often an

inadvertent or technical error.

Second, the use of severence or re-

daction encourages law enforcement officials

to utilize warrants in making searches

in the courses of their duties. If law

enforcement officials realize that they

will be punished only for their blun-

ders, and not be punished in a sweeping

manner by the courts without regard for

the properly drafted portions of warrants,

police officers will thereby be encouraged

to rely upon warrants issued upon judicial

approval rather than upon consent searches

or upon exigent circumstances in effecting

desirec searches. A contrary policy would,

of course, have the undesirable effect of

discouraging police from utilizing search

warrants. Such a result is supportable by

neither nor the Constitution, and should

not be countenanced.

Third, the practice of severance is

consistent with the very foundation of

the warrant requirement to the United

States Constitution in that a) the intrusion

into personal privacy has been justified

by presenting probable cause to a judicial

authority, b) the scope of the search

actually conducted has, while broader

than proper, nonetheless been limited by

the terms of the magistrate's authorization,

c) the individual whose property has béen

seized has received notification of the

lawful authority of the executing officer

and of his need to search, and d) a judicial

record has been generated in the form of

the warrant so as to facilitate subsequent

judicial review. Consequently, the practice

of severence should be seen as a valuable

accommodation between the rights of the

individual criminal defendant and of society,

and obviates the enormous societal loss

which would result from the suppression of

all evidence seized from the criminal

defendant, including those items seized

pursuant to the valid portion of the warrant.

C. WHERE POLICE OFFICERS ACT IN

GOOD FAITH RELIANCE UPON A SEARCH WARRANT

DULY APPROVED BY A MAGISTRATE, EVIDENCE

SHOULD NOT BE SUPPRESSED UPON A LATER

FINDING BY ANOTHER COURT THAT THE SEARCH

WARRANT WAS DEFECTIVE.

Finally, the Commonwealth would

respectfully contend that the instant

matter is an appropriate case for this

Court to reconsider the exclusionary

rule in circumstances where law enforcement

officials act in good faith reliance

upon a duly issued search warrant. See,

Gates v. Illinois, 2.8. ’

S.ct. , _ £4UL.Ed.2d _ £(filed June

8, 1983). While the Commonwealth concedes

that this assertion is raised for the

first time on appeal, no opportunity

previously existed for the Commonwealth

to raise this issue, inasmuch as it

prevailed at the trial court level without

need to assert "good faith", and the

Pennsylvania Superior Court was powerless

to decide this issue in a manner contrary

to prior United States Supreme Court

authority that the good faith of the

police officer in executing an invalid

warrant is irrelevant. See, e.g. Mapp. v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684 6 L.Ed.2d

1081 (1961). Furthermore, inasmuch as the

Pennsylvania State Constitution's guarantee

against unreasonable searches and seizures has

been interpreted to be coextensive with the

United States Constitutions Fourth Amendment,

the lower court was effectively precluded from

deciding any good faith issue upon the

Pennsylvania Constitution, even if it chose

to ignore the established United States

Supreme Court Authority. Commonwealth v.

Smyser, 205 Pa.Super. 599, 211 A.2d 59 (1965);

Commonwealth v. Barba, Pa.Super. ’

A.2d , (£iled April 22, 1983). Consequently,

inasmuch as no reasonable opportunity has

previously existed to raise the good faith

of the officers as an exception to the

exclusionary rule, it is respectfully submitted

that the instant matter is an appropriate

case for this Court to determine whether the

good faith of an officer relying upon a duly

executed search warrant should be permitted to

vitiate the suppression of the fruits of a

search under an improper warrant.

CONCLUSION

For all the foregoing reasons, the

Commonwealth of Pennsylvania respectfully

requests that a Writ of Certiorari issue

to review the decision below.

Respectfully submitted,

Yam Nedurenr

Vram Nedurian, Jr.

Assistant District Attorney

(Counsel of Record)

Dennis C. McAndrews

Assistant District Attorney

John A. Reilly

District Attorney

Court House

Media, Pennsylvania 19063

(215) 891-4210

. The minority view is expressed in

the following opinions of the various states

and Circuit Court of Appeals adopting this

view; State v. Hoffman, 273 Ark. lll, 617

S.W.2d 16 (1981); State v. Carmel, 169

N.J. Super 370, 404 A.2d 1227 (1979);

Lockridge v. Superior Court, 275 Cal. App.2d

612, 80 Cal. Rptr. 223 (1969); In Re 1969

Plymouth Roadrunner, 455 S.W.2d 466 (M.O.

