Lead Opinion
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”
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
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 óf 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
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, even if Slaton had been the focus of the investigation on those dates, he voluntarily consented to the search of the Schedule II file.
“[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,
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):
*307 (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,
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 own@r/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
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,
Our scope of review in a suppression case is a narrow one. The Pennsylvania Supreme Court has recently spoken on this issue.
In reviewing the ruling of a suppression court, the reviewing court’s initial task is to determine whether the factual findings are supported by the record.
Commonwealth v. Monarch,
[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses*309 and so much of the evidence for the prosecution as read in the contest of the record as a whole remains uncontradicted.
Commonwealth v. James,
The Commonwealth claims that the trial court erred when it found that Slaton was the focus of the investigation. Although the trial court incorrectly resolved the suppression issue on the basis of “focus,” we believe that the court’s supporting factual findings are relevant to our conclusion that the agent’s actions vitiated any consent. The trial court noted that “... Defendant was the focus of the investigation and that, accordingly, a warrant to search was constitutionally required.”
The most telling part of Agent Beard’s testimony was the following:
At this time [after November 21,1983] this agent [Beard] realized that the pharmacist, Louis Slaton, should have realized that the prescriptions were bad or at least had made an attempt to verify the prescriptions.
(N.T., November 27, 1985, p. 44.) Agent Beard also testified that:
*310 [I]t is generally common practice on Schedule II drugs that most pharmacists will call to verify a Schedule II drug, especially Percoset, Percodan, drugs like that. Number two, there were a lot of scratch outs. I mean, the copies looked like obvious copies from a mimeograph machine or a Xerox machine. Things had been written over, traced, even on the prescriptions themselves.
(N.T., November 27, 1985, p. 46.) He further stated that during the course of his first two visits to the pharmacy, he asked Slaton if he had called the “prescribing doctors” to verify any of the prescriptions in question. Slaton responded that he had not done so. (N.T., November 27, 1985, p. 45.)
Despite Agent Beard’s protestations to the contrary, the above-quoted testimony was certainly a sufficient basis for the trial court to find that Slaton had become the focus of the investigation after the November 21, 1983, visit. Beard’s testimony that Slaton was not a suspect was belied by his (Beard’s) testimony that the prescriptions were obvious forgeries and that he had learned, from the “prescribing doctors,” that they were forgeries.
If Slaton was suspected of wrongdoing, but was laboring under the misapprehension that his files were being searched for evidence against a person by the name of Merriweather, his consent was not voluntary. Consent to a search undertaken under false pretenses
In this case, as in Poteete, Slaton was misled by an officer of the law, who had identified himself and announced an official purpose for his visits. The officer did not disclose the full purpose of his visits and withheld information indicating that Slaton was suspected of criminal conduct. Whether or not Agent Beard intended to mislead Slaton is irrelevant. Consent turns on the state of mind of the citizen, not that of the officer. Commonwealth v. Poteete,
... [I]t is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men bom to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.
We, therefore, find that there was no informed, voluntary consent to the warrantless searches conducted on December 6 and 7,1983. We affirm the Order of the trial court which suppressed the evidence seized on those days.
II.
Appeal of Louis Slaton
No. 229 Pittsburgh, 1986
We now address Slaton’s cross-appeal. We find that there is a threshold issue raised by this cross-appeal. That issue is whether this court has the jurisdiction to hear a criminal defendant’s cross-appeal from the denial of a portion of a pretrial suppression motion when the Commonwealth has filed an appeal from the granting of another portion of that same motion. We hold that this court does not have such jurisdiction because such a cross-appeal is interlocutory. Hence, Slaton’s cross-appeal is quashed.
We have determined that this court has no jurisdiction to hear a cross-appeal by a criminal defendant from an order denying a motion to suppress. Jurisdiction, generally, is defined as follows:
The word is a term of large and comprehensive import, and embraces every kind of judicial action. It is the authority by which courts and judicial officers take cognizance of and decide cases. The legal right by which judges exercise their authority. It exists when court has*313 cognizance of class of cases involved, proper parties are present, and point to be decided is within powers of court. Power and authority of a court to hear and determine a judicial proceeding. The right and power of a court to adjudicate concerning the subject matter in a given case.
Black’s Law Dictionary 766 (5th ed. 1979) (citations omitted). Subject matter jurisdiction, specifically, is defined as:
Power of a particular court to hear the type of case that is then before it. Term refers to jurisdiction of court over class of cases to which particular case belongs, ...; jurisdiction over the nature of the cause of action and relief sought, or the amount for which a court of limited jurisdiction is authorized to enter judgment.
