Petition for Writ of Certiorari — Klingenstein v. Maryland

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In The

Supreme Court of the United States

October Term, 1993

KEITH GORDON KLINGENSTEIN,

Petitioner,

STATE OF MARYLAND,

Respondent.

Petition For Writ Of Certiorari

To The Court Of Appeals Of Maryland

PETITION FOR WRIT OF CERTIORARI

S 7

JoserH, GREENWALD & Laake, P.A

Frep R. Josern’

Capital Office Park

6404 Ivy Lane, Suite 400

Greenbelt, Maryland 20770

301-220-2200

GOLDSTEIN & StamoM, P.A

LEONARD R. STAMM

Capital Office Park

6301 Ivy Lane, Suite 504

Greenbelt, Maryland 20770

301-345-0122

Counsel for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-283

QUESTION PRESENTED

WHETHER THE FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITU-

TION REQUIRE TOTAL SUPPRESSION OF ALL EVI-

DENCE SEIZED PURSUANT TO A SEARCH WARRANT

WHERE THE SEARCHING OFFICERS FLAGRANTLY

DISREGARD ITS TERMS DURING EXECUTION.

PARTIES

The caption contains the names of all the parties

below.

ili

TABLE OF CONTENTS

Page

RRMPEE MEE PORN I EDD. 0 roi. 5 icc ks ces eencesnes

et EO ei as wk 9 Ge Rkw be oda ii

a Egg 80 9 9 | a V

I EO ow cas vse sence rc adisssbae nar 1

Simsemoem: OF JURISDICTION................... 2

CONSTITUTIONAL AND STATUTORY PROVI-

a lS 2

Pemeemeemeed 40 Si CAGE... ... 2.62.0... cece eee 2

REASONS FOR GRANTING THE WRIT ........... 13

A. THE FOURTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTI-

TUTION REQUIRE TOTAL SUPPRESSION OF

EVIDENCE SEIZED PURSUANT TO A

SEARCH WARRANT WHEN THE SEARCH-

ING OFFICERS FLAGRANTLY DISREGARD

ITS TERMS DURING EXECUTION. BECAUSE

A DIRECT AND ACKNOWLEDGED CON-

FLICT EXISTS AMONG AND WITHIN THE

CIRCUITS AND STATES OVER THE CON-

CEPT OF “FLAGRANT DISREGARD” GUID-

ANCE FROM THIS COURT IS NEEDED..... 13

B. THE FLAGRANT DISREGARD EXCEPTION

MUST BE UPHELD IN ORDER TO PRESERVE

THE SANCTITY OF THE FOURTH AMEND-

MENT; OTHERWISE THE PROHIBITION

AGAINST GENERAL SEARCHES AND SEI-

ZURES BECOMES MEANINGLESS........... 23

TABLE OF CONTENTS - Continued

Page

C. THE SEARCHING OFFICERS FLAGRANTLY

DISREGARDED THE PHARMACY WAR-

RANT’S LIMITATIONS DURING ITS EXECU-

TION, AND THUS THE CIRCUIT COURT’S

FACTUAL FINDINGS WERE PROPER AND

PURINE WUE GOR SOMERS ci cc chee ndeesacednsniases 26

Ape Rs ns CA ov CERES ead be ae es ee es 29

APPENDIX

TABLE OF AUTHORITIES

CASES:

Andresen v. Maryland, 427 U.S. 463 (1976)............ 25

Brooks v. United States, 416 F.2d 1044 (5th Cir. 1969) .... 20

Commonwealth v. Lett, 470 N.E.2d 110 (Mass. 1984) .... 20

Coolidge v. New Hampshire, 403 U.S. 443 (1971)....26, 27

Entick v. Carrington, 19 How. St. Tr. 1029 (1765) ..... 24

Florida v. Johnson, 605 So.2d 545 (Fla. Dist. Ct.

Pe ere rere rer ees passim

Franks v. Delaware, 438 U.S. 154 (1978) ............-. 10

Horton v. California, 496 U.S. 128 (1990) ............. 26

Huebner v. United States, 731 F. Supp. 434 (S.D.

a) | Snr re rrere eee ram Sr 20

Hughes v. State, 287 A.2d 299 (Md. 1972)..........-. 26

In Re Search Warrant Dated July 4, 1977, 667 F.2d

117 (D.C. Cir. 1981), cert. denied, 456 U.S. 926

CIGGED isos cnsceindayaie hates eee eee eee 18, 19

Johnson v. United States, 333 U.S. 10 (1948) .......... 27

Klingenstein v. Maryland, 624 A.2d 532 (Md. 1992)... passim

Leach v. Three of the King’s Messengers, 19 How. St.

ie ee, | ee eer er err ere reser ry ri 23

Lo-Ji Sales v. New York, 442 U.S. 319 (1979)...16, 25, 27

Mapp v. Ohio, 367 U.S. 643 (1961).............----+-. 2

Marron v. United States, 275 U.S. 192 (1927) ...... 24, 27

Marvin v. United States, 732 F.2d 669 (8th Cir. 1984) .... 21

Miller v. United States, 357 U.S. 301 (1958)........... 24

TABLE OF AUTHORITIES - Continued

Page

New Hampshire-v. Tucker, 575 A.2d 1252 (N.H. 1990)... . 21

New Hampshire v. Valenzuela, 536 A.2d 1262 (N.H.

sere ree rrr: rer ware heres rey 20, 21

Payton v. New York, 445 U.S. 573 (1980) ......... ee

People v. Rogers, 187 Cal. App. 3d 1001 (1986)....... 21

Premises Known as 1007 Morningside, 625 F.Supp.

1343 (ND). fowe TOGG sarah eee ee ee 20

Smith v. State, 365 A.2d 53 (Md. 1976) ...... 25

Smith v. Whitehead, 436 A.2d 339 (D.C. App. 1981),

aff'd by an equally divided Court, 458 A.2d 738

CLC. Ape. WOR ioc cae cee

Stanford v. Texas, 279 U.S. 476 (1965)......... ee

State v. Klingenstein, 608 A.2d 792 (Md. 1992) ... passim

State v. Monsrud, 337 N.W.2d 652 (Minn. 1983)...... 20

State v. Riedinger, 374 N.W.2d 686 (N.D. 1985)....... 20

State v. Romero, 660 P.2d 715 (Utah 1983)..... 20

Superior Fish Co., Inc. v. Royal Globe Ins. Co., 521 F.

supp. 434 G:D.N.Y. 196066356035 eee 20

Terry v. Obte, We US. TAGS eee 25

United States v. Artiert, 491 F.2d 440 (2d Cir. 1974),

cert. denied, 419-U.S. 878 (1974).................. 20

United States v. Belcher, 577 F.Supp. 1241 (E.D. Va.

EDGES) oc koe ov ode wee eee en en

United States v. Beusch, 596 F.2d 871 (9th Cir. 1979) . 20)

Vil

TABLE OF AUTHORITIES - Continued

United States v. Chen, 979 F.2d 714 (9th Cir. 1992) ....19

United States v. Fawole, 785 F.2d 1141 (4th Cir.

SU oa ee ea ck ae ee eee ee |

Se Bis a5 ake ane OEE ie LE ee eee ns ee aes 20

Linited States v. Heldt, 668 F.2d 1238 (D.C. Cir. si

1981), cert. denied sub nom., Hubbard v. United

eEGE, SIO UI. Fae AIPR 6 oes ka neues sae vees passim.

United States v. Lambert, 887 F.2d 1568 (11th Cir.

United States v. Matias, 836 F.2d 744 (2d Cir. 1988) .... 21

United States v. Medlin, 842 F.2d 1194 (10th Cir.

Pe SOE CEES Se ae eee eer ae Te passim

i SEES Ce See ee i eee eee

United States v. Rettig, 589 F.2d 418 (9th Cir. 1978) . . passim

United States v. Tamura, 694 F.2d 591 (9th Cir. 1982) 19, 21

United States v. United States District Court, 407

TN SR 2 Zee 2 2 2 Serge RNa rg ROE See as eae ne er 23

United States v. Whitten, 706 F.2d 1000 (9th Cir.

United States v. Wuagneux, 683 F.2d 1343 (11th Cir.

1982), cert. denied, 464 U.S. 814 (1983).......... 18, 21

United States v. Young, 877 F.2d 1099 (1st Cir. 1989) .... 21

Vill

TABLE OF AUTHORITIES - Continued

Page

Waller v. Georgia, 467 U.S. 39 (1964) .........0.2..21, 22

Watts v. Kroczynski, 636 F. Supp. 792 (W.D. La.

i) A A Ee ak LP Pre eee rae 20

Wilkes v. Wood, How. St. Tr. 1153 (1763)........ 24

Wisconsin v. Noll, 343 N.W.2d 391 (Wis. 1984) ....... 21

Wisconsin v. Petrone, 468 N.W.2d 676 (Wis. 1991)..... 21

CONSTITUTIONAL PROVISIONS:

U.S. Constitution, Amendment IV.. 2, 13, 23, 25, 26, 29

-_ P — P —

U.S. Constitution, Amendment XIV .. 2

STATUTES, RULES AND REGULATIONS:

ee Ae ice Te PEE os o'c n a hes hohe wees aes 2

MD. CODE ANN., Court and Judicial Proceedings

Be 0 ey rere ce eee ree ere a 10

Code of Maryland Regulations, Dept. of Health &

Mental Hygiene, § 10.19.03.07........... - 4, 5

maryiame Mule Gist). ioe, 4 27

TREATISES:

N. Lasson, The History and Development of the

Fourth Amendment to the United States Constitu

LOM RI Ree es tte eee eee ueeie tenes aa eee

Physician’s Desk Reference (1987 ed.).... 4

In The

Supreme Court of the United States

October Term, 1993

KEITH GORDON KLINGENSTEIN,

yahaf 4

Petitioner

STATE OF MARYLAND,

Respondent

—— . ———

Petition For Writ Of Certiorari

To The Court Of Appeais Of Maryland

e a EE

PETITION FOR WRIT OF CERTIORARI

— © a

Petitioner, KEITH GORDON KLINGENSTEIN (here

inafter “Petitioner”), respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the

Court of Appeals of Maryland entered in the above enti

tled cause on May 14, 1993.

OPINIONS BELOW

The opinion of the Maryland Court of Appeals is

reported as Klingenstein v. State, 330 Md. 402, 624 A.2d

532 (1993) and is reproduced in the Petitioner’s Appendix

(“Pet. App.”) at 1.

The opinion of the Court of Special Appeals of Mary

land is reported as State v. Klingenstein, 92 Md. App

608 A.2d 792 (1992) and is reproduced at Pet. App

The opinion of the Circuit Court for Prince George’s

County suppression hearing is unreported and is repro-

duced at Pet. App. 60.

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals of Maryland was

filed on May 14, 1993 and the mandate of that Court

issued on June 15, 1993. This Court has jurisdiction pur-

suant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The issues raised in this petition implicate Peti-

tioner’s constitutional rights under the Fourth and Four-

teenth Amendments of the United States Constitution.

Specifically, the Fourth Amendment provides that:

The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

U.S. CONST. amend. IV.

The Fourth Amendment is applicable to the States

through the Fourteenth Amendment. Mapp v. Ohio, 367

U.S. 643 (1961).

Petitioner challenges the reach and constitutionality

of the searches conducted in his business and in his home

as having violated his constitutional rights under the

Fourth and Fourteenth Amendments of the United States

Constitution.

STATEMENT OF THE CASE

A fifty-four count indictment was filed in the Circuit

Court for Prince George’s County, Maryland charging

Petitioner, a pharmacist, with filling fraudulently issued

prescriptions, filing false insurance claims, and other

related charges. The circuit court granted Petitioner's

a TY

motion to suppress all of the evidence seized at both

Petitioner’s pharmacy and home. On interlocutory appeal

by the State, the order suppressing all of the evidence

was vacated by the Court of Special Appeals of Maryland

and the case remanded for further hearing. The Court of

Appeals of Maryland granted certiorari, and affirmed and

reversed the intermediate appellate court in part, order-

ing the trial court to grant only partial suppression of the

search of Petitioner’s pharmacy and to make findings on

other issues preserved but not addressed below.

1. THE UNDERLYING EVENTS.

A. The investigation.

On January 20 and 21, 1992, the Circuit Court for

Prince George’s County, the Honorable Larnzell Martin

presiding, entertained and granted Petitioner’s motion to

suppress evidence seized as the result of two search

warrants. The evidence seized pursuant to those warrants

had formed the basis of a fifty-four count indictment

charging Petitioner Klingenstein with distribution of a

controlled dangerous substance (“CDS”), possession with

intent to distribute CDS, theft, and other offense reiating

to his alleged filling of forged prescriptions and filing of

false insurance claims with Blue Cross and Blue Shield of

Maryland.

The affidavit for the first search for Petitioner’s phar-

macy recited that an individual named Brian Firor had

been arrested by Maryland State Police officers on Octo-

ber 5, 1990 after he had attempted to use forged prescrip-

tions to obtain drugs from pharmacies in Washington and

Frederick Counties in Maryland. The prescriptions were

for three drugs: Doriden, the trade name for glu-

tethimide, a Schedule III controlled substance;' Tylenol 4,

1 Md. Code Ann., art. 27 § 279(c)b.2. (1986 Repl. Vol., 1991

Cum. supp.)

a Schedule III controlled substance containing codeine;

and penicillin.* Trooper (“Tpr.”) David Hammel of the

Drug Division Unit of the Narcotics Division of the Mary-

land State Police Department interrogated Firor, who

claimed that he had previously managed to obtain these

drugs on several occasions from a pharmacist in Green-

belt, Maryland who was later identified as the Petitioner,

Keith Klingenstein.

On October 9, 1990, the police began an undercover

“sting” operation designed to gather evidence against the

Petitioner. The police first created forged prescription

forms. Using forms of a Dr. Lugener of Baltimore, they

glued a Washington, D.C. address from another prescrip-

tion onto the Lugener form and then photocopied it.4 The

prescriptions were in the name of a Kim Firor. Tpr. Ham-

mel and Tpr. Margaret Shank then went to Petitioner’s

2 Codeine may be either a Schedule II, Ill or V drug. Tylenol

4 tabléts are a combination of 300 mg. of the over-the-counter

pain reliever acetaminophen and 60 mg. of codeine phosphate.

See Physician’s Desk Reference (hereinafter “PDR”) at 1198 (1987

ed.). It is considered a Schedule III drug since it contains less

than 90 mg. of codeine per dosage unit, i.e., per tablet. Art. 27 at

§ 279(c)d.2. Codeine is considered Schedule II only when sold

by itself, generally in the form of codeine sulfate. Id. at

§ 279(b)a.1.vii. Here, the prescriptions in question were exclu-

sively for Tylenol 4.

3 Firor claimed that Doriden and Tylenol 4 when used in

combination are known as a “max load”, and produce an effect

similar to heroin.

4 No law prohibits filling prescriptions written out on pho-

tocopies of blank prescription forms. Maryland Health and

Mental Hygiene regulations require that “prescriptions shall be

written with ink or indelible pencil or typewriter and shall be

manually signed by the practitioner.” COMAR (Code of Mary-

land Regulations), Dept. of Health & Mental Hygiene,

§ 10.19.03.07(E)(1). The regulations thus prohibit the photocopy-

ing of the actual text of the prescription, but put no such restric-

tion on how the form is printed.

business, Greenbelt Professional Pharmacy. Tpr. Shank

attempted to have Petitioner fill prescriptions for Dor-

iden, Tylenol 4, and penicillin written on the forged

forms. Petitioner refused to fill the two Schedule III pre-

scriptions indicating that he could not fill a Schedule III

prescription written in the District of Columbia.° Tpr.

Shank refused his offer to fill the prescription for pen-

icillin.

The following day, Tpr. Hammel and an unnamed

confidential informant (“CI”) returned to Greenbelt Pro-

fessional Pharmacy. Tpr. Hammel provided the CI with

three forged prescriptions for Doriden, Tylenol 4 and

penicillin, but these forms had another doctor’s name

and a Maryland address. The Cl presented the forms to

Petitioner and he filled them. The day after that, October

11, 1990, Tpr. Shank was also successful in having Peti-

tioner fill forged prescriptions for Doriden and Tylenol 4.

According to Tpr. Hammel’s affidavit, he then contacted

sources at the Maryland Department of Health and Men-

tal Hygiene, who indicated that there had been a report

of a recent burglary at Petitioner’s store and that

unspecified CDS had been stolen.

B. The search of the pharmacy.

On October 12, 1990, Tpr. Hammel drafted an affi-

davit and search warrant for Petitioner’s pharmacy which

was presented to Judge David Ross, Circuit Court Judge

in Prince George’s County, Maryland. In a paragraph

preceding the command clause, the warrant reads:

> According to the pertinent regulations:

(1) A prescription for a controlled dangerous subs-

tance may be issued only by an individual practi-

tioner who is:

— (a) Authorized to prescribe controlled dan-

gerous substances in the State of Maryiand, in

which he is licensed to practice his profession. . ..

COMAR, Dept. of Health & Mental Hygiene, § 10.19.03.07(C)(1).

I am satisfied that there is probable cause to

believe that there is now being concealed certain

property, namely “GLUTETHIMIDE”,

“CODEINE”, AND “DORIDEN” on the person/s

premises above described... . ”

The command clause provided the police with the

authority in pertinent part to:

C. Open and search any safe, box, bag, com-

partment, or thing in nature thereof, found

in or upon said premises or person/s;

D. Seize all evidence, paraphernalia, controlled

dangerous substances, and monies used in or

incidental to the conduct or operation of con-

trolled dangerous substance violations, found

in or upon said premises, person/s. . . .