1970); Kinsey v. State, 602 P.2d 240 (Okla.

Crim. 1979); State v. Kealoha, 62 Hawaii

166, 613 P.2d 645 (1980); State v. Sweatt,

427 A.2d 940 (Me. 198)); Appeal after remand,

444 A.2d 361, cert.den. _ U.S. ___, 103

S.Ct. 71, __ L.Ed.2d ; Montilla Records

Of Puerto Rico, Inc. v. Morales, 575 F.2d

324 (lst Cir. 1978) (but see conflicting

First Circuit case in footnote 2, infra);

United States v. Cook, 657 F.2d 730 (5th

Cir. 1981) (but see conflicting fifth Cir-

cuit case cited in footnote 2, infra);

VonderAhe v. Howland, 508 F.2d 364 (9th

Cir. 1974) (but see conflicting Ninth Cir-

cuit case cited in footnote 2, infra).

é The following state courts and Cir-

cuit Court of Appeals have adopted the

majority view; State v. Withers, 8 Wash.

App. 123, 504 P.2d 1151 (1972); People v.

Wolski, 83 Ill. App.3rd 17, 38 Ill. Dec.

297, 403 N.E.2d 528 (1980); Strauss v.

Stynchcombe, 224 Ga. 859, 165 S.E.2d 302

(1968); State v. Clark, 281 N.W.2d 412

(S.D. 1979); State v. Salsman, 112 N.H. 138,

290 A.2d 618 (1972); People v. Schmidt,

172 Col. 285, 473 P.2d 698 (1970); Common-

wealth v. Kenneally, 383 Mass. 269, 418

N.E.2d 1224 (1981); State v. Foye, 14 N.C.

App. 200, 188 S.E.2d 67 (1972);

State v. Quintana, 87 N.M. 414, 534

P.2d 1126 (1975); Gonzalez v. State, 577

S.W.2d 226 (Tex. Crin. 1979), cert.den.

444 U.S. 853, 100 S.Ct. 109, 62 L.Ed.2d 71;

State v. Flood, 301 So.2d 637 (La. 1974);

State v. Brown, 205 Kan. 457, 470 P.2d 805

(1970); State v. Rund, 259 N.W.2d 567

(Minn. 1977); Mann v. State, 389 N.E.2d 352

(Ind. App. 1979); United States v. Brien,

6717 F.2d 299 (lst Cir. 1980) cert.den. 446

U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273

(but see First Circuit case to the contrary

at footnote l, infra); United States v.

Sharfman, 448 F.2d 1352 (2nd Cir. 1971);

United States v. Jacob, 657 F.2d 49 (4th

Cir. 1981), cert.den., 455 U.S. 942, 102

S.Ct. 1435, 71 L.Ed.2d 653 (4th Cir. 1982);

United States v. Bright, 630 F.2d 804 (5th

Cir. 1980) (but see Fifth Circuit case to

the contrary in footnote l, infra);

United States v. Dennis, 625 F.2d 782 (8th

Cir. 1980); United States v. Honore, 450

F.2d 31 (9th Cir. 1971) (but see Ninth

Circuit case to the contrary in footnote

l, infra); United States v. Wuagneux, 683

F.2d 1343 (llth Cir. 1982); In Re Search

Warrant, dated July 4, 1977, 187 U.S. App.

D.C. 297, 572 F.2d 321 (D.C. Cir. 1977).

3 The minority view on this issue is

reflected in the following cases: Kinsey

v. State, 602 P.2d 240 (Okla. Cim. 1979);.

State v. Carmel, 169 N.J. super 370, 404

A.2d 1227 (1979).

4 The majority view is represented by

the following cases of the various states

ard Circuit Court of Appeals: State v.

Johnson, 160 Conn. 28, 373 A.2d 702 (1970);

Aday v. Superior Court of Alaneida County,

55 Cal.2d 789, 13 Cal. Rptr. 415, 362 P.2d

47 (1961) (leading case); United States v.