A court is without authority to adjudicate a matter over which it has no jurisdiction even though the court possesses jurisdiction over the parties to the litigation; ____
Black’s Law Dictionary 767 (5th ed. 1979) (emphasis added) (citations omitted).
One of the most venerable and learned of our American jurists wrote extensively on the subject of jurisdiction. We can cite no more authoritative source than Chief Justice Marshall of the United States Supreme Court, who, over one hundred and eighty years ago, discussed the power of a court to hear cases that are brought before it. The words he wrote then should guide us today in our consideration of this significant issue:
Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction____
This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves, and their members, from being disturbed in the exercise of their functions. It extends only to the*314 power of taking cognizance of any question between individuals, or between the government and individuals.
To enable the court to decide on such question, the power to determine it must be given by written law.
Ex parte Bollman and Ex parte Swartwout,
This court is a court “created by written law.” Pa. Const, art. 5, Sections 1, 3. “Exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas____” has been conferred upon this court by the legislative branch of the government of the Commonwealth of Pennsylvania. 42 Pa.Cons.Stat.Ann. Section 742 (Purdon 1981) (emphasis added). The Pennsylvania legislature has further provided that lack of subject matter jurisdiction cannot be waived. 42 Pa.Cons.Stat.Ann. Section 704(b) (Purdon 1981).
In Commonwealth v. Bosurgi,
The issue of cross-appeals by criminal defendants where the Commonwealth has appealed part of the trial court’s disposition of a motion to suppress was addressed by the Supreme Court of Pennsylvania in Commonwealth v. Fisher,
The defendant in a criminal case may not appeal from a pretrial order denying his motion for the suppression of evidence: Commonwealth v. Bosurgi,411 Pa. 56 ,190 A.2d 304 (1963).
Commonwealth v. Fisher,
The right of appeal by a defendant stands upon an entirely different footing. The denial of a defendant’s motion for the suppression of evidence does not deprive a defendant of an appellate review of the validity of that order. At trial, the defendant still has full opportunity to object to the introduction into evidence of the allegedly improper evidence and, in the event of his conviction, he will then have an opportunity to secure an appellate evaluation of the propriety and admissibility of such evidence. Therefore, unlike the Commonwealth, an adverse pretrial disposition of a motion to suppress evidence does not deprive the defendant of his only opportunity for appellate review. Under such circumstances, the element of finality, which is the basis of appealability, is*316 lacking in an order denying suppression and the defendant should have no right of appeal from such order.
Commonwealth v. Bosurgi,
Two years after Fisher, the Supreme Court decided Commonwealth v. Bordner,
The Supreme Court in Bordner, with four Justices joining, discussed the trial court’s holding with regard to Statement Number 1, the non-suppressed statement:
Bordner was first interrogated on November 22nd and the early afternoon of November 23rd. The evidence indicates that during these interrogations the police were engaged in a general fact-finding process in that they were still questioning other members of Bordner’s family. Thus, Bordner was not entitled to any warning of his constitutional rights by the police at this stage and under these circumstances: Escobedo v. Illinois,378 U.S. 478 , 491,84 S.Ct. 1758 [12 L.Ed.2d 977 ] (1964). Bordner suddenly admitted on November 23rd that he had done it (the crime) and asked what would happen to him. This statement, made in the presence of a policeman and the county coroner, is captioned Statement No. 1 and, as found by the court below, is admissible into evidence even though he had not been given all the United States Supreme Court-mandated warnings as to his rights since the focus of the investigation had not yet settled upon Bordner as the accused at the time of the making of that*317 statement. Cf. Escobedo, supra [378 U.S.] p. 491 [84 S.Ct. at 1765 ].
Commonwealth v. Bordner,
It should be noted that there was no cross-appeal by the defendant in Bordner. Thus, in the course of deciding an appeal by the Commonwealth of a suppression issue, the Court commented on the admissibility of evidence found to be admissible by the trial court even though that issue had not been appealed by either party. The Court, in passing on the admissibility of Statement Number 1, did not, however, cite to Fisher or Bosurgi.
We cannot assume, however, that the Supreme Court overlooked either Fisher or Bosurgi when Bordner was decided. Justice (later Chief Justice) Roberts, who concurred in the result in a separate opinion, wrote:
Since neither party can properly raise the issue of the admissibility of Statement No. 1, it is clear that this Court cannot decide that issue. Since the issue is not properly before the Court in this case, I must conclude that the Court’s discussion of the issue is merely unfortunate dictum. As a result, I find it unnecessary to posture this opinion as a dissent, although I am obligated to condemn the pursuit in dictum of an important issue not properly cognizable by the Court.