There was no specific command to seize documents.

After obtaining Judge Ross’s signature on the war-

rant, Tpr. Hammel went to Petitioner’s pharmacy and

executed it. Tpr. Hammel was accompanied by Tprs. Mar-

tin, Jirsa and Kessler, and by Jack Freedman, a pharmacist

and auditor from the Department of Health and Mental

Hygiene. Tpr. Hammel testified that he believed, and

Judge Martin ultimately held, that the broad language of

the warrant when read together with the application and

affidavit authorized only the seizure of Doriden, Tylenol

4, and penicillin and records relating to the filling of

forged prescriptions for those substances.

After the search commenced, Mr. Freedman informed

the police that Petitioner’s pharmacist license was going

to be suspended, although evidence at the hearing

revealed that Petitioner’s license was not actually sus-

pended until November 15, 1990, over one month later.

He directed the police to search for and seize Petitioner’s

pharmacist license and all Schedule II drugs which could

be found. The officers proceeded to seize approximately

eighty containers of pills including al] Schedule II drugs

present,® as well as one container of Doriden, five con-

tainers of Tylenol with codeine,” and one of penicillin. An

empty bottle and five unlabelled vials containing pills

were also seized, even though the police, as Tpr. Hammel

admitted, had no idea what the pills were.

In the five hours it took to search the 40' x 20'

pharmacy, the police also seized over 16,000 prescrip-

tions® and other documents, including as many of the

following items which could be located: both filled and

unfilled prescriptions, including every prescription writ-

ten in the preceding two years; receipts; records, invoices,

inventories, and order forms for Schedule II drugs; com-

pleted and uncompleted insurance forms and records;

records of payment for CDS; daily purchase, sale, and

accounting forms for the prior three years; tax returns

since 1986, tax records, tax preparation materials, and

blank tax forms; financial and bank records; records and

receipts for credit cards and private charge accounts;

pricing guides; check records and personal charge

6 Tpr. Hammel testified that they seized various quantities

of Oxycodon, Roxicet, Percocet, Dexedrine, Percodan, Desoxyn,

Methylphenicate with Hydrochloride, APC Compound with

Codeine, Tylox, Mepheridine, Ritalin, Codeine Sulfate,

Demerol, Dilaudid, Dolophine, Morphine, Opium Tinetunes,

Leoodromoran, Nembutal Sodium, Seconal Sodium, MS Contin,

Methadone, and Roxanol. They also seized a bottle of

acetaminophen, which appears on neither Schedule II nor III.

7 Not all of these items were Tylenol 4. The State’s “Discov-

ery Without Request” lists the seized items. Item 1 in thetnven-

tory is Tylenol 3, containing 300 mg. of acetaminophen and 30

mg. of codeine. See PDR at 1198. Item 3 was Tylenol 2, contain-

ing the same amount of acetaminophen but 15 mg. of codeine.

Id. Item 11 lists three containers of Tylenol with Codeine, but

gives no dosage information for the contents of any of the

containers.

8 In its indictment, the State alleged that Petitioner filled

forged prescriptions on 15 occasions for Tylenol 4 and Doriden,

for a total of only 30 prescriptions.

records; stenographic pads; other business licenses; store

coupons and related records; other invoices; inventory

records; prescription ledgers; accountant’s reports; corpo-

rate records; a metal box; drug disposal forms; DEA

forms; miscellaneous files from a front office; and per-

sonal papers.

The police also seized a total of $9,408 in U.S. cur-

rency from the cash register and other locations. The

documents alone filled three large boxes which were

wheeled into the courtroom during the hearing and

which the judge examined in open court.’

C. The search of Klingenstein’s residence.

Later on October 12, the police, using a form search

warrant for marijuana, which relied in part on evidence

seized at the pharmacy, obtained a search warrant for

Petitioner’s home. Although the police never took the

word “marijuana” out of the warrant, the judge signed it

and the police executed it. Miscellaneous items were

seized, for which the evidentiary value was never estab-

lished.

Il. THE SUPPRESSION HEARING.

At the suppression hearing, counsel for Peti-

tioner argued, inter alia, that the officers “flagrantly disre-

garded” the limitations in the warrant during execution,

and that, as a result, total suppression was required

under United States v. Rettig, 589 F.2d 418 (9th Cir. 1978),

and United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981),

cert. denied sub nom. Hubbard v. United States, 456 U.S. 926

(1982), and that the good faith exception did not save

these searches. The State argued that evidence seized was

* Tpr. Hammel claimed at the hearing that many of these

items were seized pursuant to the command clause of the war-

rant under the rubric of “evidence”, and that it was within his

discretion to decide what to take.

within the scope of the warrant, and that any findings

against the State on those issues should be cured by

“good faith.”

After hearing the argument, Judge Martin construed

the scope of the warrant as follows: “[t]he Court further

finds that the search warrant particularly read with the

application authorized the seizure of Glutethimide, Code-

line, Doriden, and Penicillin to the extent it may be there

in unreasonable quantity as well as evidence of the filling

of forged prescriptions for these items.” Pet. App. at 64.

In light of that finding, the circuit court found that in

executing the warrant, Tpr. Hamme! and Freedman had

greatly exceeded the scope of its authorization. The court

stated that the persons executing the search warrant:

particularly Trooper Hammel, did not reason-

ably rely or did not exercise good faith reliance

upon any belief that those items other than

Clutcthimide, Codeine, Doriden, Penicillin, evi-

dence of forged prescriptions and evidence gen-

erally relating to those matters were permissibly

subject to seizure under Judge Ross’s search

warrant.

Pet. App. at 65. The court reached this conclusion in light

of the following facts and after having personally

inspected the mass of seized materials during the hear-

ing: Tpr. Hammel himself had prepared the warrant and

affidavit, the specificity with which the drugs involved

were identified in the application, the great length and

intensity of the search, the excessive number of irrelevant

documents seized, and Mr. Freedman’s unilateral deci-

sion to order the seizure of items not covered by the

warrant. Indeed, the court stated that “it is not a marginal

question as to whether or not the warrant was executed

properly.” Pet. App. at 67.

Having found that “(t]he search was conducted in a

general manner without regard to the limits of the search

warrant,” Pet. App. at 66, the court granted petitioner's

motion to suppress all of the evidence seized from the

pharmacy. The court then found that, since the issuance

of the second warrant was dependant both upon the

written application and upon the communication to

Judge Kelly of the result of the execution of the first

warrant, all evidence obtained from Petitioner’s resi-

dence must also be suppressed as “fruit of the poisonous

tree.” Pet. App. at 66-67.

Ili, THE STATE’S APPEAL.

The State then noted an interlocutory appeal of the

suppression order to the Court of Special Appeals, pur-

suant to the Md. Code Ann., Courts and Judicial Proceed-

ings § 12-302(c)(3), and all further proceedings were

stayed pending the outcome of the appeal. In its brief, the

State contended that all of the evidence seized from the

pharmacy fell within the scope of the warrant’s command

clause, and advanced in the alternative for the first time,

that even if some of the seized items were not specified by

the warrant, total suppression was unjustified. As to the

second warrant, the State also claimed for the first time

that the lower court erred by failing to consider properly

the application of Franks v. Delaware, 438 U.S. 154 (1978),

and whether there was independent untainted probable

cause to support the warrant for the search of the home.

In its opinion, the intermediate appellate court

vacated the order suppressing all the evidence seized

under the warrants. Klingenstein, 608 A.2d at 808, 810. The

Court of Special Appeals agreed that a scope violation had

indeed occurred during the search of the pharmacy. Id. at

799-800. However, it disagreed with the circuit court’s

finding that the execution rose to the level of flagrant

disregard. Id. The Court of Special Appeals did not mer.-

tion that Judge Martin had explicitly found that the search

and seizure were not carried out in reasonable good faith

reliance on the limitations of the warrant.

In determining whether particularized or plenary sup-

pression was the appropriate remedy, the court surveyed

the cases fron. other jurisdictions holding that total sup-

pression may be imposed where the police “flagrantly

disregard” the limitations of the warrant. Id. at 799-807. It

concluded that the distinction is “between dominant pur-

poses — between 1) seizures beyond the warrant’s com-

mand attributable to honest mistake, excessive zeal, or

even spontaneous opportunism, on the one hand, and 2)

seizures beyond the warrant’s command actually antici-

pated and intended by the searching officer, on the other.”

Id. at 807. Since the appellate court held that only those

items seized which were clearly outside the scape of the

warrant must be suppressed, it remanded for the lower

court to decide which items were properly seized. Id. at

808.

IV. PETITIONER’S APPEAL TO THE COURT OF

APPEALS

The Court of Appeals of Maryland granted certiorari

on November 17, 1992. The court’s opinion was issued on

May 14, 1993. The court rejected the flagrant disregard

doctrine and remanded to the hearing judge (1) to deter-

mine which items seized in the pharmacy were within the

terms of the warrant and which items were beyond the

scope of the warrant and (2) to make further findings

with respect to the home warrant. Klingenstein v. State,

624 A.2d at 533. The hearing judge was directed to deny

the motion to suppress as to which items were constitu-

tionally seized and grant the motion to suppress only as

to those items which were seized beyond the terms of the

warrant. Id. at 539.

In its opinion, the Court of Appeals, contrary to the

Court of Special Appeals, stated that the flagrant disre-

gard exception was not recognized in Maryland. Id. at

535. This opinion “surveyed” the federal circuits and

“some state appellate courts” and determined that the

federal courts have consistently held that the seizure of

items outside the scope of the warrant will not ordinarily

affect the admissibility of items properly seized. Id. at

536. The court also found that the state appellate courts

were in “complete harmony” with the general rule. /d.

The court concluded that “it appears to be univer-

sally recognized” that under the Fourth Amendment the

exclusionary rule does not act to suppress evidence

seized within the scope of a warrant simply because

evidence outside the scope of a warrant was unlawfully

seized. Id. Although he admitted that courts in other

jurisdictions have discussed the exception, he focused his

attention on only two cases where the flagrant disregard

concept was applied to suppress all of the fruits of a

search, United States v. Medlin, 842 F.2d 1194 (10th Cir.

1988) and Florida v. Johnson, 605 So.2d 545 (Fla. Dist. Ct.

App. 1992). Id. at 537.

Despite the controversy within the federal circuits

and state courts, and despite the fact that most circuits, as

well as several states, have conceded the legitimacy of the

flagrant disregard exception, the court concluded that

because the Supreme Court of the United States has not

made a ruling regarding this concept, then the Court of

Appeals of Maryland would avoid doing so as well. Id.

Thus, the Court of Appeals of Maryland, in speci-

fically addressing the Supreme Court of the United

States, as well as Petitioner’s Writ of Certiorari, has

opened the door for the Supreme Court to lay to rest once

and for all the controversy that exists within and among

the circuits and states as to whether the flagrant disre-

gard concept should be recognized, thereby preserving

the sanctity of the Fourth Amendment by upholding its

Constitutional protection while simultaneously eliminat-

ing the vagueness and confusion that have permeated its

sacred tenets.

REASONS FOR GRANTING THE WRIT

A. THE FOURTH AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES CONSTITU-

TION REQUIRE TOTAL SUPPRESSION OF

EVIDENCE SEIZED PURSUANT TO A SEARCH

WARRANT WHEN THE OFFICERS FLAGRANTLY

DISREGARD ITS TERMS DURING EXECUTION.

BECAUSE A DIRECT AND ACKNOWLEDGED

CONFLICT EXISTS AMONG AND WITHIN THE

CIRCUITS AND STATES OVER THE CONCEPT

OF “FLAGRANT DISREGARD”, GUIDANCE

FROM THIS COURT IS NEEDED.

The utter chaos and confusion surrounding the con-

cept of “flagrant disregard” within and among the federal

circuits and state courts is apparent. The courts are in

disarray, with no consensus as to whether the “flagrant

disregard” concept is a valid exception to the general

warrant rule. The following analysis will trace the history

and evolution of the flagrant disregard rule, as well as

explain the dissention among the federal circuits.

United States v. Rettig, 589 F.2d 418 (9th Cir. 1978),

authored by then-Judge, now Justice, Kennedy, is the

seminal case on “flagrant disregard”, and established that

when officers flagrantly disregard the scope set out in a

search warrant, all items seized in the search, whether in

or outside the scope set in the warrant, must be sup

pressed.!°

The rationale underlying this concept is that “when

investigators fail to limit themselves to the particulars in

the warrant, both the particularity requirement and the

probable cause requirement of the Fourth Amendment

are drained of all significance as restraining mechanisms,

10 It should be noted that although Rettig does not actually

use the term “flagrant disregard”, the term was coined a few

years later by the D.C. Circuit in United States v. Heldt, 668 F.2d

1238, 1259 (1981) and has been widely adopted in both federal

and state courts.

and the warrant limitation becomes a practical nullity.”

United States v. Heldt, 668 F.2d 1238, 1257 (D.C. Cir. 1981)

(emphasis in original).

Specifically, Rettig involved the execution by DEA

agents of an arrest warrant for cocaine importation of the

defendant’s home. Id. at 420. The agents had also applied

for a search warrant for evidence, but the federal magis-

trate refused to issue one since the allegations of probable

cause for the search was based on stale information. /d.

Before executing the warrant, the agents called Rettig to

tip him off anonymously that they were coming for him.

Id. They hoped that Rettig would flee the house in pos-

session of incriminating items related to the cocaine

charge for which the agents had failed to obtain the

search warrant. Id. When the agents entered the house to

make the arrest, they found Rettig flushing a pound of

marijuana down the toilet. /d.

The agents then obtained a search warrant for the

house from a state court judge based on the marijuana. /d.

The affidavit, however, neglected to mention the denial of

request for a search warrant the previous day and the

agents’ intention to search for evidence relating to the

cocaine conspiracy. Id. The search of the house by five or

six agents lasted up to five and one-half hours. Id. Among

the 2,288 items seized were U.S. government publica-

tions, blank credit card applications, bank brochures,

medical and dental records, drug store receipts for the

prior two years, slides, undeveloped film, extensive

financial records, credit cards and travel documents, a

black leather case containing four pounds of white pow-

der, a scale, and several wine bottles. /d. at 421.

Judge Kennedy, writing for a unanimous panel, con-

cluded that:

the agents did not confine their search in good

faith to the objects of the warrant, and that

while purporting to execute it, they substan-

tially exceeded any reasonable interpretation of

its provisions. As interpreted and executed by

the agents, this warrant became an instrument

for conducting a general search. Under the cir-

cumstances, it is not possible for the court to

identify after the fact the discrete items of evi-

dence which would have been discovered had

the agents kept their search within the bounds

permitted by the warrant; and therefore all evi-

dence seized during the search must be sup-

pressed. Id. at 423.

In United States v. Medlin, 842 F.2d 1194 (10th Cir.

1988), the Tenth Circuit also ruled that blanket suppres-

sion was required. In this particular case, a county police

officer received a tip from an informant that the defen-

dant was illegally dealing in firearms. Id. at 1195. The

same informant had previously told the officer that Med-

lin was in possession of certain stolen goods. !d. at 1195.

With the county officer’s help, federal agents obtained

and executed a warrant to search for the guns. Id. While

the agents were seizing 130 firearms and related evi-

dence, the county policeman seized 667 items which he

believed to be stolen. Id. at 1195-96. Those items were

loaded into a horse trailer by both the state and federal

officers and carted away. Id.

After the Tenth Circuit had remanded the case for a

hearing on the issue of flagrant disregard, the trial court

specifically found that the seizure of the 667 items not

specified in the warrant “was not mitigated by practical

considerations” and that the county policeman

“employed the execution of the federal search warrant as

a ‘fishing expedition.’ ” Id. at 1199. In light of this, the

appeals court upheld the total suppression of all evi-

dence, including the firearms, seized during the general

search since it “could not say that these factual findings

are clearly erroneous.” Id.

Florida v. Johnson, 605 So.2d 545 (Fla. Dist. Ct. App.

1992), is the most recent instance where total suppression

was granted and upheld. The police in that case obtained

a warrant to search the defendant’s home for porno-

graphic video tapes which he was selling by mail. /d. at

546. The supporting affidavit contained descriptions and

still photographs of scenes from a sample tape which the

police had obtained from the defendant, and a descrip-

tion of other available tapes, which were listed in bro-

chures accompanying the shipment of the sample tape. /d.

In executing the warrant for the specified material, how-

ever, the police brought along videocassette recorders

and televisions and watched numerous other tapes

located on the premises, seizing all copies of those they

determined to be obscene. Id. at 546-47. They also seized

a huge amount of office and electronic equipment, which

seizures Johnson testified “wiped . . . out” his business.

Id. at 547.11

The Florida District Court of Appeals, relying largely

on Medlin, Rettig, and Lo-Ji Sales, Inc. v. New York, 442 US.

319 (1979),'2 sustained the trial court’s finding of flagrant

disregard and suppression of all evidence seized. Id. at

548. The appeals court agreed that the police had exe-

cuted the warrant in a general manner by using their own

discretion in determining which tapes to seize rather than

seizing only those specifically encompassed by the war-

rant, and by effectively shutting down Johnson's business

Just as in Johnson, where the illicit search and seizures

conducted outside the scope of the warrant wiped out the busi-

ness of the Plaintiff, so to did the indiscriminate search and

seizure conducted under the guise of the warrant issued to take

Doriden, Tylenol 4, and Penicillin all but wipe out the Peti-

tioner’s business in the present case.