Ketterman, 276 A.2d 243 (D.C. App. 1971);

Butler v. State, 130 Ga. App. 469, 203

S.E.2d 558 (1973); People v. Russell, 45

Ill. App.3rd 961, 4 Ill. Dec. 579, 360

N.E.2d 515 (1977); People v. Haas, 55 App.

Div. 2nd 683, 390 N.Y.S.2d 202 (1976);

State v. Sagner, 12 Or. App. 459, 506 P.2d

510 (1973); State v. Clark, 281 N.W.2d 412

(S.D. 1979); State v. Halverson, 21 Wash.

App. 35, 584 P.2d 408 (1978); State v.

Maddasion, 130 Ariz. 306, 636 P.2d 84 (1981);

State v. Kealohj, 62 Hawaii 166, 613 P.2d

645 (1980); Walthall v. State, 594 S.W.2d

74 (Tex. Crim. App. 1980), United States

v. Riggs, 690 F.2d 298 (lst Cir. 1982);

United States v. Dunloy, 584 F.2d 6, n.

4 (2nd Cir. 1978); United States v.

Christine, 687 F.2d 749 (3rd Cir. 1982)

(detailed discussion); United States v.

Jacob, 657 F.2d 49 (4th Cir. 1981), cert.

denied 455 U.S. 942, 102 S.Ct. 1435, 71

L.Ed.2d 653; United States v. Cook, 657

F.2d 730 (5th Cir. 1981); Sovereign News

Company v. United States, 690 F 2d 569

(6th Cir. 1982); United States v. Cardwell,

680 F.2d 75 (9th Cir. 1982); In re Search

Warrant Dated July 4, 1977 etc., 66 7 F.2d

.117 (D.C. Cir. 1981), cert.denied U.S.

__, 402 8.Ct. 1971, ._ aa.

Appendix

AFFIDAVIT OF PROBABLE CAUSE

FOR SEARCH WARRANT C-14134

We, the above affiants, Officers John Falls

and Joe Ceccola, members of the Upper Darby

Police department,assigned to narcotic

investigations,as affiants, hereby request

a search warrant issue,for the above

described items,based upon the foregoing

facts: Within the past 6 or 7 months,

numerous complaints were received from con-

cerned citizens in the neighborhood that

there was an inordinate amount of traffic

by people in their teens, at the above

location,and these people would go into

the above persons offices come out,congre-

gate on the street,and would lay on the

lawns and sidewalks in the area. The

complainants indicated that they believed

thatthe young people were taking some type

of drugs.On numerous occassions the above

officers conducted surveillances at the

above location. On days of surveillances

"Appendix A"

the above officers observed many people,

some being in their teens. Many of the people

in our opinion and experiences as narcotic

officers, did appear to be under the influ-

ence of some type of drugs. Our surveillances

further reveal that almost ninety-five percent

tc the people that entered and chin left the

above location went immediately to the Long

Lane Court Pharmacy where, as we observed,the

prescription written by the above person

was tendered to and filled by the pharmacist.

We also observed known drug users to this

department, those being John Searle,Moe

McNally, Greg Searle. On or about the

first week of February, 1978, officer

John Falls and other officers from this

narcotic unit interviewed Mr. Walter

Quinn and Raymond Freeberry, who are

pharmacists at the Long Lane pharmacy. They

permitted us to exaimine their records. Our

personal examination of the records revealed

the following:An excessive amount of Class

ll drugs being prescribed by Dr. Floyd A.

Santner, for example from February 1,1978

to February 24,1978 15,901 Quaaludes were

dispensed, 3,129 Ritalins were dispensed,

903 Percodans were dispensed and 1,023

of other class 1l drugs were dispensed.

The total of class 22 drugs dispensed in

this 24 day period were 20,966. A check

was made with Dr. Philip Ingaglio, who is

the current Chairman of the board of

physicians, who handles physician licensure

for the State of Pennsylvania. Dr. Inga-

glio indicated that the drugs prescribed

were, and the quantities prescribed as

set forth above were outrageously large.

Dr. Ingaglio also felt that this type of

practice was not keeping with accepted

m:dical standards. A check with 3 other

pharmacies in the same general area

revealed that the above quantities were

also outrageously high.

The above defendant also advertises, on

his billing literature, a practice with

a Dr. John Sardar M.D. A check of the records

in Harrisburg, Penna. concerning the

licensing of physicians indicates that Dr.

