{"id":3142,"date":"2009-12-23T17:24:40","date_gmt":"2009-05-18T07:52:33","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-05-18T07:52:33","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3142","title":{"rendered":"W.D. Pa.: Wecht warrant overbroad and motion to suppress granted"},"content":{"rendered":"

Search warrant for business records in the ongoing Dr. Wecht case in Pittsburgh was overbroad and not particular enough for the Fourth Amendment. Because he was permitted a private practice while acting as ME, there was no meaningful limitation on the seizure of records. The affidavit also was not incorporated into the warrant. Moreover, the defendant was unable to determine what was to be seized. United States v. Wecht<\/a>, 619 F. Supp. 2d 213 (W.D. Pa. 2009):<\/p>\n

Our Circuit Court of Appeals has instructed that “the breadth of items to be searched depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate.” ACEF, 461 F.3d at 395 (interpreting the holdings of United States v. Leary, 846 F.2d 592 (10th Cir.1988); United States v. American Investors of Pittsburgh, 879 F.2d 1087 (3d Cir.1989); and United States v. Kepner, 843 F.2d 755 (3d Cir.1988)). Accord United States v. Adjoin, 452 F.3d 1140, 1148 (9th Cir. 2006) (in determining whether a warrant is sufficiently particular, court will consider, among other things, whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.”). Accordingly, “the use of generic classifications in a warrant is acceptable when a more precise description is not feasible.” Christine, 687 F.2d at 760 (citing cases).<\/p>\n

Here, however, the Government was possessed of information which, had it been incorporated into the warrant, would have substantially clarified the description of items to be seized so as to focus the executing officers’ attention on the actual target of the search — the boxes of private autopsy files that had been removed from the ACCO. The omission of this information resulted in a warrant whose description was simply too vague to meaningfully guide the officers’ search.<\/p>\n

Notwithstanding these problems, the Government vigorously disputes the Defendant’s characterization of the Penn Avenue Warrant as a general warrant based on what the Government views as two important search criteria: content and number. That is, the face of the warrant informed the officers that they were looking only for boxes that held private autopsy files and, moreover, the officers could seize only “approximately twenty” such boxes. These limitations, the Government insists, are significant enough that the Penn Avenue Warrant should be considered, at most, overbroad, but not general, since the warrant did not allow the officers unlimited discretion to seize anything within the premised that they wished.<\/p>\n

I do not find this theory persuasive, however. As I have discussed above, the requirement that the boxes had to contain private autopsy files is not a particularly meaningful limitation, given that the location of the search was the Defendant’s private pathology office — a place where boxes of private autopsy files would likely exist in substantial numbers. See United States v. Abrams, 615 F.2d 541, 546 (1st Cir. 1980) (limitation in a warrant seeking the seizure of business records must be a meaningful one).<\/p>\n

Furthermore, as I have observed, and as the Government candidly acknowledged at argument, the numerical caveat (“approximately twenty boxes”) provides no basis for differentiating between those boxes removed from ACCO and other boxes of private autopsy files likely to be found on the premises. At the end of the day, an officer executing this warrant would not be able to determine with reasonable certainty which items were being sought and would essentially have to guess which boxes (and how many, for that matter) to seize. 11 The warrant thus facially authorized government agents to rummage through a substantial volume of the Defendant’s work product and decide for themselves what to take. The violation of the Defendant’s Fourth Amendment rights in this respect is not mitigated by the mere fact that the governmental intrusion encompassed only the universe of boxes containing the Defendant’s private autopsy files rather than the entire content of his business office. The scope of the search, as authorized by the warrant, was still unreasonable.<\/p>\n

. . .<\/p>\n

. . . One Pennsylvania court has described the distinction between generality and overbreadth as follows:<\/p>\n

These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize. This will result in the general “rummaging” banned by the fourth amendment. See Macron v. United States, 275 U.S. 192, 195, 48 S. Ct. 74, 75, 72 L.Ed. 231 (1927). A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. The officers executing such a warrant will not rummage, but will “cart away all documents.” Application of Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979).<\/p><\/blockquote>\n

Commonwealth v. Santner, 454 A.2d 24, 25 n.2 (Pa. Super. 1982).<\/p>\n

Here, the defect in the Penn Avenue Warrant cannot properly be characterized as one of overbreadth, as we are not confronting a situation where officers, armed with a clear and specific warrant, seized all of the items within certain particularly described categories, only to discover that probable cause did not support such a broad seizure. Rather, the fundamental problem with the Penn Avenue Warrant is that, by its terms, the warrant failed to give the executing officers sufficient direction as to which items were to be seized in the first place. See United States v. Sirmans, No. 07-2370, 278 Fed. Appx. 171, 172, 2008 WL 2127448 at **1 (3d Cir. May 8, 2008) (“To be sufficiently particular, the Fourth Amendment requires the warrant to describe items to be seized in a way that the officer conducting the search can identify them with reasonable effort.”) (citations omitted).<\/p>\n

Just as important, the warrant failed to adequately inform the Defendant (or those representatives of his who were present) of the scope of the authorized search. See Groh<\/a>, 540 U.S. at 561 (A particular warrant also “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”) (citations omitted). The problem here, in other words, is not one of over-inclusiveness but of ambiguity.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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