author: OLSZEWSKI, Judge: CIRILLO, Judge,

text:
    596 A.2d 803
    ESTATE OF Leonard F. BAEHR, Deceased. Appeal of ARENTZEN, Jr.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed July 16, 1991.
    Reargument Denied Sept. 26, 1991.

      Emmett F. Fitzpatrick, III, Philadelphia, for appellant.

      Thomas F. Delaney, Ardmore and Joseph L. Higgins, West Chester, for Meridian Bank, participating party.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

Charles F. Arentzen, Jr., appeals from an order finding him in contempt for refusing to file an accounting of his actions as executor of the estate of Leonard F. Baehr and related transactions completed under a power of attorney. The order also remanded Arentzen to the custody of the Sheriff of Philadelphia County until such time as Arentzen purged the contempt by filing the required accounts. This Court granted a stay of Arentzen’s commitment to custody until further order of the court.

On appeal, Arentzen asserts that he cannot be forced to file the accountings, because to do so would violate his right against self-incrimination under the Fifth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution. Arentzen also claims that if the finding of contempt was proper, the trial court had no power to imprison him as he acted indirectly through his attorney. Therefore, Arentzen concludes, he did not personally refuse to comply with the trial court’s directives and so was not guilty of direct contempt and cannot be imprisoned. After consideration of Arentzen’s arguments, we affirm the trial court’s order, vacate the stay and remand Arentzen to the custody of the Sheriff of Philadelphia County until such time as he purges himself of the contempt by filing the required accountings.

The factual history of this case may be summarized as follows. On January 28, 1988, the decedent Baehr appointed Arentzen attorney-in-fact and agent by a power of attorney. (Appellant’s brief at 4.) Upon Baehr’s death in November 1988, Arentzen was appointed executor of Baehr’s will. (Trial court opinion at 1.) Arentzen filed an inventory with the Orphans’ Court on August 29, 1989, listing assets of the estate in excess of $1,500,000.00. (Id. at 2.)

A dispute arose over the validity of a codicil to the decedent’s will dated August 8, 1988. (Id. at 1.) That codicil revokes residual gifts to the decedent’s two granddaughters and leaves his estate to his daughter, Joyce Furst. (Id.) The disinherited granddaughters filed a petition with the Orphans’ Court alleging that Arentzen had engaged in improper conduct during his administration of the decedent’s estate. (Id. at 2.) At a hearing on this petition, Arentzen agreed to resign his appointment as executor. (Id. at 3.) The Orphans’ Court entered a decree ordering Arentzen to file an account of his administration of the estate and an account of any transactions occurring pursuant to the power of attorney. (Id.) Said accountings were to be filed within 60 days. (Id.)

Arentzen declined to file the required accountings because he claims that to do so would force him to incriminate himself. Arentzen based his claim upon a grand jury subpoena issued to Joyce Furst. (Appellee’s brief, exhibit “C”.) Although the subpoena does not specify the subject of the investigation, Arentzen’s counsel claims that an unidentified deputy district attorney informed him that Arentzen was the target of the investigation, which concerned Arentzen’s handling of the estate and activities pursuant to the power of attorney. (Trial court opinion at 4.) The counsel for the decedent’s estate testified that other grand jury subpoenas had been issued to his staff and that the investigation did target Arentzen. (Reproduced record [R.R.] at 14a-15a.)

The Orphans’ Court found Arentzen in contempt for refusing to file the accountings. This appeal followed. As an initial matter, we note our extremely narrow standard of review. On appeal from a finding of contempt, our inquiry is limited to an examination of whether the trial court committed a clear abuse of discretion. East & West Services Corp. v. Papahagis, 344 Pa. 188, 189-190, 25 A.2d 341, 342 (1942) (citations omitted). With this standard in mind, we examine Arentzen’s claims;

When the privilege against self-incrimination is invoked, the Court must ascertain whether the witness is entitled to the protection claimed. Commonwealth v. Carrera, 424 Pa. 551, 552-553, 227 A.2d 627, 629 (1967). Prosecution need not be imminent to justify the exercise of the privilege, a reasonable cause for the witness to apprehend a danger of prosecution is sufficient. Id. Further, it is clear that the privilege can be claimed in a civil as well as criminal proceeding. United States Steel & Carnegie Pension Fund v. Decatur, 364 Pa.Super. 294, 296-298, 528 A.2d 165, 166-167 (1987).