John Sardar is not licensed in the state

of Penna. to practice as a physician, and

has never been licensed to practice. State

Drug Investigation unit agent, Ester Kiah,

went to the above location as a patient

several times and each of the times was

prescribed a class 2 drug . On February 27,

1978 the above officers interviewed a reli-

able confidential informant, who has given

these officers reliable information in the

past, which has led to arrests and

convictions, and he realted the following.

On several pccassions he was a patient at Dr.

Santner's office and he did receive

Quaaludes, which he was not given a written

prescription for , but was told to go to

the Long Lane pharmacy to pick them up,

which he did.

On February 27,1978 the above officers

interviewed on Hogan Jolly and Calvin

Blackwell who are both patients of Dr.

Floyd Santner M.D. and they related to

these officers that are both drug addicted

persons and are currently on methadone

programs in the city of Philadelphia. Both

are obtaining class 2 drugs from Dr.

Santner.

On February 27,1978 the above officers

also interviewed one Cheryl Rementer and

she told us that she went to Dr. Santner

last year, when she was 15 years of age

and told Dr. Santner that she had problems

steeping at night and Dr. Santner pre-

scribed Quaaludes for her. She stated that

she went there because her friends told her

its easy to get Quaaludes from Dr. Santner.

Based on the foregoing we have reason to

believe that the above person at the above

location has violated the laws of Penna.

dealing with the licensed practice of medicine

and the manner in which the practice is to

be conducted in that he has conspired with

John Sardar and Harrison G.STone and to allow

them to practice without a license, and

based on the quantity of traffic into

and from the above office, by surveillance,

our examination of pharmacy records and our

conversation with the referenced physicians,

We believe the above,Dr.Santner, is pre-

scribing controlled substances for known

addicts and controlled substances or

other drugs not being for maintainance

for their addiction. These controlled

substances or other drugs being prescribed

are not in good faith in the course of his

professional practice.

J. 2236/81-1

COMMONWEALTH OF PENNSYLVANIA : IN THE

Vv. : SUPERIOR COURT

OF PENNSYLVANIA

FLOYD SANTNER, M.D., : No. 2361

Appellant : Phila. 1980

Appeal from the Judgment of Sentence

of Court of Common Pleas, Criminal

Division of Delaware County, at

No. 1123 - 1978.

PANEL CASE

BEFORE: SPAETH, MONTGOMERY AND LIPEZ, JJ.

OPINION BY SPAETH, J.:

This is an appeal from a judgment of

sentence for violations of the Controlled

Substance, Drug, Device and Cosmetic Act.

35 Pa.C.S.A. §780-101 et seg. Appellant,

a medical doctor, was convicted by a jury

of dispensing controlled substances to drug

dependent persons and of dispensing controlled

"Appendix B”"

substances not in the good faith course of

professional conduct. 35 Pa.C.S.A. §780-113

(a)(13) & (14). Appellant argues, among

other matters, that the lower court erred in

denying his pre-trial motion to suppress

evidence obtained trom his office because

"the search warrants were defective in that

they were overly broad in describing the

items to be seized and therefore constituted

unlawful general search warrants.”

Appellant's Brief at 6.1 We agree, and

therefore reverse and grant appellant a new

trial.

Two warrants issued, one authorizing

the search of appellant's home, the other the

search of his office. Both warrants were

based on the probable cause allegations

copied at pages 6-9 infra. Only the warrant

authorizing the office search is included in

the reproduced record and is discussed here.

The particularity clause“ of the

fourth amendment to the United States

é The particularity requirement pro-

hibits a warrant that is not particular

enough and a warrant that is overbroad. These

are two separate, though related, issues.

A warrant unconstitutional for its lack of

particularity authorizes a search in terms

So ambiguous as to allow the executing

officers to pick and choose among an

individual's possessions to find which

items to seize. This will result in the

general "rummaging" banned by the fourth

amendment. See Marron v. United States,

275 U.S. 192, 195 (1927). A warrant uncon-

Sstitutional for its overbreadth authorizes

in clear or specific terms the seizure of an

entire set of items, or documents, many of

which will prove unrelated to the crime

under investigation. The officers executing

such a warrant will not rummage, but will

"Cart away all documents." Application of

Lafayette Academy, 610 F.2d l, 3 (lst Cir.

