State v. Klingenstein

MOYLAN, Judge. The appellee, Keith Gordon Klingenstein, is a registered 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 nuisance 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 executed pursuant to a warrant on October 12, 1990 and 2) 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 grant ³²⁹ ed 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 particularized 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 evaluated strictly within the four corners of the warrant application. 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 invalidated as “the fruit of the poisonous tree.” The Only Question is that of Sanctions Before us are two doctrinally distinct search and seizure issues, each involving the selection of the appropriate sanction for a hypothesized Fourth Amendment violation.

With respect to the search of the pharmacy, assuming that some items were seized within the authority of the warrant and other items seized beyond that authority, what is the appropriate sanction? With respect to the search of the home, ³³⁰ 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 Maryland 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 statements 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 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, produce 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 attempting 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 prescriptions, 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. ³³¹ 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 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 Schedule 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 confidential informant, who represented incidentally yet a third source of information about the appellee’s pharmacy. The confidential informant stated that he (or she) had been in the ³³² 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. The informant further stated that on every visit to the pharmacy, he had dealt exclusively with the appellee. Trooper Hammel dispatched the confidential informant 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 pharmacy 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 prescriptions 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 prescriptions.

A check with other pharmacies in the area yielded a more normal expected 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. 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 ³³³ Tylenol 4 tablets.

On that occasion, Trooper Shank was careful to use the password. She informed the appellee 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 occasion, 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 fill 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 substances on the street or 2) the appearance of a suspiciously heavy commerce in certain drugs disproportionate 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 information provided by Firor, 2) the information provided by Hulse, 3) the information provided by the unnamed confidential informant, and 4) the direct observations made in the course of the attempted and consummated controlled buys of October 9, October 10, and October 11. Forged prescriptions were regularly submitted to the appellee for thirty Doriden tab ³³⁴ lets 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 regularly given and the countersign of calculating and quoting 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 available 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: “I am satisfied that there is probable cause to believe that there is now being concealed certain property, namely ‘Glutethimide,’ ‘Codeine,’ and ‘Doriden’ on the person/s premises above described ...” The key directives of the Command Clause of the warrant itself were: “C. Open and search any safe, box, bag, compartment, or thing in nature thereof, found in or upon said premises or person/s; D. Seize all evidence, paraphernalia, controlled dangerous substance, and monies used in or incidental to the conduct or operation of controlled dangerous substance violations, found in or upon said premises, person/s____” The hearing judge ruled that there was ample probable cause to support the warrant. He further ruled that the Command Clause was adequately particularized and limited in its scope. He interpreted the command to seize “all evidence, paraphernalia, controlled dangerous substance, and monies used in or incident to” the probable violations to ³³⁵ relate only to items in those categories that were somehow connected to the unlawful disbursing of the 1) Doriden, 2) Tylenol 4, and 3) penicillin referred to in the warrant application. In the last analysis, no fault whatsoever was found with the issuance per se of the search warrant.

We think that ruling was eminently correct. The Execution of the Warrant Trooper Hammel led the searching party. He was assisted by three other troopers. Because of the need to distinguish one drug from another and to determine which records and prescriptions related to particular drugs, the searching party was accompanied by Jack Freedman, a pharmacist and auditor from the Maryland Department of Health and Mental Hygiene.

With minute determinations that had to be made with respect to the drugs themselves, vial by vial and box by box, and with similarly detailed determinations that had to be made with respect to prescriptions, receipts, drug order forms and other records, the completion of the search took over four hours. In the course of the search, there was recovered a container of Doriden, five containers of Tylenol with codeine, and a container of penicillin. Numerous order forms, receipts, daily accounting forms, prescriptions, and other business records and inventories were recovered. Of unusual significance was a brown paper bag containing what appeared to be trash.