The trial court noted that the evidence did not support Arentzen’s contention that he had reasonable cause to apprehend a danger of prosecution. (Trial court opinion at 6.) We disagree. It is indisputable that a grand jury investigation is in fact occurring. Arentzen was informed by two separate sources that he was the target. The staff of counsel for the decedent’s estate has been subpoenaed, as well as Furst, who was alleged to have aided Arentzen in unduly influencing the decedent. The totality of the circumstances presented in the record must be examined to determine whether a witness invoking the privilege has reasonable cause to fear prosecution. Carrera, supra. See also, Commonwealth v. Franklin, 397 Pa.Super. 265, 273-274 n. 8, 580 A.2d 25, 29 n. 8 (1980) (citations omitted). The circumstances described above are more than enough to give a reasonable man cause for apprehension. A witness need not be sure that prosecution will occur if he testifies, he need only reasonably fear prosecution to invoke the privilege. Carrera, supra. We hold that Arentzen properly invoked the privilege. This, however, does not end our inquiry. The privilege is not absolute, there are exceptions which will require the witness to testify despite the applicability of the privilege. Accordingly, we turn to an examination of whether such an exception applies here.

The trial court relied upon the “collective entity” exception in ordering Arentzen to file the required accountings. (Trial court opinion at 7-10, citing, Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Wheeler v. United States, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309 (1913); Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906 (1950); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960); and Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974).) In essence, the trial court determined that the accountings were records belonging to the estate, an entity separate from Arentzen. As these accountings do not belong to Arentzen, and as the privilege is personal, the trial court concluded that Arentzen cannot invoke the privilege to avoid filing the accountings.

Arentzen responds by disputing the applicability of the “collective entity” exception. Arentzen asserts that the exception only applies to a custodian of records already in existence. Arentzen agrees that a custodian of the records of a collective entity cannot refuse to produce the records by invoking the privilege against self-incrimination. Arentzen distinguishes the present situation as follows: he is not a custodian of the required accountings as they do not yet exist, he has produced all existing financial records of his dealings with the estate and under the power of attorney, and the trial court is now attempting to force him to incriminate himself with the equivalent of oral testimony concerning his affairs in maintaining those records, which is specifically prohibited; therefore, he is not in contempt. (Appellant’s brief at 9-10, citing, Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988) and Curdo v. United States, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957).)

We need not address this dispute, as we find that the trial court’s order to file the accountings is amply supported by a different exception to the privilege against self-incrimination. See, Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983) (citation omitted) (court should not address constitutional question unless absolutely necessary). See also, Johnson v. Earl Scheib, Inc., 352 Pa.Super. 278, 282, 507 A.2d 1228, 1230 (1986) (citation omitted) (appellate court may affirm a correct ruling of the trial court on an alternate legal theory from that employed below).

We find that the “required records” exception to the privilege applies to the facts herein. The required records exception was announced by the United States Supreme Court in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), wherein the Court stated “records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subject of government regulation” are not protected by the privilege. Id. at 17, 68 S.Ct. at 1384, 92 L.Ed. at 1799 (quoting, Davis v. United States, 328 U.S. 582, 589-590, 66 S.Ct. 1256, 1260, 90 L.Ed. 1453 (1946)). The exception does not apply if the purported government regulation specifically targets individuals suspected of criminal activities. See Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). Nonetheless, if the government’s purposes are essentially regulatory, the requested records are normally kept by the regulated party, and the records have assumed public aspects, the exception applies. Grosso, supra, 390 U.S. at 67-68, 88 S.Ct. at 713, 19 L.Ed.2d at 912. It has also been held that a valid regulation requiring the records implies an obligation to create those records. In re Grand Jury Proceedings (McCoy), 601 F.2d 162, 171 (5th Cir. 1979).