1979). An overbroad warrant is unconstitu-

tional because it authorizes a general search

and seizure. See discussion infra at 4. Of

course, the close relationship between these

two issues meand that some warrants may

contain both defects - ambiguity and over-

breadth - and may be held unconstitutional

on either ground. See United States v.

Abrams, 615 F.2d 541 (lst Cir. 1980)

(warrant unconstitutional for lack of particu-

larity, concurring judge would find both

defects); Application of Lafayette Academy,

supra (discussing relationship between lack

of particularity and overbreadth). Although

appellant blends these issues, it is clear

that his argument is that the warrant was

unconstitutional for its overbreadth.

Appellant's Brief at 6-15.

10a

Constitution provides in pertinent part:°

[NJo warrants shall issue,

but upon probable cause...

and particularly describing

the the... things to be

seized.

The United States Supreme Court has stated

that "[t]he requirement that warrants shall

particularly describe the things to be

seized makes general searches them impos-

silbe and prevents the seizure of one thing

under a warrant describing another."

Marron v. United States, 275 U.S. 192, 195

(1927). The “general searches" referred to

by the Court represented a practice "which

. The particularity requirement of

the Pennsylvania Constitution, article I,

section 8, is slightly different from

that of the federal constitution, provid-

ing in part that: "[N)1 warrant to search

any place or to seize any person or things

shall issue without describing them as

nearly as may be, nor without probable

cause...." The only decision interpreting

this requirement holds that it is co-

extensive with the federal requirement.

Commonwealth v. Smyser, 205 Pa. Superior

Ct. 599, 211 A.2d 59 (1965). We agree that

if affords at least as much protection,

for certainly it may not provide less, and

do not consider whether "as nearly as may

be" provides more protection.

lla

has been condemned by Americans since

Colonial Days." United States v. Abrams,

615 F.2d 541, 543 (lst Cir. 1980). Indeed

it was popular dissatisfaction with this

practice that lead to the adoption of the

fourth amendment:

It is familiar history that

indiscriminate searches and

seizures conducted under the

authority of "General Warrants"

were the immediate evils that

motivated the framing and adop-

tion of the Fourth Amendment.

Indeed, as originally proposed

in the House of Representatives,

the draft contained only one

clause, which directly imposed

limitations on the issuance of

warrants, but imposed no express

restrictions on warrantless

searches or seizures. As it was

ultimately adopted, however, the

amendment contained two separate

clauses, the first protecting

the basic right to be free from

unreasonable searches and

seizures and the second requir-

ing that warrants be particular

and supported by probable cause.

12a

Faytoe v. New York, 445

U ’ _ 98 )

(footnotes omitted).

In a footnote to this statement the

Supreme Court provided additional background:

Vivid in the memory of the

newly independent Americans

were those general warrants

known as writs of assistance

under which officers of the

Crown had so bedeviled the

colonists. The hatred writs

of assistance had given cus-

toms officials blanket author-

ity to search where they pleased

for goods imported in violation

of British tax laws. They were

denounced by James Otis as ‘the

worst instrument of arbitrary

power, the most destructive of

English liberty, and the fundamental

principles of law, that ever was

found in an English law book,'

because they placed ‘the liberty

of every man in the hands of

every petty officer.' The

historic occasion of that denun-

ciation, in 1761 at Boston, has

been characterized as ‘perhaps

the most prominent event which

inaugurated the resistance of the

colonies to the oppressions of

the mother country. "Then and

there," said John Adams, "then

and there the child Independence

was born."' Boyd v. United

States, 116 U.S. ’ , 29

L.Ed. 746, 6 S.Ct. 524."

Stanford v. Texas, 379 U.S.

476, 481-482, 13 L.Ed.2d 431, 85

S.Ct. 506.

l3a

A warrant is unconstitutional under the

fourth amendment for its overbreadth "if it

is broader than can be justified by the

probable cause on which the warrant is

based." LaFave, 2 Search and Seizure 97

(1978). We believe that an examination of

the warrant and the affidavit here demon-

strates that the warrant authorized a far

broadre search than was justified by the

probable cause.