12 The Town Justice in this case accompanied the officers to

an adult book store to determine “independently” if items in the

store were in violation of the law, and then granted an open-

ended warrant. The Supreme Court held that 1) the Fourth

Amendment did not leave entirely to the officials conducting

the search to determine which items were obscene, 2) the Town

Justice did not manifest neutrality, and 3) the store owner had a

legitimate expectation of privacy. Just as in Lo-Ji Sales, the offi-

cials, following the auditor Jack Freedman, also used their dis-

cretion to determine which drugs to seize.

by illegally seizing the office and electronic equipment.

Id.

However, despite the history and evolution of the

flagrant disregard concept within the federal and state

courts, there has been little consistency and agreement as

to whether this concept should be recognized. Indeed, the

dispute within the Maryland court system itself is indica-

tive of the dissention and controversy that surrounds this

newly ccined concept. As outlined in the opinion section,

supra, the circuit court granted total suppression of evi-

dence based on the flagrant disregard concept. The Court

of Special Appeals of Maryland, while agreeing that the

flagrant disregard exception was a valid legal concept,

determined that the officers did not flagrantly disregard

the warrant in this case. State v. Klingenstein, 608 A.2d at

807-08. Specifically, the Court of Special Appeals held

that in order to “flagrantly disregard” a warrant, the

officers must use the warrant as a pretext for an illicit

search. Id. The court held this even though none of the

authority quoted on flagrant disregard ever established a

“pretext” standard.

Nevertheless, the Court of Appeals stated that the

State of Maryland does not recognize the flagrant disre-

gard concept at all, and proceeded to selectively survey

the jurisdictions, concluding that most jurisdictions did

not recognize it either. Klingenstein v. State, 624 A.2d at

535-37. Clearly, courts within the same jurisdiction are

not clear as to whether the flagrant disregard concept has

been adopted or not, and when to abide by this excep-

tion. Moreover, many are reluctant to abide by this con-

cept until directed to do so by the Supreme Court, as

clearly stated by Judge Orth in the court’s opinion. Id. at

Specifically, as noted above, the Ninth Circuit, as per

then-Judge (now Justice) Kennedy in Rettig and the Tenth

Circuit in Medlin as well as the Florida Court in Johnson

have upheld the validity of the flagrant disregard con-

cept. Similarly, the District of Columbia Circuit has recog-

nized the flagrant disregard concept in Heldt, and the

Eastern District of Virginia in the Fourth Circuit has

recognized this concept in United States v. Belcher, 577 F.

Supp. 1241, 1253-54 (E.D. Va. 1983).!3 The Eleventh Cir-

cuit, in United States v. Wuagneux, 683 F.2d 1343, 1346

(11th Cir. 1982), cert. denied, 464 U.S. 814 (1983), has also

noted the validity of the flagrant disregard exception.!4

However, even within these circuits, which have rec-

ognized “flagrant disregard,” there appears to be confu-

sion over what is the applicable standard, since many

cases within these jurisdictions have recognized Rettig

but nevertheless have made a conscientious effort to dis-

tinguish themselves from its unique facts and circum-

stances. For instance, in the District of Columbia Circuit,

in In Re Search Warrant Dated July 4, 1977, 667 F.2d 117

(D.C. Cir. 1981), cert. denied, 456 U.S. 926 (1982), although

the district court held that the search of the Church of

Scientology by F.B.I. agents constituted a general search,

the United States Court of Appeals held that although

there were items seized outside the scope of the warrant,

the items seized “were not illegal” and the court held that

13: In Belcher, the defendant was charged with criminally

setting fire to a restaurant in Virginia. The defendant was a

known “bookie” who had been practicing his trade in the Colo-

nial Heights Area for over a decade. However, after the fire,

police suspected defendant of arson and issued a warrant to

search for gambling paraphernalia. The Court concluded that

such a warrant was simply a pretext for searching for arson

evidence, and suppressed all evidence found in the search. /d. at

1246.

4 In Wuagneux, the defendant was convicted of operating a

business through a pattern of racketeering activity, embezzle-

ment of funds from an employee welfare benefit plan, bank

fraud, and filing false income tax returns. Although the Court

held that the search of the defendant’s records was proper in

this instance the court specifically stated that “absent a ‘flagrant

disregard’ of the terms of the warrant, the seizure of items

outside the scope of a warrant will not affect admissibility of

items properly seized.” Id. at 1354.

the Church was entitled only to the return of the docu-

ments, and not general suppression of all the evidence as

called for by-the flagrant disregard concept when the

officers flagrantly violate the scope of the search as called

for in the warrant. Id. at 119. The court did recognize that

in some “rare” cases a disregard for specific restrictions

on a warrant may turn an otherwise lawful search into a

general one, calling for tota! suppression of all items

seized. Id. at 130. Nevertheless, not all items seized were

suppressed in this case. Id.

Another example, occurring in the Fourth Circuit, is

United States v. Fawole, 785 F.2d 1141 (4th Cir. 1986). In

this case, the defendant was suspected of practicing

insurance fraud and a warrant was issued to find evi-

dence of such fraud. Id. at 1143. However, many docu-

ments and appliances were taken, including a briefcase

full of papers that was later inventoried at the police

station. Id. at 1144. Among the items in the briefcase were

two forged passports. Id. at 1143. Despite the fact that the

passports were technically outside the scope of the war-

rant and despite the fact that inaccuracies were found

within the affidavit supporting the warrant, the evidence

seized was not suppressed as the court held that the

discovery of the passport allows the warrantless seizure

under the plain view doctrine, and distinguishing the

seizure from the flagrant disregard doctrine. Id. at 1147.

In the Ninth Circuit, the birthplace of Rettig, there

still remains vagueness and confusion as to how to apply

the flagrant disregard doctrine. On the one hand, many

courts have followed Rettig. See United States v. Chen, 979

F.2d 714, 717 (9th Cir. 1992); United States v. Tamura, 694

F.2d 591, 597 (9th Cir. 1982). Nevertheless, in United States

v. Perdomo, 800 F.2d 916 (9th Cir. 1986), the defendant was

convicted of cocaine possession. Id. A warrant was issued

to search his residence and even though the court found

that certain documents seized did not relate to drug

trafficking (they were classified as religious documents),

the Court of Appeals nevertheless suppressed only those

documents, while admitting the documents found within

the scope of the warrant. Id. at 920. See also United States

v. Beusch, 596 F.2d 871, 876 (9th Cir. 1979) (holding that

seizure of items outside the scope of the warrant will not

ordinarily affect the admissibility of items properly

seized.)

Conversely, the Second, Third, Fifth and Sixth Cir-

cuits have not fully recognized the flagrant disregard

concept. For example, Judge Orth in the Maryland Court

of Appeals, while ignoring the above cited cases, (except

for Medlin and Johnson), selectively “surveyed” the Cir-

cuits and stated that “the federal courts have consistently

held that the seizure of items outside the scope of the

warrant will not ordinarily affect the admissibility of

items properly seized”. Klingenstein v. State, 624 A.2d at

536. As support, Judge Orth listed United States v. Artieri,

491 F.2d 440, 446 (2d Cir. 1974), cert. denied, 419 U.S. 878

(1974); United States v. Forsythe, 560 F.2d 1127, 1134 (3d

Cir. 1977); Beusch, supra; Premises Known as 1007 Morn-

ingside, 625 F. Supp. 1343, 1350 (N.D. lowa 1985); Watts v.

Kroczynski, 636 F. Supp. 792, 801 (W.D. La. 1986); Huebner

v. United States, 731 F. Supp. 1441, 1446 (D. Ariz. 1990). Id.

at 536.

Though Judge Orth did not refer to these cases, other

federal courts support the above proposition that items

seized outside the warrant will not affect the admis-

sibility of properly seized items. See Brooks v. United

States, 416 F.2d 1044 (5th Cir. 1969); Superior Fish Co., Inc.

v. Royal Globe Ins. Co., 521 F. Supp. 434 (S.D.N.Y. 1981).

Judge Orth also “sampled” the opinions of state

appellate courts, and stated that “they are in complete

harmony with the general rule”. Klingenstein v. State, 624

A.2d at 536. Judge Orth relied on State v. Romero, 660 P.2d

715, 717 (Utah 1983); State v. Monsrud, 337 N.W.2d 652,

661 (Minn. 1983); Commonwealth v. Lett, 470 N.E.2d 110,

113-114 (Mass. 1984); State v. Riedinger, 374 N.W.2d 866,

872 (N.D. 1985); New Hampshire v. Valenzuela, 536 A.2d

1252, 1267 (N.H. 1987) (where Justice Souter, then of the

Supreme Court of New Hampshire, stated that “the

appropriate sanction for a scope violation in the course of

a warranted search is, with the exception of the rare and

outrageous case where the entire execution of the warrant

can be deemed either a subterfuge or a farce . . . [is a]

particularized, rather than plenary, suppression”). Id. at

536.

However, other states not “sampled” by Judge Orth

have recognized Rettig and the flagrant disregard doc-

trine. See Smith v. Whitehead, 436 A.2d 339, 346 (D.C. App.

1981), aff'd, 458 A.2d 738 (D.C. 1983); People v. Rogers, 187

Cal. App. 3d 1001, 1008 (1986); Wisconsin v. Noll, 343

N.W.2d 391, 399 (Wis. 1984).

Finally, the Court of Special Appeals, though largely

ignored by Judge Orth, relied on a wealth of authority to

support the flagrant disregard concept. Among the cases

cited by the Court of Special Appeals are United States v.

Lambert, 887 F.2d 1568 (11th Cir. 1989); United States v.

Young, 877 F.2d 1099 (1st Cir. 1989); United States v. Med-

lin, 842 F.2d 1194 (10th Cir. 1988); United States v. Matias,

836 F.2d 744 (2d Cir. 1988); Marvin v. United States, 732

F.2d 669 (8th Cir. 1984); United States v. Whitten, 706 F.2d

1000 (9th Cir. 1983); United States v. Tamura, 694 F.2d 591,

Wuagneux, 683 F.2d 1343; Heldt, 668 F.2d 1238; Rettig, 589

F.2d 418; and New Hampshire v. Valenzuela, 536 A.2d 1252

(N.H. 1987).

More recent decisions also approving the flagrant

disregard doctrine which were not cited in the opinion

include New Hampshire v. Tucker, 575 A.2d 810 (N.H. 1990)

and Wisconsin v. Petrone, 468 N.W.2d 676 (Wis. 1991).

Lastly, as emphasized by Judge Orth in the court's

opinion, although the Supreme Court has never directly

approved the flagrant disregard concept, the Supreme

Court has cursorily addressed it in Waller v. Georgia, 467

U.S. 39, 43-44, n.3 (1984). Klingenstein v. State, 624 A.2d at

537. Within this footnote, the court specifically stated that

the Petitioners do not assert that the officers

exceeded the scope of the warrant in the places

searched. Rather, they say only that the police

unlawfully seized and took away items uncon-

nected to the prosecution. The Georgia Supreme

Court found that all items that were unlawfully

seized were suppressed. In these circumstances,

there is certainly no requirement that lawfully

seized evidence be suppressed as well.

Id. (emphasis added) (quoting Waller, 467 U.S. at

43-44, n.3). Thus Waller implied that the flagrant disre-

gard exception may apply where, as here, the search is

conducted in a general manner. Many of the cases cited

above which recognize flagrant disregard post-date Wal-

ler.

As illustrated above, the law surrounding the fla-

grant disregard doctrine is in a state of chaos. A dichot-

omy exists between the states and circuits that hold, on

the one hand, evidence seized outside of the warrant

should be suppressed but should not affect the admis-

sibility of the evidence seized within the scope set by the

warrant, and on the other hand, all evidence seized in

flagrant disregard of the warrant should be suppressed.

There is also confusion as to how to define flagrant

disregard and when a search turns a warrant into a

'S However, it is important to note that the facts and cir-

cumstances surrounding Waller are different than the case at

hand. Specifically, in the present case not only did the police

unlawfully seize items, but they also did not confine their search

to the scope of the warrant, in contrast to the case above. Pre-

cisely, the search issued for Petitioner’s business was limited to

Doriden, Tylenol 4, and penicillin, as well as records relating to

the filling of forged prescriptions for those substances. As

stated, many drugs and items not listed on the warrant were

also searched and seized. Thus, in the present case, the warrant

was a guise to enter the pharmacy and grab whatever the offi-

cers and pharmacist/auditor desired to take at the time, includ-

ing Petitioner’s pharmacist license, Schedule II drugs not listed

on the warrant, files and personal papers. Id. Clearly, the offi-

cers exceeded the scope of the search warrant in this case. Just

as the warrant issued in Rettig was a guise to enter and search

for items not listed on the warrant, so did the warrant become a

guise on the court in this case, calling for the suppression of all

items seized.

“general” warrant, as demonstrated by the holding of the

Maryland Court of Special Appeals. Thus, given the state

of the law within and among the states and circuits,

clarification by the Supreme Court, as to whether the

flagrant disregard exception exists and what its precise

application should be, would be welcome and needed

guidance.

B. THE FLAGRANT DISREGARD CONCEPT

MUST BE RECOGNIZED IN ORDER TO PRE-

SERVE THE SANCTITY OF THE FOURTH

AMENDMENT; OTHERWISE THE PROTEC-

TION AGAINST GENERAL SEARCHES AND

SEIZURES BECOMES MEANINGLESS.

The Fourth Amendment is plainly concerned with

protection against unreasonable searches and seizures

and that no warrants be issued without probable cause

and describing the items to be seized with particularity.

In discussing the warrant requirement of the Fourth

Amendment, the United States Court of Appeals for the

District of Columbia Circuit explained that “[t]he right to

be free from unreasonably broad searches is distinct from

those rights which concern a warrant’s validity.” Heldt,

668 F.2d at 1260 n.24. This prohibition on “general”

searches in Anglo-American jurisprudence pre-dates the

independence of the thirteen Colonies. For example, Lord

Mansfield wrote that “[i]t is not fit that the receiving or

judging of the information {in a warrant] should be left to

the discretion of the officer. The magistrate ought to

judge; and should give certain directions to the officers.”

Leach v. Three of the King’s Messengers, 19 How. St. Tr. 1001,

1027 (1765) (quoted in United States v. United States District

Court, 407 U.S. 297, 316 (1972)). The Framers had in mind

protecting against this precise evil when they drafted the

Fourth Amendment. See Stanford v. Texas, 279 U.S. 476,

481-82 (1965).16 Indeed, Judge Wald wrote in Heldt that

“obedience to the particularity requirement both in draft-

ing and executing a search warrant is therefore essential

to protect against the centuries-old fear of general

searches and seizures.” Heldt, 668 F.2d at 1257.

The twin requirements that the warrant be particular

in identifying what is to be seized, and that it be executed

according to those limitations, are part and parcel of the

fundamental duty of police to obtain a warrant before

conducting a search.'7 In Payton v. New York, 445 U.S. 573,

584 n.23 (1980) (quoting N. Lasson, The History and Devel-

opment of the Fourth Amendment to the United States Consti-

tution 103 (1937)), the Supreme Court noted:

[t]hat the prohibition against “unreasonable

searches” was intended, accordingly, to cover

something other than the form of the warrant, is

a question no longer left to implication to be

derived from the phraseology of the [Fourth]

Amendment.

The classic expression of the particularity require-

ment comes from Marron v. United States, 275 U.S. 192

(1927), where Justice Butler wrote:

The requirement that warrants shall particularly

describe the things to be seized makes general

searches under them impossible and prevents

the seizure of one thing under a warrant

describing another. As to what is to be taken,

16 Indeed, in Stanford, Justice Douglas described the history

of the battle with the Crown and the fear of the English Writs of

Assistance. It was the battle for “individual liberty and privacy”

which finally defeated the validity of the “general” warrants in

the landmark cases of Wilkes v. Wood, How. St. Tr. 1153 (1763)

and Entick v. Carrington, 19 How. St. Tr. 1029 (1765). Id. at 483.

17 Justice Brennan wrote in Miller v. United States, 357 U.S.

301, 313 (1958) that “every householder, the good and the bad,

the guilty and the innocent, is entitled to the protection

designed to secure the common interest against unlawful inva-

sion of the house.

”

nothing is left to the discretion of the officer

executing the warrant.

Id. at 196. Thus, even if a court finds that a warrant was

properly issued upon probable cause and that it reason-

ably particularized the object of the search and seizure,

evidence seized may nonetheless be rendered inadmiss-

ible if the execution was improper, i.e., the search

exceeded the scope and intensity allowed by the warrant.

See e.g., Andresen v. Maryland, 427 U.S. 463 (1976); Smith v.

State, 365 A.2d 53 (1976). See also Terry v. Ohio, 392 US. 1,

17-18 (1968).

In cases, as here, where the police are found to have

acted in flagrant disregard of the particularity require-

ment in executing the warrant, the remedy should not

simply be suppression of the evidence seized which was

not specified in the warrant, but rather the suppression of

all evidence seized in the search. Rettig, 589 F.2d at 423;

Medlin, 842 F.2d at 1198-99; Heldt, 668 F.2d at 1238; John-

son, 605 So. 2d 545. The rationale underlying this is that

“[w]hen investigators fail to limit themselves to the par-

ticulars in the warrant, both the particularity requirement

and the probable cause requirement are drained of all

significance as restraining mechanisms, and the warrant

limitation becomes a practical nullity.” Heldt, 668 F.2d at

1257 (emphasis in original).

~The cases of Rettig, Medlin, Johnson and Lo-]i Sales,

Inc. v. New York, and many of the other cases set forth

above, all agree that “flagrant disregard” of the terms of

the warrant in its execution can turn a valid search into a

general one, and thus call for total suppression of the

evidence seized.

In essence, without total suppression, the protection

provided by the Fourth Amendment become meaning-

less. The incentives to abide by its requirements disap-

pear when officers know that at most, the evidence seized

outside the warrant will be suppressed, but that evidence

deemed to be “within” the warrant will still be admitted.

