Klingenstein v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I A fifty-four count indictment charging Keith Gordon Klingenstein, a registered pharmacist, with various violations 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 ⁴⁰⁵ 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 guarantees against unreasonable searches and seizures.

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 petition for a writ of certiorari. ⁴⁰⁶ B Klingenstein’s pharmacy was located at 6201 Greenbelt 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 warrant raised questions as to the constitutionality of its issuance. The judge hearing the motion to suppress was satisfied that the business warrant did not offend the Fourth Amendment — it was supported by oath and particularly described the place to be search and the things to be seized. The “things to be seized” were expressly set out: “GLUTETHI-MIDE” 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 “evidence 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. 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 pharmacist 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. ⁴⁰⁷ 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 reasonably 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 warrant____” “[F]or 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.” C 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 ⁴⁰⁸ “in some cases a flagrant disregard for the limitations in a warrant might transform an otherwise 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 seize some items outside the scope of a valid warrant, this by itself will not affect the admissibility of other contemporaneously seized items which do fall within the warrant.” 92 Md.App. at 347 , 608 A.2d 792 .

The intermediate appellate court opined that the constitutional violation in the circumstances here “was by no stretch of the imagination ... 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 pharmacy was in error and is hereby reversed. Necessarily, the case will have to be remanded for a determination of which seized items were clearly beyond the scope of the warrant’s command or 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. ⁴⁰⁹ App. 269, 319 A.2d 560 (1974), aff'd, 275 Md. 88 , 338 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 affirmance 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 U.S. 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 executing 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 correct 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 .

The Court of Special Appeals turned to cases decided by various United States Courts of Appeal on the appropriate 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 ⁴¹⁰ 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 consistently 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); U.S. v. Premises Known as 1007 Morningside, 625 F.Supp. 1343, 1350 (N.D.Iowa 1985); Watts v. Kroczynski, 636 F:Supp. 792, 801 (W.D.La.1986); Huebner v. U.S., 731 F.Supp. 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