The warrant identified the items to be

seized as "All Patient/Physician records and

charts. All the ledgers and bookkeeping

pertaining to patients and visits.” The

affidavit accompanying the warrant stated the

following in the "probable cause" section:

(footnote 4 continued)

Id. 583 n.21. And see, Lo-Ji

Sales, Inc. v. New York, 422

U.S. 319, 325 (1979) (warrant

whch did not particularly

describe items to be seized

"reminiscent of writ of assis-

tance ofthe 18th century against

which the Fourth Amendment was

intended to protect.”).

14a

Within the past 6 or 7 months,

numerous complaints were re-

ceived from concerned citizens

in the neighborhood that there

was an inordinate amount of

traffic by people in their teens,

at the above location, and these

people would go into the above

persons [sic} offices come out,

congregate on the street, and

would lay on the lawns and side-

walkd in the area. The com-

plainants indicated that they

believed that the young people

were taking some type of drugs.

On numerous occassions [sic] the

above officers conducted sur-

veillances at the above location.

On days of surveillances the

above officers observed many

people, some being in their

teens. Many of the people in

our opinion and experiences as

narcotic officers, did appear

to be under the influence of

some type of drugs. Our sur-

veillances further revealed that

almost ninety-five percent of

the people that entered and then

left the above location went

immediately to the Long Lane

Court Pharmacy where, as we

observed, the prescription

written by the above person

was tendered to and filled by

the parmacist. We also observed

known drug users to this depart-

ment, those geing John Searle,

Moe McNally, Greg Searie. On or

about the first week of February,

1978, Officer John Falls and

15a

other officers from this narcotic

unit interviewed Mr. Walter Quinn

and Raymond Freeberry, who are

pharmacists at the Long Lane

pharmacy. They permitted us to

examine their records. Our

personal examination of the records

revealed the following: An excessive

amount of class 11 drugs being pre-

scribed by Dr. Floyd A. Santner,

for example from February 1, 1978

to February 24, 1978 15,901

Quaaludes were dispensed, 3,129

Ritalins were dispensed, 903

Percodans were dispensed and

1,023 of other class 11 drugs

were dispensed in this 24 day

period were 20,000 Quaaludes are

being prescribed by Dr. Santner in

an average months [sic] time.

A check was made with Dr. Philip

Ingaglio, who is the current

Chairman of the board of physicians,

who handles physician licensure for

the State of Pennsylvania. Dr.

Ingaglio indicated that the drugs

prescribed were, and the quantities

prescribed as set forth above were

outrageously large. Dr. Ingaglio

also felt that this type of practice

was not [in] keeping within accepted

medical standards. A check with 3

other pharmacies in the same general

area revealed that the above

quantities were also outrageously

high.

The above defendant also advertises,

on his billing literature, a prac-

tice with a Dr. John Sardar M.D.

A check of the records in Harrisburg,

16a

Pennsylvania concerning the

licensing of physicians indi-

cates that Dr. John Sardar is

not licensed in the state of

Pennsylvania to practice as a

physician, and has never been

licensed to practice. State

Drug Investigation unit agent,

Ester Kiah, went to the above

location as a patient several

times and each of the times was

prescribed a class 2 drug. On

February 27, 1978 the above

officers interviewed a reliable

confidential informant, who

has given these officers reliable

information in the past, which

has led to arrests and convic-

tions, and he related the

following.

On several occassions [sic] he was

a patient at Dr. Santner's Office

and he did receive Quaaludes, which

he was not given a written pre-

scription for, but was told to go

to the Long Lane pharmacy to pick

them up, which he did.

On February 27, 1978 the above

officers interviewed one Hogan

Jolly and Calvin Blackwell who

are both patients of Dr. Floyd

Santner M.D. and they related to

these officers that are both drug

addicted persons and are currently

on methadone programs in the city

of philadelphia. Both are

obtaining class 2 drugs from Dr.

Santner.

17a

On February 27, 1978 the above

officers also interviewed one

Cheryl Rementer and she told us

that she went to Dr. Santner last

year, when she was 15 years of

age and told Dr. Santner that she

had problems sleeping at night

and Dr. Santner prescribed Quaaludes

for her. She stated that she went

there because her friends told

her its [sic] easy to get Quaaludes

from Dr. Santner.

