The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: DENIAL OF DEFENDANT'S MOTION TO SUPPRESS (DOC. NO. 55) 29 BOXES CONTAINING PRIVATE AUTOPSY FILES
The search warrant issued by United States Magistrate Judge Amy Reynolds Hay at Miscellaneous Docket No. 05-153m authorized F.B.I. Special Agents to go to the private office of Dr. Cyril H. Wecht Pathology and Associates, 1119 Penn Avenue, Ste. 4001, Pittsburgh, Pennsylvania ("Penn Avenue Office"), to search for and seize "Boxes (approximately twenty) and contents containing private autopsy files." Armed with this search warrant (hereafter, the "Penn Avenue warrant"), FBI Special Agents and supporting personnel on the Evidence Recovery Team ("ERT") went to the Penn Avenue Office of Dr. Cyril H. Wecht Pathology and Associates ("Wecht Pathology"), where they found and seized 29 boxes and contents, which boxes the ERT identified as containing items fitting the description of items to be seized pursuant to the Penn Avenue warrant.
Defendant claims that the FBI agents and supporting personnel exceeded the scope of the Penn Avenue warrant authorizing them to search for approximately 20 boxes and contents containing private autopsy files when they found and seized 29 boxes containing files relating to his private autopsy business. After careful consideration of the motion, response and briefs, and the testimony and evidence introduced at the evidentiary hearing, the Court finds that the search and seizure at Wecht Pathology's Penn Avenue Office fit squarely within the scope of the Penn Avenue search warrant, and that the FBI agents and support personnel acted reasonably and in good faith in executing it. The Court will, therefore, deny defendant's motion to suppress (doc. no. 55) these boxes and their contents. (See related Orders at doc. nos. 193 and 216),
On May 31, 2006, after careful consideration of defendant's Motion for a Suppression Hearing and to Suppress All Evidence Gained by the Government as a Result of Illegal Searches (doc. no. 55), the government's response thereto (doc. no. 177), defendant's reply (doc. no. 182), the applications for search warrants and Special Agent ("SA") Bradley Orsini's supporting affidavits of probable cause, and the search warrants themselves, this Court ruled (doc. no. 193) that the search warrants were valid and supported by adequate probable cause recited in the related affidavits, that defendant had not made the substantial preliminary showing necessary to justify a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that the execution of the warrants as to the seizure of two computers was lawful and proper.*fn1
Because there remained material factual disputes about the manner and execution of the search and seizure, and whether the actions of the agents at Wecht Pathology's Penn Avenue Office were reasonable and in good faith, this Court deemed it appropriate to conduct an evidentiary hearing regarding the execution of that warrant. Specifically, the Court stated in its previous opinion:
Defendant argues that agent Orsini was not present on the day the warrant was executed, that there were approximately unlabeled 60 boxes in the office to be searched (not 20 labeled boxes as Orsini had sworn), and that Dr. Wecht wife, Sigrid Wecht, Esquire (whose law office was located in the place to be search), observed that the agents were not able to determine which boxes were described in the warrant and that the agents asked her to direct them to the "boxes", to which Mrs. Wecht stated that she was not aware of which 20 boxes the warrant was intended to cover. According to Mrs. Wecht, the agents called agent Orsini on the phone and thereafter split into teams and opened up boxes to see what was in them and decided which ones they would take from different locations on the premises and having done so, they removed 29 unlabeled boxes which contained Dr. Wecht's private autopsy files in accordion folders, including files on various high profile matters including the deaths of Marilyn Monroe, Elvis Presley, Tammy Wynette, Kurt Cobain, and other notable celebrities and public figures. According to defendant, the "boxes" that were taken were the result of an unconstitutional general search, which was not done with the good faith belief that they contained evidence of federal crimes.
The Court believes that an evidentiary hearing is required to make the factual determination necessary to evaluate the validity of the execution of this part of the search warrant under [United States v. Christine, 687 F.2d 749 (3d Cir. 1982)] and [United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars, 307 F.3d 137 (3d Cir. 2002)]. The evidentiary hearing will be limited to this narrow issue.
Memorandum Opinion of April 7, 2006, at 16-17.
The Penn Avenue warrant states that the affiant, Special Agent ("SA") Orsini, has reason to believe that the items identified in Attachment B of the warrant would be found at the Penn Avenue Offices. "Attachment 'B' - Property to be Seized," states simply: "Boxes (approximately twenty) and contents containing private autopsy files." Paragraphs 19 and 20 of SA Orsini's Application and Affidavit for the Penn Avenue warrant set forth the averments of probable cause supporting the search for the "Boxes (approximately twenty) and contents containing private autopsy files" as follows:
Attempted Concealment and Removal of Evidence 19. In early February of 2005, a criminal probe of WECHT's use of county resources for private work became public. According to [Allegheny County Coroner's Office, "ACCO," employee designated as ACCO 11], sometime during the week of February 6, 2005, [Eileen] Young [defendant's secretary at ACCO] asked ACCO 11 to obtain boxes for the purpose of moving large numbers of files from her office at the ACCO. ACCO 11 provided Young with boxes into which Young loaded files reflecting WECHT'S private autopsy work. ACCO 11 moved those boxes from the ACCO to WECHT'S private pathology offices at 1119 Penn Avenue, Suite 4001, Pittsburgh, Pennsylvania after business hours. Flo Johnson provided the key to the space at 1119 Penn Avenue in to which ACCO 11 helped move the boxes. WECHT'S wife told ACCO 11 where the boxes were to be placed within the office space at 1119 Penn Avenue. According to ACCO 11, the boxes were placed in a records room on the right-hand side of the office suite's hallway. According to ACCO Deputy Coroners, the private autopsy files contain information showing, among other things, (1) the use of the ACCO specialty labs for the private autopsies, (2) the identity of the preparer of reports used in the private autopsy cases, including Eileen Young, (3) payment for the private autopsies, (4) the identity of the decedents involved in private autopsies performed with the aid of county resources.
20. According to ACCO 11, Young was very rushed and upset about having to move the boxes quickly. According to ACCO 11, the materials he helped move consisted of approximately 20 boxes of files reflecting private autopsy work for the financial benefit of WECHT. The boxes are labeled on the outside with computer printed labels identifying the names of the decedents.
Application and Affidavit for Penn Avenue Search Warrant, ¶¶ 19-20 (emphasis added).
The Application and Affidavit for the Penn Avenue warrant further states: 24. This application seeks issuance of warrant to seize approximately twenty boxes of private autopsy files located at the office of Dr. Cyril H. Wecht Pathology and Associates, 1119 Penn Avenue, ...