This encourages hit or miss strategies, rather than careful

attention to the terms of the warrant, since the officers

will have lost little or nothing in their general search

when at least part of the evidence gathered will still be

admitted. The age old fear of general searches will return,

and the requirement of particularity will fall by the way-

side if officers are allowed to seize any items and then

have a judge later adjudicate as to which items belong in

court, and which do not. To the extent the Fourth Amend-

ment protects privacy in the home, this protection would

be severely diminished by the-failure to apply appropri-

ate sanctions to severe violations. Put simply, warrant

limitations will become meaningless. The flagrant disre-

gard concept must be recognized and defined by this

Court to give full effect to the Fourth Amendment.

C. THE SEARCHING OFFICERS FLAGRANTLY

DISREGARDED THE PHARMACY WAR-

RANT’S LIMITATIONS DURING ITS EXECU-

TION, AND THE CIRCUIT COURT’S

FACTUAL FINDINGS WERE PROPER AND

MUST BE UPHELD.

The Circuit Court held that the search warrant, when

read together with the application and affidavit for Peti-

tioner’s pharmacy, only permitted a limited search for

Doriden (glutethimide), Tylenol 4 (containing codeine),

and penicillin, and records related to the filling of forged

prescriptions for those drugs. No evidence was presented

at the hearing which could have given rise to probable

cause for the seizure of anything other than these items.

For the overwhelming bulk of the evidence taken, there

simply existed no “nexus... between the item seized and

criminal behavior.” Hughes v. State, 287 A.2d 299, 308

(Md. 1972).18

18 The State did not contend at either the suppression hear-

ing or in its brief to the Court of Special Appeals that the plain

view exception to the Warrant Clause had any bearing on the

resolution of the issues in this case. See Coolidge v. New Hamp

shire, 403 U.S. 443 (1971); Horton v. California, 496 U.S. 128 (1990).

———————————eeaeeaEeEeEeEeE=E En

The search in the instant case was remarkably similar

to the search condemned by the Tenth Circuit in Medlin,

as described in Argument I, supra. Like the deputy sheriff

in Medlin, the auditor from the Maryland Board of Phar-

macy pursuant to his own objectives accompanied the

officers and directed the search for and seizure of

numerous items not reasonably within the scope of the

warrant. No disinterested judicial officer participated in

making the decision to seize the 667 items of allegedly

stolen property in Medlin, or, as in the present Case, the

Schedule II drugs and mass of other items not embraced

by the warrant’s language.'? Rather, the police here

undertook the intense, sweeping, five-hour search and

seizure well beyond the scope of the warrant pursuant

only to Mr. Freedman’s invocation of executive author-

ity.2° As in Rettig, with respect to the vast majority of

items seized, there is no way to distinguish between the

items legally and illegally searched for and seized.

Significantly, Tpr. Hammel, the warrant’s drafter who

specializes in drug cases involving pharmacists, testified

Since the burden was on the State to raise the issue, Coolidge, 403

U.S. at 455, the Court of Special Appeals properly declined to

address it. Klingenstein, 92 Md. App. at 337, 608 A.2d at 798. See

Maryland Rule 8-131(a).

19 The neutral and detached magistrate requirement of the

Fourth Amendment works in tandem with the particularity

requirement to insure that “[a]s to what is to be taken, nothing is

left to the discretion of the officer executing the warrant.” Mar

ron, 275 U.S. at 195; Johnson v. United States, 333 U.S. 10, 14

(1948).

20 Mr. Freedman’s “order” to the officers during the search

to seize all the Schedule II drugs and other evidence not spe-

cified in the warrant was reminiscent of the conduct condemned

in Lo-Ji Sales, Inc., where a magistrate accompanied officers

executing a warrant and told them what items to seize, but with

two significant distinctions. First, Mr. Freedman is not a judge,

and second, the criminal or evidentiary nature of the vast

amount of materials taken was never established.

eee

that he knew both that it was not illegal for Schedule I]

drugs to be in a duly licensed pnarmacy, and that the

warrant did not permit the seizure of the Schedule I!

drugs. Yet, he nonetheless acceded to Mr. Freedman’s,

rather than the judge’s, determination of what was to be

seized. Indeed, the unauthorized seizure and purported

suspension of Petitioner’s pharmacy license by Mr. Freed-

man are emblematic of the utter disregard displayed in

Carrying out the search.

The case of Florida v. Johnson, 605 So.2d 545, also

further buttresses the soundness of the trial court’s deci-

sion resulting from the suppression hearing. The fatal

flaws in the search found by the court in that case, i.e.,

the execution of the warrant in a general manner and the

officers’ exercise of unbridled discretion in determining

what to seize, are strikingly similar to those which infec-

ted the search of Petitioner’s pharmacy. That case also

highlights another egregious abuse of the warrant by

police here: treating the warrant as not simply authoriza-

tion to search for and seize innumerable unspecified

items, but as a license to force Petitioner out of business.

It certainly can be inferred that the comprehensive nature

of the searches and seizures and the unauthorized confis-

cation of all the business licenses substantially impaired

Petitioner’s ability to run the pharmacy

Faced with the manner of execution, the fact that the

State never demonstrated how the vast array of docu-

ments and drugs came within the purview of the warrant,

and the fact that Petitioner’s business had for all intents

and purposes been summarily “wiped out”, the circuit

court thus properly found, as did the courts in Rettig,

Medlin and Johnson, that the warrant had been executed

in bad faith and in flagrant disregard?! for its terms by

21 The State claimed in its Opposition to the Petition for a

Writ of Certiorari to the Maryland Court of Appeals that the

circuit court never actually made a finding of “flagrant disre-

gard.” While it is true that the circuit court in its opinion grant-

————————eaeQQVVe

the executing officers. As a result, the court properly

suppressed all of the evidence seized at Petitioner’s phar-

macy.

CONCLUSION

In light of the facts and circumstances present in this

case, the police flagrantly disregarded the limitations of

the search warrant for the pharmacy. In order to preserve

the sanctity and nobility of the Fourth Amendment, the

flagrant disregard concept must be uniformly recognized

and consistently applied throughout the states and circuits.

ing total suppression did not actually utter the words “flagrant

disregard”, it is clear both from the context of the opinion in

relation to Petitioner’s argument, which was explicitly based on

flagrant disregard, and from the circuit court’s comments that

“the search was conducted in a general manner without regards

to the limits of the warrant,” and that it was “not a marginal

question as to whether or not the warrant was executed prop

erly”, that the circuit court did in fact base its ruling ona finding

of flagrant disregard.

For the foregoing reasons, Petitioner requests that this

Court grant the petition for writ of certiorari.

*Counsel of Record

September 9, 1993

Respectfully submitted,

Frep R. JOSEPH”

JoserH, GREENWALD & Laake, P.A.

Capital Office Park

6404 Ivy Lane, Suite 400

Greenbelt, Maryland 20770

301-220-2200

LEONARD R. STAMM

GOLDSTEIN & STAMM, P.A.

Capital Office Park

6301 Ivy Lane, Suite 504

Greenbelt, Maryland 20770

301-345-0122

Counsel for Petitioner

Pet. App. 1

330 Md. 402

Keith Gordon KLINGENSTEIN

STATE of Maryland.

No. 97, Sept. Term, 1992.

Court of Appeals of Maryland.

May 14, 1993.

In prosecution of registered pharmacist for maintain-

ing common nuisance and multiple instances of distribu-

tion of controlled dangerous substances and other

offenses, defendant moved to suppress all fruits of search

of his pharmacy and his home. The Circuit Court, Prince

George’s County, Larnzell Martin, Jr., J., granted suppres-

sion motion. State appealed. The Court of Special

Appeals, 92 Md.App. 325, 608 A.2d 792, vacated and

remanded. Defendant's petition for writ of certiorari was

granted. The Court of Appeals, Charles E. Orth, Jr., Asso-

ciate Judge of the Court of Appeals (retired), Specially

Assigned, held that (1) seizure of items outside scope of

search warrant for defendant’s business did not affect

admissibility of items properly seized, even if there was

“flagrant disregard” of warrant’s terms; (2) although

presence of tainted information in application for warrant

to search defendant's home did not necessarily render the

warrant unconstitutional, culling of tainted information

and determination of whether remaining untainted infor-

mation was adequate to show probable cause was matter

for hearing judge in the first instance; and (3) if hearing

judge determined that issuance of home warrant met

constitutional guarantee of probable cause, he was to

Pet. App. 2

then determine, under particularity clause, which items

seized were within terms of warrant and which were

beyond its scope.

Affirmed in part, reversed in part, and remanded.

Fred R. Joseph, Joseph, Greenwald & Laake, P.A., and

Leonard R. Stamm, Goldstein & Stamm, P.A., all on brief,

Greenbelt, for petitioner.

Mary Ellen Barbera, Asst. Atty. Gen. and J. Joseph

Curran, Jr., Atty. Gen., both on brief, Baltimore, for

respondent.

Argued before ELDRIDGE, RODOWSKY,

McAULIFFE, CHASANOW, KARWACKI and ROBERT M.

BELL, JJ., and CHARLES E. ORTH, Jr., Judge of Court of

Appeals (Retired, Specially Assigned).

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

A fifty-four count indictment charging Keith Gordon

Klingenstein, a registered pharmacist, with various viola-

tions of the Maryland Controlled Dangerous Substances

laws and related offenses awaits trial in the Circuit Court

for Prince George’s County. The indictment was returned

by the Grand Jury as a result of evidence seized by the

Maryland State Police in a search of a pharmacy owned

and operated by Klingenstein, and in a search of his

home. Each search was under the color of a warrant duly

obtained by the police to meet the constitutional guaran-

tees against unreasonable searches and seizures.

Pet. App. 3

In 1789 the first ten amendments to the Constitution

of the United States, known as the Bill of Rights, were

proposed by Congress and declared ratified in 1791. The

Fourth Amendment guaranteed:

[t]he right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures. . .

See McMillian v. State, 325 Md. 272, 281-282, 600 A.2d 430

(1992). The guarantee was assured by two clauses of the

Amendment. The first clause commanded that

no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation. . . .

The second clause required that the warrant

particularly describ[e] the place to be searched,

and the persons or things to be seized.

The reason the indictment against Klingenstein has

not come to trial is that he filed a pre-trial motion to

suppress all of the fruits of the search of his place of

business and of his home. Upon a plenary hearing, the

Circuit Court for Prince George’s County granted his

motion. The State appealed. The Court of Special Appeals

vacated the suppression order and remanded the case for

further proceedings. State v. Klingenstein, 92 Md. App.

325, 608 A.2d 792 (1992). We granted Klingenstein’s peti-

tion for a writ of certiorari.

Pet. App. 4

Klingenstein’s pharmacy was located at 6201 Green-

belt Road, Greenbelt, Maryland. He lived at 9115 49th

Place, College Park, Maryland. On 12 October 1990, a

Trooper of the Maryland State Police obtained a warrant

to search Klingenstein’s pharmacy (the business warrant),

and later that day another Trooper obtained a warrant to

search the home (the home warrant). As we shall see, the

business warrant was a proper warrant; the home war-

rant raised questions as to the constitutionality of its

issuance.

The judge hearing the motion to suppress was satis-

fied that the business warrant did not offend the Fourth

Amendment - it was supported by oath and particularly

described the place to be search [sic] and the things to be

seized. The “things to be seized” were expressly set out

“GLUTETHIMIDE” and “CODEINE,” each a controlled

dangerous substance, “DORIDEN,” the trade name for

Glutethimide, and false or forged prescriptions for those

drugs. The judge found that the affidavit was sufficient to

show probable cause to believe that the designated drugs

were being “concealed” on the premises, as well as “evi-

dence of the filling of forged prescriptions for these

items.” Klingenstein does not question that there was

probable cause to support the issuance of the business

warrant and that it was valid on its face. But he disputes

the constitutionality of the seizures made pursuant to it,

claiming that items were seized that were not particularly

described in the warrant. In other words, there was a

scope violation in the execution of the warrant.

Pet. App. 5

It was adduced at the hearing that the police officers

serving the warrant and conducting the search were

accompanied by one Jack Freedman, who was a pharma-

cist and an auditor with the Drug Control Division of the

State Department of Health and Mental Hygiene. It was

not disputed that Freedman expressed his intention to

have Klingenstein’s pharmacist license suspended, and to

that end instructed the officers to seize all drugs listed in

Schedule II of the Controlled Dangerous Substances laws.

The officers did so. The judge noted that although the

officer who applied for the warrant was “careful . . . to

specify particular drugs,” he “relied upon the direction of

Mr. Freedman, not any belief as to the scope of the

warrant being greater than that expressed [therein].” The

judge acknowledged that “certain items were seized rea-

sonably within the scope of the search warrant,” but

others were not. The State concedes that some items

seized were beyond the terms of the warrant. This gives

rise to the proper sanction to be imposed. The judge

believed that the sanction was that all of the fruits of the

search must be suppressed. He declared:

“The search was conducted in a general manner

without regard to the limits of the search war-

rant. . 5

“(Flor that reason,” he held, “the motion to suppress

items seized under the search warrant issued for 6201

Greenbelt Road, Greenbelt, Prince George’s County,

Maryland, [the pharmacy,] must be granted.”

Pet. App. 6

The Court of Special Appeals disagreed. It posited, 92

Md. at 345, 608 A.2d 792, that

the appropriate sanction for a scope violation in

the course of a warranted search is, with the

exception of the rare and outrageous case where

the entire execution of the warrant can be

deemed either a subterfuge or a farce...

“{a] particularized, rather than plenary, suppression,”

quoting Justice Souter of the Supreme Court of New

Hampshire (now of the Supreme Court of the United

States) in State v. Valenzuela, 130 N.H. 175, 197, 536 A.2d

1252, 1267 (1987), cert. denied, 485 U.S. 1008, 108 S.Ct.

1474, 99 L.Ed.2d 703 (1988). The Court of Special Appeals

looked to a statement by Judge Kennedy (now Justice

Kennedy of the Supreme Court of the United States) in

United States v. Rettig, 589 F.2d 418 (9th Cir.1978) which,

as quoted in United States v. Heldt, 668 F.2d 1238

(D.C.Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72

L.Ed.2d 440 (1982), was that

“in some cases a flagrant disregard for the lim-

itations in a warrant might transform an other-

wise valid search into a general one, thereby

requiring the entire fruits of the search to be

suppressed.”

668 F.2d at 1259. The Court of Special Appeals then

quoted with approval the general rule as set out in Heldt,

id.

“Absent that sort of flagrant disregard, the

appropriate rule seems to be that where officers

seized some items outside the scope of a valid

Pet. App. 7

warrant, this by itself will not affect the admis-

sibility of other contemporaneously seized items

which do fall within the warrant.”

92 Md.App. at 347, 608 A.2d 792. The intermediate appel-

late court opined that the constitutional violation in the

circumstances here “was by no stretch of the imagina-

tion... fraudulent, corrupt, outrageous, or flagrant.” Id.

at 340, 608 A.2d 792.

On the finding that the conduct of the officers in the

search and seizure at the pharmacy did not amount to a

flagrant disregard for the limitations in the warrant, the

Court of Special Appeals applied the sanction it found to

be the general rule:

We hold, therefore, that the order of the

hearing judge directing the total exclusion of all

items seized in the search of the appellee’s phar-

macy was in error and is hereby reversed. Nec-

essarily, the case will have to be remanded for a

determination of which seized items were

clearly beyond the scope of the warrant’s com-

mand or were not otherwise seizable, which

items should be excluded from evidence and

returned to the appellee, and which other seized

items fell within the warrant’s command or

were otherwise properly seizable, which items

should not be suppressed.

Id. at 356-357, 608 A.2d 792.

We find no opinion of this Court which directly

addressed the matter of the sanction when there is a

scope violation. The intermediate appellate court referred

to two of its earlier opinions, Spease and Ross v. State, 21

Md.App. 269, 319 A.2d 560 (1974), aff'd, 275 Md. 88, 338

Pet. App. 8

A.2d 284 (1975), and Andresen v. State, 24 Md.App. 128,

331 A.2d 78 (1975), cert. denied, 274 Md. 725, aff'd, 427 U.S.

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

mance of Spease, however, we found it unnecessary under

the circumstances to determine whether all the evidence

(in that case conversations were seized) was required to

be suppressed. 275 Md. at 103, 338 A.2d 284. In Andresen

the issue was never before us, as we declined to review

the case. The Supreme Court of the United States has not

provided a definitive answer. In Marron v. United States,

275 US. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) a central

issue was the propriety of a seizure under a warrant. The

Court discussed the particularity requirement of the

Fourth Amendment, but the Court was able to legitimate

the seizure of the disputed evidence even without a

search warrant, deeming it to be incident to a lawful

arrest. The Supreme Court’s Andresen, 427 U.S. at 482 n.

11, 96 S.Ct. at 2749 n. 11, stated:

The record discloses that the officials exe-

cuting the warrants seized numerous papers

that were not introduced into evidence.

Although we are not informed of their content,

we observe that to the extent such papers were

not within the scope of the warrants or were

otherwise improperly seized, the State was cor-

rect in returning them voluntarily and the trial

judge was correct in suppressing others.

Other than that hint, the main thrust of the Court’s

Fourth Amendment discussion did not go to the question

here; the issue was whether the commands of the warrant

in question made it a general warrant. The Court held

that they did not. Id. at 478-484, 96 S.Ct. at 2747-2750.