Based on the foregoing we have

reason to believe that the above

person at the above location has

violated the laws of Pennsylvania

dealing with the licensed practice

of medicine and the manner in which

the practice is to be conducted in

that he has conspired with John

Sardar and Harrison G. Stone and

to allow them to practice without

a license, and based on the quantity

of traffic into and from the above

office, by surveillance, our examin-

ation of pharmacy records and our

conversation with the referenced

physicians, we believe that the

above Dr. Santner, is prescribing

controlled substances for known

addicts and controlled substances

not being for maintainance for

their addiction. These controlled

substances or other drugs being

presecribed are not in good faith

in the course of his professional

practice.

18a

As may be seen from these allegations,

the affidavit identified eight named indi-

viduals whom the officers knew or had

interviewed; it further identified, although

not by name, a class of individuals whose

prescriptions were examined at the Long

Lane Court Pharmacy; and it specified two

periods -- February 1978 and "the past 6 or

7 months" -- as the periods during which the

activity in question had occurred. Despite

this specificity, > the warrant was not

restricted either to the files of the eight

named individuals, or to the files of the

class of individuals whose prescriptions had

been examined, or as to time. Instead, it

In some cases an insufficiently

particular warrant has been “saved” from

unconstitutionality by a specific affidavit.

Matter of Property, Etc., 644 F.2d 1317

(9th Cir. 1981) (warrant accompanied affi-

davit and used words of incorporation to

Clarify lack of particularity). Such cases

are inapposite here, however, for while the

affidavit is specific, the issue is the

warrant's overbreadth, not its lack of

particularity.

19a

authorized the seizure of all of the

patients' "records and charts," and all

"ledgers and bookkeeping pertaining to

patients,” whether the patients were or

were not taking any drugs, and whether

they were current patients or had not been

patients for many years. The extent of

this entirely unnecessary overbreadth may

be seen by what happened. The executing

officers seized some 3,600 files. Only 50

were introduced in evidence at trial.

While the issue appears to be one of

first impression in Pennsylvania, similarly

overbroad warrants have been found unconsti-

tutional in the federal courts. See United

States v. Abrams, supra (warrant did not

specify which medical records could be seized

and was not limited as to time); United States

v. Roche, 614 F.2d 6 (lst Cir. 1980)

(warrant did not specify that only automobile

insurance records could be seized);

20a

Application of Lafayette Academy, supra

(warrant did not specify that only docu-

ments relating to federal loan program

could be seized); Montilla Records of

Puerto Rico, Inc. v. Morales, 575 F.2d

324 (lst Cir. 1978) (warrant did not

specify that only records with Motown

label could be seized); Vonder AHE v.

Howland, 508 F.2d 364 (9th Cir. 1974)

(warrant did not specify that only finan-

cial records of taxpayer could be seized

but permitted seizure of all records,

including personal letters); United States

v. Klein, 565 F.2d 183 (lst Cir. 1977)

(warrant not specific as to time); United

States v. DeFalco, 509 F.Supp. 127 (S.D.

Fla. 1981) (warrant did not specify which

records or films could be seized but

authorized seizure of anything reflecting

conspiracy between 45 defendants).

2la

In Application of Lafayette Acadeny,

Supra, the Department of Health, Education

and Welfare, investigating a vocational

home-study school for possible fraudulent

practices incident to participation in

the Federal Insured Student Loan Program,

obtained a warrant that authorized seizure

of the following items:

"books, papers, rosters of

students, letters, corre-

spondence, documents, memo-

randa, contracts, agreements,

ledgers, worksheets, books

of account, student files,

file jackets and contents,

computer tapes/discs, com-

puter operation manuals,

computer tape logs, computer

tape layouts, computer tape

printouts, office of Education

(HEW) documents and forms,

cancellation reports and

directives, reinstatement

reports or forms, Government

loan registers, refund led-

gers, reports and notes,

administrative reports, finan-

cial data cards, lesson and

grading cards and registers,

registration (corporations)

documents, student collection

reports, financial documents

(corporations), journals of

accounts and student survey

data, which are and constitute

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evidence of the commission of

violations of the laws of the

United States, that is vio-

lation of 18 U.S.C., Sections

286, 287, 371, 1001 and 1014;..."