An inspection of the bag, however, revealed $9,408 in U.S. currency. The bag was tucked away from the normal business records and common working area of the pharmacy. The currency inside the bag was wrapped in eleven bundles and rubber-banded together. One of the state troopers, in his subsequent application for a warrant to search the appellee’s home, averred that from his experience and training, he knew that “this method of wrapping currency is indicative of individuals who are conducting illegal acts, mainly controlled dangerous substance violations.

The ... method is used for easy counting and ³³⁶ exchange of currency between the distributor and the purchaser.” Because there has yet been no trial, it is difficult from our vantage point to predict precisely the value of the evidence recovered in the search of the pharmacy or to assess the precise nexus between it and the command clause of the warrant. From the characterization of some of that evidence in the subsequent application for the warrant to search the appellee’s home, however, it is possible to extrapolate some evidentiary significance and some of the apparent nexus. From what seems to be a reference to the Doriden and the Tylenol 4, it may be inferred both that they were found 1) in excessively large quantities and 2) in unusual locations. Such observations would almost certainly be pertinent as proof of guilt: “Excessively large amounts of commonly abused Controlled Dangerous Substances which are sold and used on the ‘street’ were located within the pharmacy in places not normally associated with the common practices of a legitimate pharmacy.” The search for and seizure of various documents, moreover, apparently bore fruit in terms of corroborating the information from the various sources as to the regular modus operandi earlier recounted in the application for the warrant to search the pharmacy: “That during the execution of the aforementioned warrant numerous, obviously forged prescriptions, dating from early 1987 were found at the pharmacy.

These documents further corroborate the statements given by the previously mentioned informants.” Whatever problem inhered in the execution of the search warrant occurred when Jack Freedman, the pharmacist and auditor with the Drug Control Division of the State Department of Health and Mental Hygiene, determined that the appellee’s license to operate a pharmacy was going to be suspended. Accordingly, he directed the officers conducting the search to seize all Schedule II drugs. They did so. This aspect of the total seizure involved approximately 67 ³³⁷ containers of pills.

This was the aspect of the total seizure that the hearing judge found to have been beyond the scope of the command clause of the warrant. The State argues that the command clause included the direction to seize all “controlled dangerous substances,” which, by definition, included all Schedule II drugs. As the hearing judge interpreted the command clause, however, he read such general commands as those to seize “all evidence, paraphernalia, controlled dangerous substances, and monies” to be limited to those items in those categories that had a specific connection with the use of forged prescriptions to obtain Doriden, Tylenol 4, and penicillin, thus reading the command clause in conjunction with probable criminality spelled out in the warrant application. That was not an unreasonable reading of the command clause.

Under such a reading, the seizure of the Schedule II drugs was not something particularly commanded by the warrant. When read in conjunction, however, with the later allegation that “controlled dangerous substances of Schedule II were secreted in unlabeled prescription vials and found in unusual locations throughout the pharmacy which would be inconsistent with normal business practices,” it is conceivable that the observations made by Jack Freedman and the subsequent seizures requested by him might have fallen within the legitimate coverage of the Plain View Doctrine. While properly executing the warrant to search for evidence of certain violations, observed evidence of other violations spotted in plain view would authorize the warrantless seizure of such evidence notwithstanding the fact that the other violations were not the subject matter of the search warrant itself. Horton v. California, 496 U.S. 128 , 110 S.Ct. 2301 , 110 L.Ed.2d 112 (1990).

In this case, however, such an alternative theory was never urged by the State at the suppression hearing and a proper evidentiary predicate for it was obviously not offered. Under the circumstances, we will assume, arguendo, that the seizure of the Schedule II drugs was, indeed, a scope violation. ³³⁸ In concluding that the seizure of the Schedule II drugs was a scope violation, the fact that the seizing officers acted on the orders of Jack Freedman is a nonfactor. If the officers had seized something clearly beyond the scope of the command clause as reasonably interpreted, their bona fide belief that they were obeying the judicial commandment would not absolve them of constitutional sin, even had Jack Freedman never been along on the raid. Conversely, if they had seized something unequivocally directed by the warrant, their gratuitous confession that they had done so not in the service of the true warrant but in the service of a false god, would not invalidate their otherwise objectively reasonable behavior.

Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443, 456 (1989), Maryland v. Macon, 472 U.S. 463, 470-471 , 105 S.Ct. 2778, 2782-83 , 86 L.Ed.2d 370, 378 (1985). The passing observation of the hearing judge, moreover, that “more than four hours was consumed in conducting this search” is also without significance. There is no remote suggestion that the officers had already found everything they were properly looking for under the warrant early in the course of the search and then deliberately dallied on a needlessly prolonged “fishing expedition.” This was not a case where they were looking for some unique article of stolen property or some distinctive instrumentality of crime, the finding of which would trumpet the triumphal consummation of the search and call down an immediate final curtain. They were not looking, inter alia, for some Doriden and some Tylenol 4.

They were looking for all of it. How else could they assess whether such drugs were present in inordinate quantity? The search for all Doriden, Tylenol 4, and penicillin required minute scrutiny — container by container — of all the chemicals in the pharmacy. The fact that some of the described drugs were found in strange and sundry corners, moreover, underscores their prudence in probing meticulously each nook and cranny.

The necessity to pore over thousands of scraps of paper in quest of possibly forged prescriptions and of receipts, order forms, ³³⁹ and records pertaining to the Doriden, the Tylenol 4, and the penicillin made a painstaking and time-consuming examination inevitable. The officers, as a matter of course, were required to look for any prescriptions made out to a customer bearing the name of “Firor.” Quite reasonably, they would have been looking as well for any other prescriptions issued by doctors whose names had been listed as having issued any of the prescriptions to anyone named “Firor.” The officers would also reasonably have been looking for any prescriptions at all made out on Xeroxed rather than on original prescription forms, as possibly forged prescriptions. They would, within the reasonable contemplation of the warrant, also have been looking for any prescriptions combining thirty Doriden tablets with sixty Tylenol 4 tablets, or, indeed, any prescriptions for those two drugs in other quantities but in the same proportion. Realistically, the only practical way to have shortened the search would have been to have seized all of the drugs and then analyzed them in a more leisurely fashion at the police station and to have seized all of the documents and then perused them in a more leisurely fashion at the police station.

Axiomatically, the briefer the search, the broader the necessary seizure; the longer the search, the narrower the possible seizure. As was observed in United States v. Whitten, 706 F.2d 1000, 1010 (9th Cir.1983): “Although it may be intrusive for police officers to remain in a home and make a careful examination of items to determine whether they fall within the description of the warrant, it is equally intrusive for them to carry off papers and personal effects indiscriminately for later review.” The search in this case was essentially of the same duration as that search of a similarly complicated nature sanctioned by us and by the Supreme Court in Andresen v. State, 24 Md.App. 128 , 331 A.2d 78 (1975), aff'd, Andresen v. Maryland, 427 U.S. 463, 467 , 96 S.Ct. 2737, 2742 , 49 L.Ed.2d 627, 634 (1976). ³⁴⁰ In affirming the hearing judge’s ruling that the seizure of the Schedule II drugs was beyond the command of the warrant, the duration of the search is simply a nonfactor in our analysis. Given the hearing judge’s reasonable interpretation of the command clause as read in conjunction with the warrant application, the seizure of the Schedule II drugs would have been a scope violation whether it occurred in the first two minutes of a ten-minute search or in the last two minutes of a four-hour search. If it was beyond the scope of the warrant’s command, it was so whenever it happened, early or late.

What we are faced with, then, is a scope violation— but not one that in any way shocks the conscience. The command clause of the warrant had, indeed, mentioned the seizure of “all ... controlled dangerous substances.” Schedule II drugs, by definition, are “controlled dangerous substances.” Unlike the hearing judge, the executing officers failed to read the warrant application and the warrant in conjunction with each other, thereby limiting the seizable “controlled dangerous substances” to the two or three described in the warrant application. That, in the last analysis, was a Fourth Amendment violation on their part. It was by no stretch of the imagination, however, fraudulent, corrupt, outrageous, or flagrant.

