Com. v. McKahan, T. ( 2021 )

J-E02002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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-00000096-2018
BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED JANUARY 12, 2021
I agree with my dissenting colleagues that the Commonwealth did not
waive the issue that it pursues in this appeal, namely “that there was probable
cause to support a warrant for the BAC results and the court should not have
suppressed those results because of the technical problems with the warrant.”
Dissenting Memorandum at 5. Indeed, I join the Dissent in full.
However, the Dissent neglects to take the next step and examine the
merits of the argument that it properly concludes was not waived. To my
mind, a review of the substance of the Commonwealth’s appeal reveals that
the trial court properly suppressed Ms. McKahan’s BAC report. Therefore, I
concur in the result reached by the Majority.
At issue herein is the consequences attendant to an overly broad search
warrant. The following legal principles apply:
J-E02002-20
The Warrant Clause of the Fourth Amendment categorically
prohibits the issuance of any warrant except one particularly
describing the place to be searched and the persons or things to
be seized. The manifest purpose of this particularity requirement
was to prevent general searches. By limiting the authorization to
search to the specific areas and things for which there is probable
cause to search, the requirement ensures that the search will be
carefully tailored to its justifications, and will not take on the
character of the wide-ranging exploratory searches the Framers
intended to prohibit.
Maryland v. Garrison, 480 U.S. 79, 84 (1987) (internal quotation marks
omitted). Although Art. I, § 8 of Pennsylvania’s constitution is similar to the
Fourth Amendment, our Supreme Court has held that it provides greater
protection, requiring the warrant’s description of the place to be searched and
the items to be seized to be “as particular as is reasonably possible.”
Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989). Our High
Court explained that the drafters of Art. I, § 8 had “the utmost concern . . . to
protect citizens from searches and seizures unsupported by probable cause,”
and hence embodied in the provision “a strong notion of privacy, which is
greater than that of the Fourth Amendment.” Commonwealth v. Waltson,
724 A.2d 289, 291–92 (Pa. 1998). This constitutional “particularity
requirement prohibits both a warrant that is not particular enough and a
warrant that is overbroad.” Commonwealth v. Kane, 210 A.3d 324, 332
(Pa.Super. 2019) (internal quotation marks omitted).
The starting point for evaluating the soundness of a warrant’s
description is to “determine for what items probable cause existed.”
Grossman, supra at 900. “The sufficiency of the description must then be
-2-
J-E02002-20
measured against those items for which there was probable cause.” Id. “Any
unreasonable discrepancy between the items for which there was probable
cause and the description in the warrant requires suppression. An
unreasonable discrepancy reveals that the description was not as specific as
was reasonably possible.” Id.
There is no dispute in this appeal that law enforcement had probable
cause to believe that Ms. McKahan had been driving under the influence of
alcohol, and that they were likely to find evidence of that crime in the blood
drawn from her by hospital personnel.1 However, the warrant authorized the
search and seizure not only of the BAC report, but of any and all “records of
any nature made by any physicians, nurses, or any other persons concerning
[Ms.] McKahan’s condition or her treatment.” Majority Memorandum at 3
(cleaned up). As the Majority notes, using the warrant, the authorities seized
not merely the BAC report, but a full 158 pages of Ms. McKahan’s medical
records. Id. at 3.
The suppression court ruled that the warrant was thus unconstitutionally
overbroad because “it sought [Ms. McKahan]’s complete medical records”
rather than being “narrowly tailored” to focus on the items for which the
____________________________________________
1 Ms. McKahan did move for suppression on the alternative basis that the
affidavit of probable cause did not state sufficient facts to demonstrate that
she was the person who had been driving the vehicle at issue. See N.T.,
8/30/18, at 46-49. However, Ms. McKahan’s arguments on appeal relate to
the overbreadth of the warrant rather than a lack of probable cause to obtain
her BAC report. See Ms. McKahan’s brief at 8-13.
-3-
J-E02002-20
Commonwealth had probable cause, namely Ms. McKahan’s “chemical test
results showing levels of blood and/or controlled substances.” Order,
11/28/18, at unnumbered 1-2.
The suppression court’s ruling is supported by precedential authority.
See Grossman, supra at 900 (holding warrant was unconstitutionally
overbroad where it allowed search and seizure of all of insurance agency files
although probable cause existed only as to three clients). Indeed, the
Commonwealth does not contest the finding of overbreadth.
Rather, the Commonwealth merely challenges the propriety of the
remedy the court imposed for the constitutional violation. Specifically, the
Commonwealth states the following argument: “sufficient probable cause
would support the issuance of a warrant to obtain the results of medical blood
from Ruby Hospital; therefore, the suppression court should have determined
that those results could have been obtained through inevitable discovery and
found that no illegal police conduct or overreaching unearthed this evidence.”
Commonwealth’s brief at 16.