610 F.2d at 3.

The court held that the warrant lacked

particularity because it did not specify

"the precise nature of the fraud and

conspiracy offenses” alleged, id., and

also explained in a careful opinion that

the warrant was overbroad:

We have said that a principle

[sic] deficiency here is the lack

of particularity in the phrase

which purports to qualify and

delineate the generic categories

of items: the description "books,

papers... letters, correspondence,

documents,... which are and con-

stitute evidence of the commission

of violations of the [federal con-

spiracy and fraud statutes)” pro-

vides insufficient guidance to the

executing officer as to what items

from among many he should seize.

The qualifying phrase in effect

does nothing to limit the broad

warrant description. If, of

course, the generic descriptions

were sufficiently specific and

particular standing alone, the

defect in the qualifying phrase

would be of no effect. For the

most part, though, the categories

listed here are too broad.

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Certainly the description

"books, papers ... letters,

correspondence, documents,

memoranda, contracts, agree-

ments, ledgers, worksheets,

books of account, ... computer

tape/discs, ... computer tape

logs, computer tape layouts,

computer tape printouts,..

reports and notes, admini-

strative reports, financial

data cards... financial docu-

ments (corporations), journals

of accounts” does not, standing

along in the circumstances of this

case, satisfy the fourth amend-

ment. True, it could be argued

that as the above description

authorizes in effect the search

and seizure of all books,

papers, etc., the warrant does

not suffer from a lack of par-

ticularity. The directions to

the executing officer are

straightforward-he is to cart

away all documents. But while,

so interpreted, the description

would be particular enough, it

would also be too broad to

satisfy the probable cause

requirements fo the fourth

amendment. The affidavit does

not establish probable cause to

search and seize all of those

items.

In contrast tothe broad

categories of items set forth

above, certain of the warrant

items may be sufficiently par-

ticularized standing along,

for example, "rosters of

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students," "student files,

file jackets and contents,”

"lesson and grading cards

and registers," "student

collection reports," and

"student survey data.”

However, while these docu-

mentary descriptions may be

sufficiently specific, they

cover documents antedating

Lafayette Academy's parti-

Cipation in FISLP. According

to the affidavit in support

of the warrant, Lafayette

Academy was organized as a

correspondence school in 1969

but did not participate in

FISLP until 1972. While the

affidavit establishes the

relevance of post-1972 student

documents, it does not indi-

cate any nexus between the

earlier student documents

and alleged criminal behavior.

The warrant thus improperly

authorizes the siezure of

documents that are apparently

irrelevant to the fraud.

Id. at 5-6 (footnote omitted).

In United States v. Abrams, supra,

the Department of Health, Education and

Welfare, investigating three doctors who,

it believed, were submitting false Medi-

care bills, obtained a warrant that author-

ized seizure of the following items:

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[T]here is now being concealed

certain property, namely evi-

dence of a crime, to wit,

certain business and billing

and medical records of patients

of Doctors Abrams, London, Braun,

and Abrams, London and Associates,

Inc. which show actual medical

services performed and fraudulent

services claimed to have been

performed in a scheme to defraud

the United States and to submit

false medicare and medicaid

claims for payments to the United

States or its agents; in violation

of Title 18, United States Code,

Section 1001[.]

615 F.2d at 542.

The executing officers seized all of the

doctors' Medicaid and Medicare records, and

twenty records of patients who were neither

Medicare or Medicaid recipients. The court

held that the warrant was void for its lack

of particularity:

The warrant at issue fails to

meet the requirement of particu-

larity. The officers' discretion

was unfettered, there is no limi-

tation as to time and there is no

description as to what specific

records are to be seized. Asa

result of this general descrip-

tion, the executing officers

seized all of the Medicare and

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Medicaid records of the three

doctors and, in addition,

records of the non-Medicare-

Medicaid patients. It seems

clear that the executing

officers could not or made no

attempt to distinguish bona

fide records from fraudulent

ones so they seized all of them

in order that a detailed exam-

ination could be made later.

This is exactly the kind of

investigatory dragnet that the

fourth amendment was designed

to prevent.

Id. 543 (footnote omitted).

Concurring, Judge CAMPBELL observed that

the problem with the warrant was lack of

particularity and overbreadth:

Un-

less the necessary judgment is

one the executing officers can

be expected to perform reliably,

a description identifying

seizable items as any that con-

stitute evidence of the particular

fraud would seem too general. A