Com. v. Slaton

Decision Date31 March 1989
Citation383 Pa.Super. 301,556 A.2d 1343
PartiesCOMMONWEALTH of Pennsylvania, Appellant . 162 Pitts 1986, 229 pitts 1986
CourtPennsylvania Superior Court

Charles E. Foerster, Pittsburgh, for appellee (at 162) and appellant (at 229).

Before CIRILLO, Presiding Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, BECK, KELLY, POPOVICH and MELINSON, JJ.

MELINSON, Judge:

This is an appeal filed by the Commonwealth from an Order of the Court of Common Pleas of Allegheny County granting, in part, Appellee's omnibus pre-trial motion to suppress evidence. Appellee (hereinafter "Slaton") has cross-appealed the portion of the Order denying the suppression of other evidence. We affirm the portion of the trial court's Order granting Slaton's motion to suppress. Slaton's cross-appeal is quashed as interlocutory.

On November 21, 1983, Agent Eugene C. Beard, Jr., of the Bureau of Narcotics of the Commonwealth of Pennsylvania, visited Lou's Pharmacy in East Pittsburgh, Pennsylvania. The purpose of Beard's visit was to search the "Schedule II file" 1 of the During the course of searching the file for evidence against Merriweather, Beard found many other forged prescriptions, apparently unrelated to the Merriweather case. He removed these prescriptions from the Schedule II file and, in accordance with Bureau of Narcotics policy, left receipts for the removed prescriptions in the file. Within the next few days, Beard contacted the doctors who, according to the confiscated slips, were purported to have written the prescriptions. He learned that the prescriptions were, indeed, forgeries.

                pharmacy in the course of an investigation into the activities of an individual referred to as "Merriweather."   This individual allegedly had been forging prescriptions in the general vicinity of Lou's.  Beard notified the pharmacist, Slaton, that he wished to look through his Schedule II file for information on Merriweather.  Slaton responded by showing Beard the file
                

On December 6, 1983, Beard, with another narcotics agent, returned to Lou's Pharmacy and, again, notified Slaton that he wished to continue searching his Schedule II file. Beard did not state that he was looking for more information on Merriweather, but neither did he state that he was no longer looking for information on that individual. Read in its totality the record shows that Slaton, on the occasions of the latter two visits, was under the impression that the agents were searching for more information on Merriweather. Under those circumstances, Slaton again permitted Beard to search the file. Additional suspected forged prescriptions were removed by the agents on that date and on the following day, December 7, 1983.

Slaton was arrested on January 16, 1985, and was charged with sixty-one (61) counts of Violation of the Controlled Substance, Drug, Device, and Cosmetic Act: Distribution by Practitioner in Bad Faith. Pa.Stat.Ann. tit. 35, Section 780-113(a)(14) (Purdon 1987 Supp.). Slaton filed an omnibus pre-trial motion, requesting, inter alia, that the prescription slips taken from the Schedule II file be suppressed on the grounds that his consent was improperly obtained.

The trial court denied the motion with regard to the prescription slips seized on Agent Beard's first visit to Lou's Pharmacy. The court found, however, that by December 6, 1983, Slaton had become "the focus of the investigation and that, accordingly, a warrant to search was constitutionally required." The trial court further found that the Commonwealth had not proved that Slaton knowingly and intelligently consented to a search of the premises. Thus, in the absence of a valid search warrant, the prescription slips seized on December 6 and 7 of 1983 were illegally seized and, therefore, were inadmissible as evidence against Slaton. 2 The Commonwealth has appealed this Order of the trial court. Slaton has cross-appealed, claiming that the prescription slips seized at the time of Beard's first visit should also have been suppressed as the result of an illegal search.

I.

