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United States v. Bereznak

United States District Court, M.D. Pennsylvania

April 27, 2018



          A. Richard Caputo United States District Judge.

         Presently before me is a Motion to Suppress filed by Defendant Christopher Bereznak (“Bereznak”). (Doc. 15.) Bereznak seeks to suppress text messages allegedly sent by him to AG, to whom he prescribed certain medications, on the grounds that the search of AG's phone violated his Fourth Amendment rights and that the text messages have not been authenticated. Bereznak also seeks to suppress data obtained from the Pennsylvania Prescription Drug Monitoring Program (“PDMP”) on Fourth Amendment grounds. Because Bereznak's Fourth Amendment rights have not been violated, and because issues relating to the authentication of the text messages are premature at this stage, Bereznak's Motion to Suppress will be denied.

         I. Background

         The grand jury Indictment filed on February 6, 2018, charges Bereznak with nine counts of Unlawful Distribution and Dispensing of a Controlled Substance under 21 U.S.C. § 841(a)(1) (the Controlled Substances Act (“CSA”)). (Doc. 1.) All of the alleged violations took place in June or July 2016. Id. The Indictment alleges that, in or about May 2017, Bereznak began a personal relationship with AG via Craigslist that continued until the time of AG's death on or about July 20, 2016. Id. The Indictment further alleges that Bereznak made the alleged distributions of controlled substances to AG outside the usual course of a professional practice and not for a legitimate medical purpose. Id. Bereznak was a licensed Pennsylvania dentist at all relevant times (Doc. 1.)

         On March 1, 2018, Bereznak filed the instant Motion to Suppress (Doc. 15), which includes the following factual assertions. On or about July 21, 2016, AG's parents contacted the Olyphant Police Department about text messages they found on AG's phone. Id. at ¶ 5. AG's parents turned the phone over to the police to investigate a “romantic relationship” between Bereznak and AG. (Id.; Doc. 6, Ex. 1.) Sometime between AG's death on or about July 20, 2016, and Bereznak's arrest on August 7, 2016, police allegedly forensically extracted 999 text messages from AG's cell phone without a warrant. Id. at ¶¶ 6-7. “The fruit of this warrantless search was directed solely at” Bereznak. Id. at ¶ 7. In addition, Bereznak has received no corroborating evidence beyond the extraction report to confirm that he or AG is the sender or recipient of the text messages, and (1) there was no lock on the phone allegedly belonging to AG; (2) AG's parents found the phone at least one day after her death; (3) no one witnessed AG or Bereznak sending the alleged text messages; and (4) an individual named Tim Rodney was with AG before, during, and after AG died and had full access to her phone. Id. at ¶¶ 10-15.

         In addition, the PDMP database was queried pursuant to a Lackawanna County court order. (Doc. 15 at ¶ 9.) Soma (carisoprodol), one of the controlled substances Bereznak allegedly prescribed, was on the federal controlled substances list but not the Pennsylvania controlled substances list at the time Bereznak prescribed it. Id. at ¶ 4. By the time the court order was issued on March 17, 2017, Soma had been added to the Pennsylvania controlled substances list. Id. at ¶ 9. The search results included Bereznak's prescriptions for Soma. Id. at ¶ 11.

         On March 12, 2018, the Government filed its Brief in Opposition (Doc. 18), and on March 14, 2018, Bereznak filed a Reply. (Doc. 21.) This Motion is therefore now ripe for disposition.

         II. Discussion

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV. “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).

         Bereznak seeks suppression of evidence seized from AG's cell phone after her parents turned it over to police, as well as records obtained from the PDMP pursuant to a Lackawanna County court order. The Government contends that Bereznak lacks standing to challenge either type of evidence. The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights were violated. Rakas v. Illinois, 439 U.S. 128, 130 n. 2 (1978). The applicable burden of proof is by a preponderance of the evidence. United States v. Mastronardo, 987 F.Supp.2d 565, 575 (E.D.Pa. 2013)(citing United States v. Matlock, 415 U.S. 164, 178 n. 14 (1974)).

         A. Text Messages

         Bereznak contends that the text messages obtained from AG's phone should be suppressed because (1) the warrantless search violated his Fourth Amendment constitutional rights and (2) the text messages have not been authenticated.

         1. Fourth Amendment Violation

         First, Bereznak argues that the search violated his Fourth Amendment rights because it was “directed at” him. (Doc. 16, p. 11.) This theory was explicitly rejected by the Supreme Court in Rakas. See 439 U.S. at 132-33 (“Adoption of the so-called ‘target' theory advanced by petitioners [under which any criminal defendant at whom a search was ‘directed' could contest the search] would in effect permit a defendant to assert that a violation of the Fourth Amendment rights of a third party entitled him to have evidence suppressed at his trial.[] We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners.”).[1] “For nearly forty years, the Supreme Court has unwaveringly required the proponent of a motion to suppress to ‘assert his own legal rights and interest rather than basing his claim for relief upon the rights of third parties.' This is black-letter law.” United States v. Stearn, 597 F.3d 540, 552 (3d Cir. 2010)(quoting Rakas, 439 U.S. at 140). “Fourth Amendment rights are personal rights, which, like some other constitutional rights, may not be vicariously asserted.” Rakas, 439 U.S. at 133-34 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)). “A person who is aggrieved by an illegal search and ...

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