The Sanction for the Scope Violation What, then, should the sanction for such more venial violation be? The Warrant Clause of the Fourth Amendment, of course, sets forth the necessary formalities of a valid warrant: “[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (emphasis supplied). The requirement of a particular description of the “things to be seized” is a mechanism whereby the Constitution ensures that even a search proper in its initiation not be ³⁴¹ allowed to degenerate into a general rummaging about or fishing expedition. Smith v. State, 33 Md.App. 407, 409-410 , 365 A.2d 53 (1976).

This aspect of the particularity requirement was discussed in Marron v. United States, 275 U.S. 192, 196 , 48 S.Ct. 74, 76 , 72 L.Ed. 231 (1927): “The requirement that warrants shall 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, nothing is left to the discretion of the officer executing the warrant.” The Marrón opinion itself was the first occasion the Supreme Court had to discuss the particularity requirement and to consider an appropriate sanction for its violation. In terms of the search warrant being executed in that case, there was a clear scope violation. Prohibition agents had obtained a warrant for an establishment containing six or seven rooms at 1249 Polk Street in San Francisco.

The warrant particularly commanded them to search for and seize “intoxicating liquors and articles for their manufacture.” In a closet in one of the rooms, the agents noticed and seized a ledger, which was clearly neither intoxicating liquor per se nor an article or ingredient used in the manufacture of such liquor. An examination of the ledger, however, revealed inventories of liquors, receipts, expenses, and other business entries, including gifts to police officers. The ledger was, to say the least, an unexpected bonus and highly relevant evidence. The central issue was the propriety of its seizure.

The Supreme Court was unequivocal that the ledger, notwithstanding its evidentiary value, had not, even in general terms, been particularly described in the warrant and that it could not, therefore, be seized under the warrant. “And it is clear that the seizure of the ledger and bills, in the case now under consideration, was not authorized by the warrant.” 275 U.S. at 198 , 48 S.Ct. at 76 . There was no suggestion, however, that the admissibility of intoxicating liquors, properly commanded by the warrant, was in any ³⁴² way jeopardized by the scope violation with respect to the ledger. If the only legitimate theory for any Fourth Amendment activity had been the warrant itself, the case would have called for the admission of the intoxicating liquors but the exclusion of the ledger. Fortuitously, however, the Supreme Court was able to legitimate even the warrantless seizure of the ledger under an alternative theory of search incident to lawful arrest.

The utilization of the exclusionary sanction as a carefully controlled scalpel rather than as an indiscriminate blunderbuss has consistently been sanctioned by this Court. In Spease and Ross v. State, 21 Md.App. 269 , 319 A.2d 560 (1974), aff'd, 275 Md. 88 , 338 A.2d 284 (1975), we were dealing with the closely allied problem of an appropriate sanction for the hypothesized failure to minimize the seizure of conversations under the wiretapping and electronic eavesdropping laws. Central to that discussion was the analogy to particularity and minimization requirements under the Fourth Amendment proper. “Whether dealing with conversations or with tangible items, the issue is one of particularity — that language of the Fourth Amendment stating that the only valid warrants are those ‘particularly describing ... the things to be seized.’ ” 21 Md.App. at 282 , 319 A.2d 560 . After having made the analogy, we went on to observe: “The great weight of authority and, in our judgment, the sounder reasoning maintains that the failure to minimize requires only the suppression of those conversations which should not have been seized and not the suppression of those conversations which were appropriately seized.” (emphasis supplied).

