J-A14034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TINA SUE MCKAHAN                           :   No. 10 WDA 2019

        Appeal from the Suppression Order Entered November 28, 2018
      In the Court of Common Pleas of Greene County Criminal Division at
                        No(s): CP-30-CR-0000096-2018


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY KUNSELMAN, J.:FILED OCTOBER 16, 2019

       I respectfully dissent from the Majority’s decision herein. In my view,

the trial court correctly determined that the search warrant, as issued, was

overly broad because it sought all of McKahan’s medical records rather than

simply her blood alcohol content (“BAC”) report. This over-breadth rendered

the search unconstitutional.1 Thus, I disagree with the Majority’s reversal of

the suppression order.

       Article 1, Section 8 of the Pennsylvania Constitution, like its federal

counterpart, secures the right to be free from unreasonable searches:

       The people shall be secure in their persons, houses, papers and
       possessions from unreasonable searches and seizures, and no
       warrant to search any place or to seize any person or thing shall
____________________________________________


1 We note that McKahan challenged the search and seizure and admission of
the BAC evidence under both the Pennsylvania and United States Constitution.
See McKahan’s Omnibus Pre-trial Motion at 2.
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     issue without describing them as nearly as may be, nor
     without probable cause, supported by oath or affirmation
     subscribed to by the affiant.

Pa. Const. Art. 1, § 8 (emphasis added).

     However, Pennsylvania courts have interpreted this constitutional

provision to require greater specificity in warrants of the items sought to be

seized than is required under the Fourth Amendment to the United States

Constitution. As our Supreme Court has explained:

     The framers of the Pennsylvania Constitution thought the right to
     be free from unrestricted police intrusions so critical that they
     secured the right for future generations by including it in the
     original Constitution of 1776. The language of the Pennsylvania
     Constitution requires that a warrant describe the items to be
     seized “as nearly as may be . . . .” The clear meaning of the
     language is that a warrant must describe the items as
     specifically as is reasonably possible. This requirement is
     more stringent than that of the Fourth Amendment, which merely
     requires particularity in the description.       The Pennsylvania
     Constitution further requires the description to be as particular as
     is reasonably possible.

Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989).

     Thus, in assessing the validity of the description contained in a warrant,

a court in this Commonwealth must initially determine for what items probable

cause existed. Id. at 900. The sufficiency of the description must then be

measured against those items for which there was probable cause. Id. An

unreasonable discrepancy reveals that the description was not as specific as

was reasonably possible. Id. Thus, any unreasonable discrepancy between

the items for which there was probable cause and the description in the

warrant requires suppression. Id.

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      In Grossman, law enforcement applied for a warrant to search for

certain client files maintained by the owner of an insurance agency who had

an extensive clientele of over 2000 active cases. The affidavit of probable

cause detailed complaints about the agency that were filed by three of its

clients.   However, the warrant, as issued, authorized law enforcement to

search “[a]ll insurance files, payment records, receipt records, copies of

insurance applications and policies, [and] cancelled checks.”            Id. at 897.

Consequently, the police seized virtually every file and business record in the

agency’s offices.

      In reviewing the matter, our Supreme Court ruled that, “while probable

cause existed for the three named files[,] there was not probable cause as to

the other files in [a]ppellant’s offices.” Id. at 900. It therefore ruled that the

warrant authorizing the seizure of “all files” was unconstitutionally overbroad

in its failure to describe as specifically as was reasonably possible the three

files described in the affidavit for which there was probable cause, and that all

evidence seized as a result of the deficient warrant should have been

suppressed. Id.

      Here, there is no question that probable cause existed for McKahan’s

BAC report. However, the warrant did not specify that the BAC report was the

object of the search. Rather, it broadly sought:

      All medical records of every nature pertinent in any way to any
      medical treatment rendered on behalf of . . . McKahan . . . since
      1/29/2018, including, but not limited to, copies of the following;
      1) All clinical reports, 2) Results of all laboratory tests, 3) All notes,

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         correspondence, or records of any nature made by any physicians,
         nurses, or any other persons concerning . . . McKahan’s condition
         or . . . McKahan’s treatment.

N.T. Suppression, 8/30/18, at 55. In my view, this description was not “as

specifically as is reasonably possible.” Grossman, 555 A.2d at 899. Indeed,

due to its over breadth, the warrant permitted police to obtain 138 pages of

McKahan’s medical records, which would naturally include wholly irrelevant

and very private information.         Given that the warrant in question was

unconstitutionally overbroad in its failure to describe as specifically as was

reasonably possible the BAC report for which there was probable cause, all

evidence seized as a result of the deficient warrant should have been

suppressed.

         While Pennsylvania recognizes certain exceptions to the warrant

requirement, the Commonwealth claims no exception to support this seizure.

Nevertheless, the Majority seems to have created one.           It concludes that

“[t]hough Trooper Broadwater should not have phrased the search warrant to

pertain to ‘all’ of McKahan’s medical records, this was merely inartful

drafting, and does not render the warrant unlawful.” Majority Memorandum

at 7 (emphasis added). On this basis, the Majority reverses the suppression

court.

         The Majority cites no authority permitting an exception to the specificity

requirement for warrants based on “inartful drafting.” Indeed, every overly

broad search warrant would arguably be inartfully drafted.             Under our


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constitutional precedents, what the trooper did or did not intend, or how he,

in hindsight, should have phrased the proposed warrant, are inquiries we may

not undertake. See Commonwealth v. Edmunds, 586 A.2d 887, 901 (Pa.

1991) (holding that Pennsylvania does not recognize a “good faith” exception

to the exclusionary rule for evidence seized as a result of a constitutionally

defective warrant, and noting that, “[f]rom the perspective of the citizen

whose rights are at stake, an invasion of privacy, in good faith or bad, is

equally as intrusive”). We simply assess the warrant, as issued, to determine

whether there is an unreasonable discrepancy between the items for which

there was probable cause and the description in the warrant. Grossman, 555

A.2d at 900.   In this case, the discrepancy was unreasonable; hence, the

warrant was unconstitutionally overbroad. For this reason, I would affirm the

suppression order.




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