Commonwealth v. Bordner,
In Commonwealth v. Barnes,
The opinion of the court in Bordner, with four Justices joining, reached the merits of the defendant’s as well as the Commonwealth’s appeal from pre-trial suppression rulings. The majority opinion did not make any reference to the fact that its consideration of defendant’s appeal on the merits was a departure from the rule in Fisher.
Commonwealth v. Barnes,
Commonwealth v. Dugger was a companion case to Commonwealth v. Lapia,
We find that the situation currently before us presents a similar dilemma. We have a direct holding by the Supreme Court that a criminal defendant may not appeal a pretrial determination by a suppression court. Commonwealth v. Fisher,
The same basic fact situations will often be present in both appeals and there is an undeniable saving of time and expense for both parties and the court if the issues are not artificially separated.
There is an additional advantage of consistency of treatment to be had in permitting such cross-appeals. Results grounded in contradictory interpretations of the same facts might be obtained if one panel of this court treated the interlocutory appeal of the Commonwealth and another panel handled the post-conviction appeal of the defendant.
Commonwealth v. Barnes,
For example, in the case at bar, clearly the trial court found that the fact situations were different. This finding explains the different results reached on separate facets of the motion to suppress. The court found that Agent Beard had information in his possession on the dates of the latter two searches which was different from that which he had on the date of his initial visit. Thus, as a result of this different information, something different was required of him, that is, he was required to notify Slaton of the information in his possession or, in the alternative, to obtain a search warrant.
Further, were we to rule that a cross-appeal will be allowed where the same basic fact situations are present,
In light of the long-standing rule of American jurisprudence that, except in extraordinary circumstances, an appeal may be taken only from a final order of the court, and in recognition of our responsibility to preserve the sanctity of the appellate process, we hold that a criminal defendant may not appeal from an order of a suppression court even in the posture of a cross-appeal.
Hence, Slaton’s cross-appeal is quashed as interlocutory. That portion of the trial court’s Order granting Slaton’s motion to suppress is affirmed. Jurisdiction is relinquished.
Notes
. A "Schedule II” file refers to records kept pursuant to Pa.Stat.Ann. tit. 35, Section 780-112 (Purdon 1977), which provides, in pertinent part:
(b) Every practitioner licensed by law to administer, dispense or distribute controlled substances shall keep a record of all such substances administered, dispensed or distributed by him, showing the amount administered, dispensed or distributed, the date, the name and address of the patient, and in the case of a veterinarian, the name and address of the owners of the animal to whom such substances are dispensed or distributed.
This is labelled a "Schedule II” file because the records kept in this file represent the dispensation of any substance listed in Pa.Stat.Ann. tit. 35, Section 780-104(2) (Purdon 1987 Supp.), titled "Schedule II.”
. The trial court’s ruling resulted in the suppression of twenty-six (26) prescription slips. Thus, the Commonwealth was able to proceed to trial with thirty-five (35) of the original sixty-one (61) forged prescriptions as evidence against Slaton.
. While we are obliged to follow the law as stated in Dugger, we are puzzled by the Commonwealth’s position in this case. We understand that the suppression order substantially handicaps the Commonwealth’s ability to prosecute the charges relating to the twenty-six (26) suppressed prescription slips; however, there remain thirty-five (35) charges on which the Commonwealth may proceed. Given the facts
. We base our holding in this case on Pa.Stat.Ann. tit. 35, Section 780-124 (Purdon 1977) and that statute’s requirement that a search be conducted either with the consent of the owner/operator or with a search warrant, not on the trial court’s conclusion that a warrant was needed because Slaton was "the focus” of the investigation. See Gerace v. Holmes Protection of Philadelphia,
. We have not here distinguished between active misrepresentations and omissions of certain information and/or facts by the police. For purposes of interpreting the statute in question in this case, we find that deliberate misrepresentations or falsifications or omissions of pertinent information have the same result. The statute specifically requires an agent seeking to inspect files to state his identity and his purpose for the search. Because consent turns on the state of mind of the person who is consenting, Commonwealth v. Poteete,
. We are aware of the panel opinion of this court written by the Honorable John T.J. Kelly, Jr., our distinguished colleague, in Commonwealth v. Carelli,
This discussion, however, is not to be interpreted as adopting the holding of the majority opinion in Carelli, at least with respect to the type of statutory search involved in this case. As the Honorable John G. Brosky, our learned colleague, succinctly notes in his dissent in Carelli, Commonwealth v. Wright,
. 42 Pa.Cons.Stat.Ann. Section 704(b) (Purdon 1981) provides that appellate jurisdiction is not perfected by an appellee's failure to object to jurisdiction where the appeal taken is an attempt to appeal from an interlocutory order.
