State v. Klingenstein

• Decision Date: 01 September 1992
• Docket Number: No. 170,170
• Citation: 608 A.2d 792,92 Md.App. 325
• Parties: STATE of Maryland v. Keith Gordon KLINGENSTEIN
• Court: Court of Special Appeals of Maryland

Page 325

92 Md.App. 325

608 A.2d 792

STATE of Maryland v. Keith Gordon KLINGENSTEIN.

No. 170 Sept. Term, 1992.

Court of Special Appeals of Maryland.

July 1, 1992.

Mary Ellen Barbera, Asst. Atty. Gen., Baltimore, argued (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellant.

Fred R. Joseph and Leonard R. Stamm, Greenbelt, argued (Joseph, Greenwald & Laake, P.A. and Goldstein & Stamm, P.A. on the brief), for appellee.

Argued before MOYLAN, BISHOP and BLOOM, JJ.

MOYLAN, Judge.

The appellee, Keith Gordon Klingenstein, is a registered pharmacist in Prince George's County. On March 22, 1991, the Grand Jury filed a 54-count indictment against him, charging the maintaining of a common nuisance and multiple instances of distributing a controlled dangerous substance; possessing a controlled dangerous substance with intent to distribute; failing to store drugs, medicines, and devices in a proper and safe manner; and aggregated theft of over $300.

The appellee moved to suppress all of the fruits of searches of 1) his pharmacy at 6201 Greenbelt Road executed pursuant to a warrant on October 12, 1990 and 2) his home at 9115 49th Place in College Park also pursuant to a warrant and executed the same day. Following a two-day suppression hearing, a Prince George's County judge granted the appellee's motion to suppress all evidence seized from both pharmacy and home. By authority of Md.Cts. & Jud.Proc.Code Ann. § 12-302(c) (1974, 1989 Repl.Vol.), the State has appealed that suppression order. We hereby reverse it.

Two separate searches pursuant to two separate search warrants are involved. The warrant to search the pharmacy was issued by Judge David Gray Ross shortly before noon on October 12. The suppression hearing judge found, quite properly in our judgment, that there was no flaw in its issuance. The application established ample probable cause and the hearing judge so found. The command clause, moreover, was adequately particularized to limit effectively the scope of what would be done under the warrant and the hearing judge so found. The hearing judge ruled, however, that the execution of the warrant was flawed because the executing officers went beyond the scope of the warrant's authority.

The second warrant, for the search of the appellee's home, was issued on the late afternoon of the same day by Judge John F. Kelly, Sr. The hearing judge found fault neither with the execution of that warrant nor with its issuance, if the probable cause equation were to be evaluated strictly within the four corners of the warrant application. The hearing judge ruled, however, that fruits of the flawed search of the pharmacy fatally tainted the probable cause for the warrant to search the home. That second warrant to search the home, therefore, was invalidated as "the fruit of the poisonous tree."

The Only Question is that of Sanctions

Before us are two doctrinally distinct search and seizure issues, each involving the selection of the appropriate sanction for a hypothesized Fourth Amendment violation. With respect to the search of the pharmacy, assuming that some items were seized within the authority of the warrant and other items seized beyond that authority, what is the appropriate sanction? With respect to the search of the home assuming that some tainted information entered into the warrant application, what is the appropriate sanction?

The Probable Cause Background

Although the probable cause to support the warrant to search the pharmacy was undisputed, a brief recital of its highlights will set the stage for a better understanding of the searches that followed. On October 5, 1990, Trooper David Hammel, of the Drug Diversion Unit of the Maryland State Police, was contacted by a Washington County pharmacist and advised that two individuals had tried, unsuccessfully, to pass forged prescriptions for controlled drugs. The two suspects were shortly thereafter arrested at a Peoples Drug Store in Frederick as they persisted in their efforts to pass forged prescriptions. The suspects were Harold Brian Firor and John Andrew Hulse. Under interrogation by the State Police, both gave detailed statements about having obtained controlled substances from the appellee at the appellee's pharmacy in the College Park area. Both suspects informed the police that they had been obtaining drugs from the appellee regularly since 1987.

