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SEARCH WARRANT B-21778 ROBERT GARTLEY (04/04/85)

filed: April 4, 1985.

IN RE SEARCH WARRANT B-21778 ROBERT GARTLEY, SR. APPEAL OF COMMONWEALTH OF PENNSYLVANIA


Appeal from the Order entered in the Court of Common Pleas, Criminal Division, of Allegheny County, July Term, 1982, Misc. No. 319.

COUNSEL

Richard A. Linzer, Pittsburgh, for Commonwealth, appellant.

John F. Hooper, III, Pittsburgh, for appellee.

Rowley, Johnson and Hester, JJ.

Author: Rowley

[ 341 Pa. Super. Page 356]

OPINION OF THE COURT

In this case of first impression, we address the propriety of the use of a search warrant by agents of the Attorney General's Office to obtain business records transferred to an attorney's possession by a client suspected of criminal wrongdoing. After affording careful consideration to the arguments presented here, we hold that the office of an attorney not suspected of criminal activity is not immune from a search authorized by a particularized warrant supported by probable cause.

In February of 1982, an investigation by the Medicaid Fraud Control Section of the Attorney General's Office into an unlawful diversion by hospital employees of funds received from the sale of silver "flake" and x-ray film was commenced. Shortly thereafter, investigators interviewed appellee, Robert J. Gartley, Sr., in connection with this scheme. Gartley indicated that he was in the business of buying and selling old x-ray film for its silver content, and provided the names of hospitals with which he did business. Gartley named five Western Pennsylvania hospitals to which he issued checks in payment of the film to persons other than the hospital administrators. Subsequently, Attorney James Victor Voss, of the law firm of Meyer, Unkovic and Scott in Pittsburgh, notified the investigators that he was counsel for Gartley.

On July 19, 1982, the investigators obtained a search warrant from a Westmoreland County District Justice for Gartley's home/office. At the time execution of the warrant was attempted, Gartley was not home. However, Mabel Gartley, Mr. Gartley's wife, told the investigators that the records referred to in the warrant had been removed from the home, and taken to Attorney Voss' law office.

Attorney Voss confirmed that the records were in his possession. However, when asked to produce his client's records, Voss refused. Consequently, on July 21, 1982, the

[ 341 Pa. Super. Page 357]

    investigators obtained a search warrant for Voss' office and the offices of Meyer, Unkovic and Scott. The warrant authorized the seizure of enumerated business records of Gartley related to his purchase of x-ray films from the hospitals involved in the investigation. In describing the premises to be searched, the warrant stated:

The office of Meyer, Unkovic and Scott, and James Victor VOSS, and their files, located at 1400 Frick Building, Grant Street, Pittsburgh, Pennsylvania 15219. The Frick Building being a 20-story office building.

Prior to execution of the warrant, Attorney John F. Hooper of Meyer, Unkovic and Scott orally requested injunctive relief from the Honorable Thomas A. Harper, Court of Common Pleas of Allegheny County. Thus, at some point during the search, the investigators received first a telephone message, and then a written order, from Judge Harper, temporarily enjoining further execution of the warrant. Judge Harper's written order also scheduled a hearing for the following morning, addressed to the propriety of the search.

Although no evidence was presented, Judge McGregor, by order dated August 5, 1982, granted appellee's motion to quash the warrant.*fn1 In so doing, Judge McGregor held that (1) the warrant failed to specify the area to be searched with reasonable particularity; (2) the search of an attorney's office is unreasonable absent a showing of the attorney's own wrongdoing, in light of the attorney-client privilege, and (3) the issuance of a search warrant here was not the proper procedure for obtaining the documents sought;

[ 341 Pa. Super. Page 358]

    less intrusive means were available. This appeal by the Commonwealth, challenging each of the conclusions reached by Judge McGregor in granting the motion to quash, followed. We address each of these conclusions seriatim.

I. THE WARRANT

In concluding that the warrant was not sufficiently particular, the trial judge focused on the quality of the description of the premises to be searched.*fn2

The Fourth Amendment of the United States Constitution requires that ". . . no warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched . . ." Similarly, Article I, Section 8 of the Pennsylvania Constitution provides that ". . . no warrant to search any place . . . shall issue without describing [it] as nearly as may be . . ."*fn3 This requirement of particularity necessarily achieves definition according to the circumstances and nature of the items to be seized; a common sense approach must be utilized. As the Comment to Pa.R.Crim.P. 2005(c), which incorporates the constitutional particularity requirement, states in pertinent part,

Paragraph [] . . . (c) [is] intended to proscribe general or exploratory searches by requiring that searches be directed only toward the specific . . . places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations . . . .

See also, Commonwealth v. Crawford, 320 Pa. Super. 95, 466 A.2d 1079 (1983); Commonwealth v. Barba, 314 Pa. Super. 210, 460 A.2d 1103 (1983); In Interest of Eckert, 260 Pa. Super. 161, 393 A.2d 1201 (1978). Thus, challenges to the specificity of the warrant have been rejected in cases where only a street address was supplied, or where a

[ 341 Pa. Super. Page 359]

    general description of the building to be searched was provided. See e.g., Commonwealth v. Menginie, 312 Pa. Super. 293, 458 A.2d 966 (1983) (Warrant authorizing search of "214 North Linden and its garage" upheld); Commonwealth v. Chamberlain, 277 Pa. Super. 503, 419 A.2d 1261 (1980) (Warrant permitting search of "Conrad Store In Conrad, of the East fork district in Eulalia Township, R.D. 1, Austin, Pa., said building is a two-story structure painted white, located on the north side of Leg. route 52001" sufficiently specific); Commonwealth v. Mayfield, 262 Pa. Super. 96, 396 A.2d 662 (1978) (Description of premises as "549 West 10th Street, Erie, Pennsylvania. A 2 1/2 white aluminum sided multi-unit dwelling, the front door is on the east side of the residence facing north, the downstairs apartment. Has grey steps leading to the porch" sufficiently particular.) In each of these cases, this Court found that probable cause to believe that the premises as described were the scenes of criminal activity, or that evidence of a crime could be found therein, existed. Cf., United States v. Busk, 693 F.2d 28 (3d Cir. 1982) (Warrant authorizing entry into all apartments in multi-dwelling house does not satisfy the Fourth Amendment's particularity requirement when probable cause has been shown for search of only one of them.) Where, then, the description provided is precise enough to enable the executing officer to ascertain and identify, with reasonable effort, the place intended, and where probable cause exists to support the search of the area so designated, a warrant will not fail for lack of particularity.

In the instant case, neither Attorney Voss nor appellee contested the magistrate's finding of probable cause to search Voss' office, and the offices of the law firm with which he is associated, nor would such a contention have had merit. As averred in the affidavit in support of the warrant, both appellee and his wife informed the Commonwealth's investigators that all of the items listed in the search warrant had been transferred to the attorney's possession; the affiant further alleged that Attorney Voss

[ 341 Pa. Super. Page 360]

    himself confirmed these statements. The mere fact that the search was directed only toward seizure of the records of one of Voss' clients is not dispositive. The investigators could reasonably assume that, as a member of the law firm, Voss would have access to many areas within the firm's office; an individual attorney would not be confined to his or her own office. Furthermore, apart from conversations with the Gartleys and Voss, the investigators had no legitimate means of gathering information relevant to limiting the scope of the warrant, prior to its execution. In light of the confidential nature of the firm's activities, the investigators could not browse through the firm, observing Voss' movements, particularly since he was not the target of the investigation. Since the Commonwealth's agents were provided with no additional information reasonably suggesting a narrower drafting of this aspect of the warrant, and had no means at their disposal for acquiring such information, the futility of greater specification is clear. Thus, we conclude that the description of the area to be searched here was not overbroad.*fn4 See United States v. Lebovitz, 506 F.Supp. 249 (W.D.Pa. 1980), aff'd on other grounds, 669 F.2d 894 (3d Cir. 1982), cert. den., 456 U.S. 929, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982) (Warrant specifying only street address and city in which attorney's office was located did not violate Fourth Amendment's particularity requirement.)*fn5

The manner in which a search is conducted is, of course, as vital a part of the inquiry as whether it was warranted at all. The Fourth Amendment proceeds as much by limitation upon the scope of governmental action as by imposing preconditions upon its initiation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 899 (1968). See also Commonwealth v. Eliff, 300 Pa. Super. 423, 446 A.2d

[ 341 Pa. Super. Page 361927]

(1982). Thus, the Commonwealth urges our consideration of "the record below" with respect to the attempted execution of the warrant, in ascertaining whether the description of the premises falls within constitutionally permissible limits. The scope of the warrant was restricted in practical effect, the Commonwealth argues, in that (1) initially, several requests that the materials be voluntarily surrendered were made, and (2) before it was interrupted, the search was limited to Attorney Voss' office and to a file, distinguishable in appearance from other visible files and bearing no name or other identifying mark. We may not, however, rely on these representations, given that no factual record was made in the trial court. Rather, the record contains only allegations made during the course of argument on the propriety of the warrant. Nonetheless, because the warrant is not impermissibly broad on its face, and there has been no finding that its aborted execution encompassed an unnecessarily broad area, we conclude that the trial court erred in characterizing the search thereby authorized as unconstitutionally overbroad.

II. SEARCH OF AN ATTORNEY'S OFFICE

We turn, then, to the pivotal issue here: is the use of a search warrant a constitutionally permissible means by which to secure the business records of a client suspected of criminal wrongdoing from the office of a non-suspect attorney?

The essence of the Fourth Amendment to the federal constitution, and Article I, ยง 8 of the Pennsylvania Constitution, is reasonableness; these provisions provide protection against unreasonable searches and seizures. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983); Commonwealth v. Grabowski, 306 Pa. Super. 483, 452 A.2d 827 (1982). Hence, all Fourth Amendment requirements must be tempered ...


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