Appeal of the Commonwealth

No. 162 Pittsburgh, 1986

We shall first address the issues raised by the Commonwealth. Initially, the Commonwealth alleges that the trial court incorrectly concluded that Slaton was the focus of the investigation on December 6 and 7. Alternatively, it is asserted that "[T]he Commonwealth's appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution." Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985). The Commonwealth certified on the record in the trial court, and in the brief submitted on appeal, that the Order suppressing twenty-six (26) of the sixty-one (61) prescription slips "substantially handicaps its ability to prosecute all the instant charges based upon all available evidence." 3 Thus, we shall address the merits of this appeal.

even if Slaton had been the focus of the investigation on those dates, he voluntarily consented to the search of the Schedule II file.

The trial court found that by the dates of the latter two searches (December 6th and 7th), Slaton had become the focus of the investigation. The record supports that factual finding. However, that finding is not dispositive of the constitutionality of the searches. The issue to be decided is whether Slaton's consent to the warrantless searches of December 6th and 7th was voluntary under Pennsylvania law.

Initially, we note that Pa.Stat.Ann. tit. 35, Section 780-134 (Purdon 1977) governs the issues in this case. That section provides, in pertinent part:

(b)(1) For the purpose of inspecting, copying, and verifying the correctness of records, reports, or other documents required to be kept or made under this act and otherwise facilitating the carrying out of his functions under this act, the secretary is authorized, in accordance with this section, to enter controlled premises and to conduct administrative inspections thereof, and of the things specified in this section, relevant to those functions.

(2) Such entries and inspections shall be carried out through officers or employes (hereinafter referred to as "officers") designated by the secretary. Any such officer upon stating his purpose and presenting to the owner, operator, or officer in charge of such premises (i) appropriate credentials and (ii) a written notice of his inspection authority ... shall have the right to enter such premises and conduct such inspection at reasonable times....

(c) A warrant under this section shall not be required for the inspection of books and records pursuant to any administrative subpoena issued in accordance with any provisions of any Act of Assembly nor for entries and administrative inspections (including seizures of property):

(1) With the consent of the owner, operator, or officer in charge of the controlled premises;

(2) In situations presenting imminent danger to health or safety;

(3) In situations involving inspection of conveyances where there is reasonable cause to believe that the mobility of the conveyance makes it impracticable to obtain a warrant;

(4) In any other exceptional or emergency circumstance where time or opportunity to apply for a warrant is lacking; or

(5) In any other situations where a warrant is not constitutionally required.

Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977) (emphasis added).

We are aware that there is federal case law which holds that statutes authorizing warrantless searches, in some instances, may be reasonable and necessary to further federal interests. Such statutes are not violative of the Fourth Amendment. U.S. Const. amend. IV; see United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (federally licensed firearms We are, however, not dealing with such a statute in this case. The statute with which we are concerned authorizes a search with, inter alia, the consent of the owner/operator, with a warrant, or in any situation where a warrant is not constitutionally required. Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977). Although the pharmaceutical field is a highly regulated industry, the Pennsylvania legislature has not seen fit to authorize warrantless searches. The statute in question only authorizes warrantless searches in specific instances, one of those being with the consent of the owner/operator. The statute further provides that the agent seeking to conduct such an inspection must identify himself and state his purpose. Finally, the statute provides a detailed procedure for obtaining a warrant, and a "probable cause" standard for the issuance of same. Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977). We find that the legislature has not authorized warrantless searches of pharmacies. Moreover, we find that, in this instance, absent any of the statutorily enumerated exceptions, such as consent, a search warrant was required.

dealer is engaged in highly regulated industry; thus, is subject to warrantless searches under statutory scheme); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (holder of federal retail liquor dealer's occupational tax stamp must pay fine for refusal to allow agents to conduct warrantless search under federal statute).

The mere fact that Slaton permitted a search is not, however, determinative of the issue. The Supreme Court of this Commonwealth has held that "a mere acquiescence to a claim of lawful authority does not discharge the burden that consent must be freely and voluntarily given." Commonwealth v. Maxwell, 505 Pa. 152, 162, 477 A.2d 1309, 1314, cert. denied 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984), citing ...

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