Pet. App. 9

The Court of Special Appeals turned to cases decided

by various United States Courts of Appeal on the appro-

priate sanction for a scope violation in the case of a

warranted search. See Klingenstein, 92 Md.App. at

345-355, 608 A.2d 792. They all support the general rule

accepted by the Court of Special Appeals. We have also

surveyed the cases in other jurisdictions which addressed

the matter of the suppression of evidence seized under a

warranted search. We find accord with the view of the

Court of Special Appeals. The federal courts have consis-

tently held that the seizure of items outside the scope of

the warrant will not ordinarily affect the admissibility of

items properly seized. See, for example, in addition to the

cases cited by the Court of Special Appeals, United States

v. Artieri, 491 F.2d 440, 446 (2d Cir.), cert. denied, 419 U.S.

878, 95 S.Ct. 142, 42 L.Ed.2d 118 (1974), United States v.

Forsythe, 560 F.2d 1127, 1134 (3rd Cir. 1977); United States

v. Beusch, 596 F.2d 871, 876 (9th Cir.1979); US. v. Premises

Known as 1007 Morningside, 625 F.Supp. 1343, 1350

(N.D.lowa 1985); Watts v. Kroczynski, 636 F.Supp. 792, 801

(W.D.La. 1986); Huebner v. U.S., 731 FSupp. 1441, 1446

(D.Ariz.1990).

We have also sampled the opinions of state appellate

courts. They are in complete harmony with the general

rule. See, for example, State v. Romero, 660 P.2d 715, 717

(Utah 1983); State v. Monsrud, 337 N.W.2d 652, 661 (Minn.

1983): Commonwealth v. Lett, 393 Mass. 141, 470 N.E.2d

110, 113-114 (1984); State v. Riedinger, 374 N.W.2d 866, 872

(N.D.1985); State v. Valenzuela, 536 A.2d at 1267.

In short, it appears to be universally recognized that

under the Fourth Amendment the exclusionary rule does

not act to suppress evidence seized within the scope of a

Pet. App. 10

warrant simply because evidence outside the scope of a

warrant was unlawfully seized. In other words, the gen-

eral rule is that only those items which were unconstitu-

tionally seized are to be suppressed; those which were

constitutionally seized may stand. We are in accord with

this view and find it to be consistent with the import of

our opinions. See, for example, Brooks v. State, 235 Md. 23,

29, 200 A.2d 177 (1964); State v. Wilson, 279 Md. 189, 195,

367 A.2d 1223 (1977); Wiggins v. State, 315 Md. 232,

252-253, 554 A.2d 356 (1989). Therefore, we affirm the

judgment of the Court of Special Appeals with respect to

the order of the Circuit Court for Prince George’s County

suppressing the fruits of-the search of the pharmacy.

In its discussion of the sanction for a scope violation,

the Court of Special Appeals noted an exception to the

general rule. If there were a “flagrant disregard” of the

terms of the warrant, all the items seized must be sup-

pressed. Although the intermediate appellate court found

that there was not such a flagrant disregard in the cir-

cumstances of the search of the pharmacy, it gave the

impression that the flagrant disregard concept was

appropriate under the Fourth Amendment. Klingenstein

leaned heavily on the flagrant disregard exception in

arguing that the suppression of all of the items seized at

the pharmacy was proper. The Supreme Court of the

United States, however, has not adopted the concept.

That Court has made no more than passing reference to

it. In Waller v. Georgia, 467 U.S. 39, 43-44, n. 3, 104 S.Ct.

2210, 2214, n. 3, 81 L.Ed.2d 31 (1984), the Court said:

Pet. App. 11

Petitioners’ second Fourth Amendment

challenge is that police so “flagrant[ly] disre-

gard[ed]” the scope of the warrants in conduct-

ing the seizures at issue here that they turned

the warrants into impermissible general war-

rants. Petitioners rely on lower court cases such

as United States v. Heldt, 215 U.S. App.D.C. 206,

227, 668 F.2d 1238, 1259 (1981) (per curiam), cert.

denied sub nom. Hubbard v. United States, 456

U.S. 926 [102 S.Ct. 1971, 72 L.Ed.2d 440] (1982),

and United States v. Rettig, 589 F.2d 418, 423

(CA9 1978), for the proposition that in such

circumstances the entire fruits of the search, and

not just those items as to which there was no

probable cause to support seizure, must be sup-

pressed. Petitioners do not assert that the offi-

cers exceeded the scope of the warrant in the

places searched. Rather, they say only that the

police unlawfully seized and took away items

unconnected to the prosecution. The Georgia

Supreme Court found that all items that were

unlawfully seized were suppressed. In these cir-

cumstances, there is certainly no requirement

that lawfully seized evidence be suppressed as

well.

Although courts in other jurisdictions have discussed the

exception, our attention has been called to only two cases

in which the flagrant disregard concept has been applied

to suppress all of the fruits of a search, both those consti-

tutionally seized as well as those beyond the scope of the

warrant. United States v. Medlin, 842 F.2d 1194 (10th

Cir.1988) and State v. Johnson, 605 So.2d 545

Pet. App. 12

(Fla.App.1992).1 We are not persuaded to overlay the

exclusionary rule of the Fourth Amendment with the

“flagrant disregard” concept. The Supreme Court has not

seen fit to do so and neither do we.

Il]

The hearing judge was concerned with the probable

cause requirement of the Fourth Amendment with respect

to the warrant for the search of the home. He found that

it fell short of constitutional standards. He observed that

the application for the second warrant incorporated

therein the application for the first warrant and that the

application for the second warrant not only made several

references to items seized under the first warrant but also

attached the inventory report of items seized in the first

search. This convinced the judge that

the second search warrant and items seized pur-

suant to it must have relied in part on the fruits

of the poisonous tree.

1 In United States v. Rettig, 589 F.2d 418 (9th Cir.1978) the

court held that the failure of the federal agents to inform the

state judge that a federal judge refused to issue a warrant the

day before transformed the entire warrant exercise into a mas-

sive subterfuge, calling for suppression of all of the evidence.

589 F.2d at 421-423. Rettig does not appear to be within the

“flagrant disregard” concept. The action of the police amounted

to an outright fraud on the court. See State v. Klingenstein, 92

Md.App. 325, 346-347, 608 A.2d 792 (1992).

Pet. App. 13

In sum, the judge held that the issuance of the warrant

for the search and seizures at the home was unconstitu-

tional because it was deficient with respect to probable

cause. He had found that the seizure of some of the items

during the search of the pharmacy did not meet constitu-

tional standards and he had suppressed them. Inasmuch

as those unconstijutionally seized items were at least to

some extent relied upon to show probable cause for the

issuance of the warrant for the home, the warrant for the

home was so tainted as to render it unconstitutional. It

followed, he believed, that the seizures at the home were

unreasonable, there being no valid warrant to justify

them. it was because this tainted information had been

infused into the application for the second warrant that

the judge granted the motion to suppress with respect 'o

the search of the home.

The Court of Special Appeals found the question

with respect to the search of the home to be what sanction

is applicabie when “some tainted information entered

into the warrant application. . . . ” 92 Md. App. at

329-330, 608 A.2d 792. The court’s reading of Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978), United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296,

82 L.Ed.2d 530 (1984) and United States v. Wade, 388 U.S.

218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), as discussed at

357-361 of 92 Md.App., 608 A.2d 792, led the court to

conclude that constitutionally tainted material may be

factored out of the warrant application and the remaining

untainted material may be assessed to see whether it

alone establishes probable cause. “Notwithstanding the

Pet. App. 14

presence of tainted information in a warrant application,”

the intermediate appellate court observed, “the adequacy

of the remaining untainted information to establish prob-

able cause is, ipso facto, an independent source for the

issuance of the warrant.” 92 Md. App. at 361, 608 A.2d

792. An “independent source” provides an exemption to

the “poisonous tree” doctrine, holding that, “when the

Fourth Amendment has been violated in obtaining evi-

dence, such tainted evidence shall not only not be used

directly but shall not be used at all.” Id. at 360-361, 608

A.2d 792. The Court of Special Appeals concluded,

“Applying the Franks v. Delaware principle to the search

of [Klingenstein’s] home yields a simple conclusion.”

The mention in the warrant application for the

home that Schedule II drugs had been recovered

in the search of the pharmacy was not an indis-

pensable or pivotal component of probable

cause. It was a de minimis triviality. Remaining,

untainted information abundantly established

probable cause for the search of the appellee’s

home. In all likelihood, if we factored out the

very fact that the pharmacy had ever been

searched, the probable cause for the search of

the home would not be fatally eroded. A fortiori,

factoring out the passing mention of those items

seized that were a scope violation would not

fatally erode that probable cause.

id. at 362, 608 A.2d 792. The court held:

There was no justification for the invalidation of

the warrant to search the home and for the

suppression of its fruits.

Pet. App. 15

Id. The Court vacated the suppression order for the home

and remanded the case for further proceedings consistent

with its opinion. Id.

We agree with the Court of Special Appeals that

under Franks, Karo, and Wade the tainted information in

the warrant application does not necessarily render the

warrant unconstitutional. But we think that when there is

a motion to suppress the evidence seized under a warrant

based on lack of probable cause for the issuance of the

warrant the matter is initially for the hearing judge. The

belief of the judge issuing the warrant that the applica-

tion showed probable cause is not conclusive when ques-

tioned and is subject to review by the hearing judge. See

Birchead v. State, 317 Md. 691, 701-702, 566 A.2d 488

(1989); Potts v. State, 300 Md. 567, 570-573, 479 A.2d 1335

(1984). It follows that the culling of tainted information

and the determination of whether the remaining

untainted information is adequate to show probable

cause is also a matter for the hearing judge in the first

instance. The further proceedings on remand to the cir-

cuit court should be to that end, not strictured by a

culling by the appellate court and a holding by it that the

remaining untainted information was adequate. If the

hearing judge concludes, after factoring out the tainted

information, that the information remaining established

probable cause for the issuance of the warrant, he should,

of course, uphold it and deny the motion to suppress

insofar as it is founded on the unconstitutionality of the

issuance of the warrant. The appellate court will then be

Pet. App. 16

in a position to perform its function of making an indepen-

dent constitutional appraisal of the propriety of the hearing

court’s rulings. See McMillian v. State, 325 Md. at 281, 600

A.2d 430; Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239

(1990); Harris v. State, 303 Md. 685, 697, 496 A.2d 1074 (1985).

If the hearing judge, after culling out the tainted infor-

mation, determines that the remaining showing of probable

cause is sufficient, there remains, in the circumstances here, a

question arising under the particularity clause of the Fourth

Amendment. This question was not reached by the hearing

judge nor was it addressed by the Court of Special Appeals.

If the hearing judge determines that the issuance of the home

warrant met the constitutional guarantee of probable cause,

he shall then determine under the particularity clause which

items seized were within the terms of the warrant and which

items were beyond the scope of the warrant. He shall deny

the motion to suppress as to those items which he finds were

constitutionally seized and grant the motion only as to those

items which were seized beyond the terms of the warrant.

JUDGMENTS OF THE COURT OF SPECIAL

APPEALS AFFIRMED IN PART AND REVERSED IN

PART;

CASE REMANDED TO THAT COURT WITH DIREC-

TION TO REMAND THE CASE TO THE CIRCUIT

COURT FOR PRINCE GEORGE’S COUNTY WITH

DIRECTION TO VACATE ITS JUDGMENTS AND TO

CONDUCT FURTHER PROCEEDINGS PURSUANT TO

THIS OPINION;

COSTS IN THIS COURT AND IN THE COURT OF

SPECIAL APPEALS TO BE PAID BY PETITIONER.

Pet. App. 17

92 Md.App. 325

STATE of Maryland

Keith Gordon KLINGENSTEIN.

No. 170 Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 1, 1992.

Mary Ellen Barbera, Asst. Atty. Gen., Baltimore,

argued (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and

Alexander Williams, Jr., State’s Atty. for Prince George’s

County, Upper Marlboro, on the brief), for appellant.

Fred R. Joseph and Leonard R. Stamm, Greenbelt,

argued (Joseph, Greenwald & Laake, P.A. and Goldstein

& Stamm, P.A. on the brief), for appellee.

Argued before MOYLAN, BISHOP and BLOOM, JJ.

MOYLAN, Judge.

The appellee, Keith Gordon Klingenstein, is a regis-

tered pharmacist in Prince George’s County. On March

22, 1991, the Grand Jury filed a 54-count indictment

against him, charging the maintaining of a common nui-

sance and multiple instances of distributing a controlled

dangerous substance; possessing a controlled dangerous

substance with intent to distribute; failing to store drugs,

medicines, and devices in a proper and safe manner; and

aggregated theft of over $300.

The appellee moved to suppress all of the fruits of

searches of 1) his pharmacy at 6201 Greenbelt Road exe-

cuted pursuant to a warrant on October 12, 1990 and 2)

Pet. App. 18

his home at 9115 49th Place in College Park also pursuant

to a warrant and executed the same day. Following a two-

day suppression hearing, a Prince George’s County judge

granted the appellee’s motion to suppress all evidence

seized from both pharmacy and home. By authority of

Md.Cts. & Jud.Proc. Code Ann. § 12-302(c) (1974, 1989

Repl. vol.), the State has appealed that suppression order.

We hereby reverse it.

Two separate searches pursuant to two separate

search warrants are involved. The warrant to search the

pharmacy was issued by Judge David Gray Ross shortly

before noon on October 12. The suppression hearing

judge found, quite properly in our judgment, that there

was no flaw in its issuance. The application established

ample probable cause and the hearing judge so found.

The command clause, moreover, was adequately partic-

ularized to limit effectively the scope of what would be

done under the warrant and the hearing judge so found.

The hearing judge ruled, however, that the execution of

the warrant was flawed because the executing officers

went beyond the scope of the warrant’s authority.

The second warrant, for the search of the appellee's

home, was issued on the late afternoon of the same day

by Judge John F. Kelly, Sr. The hearing judge found fault

neither with the execution of that warrant nor with its

issuance, if the probable cause equation were to be evalu-

ated strictly within the four corners of the warrant appli-

cation. The hearing judge ruled, however, that fruits of

the flawed search of the pharmacy fatally tainted the

probable cause for the warrant to search the home. That

second warrant to search the home, therefore, was invali-

dated as “the fruit of the poisonous tree.”

Pet. App. 19

The Only Question is that of Sanctions

Before us are two doctrinally distinct search and

seizure issues, each involving the selection of the appro-

priate sanction for a hypothesized Fourth Amendment

violation. With respect to the search of the pharmacy,

assuming that some items were seized within the author-

ity of the warrant and other items seized beyond that

authority, what is the appropriate sanction? With respect

to the search of the home, assuming that some tainted

information entered into the warrant application, what is

the appropriate sanction?

The Probable Cause Background

Although the probable cause to support the warrant

to search the pharmacy was undisputed, a brief recital of

its highlights will set the stage for a better understanding

of the searches that followed. On October 5, 1990, Trooper

David Hammel, of the Drug Diversion Unit of the Mary-

land State Police, was contacted by a Washington County

pharmacist and advised that two individuals had tried,

unsuccessfully, to pass forged prescriptions for controlled

drugs. The two suspects were shortly thereafter arrested

at a Peoples Drug Store in Frederick as they persisted in

their efforts to pass forged prescriptions. The suspects

were Harold Brian Firor and John Andrew Hulse. Under

interrogation by the State Police, both gave detailed state-

ments about having obtained controlled substances from

the appellee at the appellee’s pharmacy in the College

Park area. Both suspects informed the police that they

Pet. App. 20

had been obtaining drugs from the appellee regularly

since 1987.

Part of the story that unfolded was that two Schedule III

drugs: 1) Doriden, the trade name for glutethimide; and

2) Tylenol 4, containing a designated percentage of

codeine, when used in combination with each other, pro-

duce an effect similar to that of heroin, an effect which

can last for approximately twelve hours. The two drugs,

in combination, are known on the street as a “max load.”

It was these drugs that Firor and Hulse had been attempt-

ing to obtain in Hagerstown and Frederick. It was these

drugs that the two of them had been obtaining regularly

from the appellee since 1987. The typical “max load”

consisted of four Tylenol with codeine tablets combined

with two Doriden (glutethimide) tablets. The prescrip-

tions, therefore, were always for exactly twice as much

Tylenol 4 as Doriden. Firor also indicated that he could

regularly push a “max load” on the street for $35.

Firor elaborated on the modus operandi he used when

obtaining drugs from the appellee’s pharmacy. He would

forge his prescriptions by making photocopies and taking

them to the pharmacy. The password regularly employed

to trigger the exchange consisted of asking the appellee,

“Will $150 be enough?” The appellee would invariably

give, by way of countersign, an exact price. Firor pointed

out that the appellee would always wait until nobody

else was in the drugstore before dispensing the drugs to

Firor. Hulse verified in all details the information given

by Firor.

In an effort to verify the information given by the

suspects, Trooper Hammel, on October 9, began a series

ere

Pet. App. 21

of attempted “controlled buys.” On October 9, the first

effort met with unexpected difficulty. In an undercover

capacity, Trooper Margaret Shank attempted to have the

appellee fill forged prescriptions for 1) Doriden, 2)

Tylenol 4, and 3) penicillin. The prescriptions were in the

name of Kim Firor and were photocopies of forms of a Dr.

Lugener of Baltimore. There was, however, a Washington,

D.C. address on the form that had been obtained from

another prescription form and glued onto the Lugener

form prior to photocopying. The appellee declined to fill

the prescriptions for the Doriden and for the Tylenol 4,

ostensibly because he was prohibited from filling Sched-

ule III prescriptions that had been written in the District

of Columbia. He did offer to fill the prescription for

penicillin, however, but Trooper Shank declined to have

that prescription alone filled. She indicated she would

return with another prescription. The warrant application

also suggested, however, an alternative hypothesis for the

failure of that first attempt. Trooper Shank had failed to

give the designated password; to wit, she did not tell the

appellee that she had “one hundred and fifty dollars” and

then ask him if that “would be enough?”

