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filed: July 9, 1982.


No. 2361 Philadelphia, 1980, Appeal from the Judgment of Sentence of Court of Common Pleas, Criminal Division of Delaware County, at No. 1123 - 1978.


Burton A. Rose, Philadelphia, for appellant.

Kristine F. Hughey, Assistant District Attorney, Media, for Commonwealth, appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Spaeth

[ 308 Pa. Super. Page 69]

This is an appeal from a judgment of sentence for violations of the Controlled Substance, Drug, Device and Cosmetic Act. 35 Pa.P.S. § 780-101 et seq. Appellant, a medical doctor, was convicted by a jury of dispensing controlled substances to drug dependent persons and of dispensing controlled substances not in the good faith course of professional conduct. 35 Pa.P.S. § 780-113(a)(13) & (14). Appellant argues, among other matters, that the lower court erred in denying his pre-trial motion to suppress evidence obtained from his office because "the search warrants were defective in that they were overly broad in describing the items to be seized and therefore constituted unlawful general search warrants." Appellant's Brief at 6.*fn1 We agree, and therefore reverse and grant appellant a new trial.

The particularity clause*fn2 of the fourth amendment to the United States Constitution provides in pertinent

[ 308 Pa. Super. Page 70]


[N]o warrants shall issue, but upon probable cause . . . and particularly describing the . . . things to be seized.

The United States Supreme Court has stated that "[t]he 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." Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). The "general searches" referred to by the Court represented a practice "which has been condemned by Americans since Colonial Days." United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980). Indeed it was popular dissatisfaction with this practice that lead to the adoption of the fourth amendment:

[ 308 Pa. Super. Page 71]

It is familiar history that indiscriminate searches and seizures conducted under the authority of "general warrants" were the immediate evils that motivated the framing and adoption of the Fourth Amendment. Indeed, as originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures. As it was ultimately adopted, however, the amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause.

Payton v. New York, 445 U.S. 573, 583-4, 100 S.Ct. 1371, 1378-9, 63 L.Ed.2d 639 (1980) (footnotes omitted).*fn4

A warrant is unconstitutional under the fourth amendment for its overbreadth "if it is broader than can be justified by the probable cause on which the warrant is

[ 308 Pa. Super. Page 72]

    based." LaFave, 2 Search and Seizure 97 (1978). We believe that an examination of the warrant and the affidavit here demonstrates that the warrant authorized a far broader search than was justified by the probable cause.

The warrant identified the items to be seized as "All Patient/Physician records and charts. All ledgers and bookkeeping pertaining to patients and visits." The affidavit accompanying the warrant stated the following in the "probable cause" section:

Within the past 6 or 7 months, numerous complaints were received from concerned citizens in the neighborhood that there was an inordinate amount of traffic by people in their teens, at the above location, and these people would go into the above persons [ sic ] offices come out, congregate on the street, and would lay on the lawns and sidewalks in the area. The complainants indicated that they believed that the young people were taking some type of drugs. On numerous occassions [ sic ] the above officers conducted surveillances at the above location. On days of surveillances the above officers observed many people, some being in their teens. Many of the people in our opinion and experiences as narcotic officers, did appear to be under the influence of some type of drugs. Our surveillances further revealed that almost ninety-five percent of the people that entered and then left the above location went immediately to the Long Lane Court Pharmacy where, as we observed, the prescription written by the above person was tendered to and filled by the pharmacist. We also observed known drug users to this department, those being John Searle, Moe McNally, Greg Searle. On or about the first week of February, 1978, officer John Falls and other officers from ...

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