Id. In Spease and Ross, 21 Md.App. at 283 , 319 A.2d 560 , we quoted with approval United States v. Lagorga, 336 F.Supp. 190, 197 (W.D.Pa.1971) aff'd, 530 F.2d 965 (3d Cir.1976): “It seems clear under the general law of search and seizure that if some of the items obtained satisfy the requirements of the law, the mere fact that other objects ³⁴³ beyond the permissible ambit of the search must be suppressed, does not require that all of the evidence must be necessarily so treated.” The issue of fashioning an appropriate sanction for a possible scope violation was before us again in Andresen v. State, 24 Md.App. 128, 180-181 , 331 A.2d 78 (1975), aff'd, Andresen v. Maryland, 427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976). In Andresen, we were dealing with two searches of a lawyer’s legal office and his separate real estate office that consumed between four and five hours. Numerous documents were seized.

The defendant there argued that the seizures had been so sweeping as to invalidate the entire execution of the search warrants. In concluding that a more narrowly fashioned sanction could properly distinguish between those items constitutionally seized under a warrant and those other items the seizure of which constituted a scope violation, we stated unequivocally at 24 Md.App. at 180 , 331 A.2d 78 : “The appellant frames a final Fourth Amendment argument not in terms of those things 1) which were not suppressed and 2) which were admitted into evidence, but in terms of that much larger quantity of items which were seized initially but which did not pass through all of the screens. (A number of items which were not suppressed were not offered as evidence by the State because they related to other indictments against the appellant which had not yet come on for trial.) The short answer to the contention is that even if other items had been unconstitutionally seized, that frailty would not mandate the suppression of the items which were constitutionally seized.” (emphasis supplied). In affirming this Court, the Supreme Court adverted to this clear distinction between admitting those seized items that had been particularly described and suppressing other seized items which had not been particularly described: “The record discloses that the officials executing the warrants seized numerous papers that were not introduced into evidence.

Although we are not informed of ³⁴⁴ 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.” (emphasis supplied). 427 U.S. at 481 n. 11, 96 S.Ct. at 2749 n. 11. The Supreme Court, however, approved, as had we, the admissibility of those other papers that had been adequately particularized. We reverted to this question of whether the sanction for a scope violation should be a scalpel or a blunderbuss for yet a third time in Shoemaker v. State, 52 Md.App. 463, 485-486 , 451 A.2d 127 (1982). In the course of executing a warrant, the searching party did, to be sure, seize a large number of items that had not been particularly described in the warrant.

The claim was there made, as it had been in Andresen, that the overly broad sweep of the seizures called for the suppression of all seized items, even those that had been particularly described. In rejecting the blunderbuss approach for yet a third time, we held at 52 Md.App. at 485-486 , 451 A.2d 127 : “The appellants claim that in addition to seizing the evidence of crime properly and particularly described in the warrant, the searching party also seized a number of other, innocuous objects such as receipts for repairs to various structures, warranties for household appliances, oil company credit cards, a prescription for eyeglasses, a Social Security card, a Blue Cross/Blue Shield card, and an engraved picture of a racehorse. They urge, with no direct authority to support them, that this calls for the suppression of even the properly seized evidence. Our answer once again lies in Andresen v. State, 24 Md.App. 128, 180 , 331 A.2d 78 [(1975)], cert. denied, 274 Md. 725 , aff'd, 427 U.S. 463 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976), which dealt with a remarkably similar set of facts and an almost identical claim: ‘... even if other items had been unconstitutionally seized, that frailty would not mandate the suppression of the items which were constitutionally seized.

If the ³⁴⁵ apples remaining in the barrel when it ultimately comes to rest upon the trial table are constitutionally healthy, it matters not how many constitutionally rotten ones were discarded along the way.’ See also Spease and Ross v. State, 21 Md.App. 269, 282-283 , 319 A.2d 560 , and cases cited therein.” See also Brooks v. United States, 416 F.2d 1044, 1049-1050 (5th Cir.1969); United States v. Dzialak, 441 F.2d 212, 216-217 (2d Cir.1971). The law from the various United States Courts of Appeal on the appropriate sanction for a scope violation in the course of a warranted search is, with the exception of the rare and outrageous case where the entire execution of the warrant can be deemed either a subterfuge or a farce, in line with this more selective