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Kerr v. Pennsylvania State Board of Dentistry

November 19, 2008


Appeal from the Order of the Commonwealth Court at No. 2277 CD 2005 entered December 20, 2006 Affirming the Bureau of Professional and Occupational Affairs at No. 0387-46-03 dated October 24, 2005.

The opinion of the court was delivered by: Mr. Justice McCAFFERY


ARGUED: March 6, 2008


We are asked to determine whether the exclusionary rule associated with the Fourth Amendment to the United States Constitution applies to a civil disciplinary proceeding of the Pennsylvania State Board of Dentistry. We hold it does not, and thus affirm the order of the Commonwealth Court.

The facts are as follows. Appellant, William C. Kerr, D.D.S., licensed until recently by the State Board of Dentistry ("the Board"), has practiced dentistry since approximately 1972. Prior to the commencement of the present matter, no disciplinary action had ever been taken against him. In June 2001, the Pennsylvania State Police began investigating Appellant with respect to controlled substances he had prescribed to certain of his patients whom police had arrested for drug violations. The state police conducted the investigation in conjunction with agents of the federal Drug Enforcement Agency ("DEA"). As part of the investigation, the state police obtained a search warrant for certain of Appellant's books and records, including his files pertaining to fourteen specific patients. The affidavit of probable cause appended to the search warrant application was not signed by the affiant, state police Officer Michael R. Boltz, although Officer Boltz signed the search warrant application in front of Jefferson County Common Pleas Court Judge William Henry, the issuing authority. Reproduced Record ("R.R.") at 102a-104a; 244a-245a.

The state police served the search warrant on November 7, 2001. They spent approximately two and one-half hours conducting their search, during which a DEA agent videotaped the extant conditions of Appellant's office. Also during the search, the state police became aware that six additional individuals, known to the police from their ongoing investigation, were also patients of Appellant. After completing the search and seizing the fourteen specific files they had sought, the police obtained another search warrant for the files of the six additional patients mentioned above. Those files were seized on November 14, 2001.

The state police subsequently notified Cathy McCaine of the Department of State (of which the Board of Dentistry is a part) of the results of their searches, and provided her with copies of the twenty patient files they had seized. The police then sent the original files to the DEA, which in turn provided them for review to Paul A. Moore, D.M.D., Ph.D., a professor at the University of Pittsburgh, whom the DEA had retained as a dental consultant. The purpose of Dr. Moore's review was to evaluate whether there was any indication in the files that narcotics were being distributed by Appellant for reasons other than dental care. See R.R. at 163a; 166a. After reviewing the records, Dr. Moore set forth his conclusions in his "Review of Records: Summary of Findings" dated May 21, 2002. He summarized his general findings based on his review of all the files, and then stated specific findings and opinions regarding four of the patient files. Among Dr. Moore's findings were poor record maintenance, questionable diagnostic descriptions and procedures, use of herbal therapies having little or no scientific basis, heavy prescription of controlled substances (i.e., Oxycontin, Percodan, Loracet, Xanax, and Soma), and ignoring patients' "drug diversion" behavior. R.R. at 900a-901a. With respect to the four patient files singled out for detailed findings, Dr. Moore stated in his report that Appellant's treatment of these patients, specifically including his prescribing them drugs, was not "in accordance with the treatment principles accepted by a responsible segment of the medical profession." R.R. at 904a.

On March 24, 2003, the Board filed an eight-count order to show cause why it should not suspend, revoke, or otherwise restrict Appellant's dental license pursuant to the Dental Law, Act of May 1, 1933, P.L. 216, as amended, 63 P.S. § 120 et seq. The order asserted that Appellant violated several sections of the Dental Law and regulations promulgated thereunder. Specifically, the Board contended that Appellant violated Section 4.1(a)(6), 63 P.S. § 123.1(a)(6), prohibiting, inter alia, the violation of Board regulations, by his practices in prescribing, administering and dispensing controlled substances (thereby violating 49 Pa. Code § 33.207(a)); and by his practices in connection with the preparation, maintenance and retention of patient records (thereby violating 49 Pa. Code § 33.209(a)). The Board further asserted that Appellant violated Section 4.1(a)(8), 63 P.S. § 123.1(a)(6), prohibiting unprofessional conduct, including deficiencies in hygienic practices, by (1) ignoring patients' drug diversion behavior; (2) using herbal therapy and recommending adding magnets to an oral water irrigation device for treating oral disease; and (3) sterilizing his dental instruments in a deep fryer filled with hot vegetable oil. See also 49 Pa. Code § 33.211(a)(7).*fn1

In response to the Board's order to show cause, on May 30, 2003, Appellant served his Answer and Request for Affirmative Relief and New Matter. In addition to disputing the factual allegations of the order to show cause, Appellant alleged that probable cause was lacking for the search warrants and that the warrants were illegally served and executed.