The investigative fortunes improved the following

day, October 10, when Trooper Hammel met with a con(i-

dential informant, who represented incidentally yet a

third source of information about the appellee’s phar-

macy. The confidential informant stated that he (or she)

had been in the pharmacy on several occasions and had

obtained the two controlled dangerous substances under

discussion in the proportions that have been discussed.

The informant indicated that at one time the appellee had

charged as much as $250 to fill such a set of prescriptions.

Pet. App. 22

The informant further stated that on every visit to the

pharmacy, he had dealt exclusively with the appellee.

Trooper Hammel dispatched the confidential inform-

ant to the pharmacy with forged prescriptions for 1)

Doriden, 2) Tylenol 4, and 3) penicillin, but this time in

the name of another doctor with a Maryland address.

Trooper Hammel, in plain clothes, followed into the phar-

macy to monitor the proceedings. The appellee appeared

unnerved at his presence. He stopped what he was doing,

came over to the trooper, and asked if he could help him.

Trooper Hammel purchased several meaningless items

and left. Once the trooper was gone, the appellee filled

the three prescriptions. The likelihood that the prescrip-

tions were, indeed, forgeries was enhanced by the fact

that they were written not on original doctors’ forms but

on photocopies of such forms. The relative quantities of

the two drugs, moreover, were in precisely the proportion

used on the street to produce a “max load.” The thirty

Doriden tablets and sixty Tylenol with codeine tablets

that had been purchased were enough to produce fifteen

“max loads,” with the estimated street value of $525.

Whatever purpose was served by the thirty penicillin

tablets has not yet been revealed. The appellee charged

the confidential informant $135 for the three prescrip-

tions. A check with other pharmacies in the area yielded

a more normal expecied retail cost of $27. The appellee

placed the orders in a prescription bag and handed it to

the confidential informant, who turned it over to Trooper

Hammel immediately after leaving the pharmacy. The

prescription bag had no receipt attached to it and the

labels on the prescription bottles were improperly filled

out.

Pet. App. 23

On the following day, October 11, Trooper Margaret

Shank was successful in having the appellee fill forged

prescriptions for precisely thirty Doriden tablets and

sixty Tylenol 4 tablets. On that occasion, Trooper Shank

was Careful to use the password. She informed the appel-

lee that she “had $150 and wondered if that would be

enough.” He responded by pulling out a calculator and

answering, “$127.” On that occasion, the name used on

the prescription forms was “Maria Firor,” whereas on the

preceding two days, the name “Kim Firor” had been

used. Both Maria Firor and Kim Firor, however, were

listed as living at the same address. Again on that occa-

sion, the appellee did not provide the purchaser with a

receipt. The customer, thereby, was furnished no tell-tale

evidence of the inflated price charged to fil: the order. On

that October 11 controlled buy, Trooper Shank noticed

that the prescription form for penicillin had not been

signed. She, therefore, did not present that form to the

appellee to be filled. For the other two prescriptions, she

was Charged $127.95 for drugs that, again according to a

check with other pharmacies in the area, should have

retailed for approximately $27.

The probable cause application also contained

another interesting tidbit. The appellee’s pharmacy had

recently reported a breaking and entering to the Federal

Drug Enforcement Administration. That report stated

that various controlled dangerous substances had been

stolen. There was, therefore, clear evidentiary support for

a hypothesis that the appellee was attempting to create in

advance an explanation, should one ever be needed, for

either 1) the traceable appearance of certain controlled

Pet. App. 24

substances on the street or 2) the appearance of a sus-

piciously heavy commerce in certain drugs disproportio-

nate to the volume of sales of other drugs.

In terms of probable cause, an ongoing pattern of

likely criminal activity clearly emerged from 1) the infor-

mation provided by Firor, 2) the information provided by

Hulse, 3) the information provided by the unnamed con-

fidential informant, and 4) the direct observations made

in the course of the attempted and consummated con-

trolled buys of October 9, October 10, and October 11.

Forged prescriptions were regularly submitted to the

appellee for thirty Doriden tablets and sixty Tylenol 4

(with codeine) tablets, with or without an additional

order of thirty penicillin tablets. The prescriptions were

always presented directly to the appellee and filled by

him only when his pharmacy was otherwise empty of

customers. The password “Is $150 enough?” was regu-

larly given and the countersign of calculating and quot-

ing a precise price was regularly returned. Drugs of a

retail value of approximately $30 were regularly sold by

the appellee for approximately $135, a healthy markup

for the criminal risk assumed. The drugs were then avail-

able for marketing, as “max loads,” for a street value of

$535, an additional $400 of profit for the street pusher.

This pattern of criminality, or other similar patterns, had

apparently been going on since 1987, a period of at least

two years as measured from October, 1989.

The stage was thus set for the search of the pharmacy

on October 12. As he moved toward the conclusion of the

warrant application, Trooper Hammel averred:

———————<x—

Pet. App. 25

“I am satisfied that there is probable cause to

believe that there is now being concealed certain

property, namely ‘Glutethimide,’ ‘Codeine,’ and

‘Doriden’ on the person/s premises above

described... ”

The key directives of the Command Clause of the warrant

itself were:

“C. Open and search any safe, box, bag, com-

partment, or thing in nature thereof, found in or

upon said premises or person/s;

D. Seize all evidence, paraphernalia, controlled

dangerous substance, and monies used in or

incidental to the conduct or operation of con-

trolled dangerous substance violations, found in

or upon said premises, person/s... . ”

The hearing judge ruled that there was ample proba-

ble cause to support the warrant. He further ruled that

the Command Clause was adequately particularized and

limited in its scope. He interpreted the command to seize

“all evidence, paraphernalia, controlled dangerous sub-

stance, and monies used in or incident to” the probable

violations to relate only to items in those categories that

were somehow connected to the unlawful disbursing of

the 1) Doriden, 2) Tylenol 4, and 3) penicillin referred io

in the warrant application. In the last analysis, no fault

whatsoever was found with the issuance per se of the

search warrant. We think that ruling was eminently cor-

rect.

The Execution of the Warrant

Trooper Hammel led the searching party. He was

assisted by three other troopers. Because of the need to

eect

Pet. App. 26

distinguish one drug from another and to determine

which records and prescriptions related to particular

drugs, the searching party was accompanied by Jack

Freedman, a pharmacist and auditor from the Maryland

Department of Health and Mental Hygiene. With minute

determinations that had to be made with respect to the

drugs themselves, vial by vial and box by box, and with

similarly detailed determinations that had to be made

with respect to prescriptions, receipts, drug order forms

and other records, the completion of the search took over

four hours.

In the course of the search there was recovered a

container of Doriden, five containers of Tylenol with

codeine, and a container of penicillin. Numerous order

forms, receipts, daily accounting forms, prescriptions,

and other business records and inventories were recov-

ered. Of unusual significance was a brown paper bag

containing what appeared to be trash. An inspection of

the bag, however, revealed $9,408 in U.S. currency. The

bag was tucked away from the normal business records

and common working area of the pharmacy. The currency

inside the bag was wrapped in eleven bundles and rub-

ber-banded together. One of the state troopers, in his

subsequent application for a warrant to search the appel-

lee’s home, averred that from his experience and traininy,

he knew that “this method of wrapping currency is indic-.

ative of individuals who are conducting illegal acts,

mainly controlled dangerous substance violations.

The... method is used for easy counting and exchange of

currency between the distributor and the purchaser.”

Because there has yet been no trial, it is difficult from

our vantage point to predict precisely the value of the

Pet. App. 27

evidence recovered in the search of the pharmacy or to

assess the precise nexus between it and the command

clause of the warrant. From the characterization of some

of that evidence in the subsequent application for the

warrant to search the appellee’s home, however, it is

possible to extrapolate some evidentiary significance and

some of the apparent nexus. From what seems to be a

reference to the Doriden and the Tylenol 4, it may be

inferred both that they were found 1) in excessively large

quantities and 2) in unusual locations. Such observations

would almost certainly be pertinent as proof of guilt:

“Excessively large amounts of commonly

abused Controlled Dangerous Substances which

are sold and used on the ‘street’ were located

within the pharmacy in places not normally

associated with the common practices of a legiti-

mate pharmacy.”

The search for and seizure of various documents, more-

over, apparently bore fruit in terms of corroborating the

information from the various sources as to the regular

modus operandi earlier recounted in the application for the

warrant to search the pharmacy:

“That during the execution of the aforemen-

tioned warrant numerous, obviously forged pre-

scriptions, dating from early 1987 were found at

the pharmacy. These documents further corrob-

orate the statements given by the previously

mentioned informants.”

Whatever problem inhered in the execution of the

search warrant occurred when Jack Freedman, the phar-

macist and auditor with the Drug Control Division of the

Pet. App. 28

State Department of Health and Mental Hygiene, deter-

mined that the appellee’s license to operate a pharmacy

was going to be suspended. Accordingly, he directed the

officers conducting the search to seize all Schedule II

drugs. They did so. This aspect of the total seizure

involved approximately 67 containers of pills. This was

the aspect of the total seizure that the hearing judge

found to have been beyond the scope of the command

clause of the warrant.

The State argues that the command clause included

the direction to seize all “controlled dangerous sub-

stances,” which, by definition, included all Schedule II

drugs. As the hearing judge interpreted the command

clause, however, he read such general commands as those

to seize “all evidence, paraphernalia, controlled dan-

gerous substances, and monies” to be limited to those

items in those categories that had a specific connection

with the use of forged prescriptions to obtain Doriden,

Tylenol 4, and penicillin, thus reading the command

clause in conjunction with probable criminality spelled

out in the warrant application. That was not an unreason-

able reading of the command clause. Under such a read-

ing, the seizure of the Schedule II drugs was not

something particularly commanded by the warrant.

When read in conjunction, however, with the later

allegation that “controlled dangerous substances of

Schedule II were secreted in unlabeled prescription vials

and found in unusual locations throughout the pharmacy

which would be inconsistent with normal business prac-

tices,” it is conceivable that the observations made by

Jack Freedman and the subsequent seizures requested by

him might have fallen within the legitimate coverage of

Pet. App. 29

the Plain View Doctrine. While properly executing the

warrant to search for evidence of certain violations,

observed evidence of other violations spotted in plain

view would authorize the warrantless seizure of such

evidence notwithstanding the fact that the other viola-

tions were not the subject matter of the search warrant

itself. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110

L.Ed.2d 112 (1990). In this case, however, such an alterna-

tive theory was never urged by the State at the suppres-

sion hearing and a proper evidentiary predicate for it was

obviously not offered. Under the circumstances, we will

assume, arguendo, that the seizure of the Schedule II

drugs was, indeed, a scope violation.

In concluding that the seizure of the Schedule Il

drugs was a scope violation, the fact that the seizing

officers acted on the orders of Jack Freedman is a nonfac-

tor. If the officers had seized something clearly beyond

the scope of the command clause as reasonably inter-

preted, their bona fide belief that they were obeying the

judicial commandment would not absolve them of consti-

tutional sin, even had Jack Freedman never been along on

the raid. Conversely, if they had seized something

unequivocally directed by the warrant, their gratuitous

confession that they had done so not in the service of the

true warrant but in the service of a false god, would not

invalidate their otherwise objectively reasonable behavior.

Graham v. Connor, 490 U.S. 396, 397, 109 S.Ct. 1865, 1872,

104 L.Ed.2d 443, 456 (1989), Maryland v. Macon, 472 US.

463, 470-471, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370, 378

(1985).

Pet. App. 30

The passing observation of the hearing judge, more-

over, that “more than four hours was consumed in con-

ducting this search” is also without significance. There is

no remote suggestion that the officers had already found

everything they were properly looking for under the

warrant early in the course of the search and then delib-

erately dallied on a needlessly prolonged “fishing expedi-

tion.” This was not a case where they were looking for

some unique article of stolen property or some distinctive

instrumentality of crime, the finding of which would

trumpet the triumphal consummation of the search and

call down an immediate final curtain. They were not

looking, inter alia, for some Doriden and some Tylenol 4.

They were looking for all of it. How else could they assess

whether such drugs were present in inordinate quantity?

The search for all Doriden, Tylenol 4, and penicillin

required minute scrutiny — container by container — of all

the chemicals in the pharmacy. The fact that some of the

described drugs were found in strange and sundry cor-

ners, moreover, underscores their prudence in probing

meticulously each nook and cranny. The necessity to pore

over thousands of scraps of paper in quest of possibly

forged prescriptions and of receipts, order forms, and

records pertaining to the Doriden, the Tylenol 4, and the

penicillin made a painstaking and time-consuming exam-

ination inevitable.

The officers, as a matter of course, were required to

look for any prescriptions made out to a customer bear-

ing the name of “Firor.” Quite reasonably, they would

have been looking as well for any other prescriptions

issued by doctors whose names had been listed as having

issued any of the prescriptions to anyone named “Firor.”

Pet. App. 31

The officers would also reasonably have been looking for

any prescriptions at all made out on Xeroxed rather than

on original prescription forms, as possibly forged pre-

scriptions. They would, within the reasonable contempla-

tion of the warrant, also have been looking for any

prescriptions combining thirty Doriden tablets with sixty

Tylenol 4 tablets, or, indeed, any prescriptions for those

two drugs in other quantities but in the same proportion.

Realistically, the only practical way to have short-

ened the search would have been to have seized all the

drugs and then analyzed them ina more leisurely fashion

at the police station and to have seized all of the docu-

ments and then peruse them in a more leisurely fashion

at the police station. Axiomatically, the briefer the search,

the broader the necessary seizure; the longer the search,

the narrower the possible seizure. As was observed in

United States v. Whitten, 706 F.2d 1000, 1010 (9th Cir.1983):

“Although it may be intrusive for police officers

to remain in a home and make a careful exam-

ination of items to determine whether they fall

within the description of the warrant, it is

equally intrusive for them to carry off papers

and personal effects indiscriminately for later

review.”

The search in this case was essentially of the same dura-

tion as that search of a similarly complicated nature sanc-

tioned by us and by the Supreme Court in Andresen v.

State, 24 Md.App. 128, 331 A.2d 78 (1975), aff'd, Andresen

v. Maryland, 427 U.S. 463, 467, 96 S.Ct. 2737, 2742, 49

L.Ed.2d 627, 634 (1976).

In affirming the hearing judge’s ruling that the sei-

zure of the Schedule II drugs was beyond the command

Pet. App. 32

of the warrant, the duration of the search is simply a

nonfactor in our analysis. Given the hearing judge’s rea-

sonable interpretation of the command clause as read in

conjunction with the warrant application, the seizure of

the Schedule II drugs would have been a scope violation

whether it occurred in the first two minutes of a ten-

minute search or in the last two minutes of a four-hour

search. If it was beyond the scope of the warrant’s com-

mand, it was so whenever it happened, early or late.

What we are faced with, then, is a scope violation -

but not one that in any way shocks the conscience. The

command clause of the warrant had, indeed, mentioned

the seizure of “all . . . controlled, dangerous substances.”

Schedule II drugs, by definition, are “controlled dan-

gerous substances.” Unlike the hearing judge, the execut-

ing officers failed to read the warrant application and the

warrant in conjunction with each other, thereby limiting

the seizable “controlled dangerous substances” to the two

or three described in the warrant application. That, in the

last analysis, was a Fourth Amendment violation on their

part. It was by no stretch of the imagination, however,

fraudulent, corrupt, outrageous, or flagrant.

The Sanction for the Scope Violation

What, then, should the sanction for such more venial

violation be? The Warrant Clause of the Fourth Amend-

ment, of course, sets forth the necessary formalities of a

valid warrant:

“{A]nd no Warrants shall issue, but upon proba-

ble cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

Pet. App. 33

the persons or things to be seized.” (emphasis sup-

plied).

The requirement of a particular description of the “things

to be seized” is a mechanism whereby the Constitution

ensures that even a search proper in its initiation not be

allowed to degenerate into a general rummaging about or

fishing expedition. Smith v. State, 33 Md.App. 407,

409-410, 365 A.2d 53 (1976). This aspect of the partic-

ularity requirement was discussed in Marron v. United

States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231

(1927):

“The requirement that warrants shall partic-

ularly describe the things to be seized makes

general searches under them impossible and

prevents the seizure of one thing under a war-

rant describing another. As to what is to be

taken, nothing is left to the discretion of the

officer executing the warrant.”

The Marron opinion itself was the first occasion the

Supreme Court had to discuss the particularity require-

ment and to consider an appropriate sanction for its

violation. In terms of the search warrant being executed

in that case, there was a clear scope violation. Prohibition

agents had obtained a warrant for an establishment con-

taining six or seven rooms at 1249 Polk Street in San

Francisco. The warrant particularly commanded them to

search for and seize “intoxicating liquors and articles for

their manufacture.” In a closet in one of the rooms, the

agents noticed and seized a ledger, which was clearly

neither intoxicating liquor per se nor an article or ingre-

dient used in the manufacture of such liquor. An exam-

ination of the ledger, however, revealed inventories of

Pet. App. 34

liquors, receipts, expenses, and other business entries,

including gifts to police officers. The ledger was, to say

the least, an unexpected bonus and highly relevant evi-

dence.