. Commonwealth v. Lapia and Commonwealth v. Dugger were combined for disposition by the Superior Court at
. In Dugger the Superior Court affirmed the trial court’s suppression order. It was actually from this holding that the Commonwealth appealed. The Supreme Court reversed the Superior Court’s finding on the suppression issue and also addressed and reversed the Superior Court’s independent determination of the propriety of the Commonwealth’s appeal.
Concurrence Opinion
concurring and dissenting:
I join in that part of the majority opinion which quashes Louis Slaton’s cross-appeal from the trial court’s disposition of Slaton’s suppression motion. I dissent from that portion of the majority opinion which denies the Commonwealth’s appeal from the portion of the trial court’s order which directed the suppression of fraudulent prescriptions seized from Slaton’s Pharmacy on December 6, 1983 and Decern
The principle issue in this case is whether Slaton validly consented to warrantless administrative inspections of his pharmacy prescription file on December 6, 1983 and December 7,1983. The trial court found that Slaton’s consent was invalid because his consent could not be deemed to have been granted knowingly, intelligently, and voluntarily when the narcotics agents requesting consent failed to inform Slaton that he was then the focus of a criminal investigation. (Trial Ct.Op. at 2-3). The majority differs slightly from the trial court in sustaining the suppression order. The majority finds that Slaton’s consent was invalid because the agents failed to disclose their purpose as statutorily required, and because the agents permitted Slaton to labor under the misapprehension that his prescription file was being inspected for evidence against a person named Merriweather and his accomplices. Majority opinion, supra,
I. STANDARD OF REVIEW
In reviewing a decision of a trial court on a suppression motion, we are bound by findings of fact which have support in the record, but not by the trial court’s conclusions of law. See Commonwealth v. White,
II. ADMINISTRATIVE INSPECTIONS
Fourth Amendment proscriptions against unreasonable searches and seizures apply only when the conduct challenged violates an actual expectation of privacy which society is prepared to accept as reasonable. California v. Greenwood,
While the degree of privacy recognized as reasonable with respect to commercial properties is different, and indeed lesser than that recognized with respect to private residences, commercial facilities nonetheless enjoy certain protections under the Fourth Amendment. See New York v. Burger,
Search warrants based upon probable cause, however, are not always required for inspections of commercial properties. Rather, special administrative inspection warrants may constitutionally be granted based upon a determination that the inspection to be authorized is in furtherance of a general administrative plan to enforce legitimate health and safety regulations. See Michigan v. Clifford, supra; Delaware v. Prouse,
If the scope or duration of an otherwise lawful administrative inspection exceeds the limits appropriate to its legitimate administrative purposes, the inspection becomes a search, and must be justified by a traditional search warrant or equivalent justification. See Michigan v. Tyler, supra. However, because legitimate administrative
III. WARRANTLESS ADMINISTRATIVE INSPECTIONS
The only issue properly raised by the Commonwealth in this appeal is whether valid consent was obtained to inspect Slaton’s prescription files. Nonetheless, I feel compelled to respond briefly to the majority’s gratuitous observation that, “[although the pharmaceutical field is a highly regulated industry, the Pennsylvania legislature has not seen fit to authorize warrantless searches.” Majority Opinion, supra, 383 Pa.Superior Ct. at 307,
I find that it is far from clear that such inspections have not been authorized. The relevant statute provides in pertinent part:
*326 35 P.S. § 780-124. Administrative Inspections and Warrants.
* * * * * *
(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 (thereinafter 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 (which notice in the case of an inspection requiring, or in fact supported by, an administrative inspection warrant shall consist of such warrant), shall have the right to enter such premises and conduct such inspection at reasonable times.
(3) Except as may otherwise be indicated in an applicable inspection warrant, the officer shall have the right: (i) to inspect and copy records, reports, and other documents required to be kept or made under this act; (ii) to inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished drugs and other substances or materials, containers, and labeling found therein, and, except as provided in this subsection, all other things therein (including records, files, papers, processes, controls, and facilities) appropriate for verification of the records, reports, and documents referred to in subclause (i) or otherwise bearing on the provisions of this act; and (iii) to*327 inventory any stock of any controlled substance therein and obtain samples of any such substance or article.
* * * * * *
(c) A warrant under this section shall not be required for the inspection of books and records pursuant to an administrative subpoena issued in accordance with any provisions of any Act of Assembly nor for entries and administrative inspections (including seizures of property):
* * * * * *
(5) In any other situations where a warrant is not constitutionally required.
