# Petition for Writ of Certiorari — Klingenstein v. Maryland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0778%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 510 U.S. 918 ## Text 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 4 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 iv 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 e 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 2 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 3 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.) 4 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. 5 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). 6 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 7 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. 8 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. 9 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 10 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 11 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. 12 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. 13 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. 14 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 15 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 16 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. 17 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 SO 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 18 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. 19 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 20 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 21 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 22 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. 23 “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, 24 481-82 (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. ” 25 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 26 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 27 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 28 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 29 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. 30 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 v. 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. I 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. II A 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 B 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 ts 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. D 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] A 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. B 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. G 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 V. 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: ———————