The central issue was the propriety of its seizure. The

Supreme Court was unequivocal that the ledger, notwith-

standing its evidentiary value, had not, even in general

terms, been particularly described in the warrant and that

it could not, therefore, be seized under the warrant. “And

it is clear that the seizure of the ledger and bills, in the

case now under consideration, was not authorized by the

warrant.” 275 U.S. at 198, 48 S.Ct. at 76. There was no

suggestion, however, that the admissibility of intoxicating

liquors properly commanded by the warrant, was in any

way jeopardized by the scope violation with respect to

the ledger. If the only legitimate theory for any Fourth

Amendment activity had been the warrant itself, the case

would have called for the admission of the intoxicating

liquors but the exclusion of the ledger. Fortuitously, how-

ever, the Supreme Court was able to legitimate even the

warrantless seizure to the ledger under an alternative

theory of search incident to lawful arrest.

The utilization of the exclusionary sanction as a Care-

fully controlled scalpel rather than as an indiscriminate

blunderbuss has consistently been senctioned by this

Court. In Spease and Ross v. State, 21 Md.App. 269, 319

A.2d 560 (1974), aff'd 275 Md. 88, 338 A.2d 284 (1975), we

were dealing with the closely allied problem of an appro-

priate sanction for the hypothesized fzilure to minimize

the seizure of conversations under the wiretapping and

electronic eavesdropping laws. Central to that discussion

was the analogy to particularity and minimization

——— rt“ ‘ SCO

Pet. App. 35

requirements under the Fourth Amendment proper.

“Whether dealing with conversations or with tangible

items, the issue is one of particularity — that language of

the Fourth Amendment stating that the only valid war-

rants are those ‘particularly describing . . . the things to

be seized.’” 21 Md.App. at 282, 319 A.2d 560. After

having made the analogy, we went on to observe:

“The great weight of authority and, in our

judgment, the sounder reasoning maintains that

the failure to minimize requires only the suppres-

sion of those conversations which should not have

been seized and not the suppression of those conver-

sations which were appropriately seized.” (emphasis

supplied).

Id. In Spease and Ross, 21 Md.App. at 283, 319 A.2d 560,

we quoted with approval United States v. Lagorga, 336

F.Supp. 190, 197 (W.D.Pa.1971) aff'd, 530 F.2d 965 (3d

Cir.1976):

“It seems clear under the general law of search

and seizure that if some of the items obtained

satisfy the requirements of the law, the mere fact

that other objects beyond the permissible ambit

of the search must be suppressed, does not

require that all of the evidence must be neces-

sarily so treated.”

The issue of fashioning an appropriate sanction for a

possible scope violation was before us again in Andresen

v. State, 24 Md.App. 128, 180-181, 331 A.2d 78 (1975), aff'd,

Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49

L.Ed.2d 627 (1976). In Andresen, we were dealing with

two searches of a lawyer’s legal office and his separate

real estate office that consumed between four and five

hours. Numerous documents were seized. The defendant

Pet. App. 36

there argued that the seizures had been so sweeping as to

invalidate the entire execution of the search warrants. In

concluding that a more narrowly fashioned sanction

could properly distinguish between those items constitu-

tionally seized under a warrant and those other items the

seizure of which constituted a scope violation, we stated

unequivocally at 24 Md.App. at 180, 331 A.2d 78:

“The appellant frames a final Fourth

Amendment argument not in terms of those

things 1) which were not suppressed and 2)

which were admitted into evidence, but in terms

of that much larger quantity of items which

were seized initially but which did not pass

through all of the screens. (A number of items

which were not suppressed were not offered as

evidence by the State because they related to

other indictments against the appellant which

had not yet come on for trial.) The short answer to

the contention is that even if other items had been

unconstitutionally seized, that frailty would not

mandate the suppression of the items which were

constitutionally seized.” (emphasis supplied).

In affirming this Court, the Supreme Court adverted

to this clear distinction between admitting those seized

items that had been particularly described and suppress-

ing other seized items which had not been particularly

described:

“The record discloses that the officials exe-

cuting the warrants seized numerous papers

that were not introduced into evidence.

Although we are not informed of their content,

we observe that to the extent such papers were not

within the scope of the warrants or were otherwise

’

Pet. App. 37

improperly seized, the State was correct in return-

ing them voluntarily and the trial judge was cor-

rect in suppressing others.” (emphasis supplied).

427 U.S. at 481 n. 11, 96 S.Ct. at 2749 n. 11. The Supreme

Court, however, approved, as had we, the admissibility of

those other papers that had been adequately partic-

ularized.

We reverted to this question of whether the sanction

for a scope violation should be a scalpel or a blunderbuss

for yet a third time in Shoemaker v. State, 52 Md.App. 463,

485-486, 451 A.2d 127 (1982). In the course of executing a

warrant, the searching party did, to be sure, seize a large

number of items that had not been particularly described

in the warrant. The claim was there made, as it had been

in Andresen, that the overly broad sweep of the seizures

called for the suppression of all seized items, even those

that had been particularly described. In rejecting the

blunderbuss approach for yet a third time, we held at 52

Md.App. at 485-486, 451 A.2d 127:

“The appellants claim that in addition to seizing

the evidence of crime properly and particularly

described in the warrant, the searching party

also seized a number of other, innocuous objects

such as receipts for repairs to various structures,

warranties for household appliances, oil com-

pany credit cards, a prescription for eyeglasses,

a Social Security card, a Blue Cross/Blue Shield

card, and an engraved picture of a racehorse.

They urge, with no direct authority to support

them, that this calls for the suppression of even

the properly seized evidence. Our answer once

again lies in Andresen v. State, 24 Md.App. 128,

180, 331 A.2d 78 [(1975)], cert. denied, 274 Md.

725, aff'd, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d

Pet. App. 38

627 (1976), which dealt with a remarkably simi-

lar set of facts and an almost identical claim:

‘

. even if other items had been uncon-

Stitutionally seized, that frailty would not

mandate the suppression of the items which

were constitutionally seized. If the apples

remaining in the barrel when it ultimately

comes to rest upon the trial table are consti-

tutionally healthy, it matters not how many

constitutionally rotten ones were discarded

along the way.’

See also Spease and Ross v. State, 21 Md.App.

269, 282-283, 319 A.2d 560, and cases cited

therein.”

See also Brooks v. United States, 416 F.2d 1044, 1049-1050

(Sth Cir.1969); United States v. Dzialak, 441 F.2d 212,

216-217 (2d Cir.1971).

The law from the various United States Courts of

Appeal on the appropriate sanction for a scope violation

in the course of a warranted search is, with the exception

of the rare and outrageous case where the entire execu-

tion of the warrant can be deemed either a subterfuge or

a farce, in line with this more selective use of the exclu-

sionary sanction — with what Justice Souter of the

Supreme Court of New Hampshire (now of the Supreme

Court of the United States) called, in State v. Valenzuela,

130 N.H. 175, 536 A.2d 1252, 1267 (1987), “particularized,

rather than plenary, suppression.”

The appellant seeks solace in United States v. Rettig,

589 F.2d 418 (9th Cir.1978), a case in which the 9th Circuit,

speaking through Judge Kennedy (now Justice Kennedy),

ordered total suppression. That case dealt with an

Pet. App. 39

extreme exception to the general rule and is not remotely

apposite to the situation before us. That was a case where

the entire warranted search in question was a subterfuge

from its very inception. Agents of the Federal Drug

Enforcement Agency in Los Angeles had been investigat-

ing Rettig for some time for importing cocaine into the

United States from Peru. On April 2, 1975, they attempted

to obtain from a federal magistrate both a warrant for his

arrest and a warrant to search his Morro Bay residence.

The federal magistrate issued the arrest warrant but

declined to issue the search warrant, finding that the

probable cause was stale.

The federal agents arrested Rettig on the following

day, April 3, with the assist of a ruse. One of the agents

made an anonymous call to Rettig “warning” him +hat

federal officers were on the way with both an arrest

warrant and a search warrant. When the arresting officers

received no immediate response to their rap at the door,

they forced their way into the house and went to the

second floor, where they found Rettig attempting to flush

marijuana down the toilet. He was taken into custody.

While some agents remained on the premises, another

made a second attempt to obtain a search warrant based

upon the flushing incident at the time of arrest.

On that second occasion, however, the agent went to

a state judge and applied for a warrant to search for

evidence of marijuana possession. The state court judge

was not informed of the unsuccessful attempt the day

before to obtain a federal warrant to search for evidence

of cocaine possession and importation. Both the warrant

application and the warrant to search for evidence of

marijuana possession, however, included such seizable

Pet. App. 40

items as cancelled mail, keys, rent receipts, utility bills,

deeds, leases, and photographs, which unquestionably

would have evidentiary value on the cocaine charges for

which Rettig was subsequently prosecuted following that

second search.

In ordering total suppression, the thrust of Judge

Kennedy’s opinion was that the failure of the agents to

advise the state judge on April 3 of the unsuccessful

attempt to obtain a federal warrant the day before trans-

formed the entire warrant exercise of April 3 into a mas-

sive subterfuge. He pointed out, at 589 F.2d at 421:

We think that in the hands of these agents

the warrant issued on April 3 was used as an

instrument for conducting the search for which

permission had been denied on the previous

day, a search that pertained to evidence of the

cocaine charge, not to the possession of mari-

juana. In contrast to the affidavit filed with the

state judge in support of the April 3 search

warrant, the affidavit filed the day before with

the federal magistrate described in detail, in

four pages of single spaced text, the elaborate

scheme to smuggle cocaine from Peru, including

preliminary flights from California to Lima,

Peru by way of New York. The affidavit

revealed plans to smuggle cocaine by using hol-

lowed out chess boards, film canisters, false bot-

tom suitcases, and a plan to dissolve cocaine in

wine bottles and recover it once it had been

imported. The affidavit further recited that dur-

ing the conspiracy, and at the time of the affi-

davit, Rettig occupied the Morro Bay residence.

The search that was conducted, and the items

seized, were more pertinent to these matters

than to \e marijuana charge, and we conclude

Pet. App. 41

that the search was for purposes and objects not

disclosed to the magistrate.” (emphasis supplied).

An interesting contrast is provided by United States v.

Heldt, 668 F.2d 1238 (D.C.Cir.1981). Helct recognized the

Rettig exception that “in some cases a flagrant disregard

for the limitations in a warrant might transform an other-

wise valid search into a general one, thereby requiring

the entire fruits of the search to be suppressed.” 668 F.2d

at 1259. It then went on to state the general rule:

“Absent that sort of flagrant disregard, the

appropriate rule seems to be that where officers

seize some items outside the scope of a valid

warrant, this by itself will not affect the admis-

sibility of other contemporaneously seized items

which do fall within the warrant.”

Id.

Despite the extraordinary breadth of the search con-

ducted in the Heldt case itself, the Court of Appeals for

the District of Columbia held nonetheless that there was

no “such flagrant disregard for the terms of the warrant

which might make the drastic remedy of total suppres-

sion necessary.” Id. The search was purusant to three

warrants for premises owned and operated by the Church

of Scientology, one in Washington, D.C. and the other in

California. Over 200 FBI Agents and other government

personnel participated in the searches which lasted over

twenty hours. At one of the California sites alone, thirty

rooms were searched as were hundreds of file cabinets,

boxes, desks, and wall cabinets. Between 23,000 and

47,000 separate documents were seized. Of these, a bare

201 documents were singled out as pertinent evidence for

Pet. App. 42

use at the trial. The appellants sought to have all docu-

ments, including those 201, suppressed on the grounds

that the general nature of the search cried out for total

suppression. Despite the breadth of the search, the Court

held that there was no flagrant disregard of the terms of

the warrant so as to mandate total suppression.

In supplying guidelines for broad-scale document

searches, Heldt strongly recommended that searching

agents receive adequate preparation in knowing precisely

what documents they are looking for. In the search before

it, however, some fifty additional agents had arrived in

mid-search at one of the complexes who had been “given

neither a meaningful opportunity to read the warrant and

affidavit nor any sort of comprehensive briefing of their

terms, before beginning their mission.” 668 F.2d at 1261.

Notwithstanding that lack of preparation, the Court held:

“[O]n the whole, we conclude that the inade-

quate initial preparation of some agents, though

disturbing, did not so taint this search as to

convert it into a general rummage for evidence,

and we therefore decline to order complete sup-

pression on this basis.”

668 F.2d at 1262.

In United States v. Wuagneux, 683 F.2d 1343 (11th

Cir.1982), a searching team of between ten and twelve

agents began a search on one afternoon that continued

through the next day. The agents seized between 50,000

and 100,000 individual documents. The Court held that

although scope violations occurred and many documents

had been seized that were not particularly described in

the warrant, total suppression was not called for:

Pet. App. 43

“Appellant further argues, however, that a

large proportion of the documents seized but

not introduced in the government’s case in chief

were outside the scope of the warrant, suggest-

ing that the search was so overbroad that all the

fruits of the search should have been sup-

pressed. Total suppression may be appropriate

where the executing officer’s conduct exceeds

any reasonable interpretation of the warrant’s

provisions. Courts have consistently held, how-

ever, that absent a ‘flagrant disregard’ of the

terms of the warrant, the seizure of items outside

the scope of a warrant will not affect admissibility of

items properly seized.” (citation omitted)

(emphasis supplied).

683 F.2d at 1354.

In United States v. Tamura, 694 F.2d 591 (9th Cir.1982),

only selected exclusion rather than total exclusion was

called for notwithstanding excessive scope violations in

the course of executing a warrant. The searching team of

a business office consisted of thirteen FBI Agents. The

agents “concluded that it would take a long time to find

all the records they weve looking for unless [the suspect

company’s] employees helped them.” 694 F.2d at 595. The

agents threatened the employees that if they did not

cooperate, the agents would seize all of the records in

question. When the employees decline to cooperate, the

agents seized “11 cardboard boxes of computer printouts,

which were bound in 2000-page volumes; 34 file drawers

of vouchers, also bound in 2000-page volumes; and 17

drawers of cancelled checks, which were bundled into

files. The agents hauled all these records to another loca-

tion, where they sifted through them and extracted the

relevant documents.” Id. The Court condemned the

Pet. App. 44

excesses. It disapproved of the indiscriminate seizure of

all records:

“(T]he wholesale seizure for later detailed exam-

ination of records not described in a warrant is

significantly more intrusive, and has been char-

acterized as ‘the kind of investigatory dragnet

that the fourth amendment was designed to pre-

vent.’ We cannot sanction the procedure followed by

the Government in this case.” (citation omitted)

(footnote omitted) (emphasis in original)

(emphasis supplied).

It further disapproved of the government's failure to

return records promptly that had been improperly seized:

“Moreover, it was highly improper for the Gov-

ernment to retain the master volumes as a

means of coercing [the suspect company’s]

employees to stipulate to the authenticity of the

relevant documents. The Government's unnecess-

ary delay in returning the master volumes appears to

be an unreasonable and therefore unconstitutional

manner of executing the warrant.” (emphasis sup-

plied).

694 F.2d at 597. Notwithstanding those excesses, the doc-

uments that had been properly seized were held to be

admissible at trial and total suppression was deemed far

too draconic a remedy:

“Regardless of the illegality of the Govern-

ment’s seizure and retention of documents not

covered by the warrant, however, reversal is not

compelled in this case. All of the documents

introduced at trial were seized and retained

lawfully because described in and therefore

taken pursuant to the valid search warrant. Gen-

erally, the exclusionary rule does not require the

Pet. App. 45

suppression of evidence within the scope of a warrant

simply because other items outside the scope of the

warrant were unlawfully taken as well.” (emphasis

supplied).

Id.

In United States v. Whitten, 706 F.2d 1000 (9th

Cir.1983), the Court roundly condemned a series of exces-

sive scope violations in the execution of a warrant. The

searching team of between ten and twelve agents were

looking for evidence of who owned a house, lived in it,

and received mail there. The agents ended up taking

“more than a thousand photographs from the house.” 706

F.2d at 1009. One agent explained that “he was trying to

be selective but did not have time to go through all of the

photos; he therefore took the lot intending to look

through them more thoroughly later.” Id. Two metal

strong boxes were taken from a bedroom and their con-

tents examined at the office of the Drug Enforcement

Agency. The boxes contained such extraneous items as

“love letters, jewelry, marriage, divorce, and custody

papers, a billing statement from a lawyer, a probation

report, and form printed checks.” Id. Underneath these

items, however, the agents found drug paraphernalia and

precursor chemicals.

The Court did not hesitate to condemn the excesses

perpetrated in the execution of the search:

“We disapprove the removal by the agents

from the house of large quantities of papers,

photographs, an other items which might have

been relevant to who lived or worked there.”

(emphasis in original).

Pet. App. 46

706 F.2d at 1010. It nonetheless carefully tailored its sanc-

tion to the suppression of those items that had not been

particularly described, leaving unsuppressed those other

items that had been properly searched for and seized:

“Although the search was not scrupulously

confined to the terms of the warrant, it does not

follow necessarily that all of the evidence seized

must be suppressed... .

... All of the items seized at Midway Road

and admitted into evidence were things which the

DEA agents were authorized to take under the war-

rant. The trial judge ordered the return of nonrele-

vant items.” (citations omitted) (emphasis

supplied). .

Id.

In Marvin v. United States, 732 F.2d 669 (8th Cir.1984),

the searching agents consisted of Internal Revenue

Agents, directed to seize files bearing on tax returns for

certain years from a chiropractic office. The alleged scope

violations were well described by the 8th Circuit, at 732

F.2d at 674:

“In executing the warrant the agents seized a

large number of file folders for later examina-

tion and copying of financial information. The

agents removed entire patient files rather than

segregate financial information at the clinic.

Some files were seized that did not contain any

financial information. Other files were taken

that contained records dated before or after the

period specified in the warrant, records belong-

ing to other doctors, and personal correspon-

dence and other items belonging to the

Marvins.”