In support, the Commonwealth relies upon the decisions in
Commonwealth v. Lloyd, 948 A.2d 875 (Pa.Super. 2008), and
Commonwealth v. Ruey, 892 A.2d 802 (Pa. 2006) (plurality). Neither of
these cases is apt to resolution of this appeal. In Lloyd, police obtained a
BAC test result through a subpoena rather than a warrant, and the trial court
granted the defendant’s motion to suppress it. Thereafter, the district
-4-
J-E02002-20
attorney directed the police department to conduct an independent
investigation into the underlying incident, which resulted in a warrant by which
the police seized the same medical records previously obtained with the
subpoena. The trial court denied the defendant’s subsequent motion to
suppress. On appeal, this Court affirmed denial of the second suppression
motion, holding that because law enforcement obtained the warrant only
through information it had possessed prior to the defendant’s hospital
admission, and none that had been unlawfully obtained though the subpoena,
“the police did not violate Appellant's right against unreasonable searches and
seizures by procuring the medical records through a proper search warrant
after its initial suppression.” Id. at 882.
The Ruey case involved authorities obtaining a second warrant while a
motion was pending seeking to suppress evidence obtained by the initial
warrant based upon a flaw in the affidavit of probable cause. The trial court
ultimately suppressed the evidence notwithstanding the second warrant,
concluding that the troopers had merely re-enacted their initial investigation
rather than using a new, independent investigation as a foundation for the
second warrant. Ruey, supra at 807. After this Court reversed the
suppression order, a plurality of our Supreme Court agreed that suppression
was not warranted. Three justices opined that the procurement of the medical
records with the second affidavit, which did not rely upon any evidence that
-5-
J-E02002-20
was improperly obtained with the first one, was permissible.2 Specifically, the
plurality agreed with the Commonwealth that an initial violation of the U.S. or
Pennsylvania constitution should not “forever foreclose[e] it from access to
records that are maintained by a treatment provider and that are otherwise
preserved in the ordinary course of the provider’s business.” Id. at 819
(Saylor, J. concurring).
If, in the case sub judice, the Commonwealth had obtained Ms.
McKahan’s BAC report by means of a second, constitutionally-valid warrant,
and the suppression court excluded it nonetheless, it appears that Lloyd and
Ruey would warrant relief. However, the Commonwealth took no steps to
legitimately obtain Ms. McKahan’s test results. Thus, this case does not come
within the purview of the above precedent. Rather, the Commonwealth seeks
to extend those cases to apply not only where a valid warrant was obtained,
but where one could have been obtained.
I submit that the Commonwealth’s position would render the
exclusionary rule virtually meaningless. The general rule, subject to limited
exceptions, is that “[t]he admissibility of evidence is in fact affected by the
conduct of the police; evidence which is obtained in violation of a person’s
constitutional rights, whether the police act in good faith or bad, is
____________________________________________
2 The opinion announcing the judgment of the court, joined by one other
justice, affirmed on the basis that the original warrant was valid.
-6-
J-E02002-20
inadmissible.”3 Commonwealth v. Valenzuela, 597 A.2d 93, 100
(Pa.Super. 1991).
If we were to accept the Commonwealth’s argument, the exclusion of
illegally-obtained evidence would be the exception, as it would apply only
when a constitutional violation was the sole means by which the
Commonwealth could have obtained the evidence. So long as there was some
conceivable way by which the Commonwealth could have comported with the
Constitution in seizing the evidence, the fact that it actually failed to do so
would become irrelevant. Such a rule would not further Art. I, § 8, which,
again, is based upon “a strong notion of privacy” and has “the utmost concern
. . . to protect citizens from searches and seizures unsupported by probable
cause[.]” Waltson, supra at 291–92. If the Commonwealth were permitted
to use seized evidence that was supported by probable cause regardless of
the overbreadth of the warrant, there would be no discouragement from
violating citizens’ privacy interests by engaging in the very general, wide-
ranging searches the Founders sought to prohibit. Accord Grossman, supra
____________________________________________
3To the extent that the Commonwealth contends that the absence of any
misconduct, or lack of evidence “that law enforcement officials had embarked
upon a ‘fishing expedition’ for other evidence of a crime” militated against
exclusion of the evidence which they had probable cause to obtain through a
narrowly-drafted warrant, the Commonwealth appears to advocate for a good-
faith exception to the exclusionary rule. See Commonwealth’s brief at 17.
Our Supreme Court has established that no such exception exists in this
Commonwealth. See Commonwealth v. Edmunds, 586 A.2d 887, 905-06
(Pa. 1991) (“Article I, Section 8 of the Pennsylvania Constitution does not
incorporate a ‘good faith’ exception to the exclusionary rule.”).
-7-
J-E02002-20
at 900 (holding all evidence obtained pursuant to an overbroad warrant should
have been suppressed, including the three files for which probable cause
existed).
The Commonwealth in essence asks this Court to apply a principle of
judicial economy and treat as done what ought to have been done, namely,
obtaining Ms. McKahan’s BAC report through a subsequent warrant that did
not infringe upon her constitutional rights. It asks us to deem its duty to abide
by the requirements of the constitution as a mere formality that may be
disregarded or overlooked for the sake of convenience. None of the authority
the Commonwealth has offered supports its request. Instead, the case law
reveals exactly how the Commonwealth should have achieved the relief it
seeks: by obtaining a valid warrant after Ms. McKahan’s suppression motion
was granted, not by appealing the trial court’s proper suppression ruling to
this Court.
For these reasons, rather than through the waiver analysis applied by
the Majority, I would affirm the order suppressing all of the evidence that the
Commonwealth obtained through execution of the overbroad warrant.
Judge Shogan and Judge Olson join this concurring memorandum.
-8-