(Emphasis added). Though I do not feel justified in passing on the question of whether the above provisions succeed in constitutionally authorizing warrantless pharmacy inspections, I note that an at least plausible argument could be made that § 780-124(c)(5) was intended to authorize such inspections, and that the provisions of § 780-124(b)(1-3) were intended to provide the necessary statutory schema for such inspections under the rationale of New York v. Burger, Donavan v. Dewey, United States v. Biswell, and Colonnade Catering Corp. v. United States. Indeed, it might well be argued that the statutory authorization in § 780-124(b & c) is more explicit than that gleaned from the statutes analyzed in Lutz, Peterson, and Lanchester.
IV. WARRANTLESS INSPECTIONS OF REQUIRED RECORDS .
Also not presented by this appeal is the question of whether a pharmacist has any legitimate expectation of privacy under the Fourth Amendment or Pa. Const. Art. I, sec. 8 as to the content of the prescription file which he is required by law to maintain.
Unquestionably, prescription files contain extremely private and potentially embarrassing information about the pharmacist’s clients. For this reason, pharmacists are charged with a duty to exercise great care to preserve the legitimate privacy expectations of their clients regarding the information contained in the prescription file. See generally Turkington, Legal Protection for the Confidentiality of Health Care Information in Pennsylvania, 32 Vill.L. Rev. 259, 336-37 (1987); Fox, “Medical and Prescription Records — Patient Access and Confidentiality,” in Strauss, The Pharmacist and the Law, at 38-42 (1980).
It does not follow, however, that as custodian of prescription records Slaton acquired vicariously a legitimate expectation of privacy in the records which may be asserted by Slaton against officers authorized by law to inspect such prescription records. See United States v. Acklen, supra,
This issue, too, was waived by the Commonwealth’s failure to raise and argue it in the suppression court.
V. VALIDITY OF SLATON’S CONSENT
We are left then with the only issue properly presented by this appeal, ie. whether Slaton’s consent to the inspections of his prescription files was valid. The majority posits two reasons for concluding that Slaton’s consent was invalid. First, the majority finds that the narcotics officers failed to state their “purpose” as required by 35 P.S. § 780-124(b)(2). The majority construes the statement of the “purpose” to require disclosure of the fact that Slaton had become the focus of the officers’ suspicions by the time of the challenged inspections. Second, the majority finds that in accordance with Commonwealth v. Poteete, supra, the officers’ “deception” in that respect rendered Slaton’s consent invalid. I cannot agree.
A. STATEMENT OF PURPOSE
Pursuant to 35 P.S. § 780-124(b)(2), the narcotics officers were required to state their purpose, identify themselves and present evidence of their authority to inspect before conducting their administrative inspections. Slaton contends, and the majority agree, that the officers failed to properly state their “purpose” when they failed to inform him that he had become the focus of their investigation. I would find, however, that the mandate of the statute was completely fulfilled by the officers’ statements that they
The purposes for which administrative inspections may be conducted are set forth in 35 P.S. § 780-124(b)(1) as follows:
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 of 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.
(Emphasis added). Pursuant to 35 P.S. § 780-124(b)(2), officers authorized by the secretary are required to identify themselves, state their purpose, and provide written notice of inspection upon seeking to conduct an administrative inspection. Read together with § 780-124(b)(1), it is apparent that the requirement in § 780-124(b)(2), that the purpose of the inspection be stated, related to the type of inspection to be conducted and not the motivation or grounds for suspicion which gave rise to the decision to inspect.
State and federal authorities are authorized to conduct administrative inspections which range in scope and duration from a simple inspection of the pharmacy’s prescription file to a prolonged audit and review of every facet of the pharmacy’s operation. In order to inform the pharmacist of the type and scope of the administrative inspection to be conducted, both state and federal law uniformly require the officers conducting the inspection to state their purpose (i.e. the type of inspection to be conducted) before commencing the inspection. The reason for this requirement has been cogently explained as follows:
2. Entry: Statement of purpose, presentation of credentials and Notice of Inspection. Federal regulations require that upon seeking to gain entrance into a place which manufactures, holds or distributes controlled substances, a DEA investigator must state the purpose of his*331 visit, must present his/her credentials, and must provide the operator of the establishment with a Notice of Inspection. The statement of purpose is an important piece of information to obtain. If the DEA investigators announce that the purpose of the visit is a general inspection, the operator of the establishment to be inspected can plan on the investigators being at the establishment for a period of 3-6 weeks. If, on the other hand the DEA investigators announce that their visit is for the simple purpose of checking the firm’s biennial inventory report, the establishment operator can calculate that the investigators will probably be at the plant for a short period of time. This statement of purpose will enable the operator to plan Ms personnel’s time accordingly.
Davids, DEA Administrative Inspections, 31 Food Drug Cosmetic Law Journal 229, 234 (1981).