Part of the story that unfolded was that two Schedule III drugs: 1) Doriden, the trade name for glutethimide; and 2) Tylenol 4, containing a designated percentage of codeine, when used in combination with each other, produce an effect similar to that of heroin, an effect which can last for approximately twelve hours. The two drugs, in combination, are known on the street as a "max load." It was these drugs that Firor and Hulse had been attempting to obtain in Hagerstown and Frederick. It was these drugs that the two of them had been obtaining regularly from the appellee since 1987. The typical "max load" consisted of four Tylenol with codeine tablets combined with two Doriden (glutethimide) tablets. The prescriptions, therefore, were always for exactly twice as much Tylenol 4 as Doriden. Firor also indicated that he could regularly push a "max load" on the street for $35.

Firor elaborated on the modus operandi he used when obtaining drugs from the appellee's pharmacy. He would forge his prescriptions by making photocopies and taking them to the pharmacy. The password regularly employed to trigger the exchange consisted of asking the appellee, "Will $150 be enough?" The appellee would invariably give, by way of countersign, an exact price. Firor pointed out that the appellee would always wait until nobody else was in the drugstore before dispensing the drugs to Firor. Hulse verified in all details the information given by Firor.

In an effort to verify the information given by the suspects, Trooper Hammel, on October 9, began a series of attempted "controlled buys." On October 9, the first effort met with unexpected difficulty. In an undercover capacity, Trooper Margaret Shank attempted to have the appellee fill forged prescriptions for 1) Doriden, 2) Tylenol 4, and 3) penicillin. The prescriptions were in the name of Kim Firor and were photocopies of forms of a Dr. Lugener of Baltimore. There was, however, a Washington, D.C. address on the form that had been obtained from another prescription form and glued onto the Lugener form prior to photocopying. The appellee declined to fill the prescriptions for the Doriden and for the Tylenol 4, ostensibly because he was prohibited from filling Schedule III prescriptions that had been written in the District of Columbia. He did offer to fill the prescription for penicillin, however, but Trooper Shank declined to have that prescription alone filled. She indicated she would return with another prescription. The warrant application also suggested, however, an alternative hypothesis for the failure of that first attempt. Trooper Shank had failed to give the designated password; to wit, she did not tell the appellee that she had "one hundred and fifty dollars" and then ask him if that "would be enough?"

The investigative fortunes improved the following day, October 10, when Trooper Hammel met with a confidential informant, who represented incidentally yet a third source of information about the appellee's pharmacy. The confidential informant stated that he (or she) had been in the pharmacy on several occasions and had obtained the two controlled dangerous substances under discussion in the proportions that have been discussed. The informant indicated that at one time the appellee had charged as much as $250 to fill such a set of prescriptions. The informant further stated that on every visit to the pharmacy, he had dealt exclusively with the appellee.

Trooper Hammel dispatched the confidential informant to the pharmacy with forged prescriptions for 1) Doriden, 2) Tylenol 4, and 3) penicillin, but this time in the name of another doctor with a Maryland address. Trooper Hammel, in plain clothes, followed into the pharmacy to monitor the proceedings. The appellee appeared unnerved at his presence. He stopped what he was doing, came over to the trooper, and asked if he could help him. Trooper Hammel purchased several meaningless items and left. Once the trooper was gone, the appellee filled the three prescriptions. The likelihood that the prescriptions were, indeed, forgeries was enhanced by the fact that they were written not on original doctors' forms but on photocopies of such forms. The relative quantities of the two drugs, moreover, were in precisely the proportion used on the street to produce a "max load." The thirty Doriden tablets and sixty Tylenol with codeine tablets that had been purchased were enough to produce fifteen "max loads," with the estimated street value of $525. Whatever purpose was served by the thirty penicillin tablets has not yet been revealed. The appellee charged the confidential informant $135 for the three prescriptions. A check with other pharmacies in the area yielded a more normal expected retail cost of $27. The appellee placed the orders in a prescription bag and handed it to the confidential informant, who turned it over to Trooper Hammel immediately after leaving the pharmacy. The prescription bag had no receipt attached to it and the labels on the prescription bottles were improperly filled out.

On the following day, October 11, Trooper Margaret Shank was successful in having the appellee fill forged prescriptions for precisely thirty Doriden tablets and sixty Tylenol 4 tablets. On that occasion, Trooper Shank was careful to use the password. She informed the appellee that she "had $150 and wondered if that would be enough." He responded by pulling out a calculator and answering, "$127." On that occasion, the name...