The requested accounting clearly meets the Grosso tripartite requirements. Administration of an estate is the subject of extensive government regulation. See, The Probate, Estate and Fiduciary Code, 20 Pa.C.S.A. § 101 et seq. Orphans’ Court may direct the executor to file an accounting at any time. 20 Pa.C.S.A. § 3501.1. Thus, the purpose of the statutory scheme is essentially regulatory. See, Quality Lumber & Millwork Co. v. Andrus, 414 Pa. 411, 419-420, 200 A.2d 754, 759 (1964) (interpreting prior statute dealing with identical subject matter). Nor are executors of estates, even those who resign before completing the administration of the estate, a “selective group inherently suspect of criminal activities.” Marchetti, supra, 390 U.S. at 57, 88 S.Ct. at 707, 19 L.Ed.2d at 903 (citation omitted). Accountings are records normally kept by an executor who resigns his position. See, In re Burn’s Estate, 401 Pa. 556, 165 A.2d 379, 381 (1960). Accountings have public aspects, they become part of the court record and can be demanded by persons having a claim against the estate. In re Dixon’s Estate, 426 Pa. 561, 564-565, 233 A.2d 242, 245 (1967) (citations omitted). An accounting also assures public confidence in the handling of an estate, a separate public aspect.

Finally, a person who voluntarily enters a field where it is established that records must be kept, waives the privilege against incrimination as to the required records. State Real Estate Commission v. Roberts, 441 Pa. 159, 165-166, 271 A.2d 246, 249 (1970) cert. denied, 402 U.S. 905, 91 S.Ct. 1367, 28 L.Ed.2d 645 (1971) (citation omitted). See also, In re Grand Jury Proceedings, supra. Arentzen was not forced to accept appointment as the executor of Baehr’s estate. He also voluntarily accepted the powers granted him under the power of attorney. Accordingly, he has waived the privilege as regards the accountings which he has been ordered to file.

Arentzen’s final contention is that imprisonment is not the proper sanction for this contempt, as he has not directly refused to comply with the trial court’s order. Arentzen argues that his contempt was indirect in that he did not directly refuse the court’s order while in the presence of the court. Arentzen relied upon a sworn affidavit and the responses of his counsel. Therefore, Arentzen would have us hold that imprisonment was improper. (Appellant’s brief at 11-12.) We disagree.

A court is specifically empowered to imprison a party for disobedience of the lawful process of the court occurring in open court. 42 Pa.C.S.A. §§ 4132(2), 4133. See also, Grubb v. Grubb, 326 Pa.Super. 218, 473 A.2d 1060 (1984). Arentzen refused to comply with the trial court’s direct verbal order to file the accountings. (R.R. at 9a-10a.) The fact that Arentzen’s argument was presented by his counsel in no way changes the fact that the order was directed to him and he refused to comply. Arentzen was present in court when his refusal was presented by his counsel. To adopt Arentzen’s contention would prevent a court from imprisoning any party for contempt so long as the party was represented by counsel and acted only through counsel. We will not so restrict the powers of a court to deal with contumacious behavior.

In summary, we hold that Arentzen properly invoked the protection of the privilege against self-incrimination; that the required records exception applies to the accountings at issue and therefore, Arentzen must create and submit those documents; and finally, that imprisonment was the proper sanction for Arentzen’s refusal to comply with the trial court’s order. Order of contempt affirmed. Order granting stay of contempt order vacated. Case remanded for proceedings in accord with above decision. Jurisdiction relinquished.

Dissenting opinion by CIRILLO, J.

CIRILLO, Judge,

dissenting.

I respectfully dissent.

This year, the mighty fifth amendment to the United States Constitution, the “hallmark of our democracy,” Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966) (citation omitted), celebrates its two hundredth birthday. However, in the current climate of erosion of the fundamental rights guaranteed us by the first ten amendments of the Constitution, I fear the party may be short-lived.

Traditionally, we have recognized the uniquely personal privilege against self-incrimination as a “right to a private enclave where [an individual] may lead a private life.” Id. See also Beilis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). However, the fifth amendment is not “a general protector of privacy.” Fisher v. United States, 425 U.S. 391, 408-409, 96 S.Ct. 1569, 1579-1580, 48 L.Ed.2d 39 (1976). Not all “private” evidence is free from government scrutiny; rather, only that evidence which is both compelled and testimonial in nature may be withheld by asserting the privilege against self-incrimination. Note, Organizational Papers And The Privilege Against Self-Incrimination, 99 Harv. L.Rev. 640, 642 (1986). Today, the majority fails to recognize that “[T]he [Fifth Amendment] privilege protects an accused ... from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature ...” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966) (emphasis supplied). See, e.g., Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988); Fisher, supra; Bellis, supra; Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); ICC v. Baird, 194 U.S. 25, 24 S.Ct. 563, 48 L.Ed. 860 (1904); Boyd, supra.