I find that Slaton was properly apprised of the “purpose” of the inspection as required by statute, when the officers informed Mm that they wanted to inspect his prescription file to determine if forged or otherwise fraudulent prescriptions had been presented. Thus, while Slaton was not informed of the officer’s underlying motivations, he was fully informed of the type and limited scope of the administrative inspection intended and was thereby prepared for the inconvenience which such an inspection might entail. I do not construe the statute to require any further statement of the motivation or grounds for the decision to inspect. Hence, I dissent from the majority’s conclusion that the officers failed to comply with the statute.
B. CONSENT
The majority contends that the inspection cannot be deemed consensual under 35 P.S. § 780-124(c)(1) because the officers permitted Slaton to remain under the misapprehension that the officers were still looking for evidence against Merriweather and his associates, when the focus of the investigation had shifted by then to Slaton. The majori
1.
Early cases involving consent to search contained language which suggested that consent must be knowing and intelligent, i.e. made with full and express knowledge of the right to refuse consent. See Bumper v. North Carolina,
Early cases were also construed to provide that consent obtained by stealth, deceit, or misrepresentation was invalid. See Commonwealth v. Wright,
Subsequent to Amos, Gould, and Weeks, the United States Supreme Court has repeatedly upheld consensual searches as valid despite deception as to the identity and/or
Likewise, more recent cases of our Supreme Court demonstrate that the broad Wright dictum (that consent acquired by deception is invalid) does not accurately state the law of consent as it is currently understood in Pennsylvania. In Commonwealth v. Morgan, 517 Pa. 98,
*334 It is not necessary for this Court to determine what deceptive devices are improper in light of Lewis, Hoffa and Lopez although that is a very difficult question as the United States Supreme Court seems to have granted broad powers to the police. The Supreme Court, 1966 Term, 81 Harv.L.Rev. 112, 191-4 (1967). It is enough to state that in light of those three United States Supreme Court decisions, the police officer’s (Petrovich) tactics were constitutional, and the court below properly refused to suppress evidence of the gun, holster and bullets.
This Court, too, has retreated from the broad proscription in Wright, and has recognized that consent may be valid despite deception as to an officer’s identity and/or motivation in obtaining a suspect’s consensual relinquishment of privacy with respect to statements, contraband or other inculpatory facts or evidence.
Subsequent to our Supreme Court’s decision in Brown, this Court stated in Commonwealth v. Weimer,
However, two months later in Commonwealth v. Morrison,
In Commonwealth v. Schalszberger,
First, the majority attempts to distinguish Carelli based upon the presence in this case of a statutory duty on the part of the officers to state the purpose of their inspections. As explained above, I find that the statute requires no more than a statement of the type of authorized administrative inspection the officer intends or requests consent to conduct. Because the officer is not required by statute to disclose the reasons for seeking the inspection, this case is not distinguishable in that respect.
Second, the majority attempts to distinguish this case based upon their conclusion that the cases cited in Carelli, “were primarily cases involving undercover agents in fact situations uniquely suited to such police tactics; e.g. illegal narcotics dealings and illegal gambling operations." Majority Opinion, supra, 382 Pa.Superior Ct. at 311 n. 6,
Albrecht involved uniformed officers investigating an arson case. Brown involved a uniformed officer investigating a murder case. Carelli involved a uniformed officer investigating a stolen truck case. Significantly, our Supreme Court explained in Brown:
The problem for this Court is to determine the permissible extent of police power in light of these United States Supreme Court decisions. Lewis (involving sales of marijuana to a federal narcotics agent), Hoffa (involving the planting of a government informer in defendant’s hotel room to overhear conversations), and Lopez (involving an attempted bribe of an Internal Revenue agent) clearly do not require the police to be completely open and truthful as to their identity and purpose when dealing with suspects. They recognize that undercover work is an essential weapon in the police arsenal. In this case the ‘undercover’ work was not as to Petrovich’s identity as a*337 policeman but rather as to Ms motives in offering to sell the gun. It appears to us that there is no real difference between this deception and those found permissible in Lewis, Hoffa and Lopez.
Third and finally, the majority suggests that because Wright has never been expressly overruled, Poteete and not Carelli correctly states the law with respect to the effect of deception upon consent in Pennsylvania. As explained in Carelli, however, Wright was decided by our Supreme Court based solely on federal law which was subsequently substantially modified. Moreover, subsequent decisions of our Supreme Court, while not overruling Wright expressly, have nonetheless expressly recognized this change in the law. See Commonwealth v. Morgan, supra; Commonwealth v. Albrecht, supra; Commonwealth v. Brown, supra. Thus, I remain of the opinion that Wright and Poteete no longer correctly state the controlling law, and that they were properly distinguished in Morrison and Carelli.