Pet. App. 47

The District Court ordered the IRS to return docu-

ments that did not reflect income or expenses for the four

tax years specifically referred to in the warrant applica-

tion and the warrant itself. The government did not chal-

lenge the District Court’s order to return these records.

The 8th Circuit accepted the ruling that there had been

scope violations, arguendo, but nonetheless ruled that that

fact would not mandate the total suppression of all seized

items, including those that had been particularly

described in the command clause of the warrant:

“Even if there was an unlawful seizure

beyond the limitations of the warrant, a ques-

tion we do not reach, the Marvins have not

made a sufficient showing to require that all

documents seized during the search of the clinic

be returned. Unlawful seizure of items outside a

warrant does not alone render the whole search

invalid and require suppression and return of all

documents seized, including those lawfully taken

pursuant to the warrant.” (emphasis supplied).

Id.

The 2nd Circuit joined this chorus in United States v.

Matias, 836 F.2d 744 (2d Cir.1988). The search warrant was

for evidence relating to the unlawful manufacture of

cocaine-based products. The command clause of the war-

rant was aimed primarily at chemicals containing cocaine

and other powders and dilutents used to mix cocaine, as

well as paraphernalia used in the packaging of cocaine

and related products. The command clause also included,

however, currency and other valuables and any docu-

mentary evidence bearing upon the offenses. Matias

urged that the wholesale seizure of books and records,

Pet. App. 48

including personal photographs, transformed the search

into a general one, thereby mandating the total suppres-

sion of everything seized under the warrant. In rejecting

the claim, the 2nd Circuit joined the universal chorus as

to the appropriate reach of the exclusionary sanction for a

search violation:

“[W]hen items outside the scope of a valid warrant

are seized, the normal remedy is suppression and

return of those items, not invalidation of the entire

search. Courts have also indicated that the dras-

tic remedy of the suppression of all evidence

seized is not justified unless those executing the

warrant acted ‘in flagrant disregard’ of the war-

rant’s terms.” (citations omitted) (emphasis sup-

plied) (emphasis in original).

836 F.2d at 747.

A second occasion on which a United States Court of

Appeals found such a flagrant disregard of the terms of a

warrant as to merit total suppression was United States v.

Medlin, 842 F.2d 1194 (10th Cir. 1988). As in the first such

instance, United States v. Rettig, 589 F.2d 418 (9th Cir.

1978), the holding was based upon a finding that the

entire search, from its inception, had been in significant

measure a subterfuge. In Osage County, Oklahoma,

agents of the Alcohol, Tobacco and Firearms Bureau

(ATF) obtained a warrant to search a private home for

illegally possessed and stolen firearms and for records

pertaining to those offenses.

The culprit in the execution of that search warrant

was a deputy sheriff from neighborirg Tulsa County. It

was the deputy sheriff who supplied nformation from a

confidential informant to the effect that Medlin possessed

Pet. App. 49

the contraband firearms at his residence. The deputy,

however, had also obtained information from the inform-

ant that Medlin possessed a wide variety of other stolen

goods taken in a series of state crimes. The deputy did

not pursue that investigation of state crime directly by

applying for a search warrant, however, because of his

poor working relationship with officials in Osage County.

His ploy, rather, was to pass on the information with

respect to firearms to ATF and then to go along with them

on their raid. He “piggy-backed” on their entry but then

marched to the sound of a different drum in looking for

and seizing stolen items utterly unrelated to firearms. He

ultimately seized 667 such items.

When the case first came before the 10th Circuit, the

Court remanded for a further evidentiary hearing to

explore whether the deputy sheriff had so manipulated

events as to create a pretext for the search he was reluc-

tant to pursue independently:

“Because of the large number of seized items

not listed in the warrant,’ it is possible the

police used this warrant as a pretext for a gen-

eral search, which would taint the whole

search.”

United States v. Medlin, 798 F.2d 407, 411 (10th Cir.1986).

Upon remand, the district judge found that the

search warrant was a pretext arranged by the deputy

sheriff, although it was not necessarily so in the minds of

1 It is to be noted that “the large number of seized items not

listed in the warrant” did not establis’ a flagrant impropriety

per se but only suggested the possibility that the warranted

search was being used as a pretext for a more general search.

Pet. App. 50

the ATF Agents who had been the deputy’s perhaps

unwitting instruments. The district iudge found that this

was not an excess of zeal arising spontaneously in the

course of an otherwise proper search but “an

unauthorized activity which Deputy Carter had planned

when he accompanied the ATF Agents on their autho-

rized search for firearms.” 842 F.2d at 1197. He further

found that the deputy had “employed the execution of

the federal search warrant as a ‘fishing expedition.’ ” 842

F.2d at 1199. The 8th Circuit could not “say that these

factual findings [were] clearly erroneous,” Id., and, there-

fore, affirmed the total suppression.?

Back in the mainstream, United States v. Young, 877

F.2d 1099 (1st Cir.1989), was a case involving a massive

scope violation. Young’s home was being searched pur-

suant to a warrant directing the officers to search for

evidence of marijuana, cocaine, and related records and

paraphernalia. While the search was in process, an IRS

Agent heard about it and “crashed” the searching party.

He seized “ten file drawers of records from the [garage]

office... and later inspected them at State Police offices.”

The trial judge found that there had been a clear scope

violation and suppressed all of the records seized by the

IRS Agent for tax purposes. He declined, however, to

suppress the evidence of drug violations properly seized

under the warrant. The Ist Circuit affirmed that partic-

ularized exclusion:

“Second, although Agent Blair seized many

items outside the warrant’s scope, ‘[u]nlawful

2 The 8th Circuit noted, as we have noted here, that “the

Government has not here relied on plain view.”

Pet. App. 51

seizure of items outside a warrant does not alone

render the whole search invalid and require sup-

pression and return of all documents seized,

including those lawfully taken pursuant to the war-

rant.’ ” (emphasis in original).

877 F.2d at 1105. See also United States v. Lambert, 887 F.2d

1568, 1572-1573 (11th Cir.1989).

Although it handled the contention summarily, the

Supreme Court, in Waller v. Georgia, 467 U.S. 39, 43 n. 3,

104 S.Ct. 2210, 2214 n.3, 81 L.Ed.2d 31, 37 n.3 (1984),

affirmed the decision of the Georgia Supreme Court to

deal with a scope violation in a warranted search through

particularized exclusion rather than plenary exclusion:

“Petitioners’ second Fourth Amendment

challenge is that police so ‘flagrant[ly] disre-

gard[ed]’ the scope of the warrants in conduct-

ing the seizures at issue here that they turned

the warrants into impermissible general war-

rants. Petitioners rely on lower court cases such

as United States v. Heldt and United States v.

Rettig, for the proposition that in such circum-

stances the entire fruits of the search, and not

just those items as to which there was no proba-

ble cause to support seizure, must be sup-

pressed. . . . The Georgia Supreme Court found

that all items that were unlawfully seized were

suppressed. In these circumstances, there is cer-

tainly no requirement that lawfully seized evi-

dence be suppressed as well.” (citations

omitted).

Both the broad mainstream of case law, where partic-

ularized exclusion is an adequate sanction, and the rarer

instances of “flagrant abuse,” where plenary exclusion is

the necessary sanction, share the common denominator of

Pet. App. 52

some excess perpetrated during the execution of a war-

rant. “Excess,” however, is a relative term. In determining

the appropriate breadth of the sanction, the critical dis-

tinction is between 1) an instance of “the tail of the dog

wagging excessively beyond the scope of its handler’s

command,” on the one hand, and 2) the far different

instance of “the tail actually wagging the dog,” on the

other hand. The distinction is not one that can be mea-

sured quantitatively, simply by counting and comparing

the properly seized items with those improperly seized. It

is a distinction, rather, between dominant purposes -

between 1) seizures beyond the warrant’s command

attributable to honest mistake, excessive zeal, or even

spontaneous opportunism, on the one hand, and 2) sei-

zures beyond the warrant’s command actually antici-

pated and intended by the searching officer, on the other.

The question is whether the scope violation was a second-

ary incident of the search or its primary purpose.

The search warrant for the appellee’s pharmacy in

this case was not a pretext. The seizure of the Schedule I!

drugs, directed by Jack Freedman, was, in its worst light,

a secondary incident of the search and not its primary

purpose. Even if the tail wagged excessively, this was still

not a case of the tail wagging the dog. The moving force

behind this search was Trooper Hammel, not Jack Freed-

man.

We hold, therefore, that the order of the hearing

judge directing the total exclusion of all items seized in

the search of the appellee’s pharmacy was in error and is

hereby reversed. Necessarily, the case will have to be

remanded for a determination of which seized items were

clearly beyond the scope of the warrant’s command or

EEE

Pet. App. 53

were not otherwise seizable, which items should be

excluded from evidence and returned to the appellee, and

which other seized items fell within the warrant’s com-

mand or were otherwise properly seizable, which items

should not be suppressed.

The Search of the Home: “Poisoned Fruit”

or “Independent Source”?

A review of the second exclusionary sanction

directed at the search of the appellee’s home involves a

very different type of Fourth Amendment analysis.

The hearing judge ruled, quite properly we think,

that there was no flaw either in the execution of the

warrant to search the home or in its issuance, were the

appraisal of probable cause to be confined to the four

corners of the warrant application. The application incor-

porated the earlier application to search the pharmacy

and then, simply by way of highlighting, independently

repeated some of that probable cause. Utilizing the exper-

tise of Trooper Hammel on the usual patterns of where

evidence is likely to be found in cases of ongoing com-

mercial operations such as this, the warrant application

for the search of the home demonstrated that documen-

tary evidence of the criminality would quite likely be

found there. In terms of the predicate criminality itself,

all of the probable cause that we have already discussed -

emanating from Harold Brian Firor and John Andrew

Hulse, from the confidential informant, and from the

three attempted and consummated controlled buys - sup-

ported the search of the home as well.

Pet. App. 54

Attached to the warrant application for the search of

the home, however, was also the inventory sheet showing

what had been recovered in the search of the pharmacy.

In addition, several brief references were made to items

recovered in the course of the first search. The hearing

judge held that because tainted information had gone

into the application for the search of the home, the entire

search must be suppressed as the “fruit of the poisonous

tree.”

We hold that that ruling was in error. As Franks v.

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978), made indisputably clear, one rotten apple (or even

many rotten apples) will not presumptively contaminate

the entire barrel. In Franks, of course, the allegation was

that a perjurious affidavit had tainted the application for

a search warrant. On the threshold issue of whether a

“taint” hearing was even mandated to examine the truth

of such allegation, the Supreme Court held that if the

tainted or perjurious information was not critical to the

establishment of probable cause, the issue was moot.

What the court must do is to factor out the allegedly

tainted information and then measure the remaining

untainted information. If what remains is, in and of itself,

enough to establish probable cause, the allegedly tainted

information is reduced to surplusage and its presence,

tainted or untainted, becomes utterly immaterial. As the

Supreme Court stated, at 438 U.S. at 171-172, 98 S.Ct. at

2684:

“{I]f, when material that is the subject of the

alleged falsity or reckless disregard is set to one

side, there remains sufficient content in the war-

rant affidavit to support a finding of probable

Pet. App. 55

cause, no hearing is required.” (footnote omit-

ted).

The Court asserted the sarne principle in more affirmative

terms, at 438 U.S. at 156, 98 S.Ct. at 2676:

“{I]f the allegedly false statement is necessary to

the finding of probable cause, the Fourth

Amendment requires that a hearing be held at

the defendant’s request. In the event that at the

hearing the allegation of perjury or reckless dis-

regard is established by the defendant by a pre-

ponderance of the evidence, and, with the

affidavit’s false material set to one side, the

affidavit’s remaining content is insufficient to

establish probable cause, the search warrant

must be voided and the fruits of the search

excluded to the same extent as if probable cause

was lacking on the face of the affidavit.”

United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82

L.Ed.2d 530 (1984), was a case where the outcome was

directly controlled by the Franks principle. Two defen-

dants had standing to contest the search of a home in

Taos. The warrant to search that home, as the warrant

here, was, judged within its four corners, unexception-

able. Into the application for that warrant, however, had

gone two unconstitutional monitorings by a beeper

device, which represented intrusions into constitutionally

protected places owned by the two defendants. The

results of those Fourth Amendment intrusions were

tainted. In refusing to invalidate the subsequent search

warrant, however, the Court reiterated that unless the

tainted material is indispensable to the establishment of

probable cause, its presence is not fatal. The Court rea-

soned, at 468 U.S. at 719, 104 S.Ct. at 3305:

Pet. App. 56

“That information, which was included in the

warrant affidavit, would also invalidate the

warrant for the search of the house if it proved

to be critical to establishing probable cause for

the issuance of the warrant. However, if suffi-

cient untainted evidence was presented in che

warrant affidavit to establish probable cause,

the warrant was nevertheless valid.”

We ourselves observed in Anne Arundel County v.

Chu, 69 Md.App. 523, 534 n.5, 518 A.2d 733 (1987) aff'd,

Chu v. Anne Arundel County, 311 Md. 673, 537 A.2d 250

(1988):

“Franks v. Delaware, ... establishes... that

even when tainted information is contained in a

warrant application, the remaining untainted

information . . . still must be appraised to see

whether it alone might suffice to establish prob-

able cause.”

See also Yeagy v. State, 63 Md.App. 1, 8-10, 491 A.2d 1199

(1985); Wilson v. State, 87 Md.App. 659, 667-668, 591 A.2d

524 (1991).

The Franks v. Delaware technique of factoring consti-

tutionally tainted material out of the warrant application

and then assessing the remaining untainted information

to see whether it, alone, establishes probable cause is but

an instance of a broader phenomenon. The broader phe-

nomenon is the so-called “independent source” exemp-

tion from the exclusionary sanction of the “fruit of the

poisonous tree” doctrine.

The “fruit of the poisonous tree” doctrine holds that

when the Fourth Amendment has been violated in obtain-

ing evidence, such tainted evidence shall not only not be

Pet. App. 57

used directly but shall not be used at all. Silverthorne

Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64

L.Ed. 319 (1920). It prohibits not only the direct use of the

tainted evidence but also its derivative use. Nardone v.

United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307

(1939). A scope violation in the course of the execution of

a search warrant would represent, for example, such a

constitutional violation. Ordinary exclusionary principles

would bar the direct use of the evidence at trial. Mapp v.

Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The “fruit of the poisonous tree” doctrine would go fur-

ther and also bar such derivative uses of such evidence as

the exploitation of the knowledge gained so as to develop

further leads, Alderman v. United States, 394 U.S. 165, 89

S.Ct. 961, 22 L.Ed.2d 176 (1969); or, of pertinence here, the

use of such tainted evidence to establish probable cause

for the issuance of a subsequent warrant. Franks v. Dela-

ware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

The direct use of the exclusionary sanction is easy

because a one-to-one relationship between the violation

and its exploitation is clear. The application of the exclu-

sionary sanction to derivative evidence, however,

requires the establishment of a cause-and-effect relation-

ship between the poisonous tree and its alleged fruit. The

peril to be avoided is an indiscriminate lapse into the

logical flaw of post hoc; ergo, propter hoc (“after this; there-

fore, because of this”).

As a consequence of this caution, there have devel-

oped three well-established exemptions from exclusion

under the “fruit of the poisonous tree” doctrine. They are

sometimes referred to, in a commonplace flight of rheto-

ric, as “three ways of unpoisoning the fruit.” More aptly,

Pet. App. 58

they are three ways of determining that the fruit was not

poisoned in the first instance. One of these, not here

pertinent, is the “attenuation of taint.” Wong Sun v. United

States, 371-U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Another, also not here pertinent,is “inevitable discovery.”

Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d

377 (1984).

The third of the exemptions, the one that concerns us

in this case, is that of “independent source.” United States

v. Wade, 388 U.S. 218, 239-242, 87 S.Ct. 1926, 1938-1940, 18

L.Ed.2d 1149, 1164-1166 (1967). That a constitutio al vio-

lation preceded the discovery of the evidence in question

does not establish that the constitutional violation caused

the discovery. The time sequence does, indeed, establish a

presumption to that effect. The State is given the oppor-

tunity, however, to demonstrate that the evidence pro-

ceeded from an independent source. United States v. Wade,

388 U.S. at 239-242, 87 S.Ct. at 1938-1940 (even following

a tainted pretrial identification, an in-court identification

is admissible if it is the result of the identifying witness’

independent memory from the crime scene); Segura v.

United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599

(1984) (search warrant issued after unlawful entry into

home is not tainted if no knowledge from the unlawful

entry entered into the application for the search warrant);

Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101

L.Ed.2d 472 (1988) (issuance of a valid search warrant

was wholly independent of an initial illegal entry into a

warehouse).

Franks v. Delaware is but a variation on this theme.

Notwithstanding the presence of tainted information ina

warrant application, the adequacy of the remaining

Pet. App. 59

untainted information to establish probable cause is, ipso

facto, an independent source for the issuance of the war-

rant. Under the circumstances, whether the tainted infor-

mation does not appear at all, Segura v. United States,

supra; Murray v. United States, supra, or does appear, but

only as nonpivotal surplusage, is inconsequential. The

untainted information is a legally sufficient, energizing

predicate for the issuance of the warrant, regardless of

whether it stands alone or in tainted company.

Applying the Franks v. Delaware principle to the

search of the appellee’s home yields a simple conclusion.

The mention in the warrant application for the home that o

Schedule II drugs had been recovered in the search of the

pharmacy was not an indispensable or pivotal component

of probable cause. It was a de minimis triviality. Remain-

ing, untainted information abundantly established proba-

ble cause for the search of the appellee’s home. In all

likelihood, if we factored out the very fact that the phar-

macy had ever been searched, the probable cause for th

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