On November 4, 2003, a hearing examiner conducted a disciplinary hearing on the Board's case against Appellant. In addition to documents, the evidence at the hearing consisted of the testimony of Officer Boltz and of two drug diversion investigators employed by the DEA, William Dombrowski and Vincent Tomei. These three witnesses testified regarding their investigation and their search of Appellant's dental office. In addition, Dr. Moore was qualified as an expert and testified at the hearing. He testified about his review of Appellant's records, about his opinions and conclusions based on that review, and about the propriety of Appellant's practice of dentistry as reflected in Appellant's records. On June 16, 2004, the examiner heard Appellant's defense. In addition to Appellant himself, two witnesses testified in Appellant's defense: his office assistant, Cherie Ellen Shaffer, and his wife, Susan Kerr, a medical secretary who worked in Appellant's practice, although not as a paid employee.

On November 15, 2004, the hearing examiner issued a proposed adjudication and order recommending that Appellant be subject to discipline on each of the eight counts and recommending (1) active license suspension of one year; (2) a civil penalty of $5,000; and (3) successful completion of courses in prescribing practices, infection control and patient record-keeping. On November 16, 2004, the Board, pursuant to its authority under the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.226(a)(2), issued a notice of intent to review the proposed adjudication and order. Appellant then filed exceptions, which included a challenge to the search warrants.

Following its review, the Board issued a final adjudication and order on October 24, 2005. The Board adopted the hearing examiner's findings of fact, conclusions of law, and discussion of issues, but enhanced the recommended sanction, suspending Appellant's license for five years -- two years' active suspension and three years' probation -- and prohibiting him from prescribing, dispensing, housing, purchasing, receiving, or administering any controlled substance for those five years. The Board declined to apply the exclusionary rule, as requested by Appellant, stating that the rule has generally been held inapplicable in administrative proceedings. Appellant sought review of the Board's decision by the Commonwealth Court, which affirmed the determination of the Board in all respects.

We granted allowance of appeal in this matter specifically to determine whether the exclusionary rule applies in civil administrative proceedings, an issue of first impression for this Court. Because this issue is a purely legal one, our scope of review is plenary. In re Carroll, 586 Pa. 624, 636, 896 A.2d 566, 573 (2006). Although the issue on which appeal was allowed was framed broadly, the argument in Appellant's brief centers on the exclusionary rule arising under federal Fourth Amendment law. Because Appellant has not asserted an independent claim under the Pennsylvania Constitution, our review islimited accordingly. Accord In re Redevelopment Authority of Philadelphia, 595 Pa. 241, 248 n.3, 938 A.2d 341, 345 n.3 (2007) (declining to address, sua sponte, an issue under the state constitutional analogue to a federal constitutional provision under review)..

Appellant reiterates here the argument he made in the Commonwealth Court, to wit, that the search warrants were facially defective and that there was insufficient underlying probable cause. He contends that the exclusionary rule, which is employed as a tool to remedy federal and state constitutional violations resulting from illegal searches and seizures, should have been applied to suppress the seized evidence and exclude it from the disciplinary proceeding before the hearing examiner.*fn2 Appellant argues that the police in this case have neither been sanctioned for their alleged infractions nor deterred from future improper action, and that refusal to apply the exclusionary rule to the instant disciplinary proceeding will encourage police misconduct by providing a safe harbor that will permit unlawfully-obtained evidence to be used in civil proceedings. See Brief for Appellant at 16.

The Commonwealth Court began its consideration of Appellant's argument by stating that the exclusionary rule generally does not apply in civil or administrative matters. Then, noting that this case involves a civil proceeding only (as Appellant has not been charged with a crime), the court held that, even if the warrants had been issued improperly, exclusion of the evidence seized pursuant to the warrants was not required. As explained below, the Commonwealth Court's holding is consistent with the law established by the United States Supreme Court and by this Court.

The United States Supreme Court has "emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution." Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 362 (1998) (citations omitted). The Supreme Court has explained that the "wrong" which the Fourth Amendment condemns is "fully accomplished" by the unlawful search or seizure itself; use of the fruits of such unlawful search or seizure does not work an additional Fourth Amendment wrong. United States v. Leon, 468 U.S. 897, 906 (1984), citing Stone v. Powell, 428 U.S. 465, 540 (1976) and United States v. Calandra, 414 U.S. 338, 354 (1974). The exclusionary rule therefore is "neither intended nor able to 'cure the invasion of the defendant's rights which he has already suffered.'" Leon, supra at 906, citing Stone, supra at 540. It thus is well-established that the exclusionary rule is not a personal ...

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