Of course, consent remains invalid if it is given in response to a false or invalid claim of authority. See LoJi Sales, Inc. v. New York,
Whether other types of deception vitiate consent must depend upon a case by case determination of the voluntariness of the consent in light of the totality of the circumstances, including the challenged deception. See Commonwealth v. Brown, supra,
2.
Despite the officers’ clear and uncontradicted testimony that Slaton was not the focus of the investigation when the challenged inspections were conducted on December 6, 1983 and December 7, 1983, the suppression court found that Slaton was in fact the focus of the investigation by December 6, 1983. The suppression court made its finding based upon the fact that numerous prescriptions seized in a prior, concededly lawful, consensual inspection of Slaton’s prescription file had been confirmed as being fraudulent. The trial court rejected as not credible the officer’s explanation that, though the forgeries and defects in the prescriptions were apparent to him as an experienced narcotics agent assigned to investigate such cases, the potential culpability of Slaton for knowingly filling fraudulent prescriptions did not receive the officers’ focused attention until after numerous additional prescriptions were seized during the challenged inspections, and statements implicating Slaton were made by some of the suspects who pled guilty to having passed the fraudulent prescriptions. Even then, the officers did not process charges against Slaton until they received expert opinions from doctors and pharmacists that
Nonetheless, the burden of proof was on the Commonwealth and it was within the province of the trial court to access the officer’s credibility. Consequently, I reluctantly accept the trial court’s finding that Slaton had become the focus of the investigation by December 6, 1983, despite grave reservations in this regard. See Commonwealth v. Carelli, supra, 377 Pa.Superior Ct. at 129 n. 1,
The “deception” which the majority concludes is so implicitly coercive as to vitiate Slaton’s consent is the deception implied from the fact that prior to the first lawful, consensual inspection of Slaton’s prescription file the officers had indicated that they were investigating the possibility that a man named Merriweather and his accomplices had been passing fraudulent prescriptions, but that prior to the subsequent challenged inspections, the officers failed to inform Slaton that he had become the focus of their investigation. I find this “deception” to be inconsequential.
Slaton knew that the officers had seized numerous prescriptions as being potentially fraudulent during the previous lawful consensual inspection. He received a receipt for each of the prescriptions seized. As a licensed pharmacist he must be presumed to be aware of the fact that it would be a crime for him to knowingly fill fraudulent prescriptions. Consequently, when the officers returned and indicated that they wanted to conduct further inspections of his prescription file, is it not just as likely that Slaton was aware of his own potential liability without being informed of it by the officers, as it was for the officers to have focused their investigation on Slaton’s potential culpability at that juncture? I think so.
Moreover, had Slaton been informed that he had become the focus of the investigation, is there any reasonable
An “overwhelming percentage” of state administrative inspections of pharmacies are consensual. See Simonmeier, “Governmental Inspections of Pharmacies,” in Strauss, The Pharmacist and the Law, at 14 (1980). Likewise, federal administrative inspections of pharmacies and drug manufacturing facilities are also overwhelmingly consensual. See O’Reilly, Bad Actors Make Worse Law, 37 Food Drug Cosmetic Law Journal 368, 371 (1982) (an estimated 99.5% of FDA inspections are consensual); Levitt, FDA Inspections and Criminal Responsibility, 36 Food Drug Cosmetic Law Journal 469, 473 n. 2 (1981) (though the FDA conducted approximately 33,000 inspections in 1978 and 1979, only about 25 inspection warrants were sought per year).
There are simple yet very good reasons why pharmacists almost invariably consent to administrative inspections. First and foremost, the vast majority of pharmacists are conscientious professionals who have nothing to hide, and who are as interested as law enforcement officers in preventing criminals from obtaining drugs illegally by passing fraudulent prescriptions in their pharmacies.
VI APPROPRIATENESS OF SUPPRESSION
Assuming, arguendo, that the consent was invalid and the inspection was therefore unconstitutional, it does not follow that the prescription records must be suppressed. To the contrary, I find the suppression of the prescription records inappropriate in this case.
The exclusionary rule generally prohibits the use of physical or testimonial evidence derived as the direct and proximate result of unconstitutional conduct. See Murray v. United States, — U.S. —, —,
Whether and to what extent there may be a state exclusionary rule in Pennsylvania arising from the Pennsylvania Constitution is uncertain in Pennsylvania. See Commonwealth v. Montgomery,
[Ejxclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.
a prophylactic exclusionary rule is applied only in extreme cases where all other attempts to secure compliance have proven unsuccessful. See generally Mapp v. Ohio,367 U.S. 643 , 651-52,81 S.Ct. 1684 ,6 L.Ed.2d 1081 (1961). In this area there has been no showing of widespread flagrant disregard to justify formulation of such a rule at this time.
