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SEARCH WARRANT B-21778. APPEAL ROBERT GARTLEY (02/24/87)

decided: February 24, 1987.

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


Appeal from the Order of the Superior Court of Pennsylvania dated April 4, 1985, at No. 958 Pittsburgh 1982, Modifying the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. Misc. 319, July 1982, dated August 5, 1982. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., concurs in the result.

Author: Mcdermott

[ 513 Pa. Page 431]

OPINION

This case presents us with a potential conflict between the legitimate governmental interest of law enforcement officers to secure evidence of crimes, and the constitutional protection of confidential transactions between attorney and client.

Early in 1982, the Medicaid Fraud section of the Office of the Attorney General of Pennsylvania began an investigation

[ 513 Pa. Page 432]

    into suspected illegal activity relating to the purchase of exposed x-ray film from hospitals. A market exists for the exposed film because silver may be reclaimed from it through a refining process. In February, 1982, an agent from the Attorney General's office interviewed appellant, Robert Gartley, Sr., at his home/office. They learned from him that he is in the business of buying and selling x-ray film and that several western Pennsylvania hospitals are among his suppliers. He further told the agents that depending on the particular hospital he paid for the film by check made to the order of the hospital, or made to the order of an employee of the hospital such as an x-ray technician, or to one or the other on alternate occasions. At one hospital he often divided up the total payment into two checks, one made to the order of the hospital and another made to the order of an employee. He also stated that an x-ray technician at another hospital from whom he regularly purchased x-ray film had advised him that the payments were for a "slush fund" at the hospital. During this interview, appellant held a checkbook which he identified as his "business checkbook" from which the checks made to the hospitals and their employees were drawn.

Further investigation revealed that individual employees at the respective hospitals were not authorized to receive personal payments for the film. One of the x-ray technicians who admitted receiving personal payments stated that appellant approached him, after hearing of difficulties he was having in his personal life, with the suggestion that he could receive money for the sale of hospital film.

The procedure Mr. Gartley allegedly followed was that he would arrive at the hospital, weigh the film, and determine its value. He would then ask the technician how much money he wanted for the sale. Appellant would make a check to the technician for the amount requested and another for the remaining balance to the hospital. A weight receipt would be made out corresponding to the amount of money received by the hospital. Appellant told the technician that "everyone was doing it" and that "he did it for a

[ 513 Pa. Page 433]

    lot of people." An interview of the chief x-ray technician of another hospital confirmed the existence of the "slush fund" alluded to by appellant.

On July 20, 1982, agents of the Attorney General's office obtained a search warrant for appellant's home/office in order to seize his business records. They learned upon executing the warrant that appellant had given his business records to his attorney, James Voss, Esquire, after the February interview. Voss was contacted by telephone by a deputy attorney general and confirmed that he represented appellant and that he had some of his business records. However, he refused to hand the records over to the investigators.

The next day, July 21, 1982, the investigators obtained a search warrant for Voss' law offices. The warrant stated that the items sought were "documents, records, items or their equivalents, of Robert Gartley, Sr., involved in any type of purchase or transactions for x-ray film involving certain hospitals from August 1, 1977 to the present." It specified these items to include cash disbursement registers and journals; bank statements, cancelled checks, and check stubs; check vouchers and related material weight receipts for x-ray film; purchase recording journals; hospital accounts payable ledgers; records pertaining to gifts, commissions, and other payments to those hospitals' employees; contracts for the purchase of x-ray film from those hospitals; and "[a]ny and all records which may reflect any type of transaction involving the purchase of x-ray film from those hospitals and from those hospitals' employees." The premises to be searched were described in the warrant as the "office of Meyer, Unkovic and Scott, and James Victor Voss, and their files, located at 1400 Frick Building, Grant Street, Pittsburgh, Pennsylvania."

The law firm immediately sought injunctive relief and, while the search was going on, the Honorable Thomas A. Harper of the Allegheny County Court of Common Pleas temporarily enjoined the agents from continuing. A hearing before the Honorable James R. McGregor was held the

[ 513 Pa. Page 434]

    next morning, and on August 5, 1982, the judge granted the law firm's motion to quash the search warrant. He concluded that the warrant was overbroad because of its failure to specify the area to be searched with reasonable particularity, thereby violating the Fourth Amendment, especially in light of the availability of less intrusive procedures such as a grand jury's power to subpoena relevant unprivileged evidence. Judge McGregor also found that permitting the search would violate the attorney-client privilege and the work-product doctrine. The Commonwealth appealed to the Superior Court, 341 Pa. Super. 350, 491 A.2d 851.

That court found that on its face the warrant met the constitutional requirements of particularity. Reasoning that the investigators could reasonably assume that Voss would have access to many areas within his firm's office, and that the investigators had no legitimate means of gathering information from which they could narrow the scope of this warrant, the court concluded that the description of the area to be searched was not overbroad. In addition, the court held that neither the attorney-client privilege, nor the work-product doctrine, applied to the items to be seized, since they were pre-existing documents which could have been subpoenaed from the client or made the subject of a validly drawn search warrant for the client's home or office.

Next, the court addressed the problem of the likelihood that truly confidential communications of appellant and other clients could be inadvertently examined by an inquisitive investigator. In its analysis the court had no particular concern for appellant's interests in confidentiality, since any intrusion into the private communications between him and attorney Voss would be attributable to appellant's own conduct in transferring the records to his attorney's care. They concluded ...


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