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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TINA SUE MCKAHAN : No. 10 WDA 2019
Appeal from the Suppression Order Entered November 28, 2018
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000096-2018
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY KUNSELMAN, J.:FILED OCTOBER 16, 2019
I respectfully dissent from the Majority’s decision herein. In my view,
the trial court correctly determined that the search warrant, as issued, was
overly broad because it sought all of McKahan’s medical records rather than
simply her blood alcohol content (“BAC”) report. This over-breadth rendered
the search unconstitutional.1 Thus, I disagree with the Majority’s reversal of
the suppression order.
Article 1, Section 8 of the Pennsylvania Constitution, like its federal
counterpart, secures the right to be free from unreasonable searches:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or thing shall
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1 We note that McKahan challenged the search and seizure and admission of
the BAC evidence under both the Pennsylvania and United States Constitution.
See McKahan’s Omnibus Pre-trial Motion at 2.
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issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation
subscribed to by the affiant.
Pa. Const. Art. 1, § 8 (emphasis added).
However, Pennsylvania courts have interpreted this constitutional
provision to require greater specificity in warrants of the items sought to be
seized than is required under the Fourth Amendment to the United States
Constitution. As our Supreme Court has explained:
The framers of the Pennsylvania Constitution thought the right to
be free from unrestricted police intrusions so critical that they
secured the right for future generations by including it in the
original Constitution of 1776. The language of the Pennsylvania
Constitution requires that a warrant describe the items to be
seized “as nearly as may be . . . .” The clear meaning of the
language is that a warrant must describe the items as
specifically as is reasonably possible. This requirement is
more stringent than that of the Fourth Amendment, which merely
requires particularity in the description. The Pennsylvania
Constitution further requires the description to be as particular as
is reasonably possible.
Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989).
Thus, in assessing the validity of the description contained in a warrant,
a court in this Commonwealth must initially determine for what items probable
cause existed. Id. at 900. The sufficiency of the description must then be
measured against those items for which there was probable cause. Id. An
unreasonable discrepancy reveals that the description was not as specific as
was reasonably possible. Id. Thus, any unreasonable discrepancy between
the items for which there was probable cause and the description in the
warrant requires suppression. Id.
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In Grossman, law enforcement applied for a warrant to search for
certain client files maintained by the owner of an insurance agency who had
an extensive clientele of over 2000 active cases. The affidavit of probable
cause detailed complaints about the agency that were filed by three of its
clients. However, the warrant, as issued, authorized law enforcement to
search “[a]ll insurance files, payment records, receipt records, copies of
insurance applications and policies, [and] cancelled checks.” Id. at 897.
Consequently, the police seized virtually every file and business record in the
agency’s offices.
In reviewing the matter, our Supreme Court ruled that, “while probable
cause existed for the three named files[,] there was not probable cause as to
the other files in [a]ppellant’s offices.” Id. at 900. It therefore ruled that the
warrant authorizing the seizure of “all files” was unconstitutionally overbroad
in its failure to describe as specifically as was reasonably possible the three
files described in the affidavit for which there was probable cause, and that all
evidence seized as a result of the deficient warrant should have been
suppressed. Id.
Here, there is no question that probable cause existed for McKahan’s
BAC report. However, the warrant did not specify that the BAC report was the
object of the search. Rather, it broadly sought:
All medical records of every nature pertinent in any way to any
medical treatment rendered on behalf of . . . McKahan . . . since
1/29/2018, including, but not limited to, copies of the following;
1) All clinical reports, 2) Results of all laboratory tests, 3) All notes,
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correspondence, or records of any nature made by any physicians,
nurses, or any other persons concerning . . . McKahan’s condition
or . . . McKahan’s treatment.
N.T. Suppression, 8/30/18, at 55. In my view, this description was not “as
specifically as is reasonably possible.” Grossman, 555 A.2d at 899. Indeed,
due to its over breadth, the warrant permitted police to obtain 138 pages of
McKahan’s medical records, which would naturally include wholly irrelevant
and very private information. Given that the warrant in question was
unconstitutionally overbroad in its failure to describe as specifically as was
reasonably possible the BAC report for which there was probable cause, all
evidence seized as a result of the deficient warrant should have been
suppressed.
While Pennsylvania recognizes certain exceptions to the warrant
requirement, the Commonwealth claims no exception to support this seizure.
Nevertheless, the Majority seems to have created one. It concludes that
“[t]hough Trooper Broadwater should not have phrased the search warrant to
pertain to ‘all’ of McKahan’s medical records, this was merely inartful
drafting, and does not render the warrant unlawful.” Majority Memorandum
at 7 (emphasis added). On this basis, the Majority reverses the suppression
court.
The Majority cites no authority permitting an exception to the specificity
requirement for warrants based on “inartful drafting.” Indeed, every overly
broad search warrant would arguably be inartfully drafted. Under our
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constitutional precedents, what the trooper did or did not intend, or how he,
in hindsight, should have phrased the proposed warrant, are inquiries we may
not undertake. See Commonwealth v. Edmunds, 586 A.2d 887, 901 (Pa.
1991) (holding that Pennsylvania does not recognize a “good faith” exception
to the exclusionary rule for evidence seized as a result of a constitutionally
defective warrant, and noting that, “[f]rom the perspective of the citizen
whose rights are at stake, an invasion of privacy, in good faith or bad, is
equally as intrusive”). We simply assess the warrant, as issued, to determine
whether there is an unreasonable discrepancy between the items for which
there was probable cause and the description in the warrant. Grossman, 555
A.2d at 900. In this case, the discrepancy was unreasonable; hence, the
warrant was unconstitutionally overbroad. For this reason, I would affirm the
suppression order.
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