The same may be said here. Even if we assume for the sake of argument that consent was rendered invalid by the officers’ “deception,” it nonetheless appears that the officers were acting on an objectively reasonable good faith belief that valid consent had been obtained. Cf. Illinois v. Krull, supra; United States v. Leon, supra; Commonwealth v. Edmunds,
Moreover, had the absence of valid consent been known to the officers, a valid administrative warrant could and would undoubtedly have been secured, and an unquestionably lawful inspection and lawful seizure of the prescription
Thus, under the facts of this case, both the “inevitable discovery” doctrine and the rationale of the “good faith” exception preclude suppression. See United States v. Murray, supra; Illinois v. Krull, supra.
CONCLUSION
Based upon the foregoing, I concur in part and dissent in part. I agree that Slaton’s appeal must be quashed. I find merit, however, in the Commonwealth’s appeal. Slaton’s consent to the inspection was valid, and even if it was not valid, suppression is inappropriate. I would reverse the portion of the suppression order directing the suppression of the prescription records seized on December 6, 1983 and December 7, 1983, and remand for further proceedings consistent with this concurring and dissenting opinion.
. If instead we considered only the evidence of the appellee and so much of the Commonwealth as remained uncontradicted, reversal would be mandated regardless of how implausible the testimony of the Commonwealth’s sole witness might have been. The appellee in this case presented no evidence at all at the suppression hearing. Plainly, the source of evidence presented at a suppression hearing cannot control if the trial court’s prerogative of accessing credibility and the Commonwealth’s burden of proof are to be given full effect. See Commonwealth v. Corelli, supra, 377 Pa.Superior Ct. at 129 n. 1,
. I note, additionally, that courts of other jurisdictions which have considered this question have uniformly concluded that legislatures may constitutionally authorize warrantless administrative inspections of pharmacies provided the authorization adequately restricts the scope and manner of such inspections. See Greenblatt v. New Jersey Bd. of Pharmacy,
. Disapproved on other grounds Warden v. Hayden,
. The Third Circuit Court of Appeals subsequently approved and supplemented the reasoning and authorities of the majority opinion in Brown in rejecting Brown’s federal habeas corpus petition. See Brown v. Brierly,
. Professor LaFave has suggested that, despite its broad dictum, Commonwealth v. Wright, supra, could reasonably be characterized as a "false claim of authority” case based upon the officer’s statement to the wife that her husband had sent them to pick-up the evidence, thus, implicitly asserting that her husband had consented to the seizure of the evidence. III LaFave, Search and Seizure § 8.2(n), at 228 n. 273 (2d Ed.1987). Perhaps this explains why our Supreme Court has declined to overrule Wright expressly.
. I note that there is nothing in the suppression record to suggest that the prescriptions seized in the prior lawful inspection were viewed by the suppression court and deemed obviously fraudulent.
. With respect to FDA inspections, I note that in 1981 only 18 out of 36,258 administrative inspections resulted in prosecutions. See O’Reilly, supra, 37 Food Drug Cosmetic Law Journal at 371 n. 15.
Concurrence Opinion
concurring and dissenting:
I concur in the decision of the majority to quash the cross-appeal filed by Louis Slaton. The contrary decision by a panel of the Superior Court in Commonwealth v. Barnes,
I respectfully dissent, however, from the majority’s decision to affirm the trial court’s order directing suppression of forged prescriptions removed from Slaton’s files on December 6 and December 7, 1983. On those days, Slaton
. See: Commonwealth v. Fisher,
Concurrence Opinion
concurring and dissenting:
I agree with the majority that Slaton’s cross-appeal must be quashed. A suppression court’s denial or partial denial of a motion to suppress evidence is not appealable by the defendant as a final order. I would note, however, that under appropriate circumstances a defendant may seek an interlocutory appeal by permission from the denial or partial denial of a suppression motion. See 42 Pa.Cons.Stat. Ann. § 702(b) (Purdon 1981); Pa.R.App.P. 1311.
I dissent from that portion of the majority’s opinion which holds that agents of the Drug Enforcement Administration violated the defendant’s rights in December, 1983 when they removed forged prescription slips from his pharmacy. I do not agree that in order to conduct a valid consent search of a pharmacist’s records, DEA agents must inform the pharmacist that he is the focus of an investigation.
The majority also suggests that the consent search was constitutionally deficient since the DEA agents allowed Slaton to proceed under the false assumption that he was not suspected of criminal wrongdoing. In support of this conclusion, the majority cites Commonwealth v. Wright,
As former President Judge Spaeth has noted, “[t]he problem of defining the limits to be set on the use of police deception is one of the most difficult problems of the criminal law.” Commonwealth v. Morrison,