In the case at hand, the majority holds that Arentzen cannot assert the privilege with regard to his yet-to-be created accounting. See 20 Pa.C.S. § 3501.1. Consequently, Arentzen’s fifth amendment privilege is reduced to mere verbiage. In relying upon the required records exception to compel Arentzen to testify against himself by creating and producing an account of his actions while serving as executor and attorney to Baehr’s estate, I believe that the majority erroneously extends the parameters of the required records exception and, sadly, further erodes the protection guaranteed each individual by the fifth amendment.

The required records exception, or doctrine, was first enunciated in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948). “It developed at a time when the Court assumed that the government could not subpoena the self-incriminating private papers of an individual who has the right to claim the privilege.” Saltzburg, The Required Records Doctrine: Its Lessons For The Privilege Against Self-Incrimination, 53 Chi.L.Rev. 6, 10 (1986). Essentially, the exception applies to certain organizational documents, recorded pursuant to a government regulation, which have “public aspects.” Fisher, supra; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Shapiro, supra. The exception is inapplicable if the government regulations “are directed almost exclusively to individuals inherently suspect of criminal activities.” Grosso, 390 U.S. at 68, 88 S.Ct. at 713 (1968). In other words, if the purpose of the government is investigatory not regulatory, the required records exception does not apply to the documents. United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Fisher, supra; Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Shapiro, supra. The rationale behind the doctrine is transparently facile: because they are required for regulatory purposes the records are considered to be the equivalent of voluntary testimony and are not, therefore, compelled in the fifth amendment sense, despite the records’ testimonial nature. See Fisher, supra (Brennan, J., concurring); Shapiro, supra (Frankfurter, J., dissenting).

As noted by the majority, the doctrine is applicable if: 1) the records subpoenaed by the government are those which are required to be kept by the individual pursuant to government regulation; 2) the records are of a type which the regulated party customarily keeps; and 3) the records themselves possess certain criteria which make them analogous to public records. Grosso, 390 U.S. at 66, 88 S.Ct. at 712.

On its face, the accounting required of Arentzen under the Pennsylvania Probate Estates and Fiduciary Code, 20 Pa.C.S. § 101, et seq. (“Probate Code”) would appear to fall within the exception. However, after careful study, I believe that the accounting required of Arentzen, in his capacity as executor of a decedent’s estate, is not the type of record to which the exception applies. At this time, no accounting exists and I cannot find any support for the majority’s proposition that the exception can compel an individual to create a record in the nature of an accounting once a court has found that such a record may be incriminating. I believe that such an interpretation of the exception is unduly broad and I am reluctant to extend the exception beyond its present parameters. I can conceive of little distinction between compelling an individual person to orally testify against himself, which clearly the court cannot do except under grant of immunity, and compelling him to create a written record of his management of a decedent’s estate under the guise of the required records exception. “[I]t is the Fifth Amendment’s historical function [to protect an individual] from compulsory incrimination through his own testimony or personal records.” Fisher, 425 U.S. at 419, 96 S.Ct. at 1585 (Brennan, J., concurring) {quoting United States v. White, 322 U.S. 694, 701, 64 S.Ct. 1248, 1252, 88 L.Ed. 1542 (1944)).

Furthermore, even if the exception could possibly be construed to require an individual to create the records sought by the court in this instance, I do not believe that the accounting required by the Probate Code is the type of record to which the exception applies. Traditionally, the exception has applied to documents of transactions; i.e., receipts, telephone records, bank statements, cancelled checks, ledgers,, petty cash books, paid bills, payroll records, contracts, and tax records. See Braswell, supra; Doe, supra; Fisher, supra; Grosso, supra; Marchetti, supra; Shapiro, supra. An executor’s accounting, however, is more akin to an attorney’s work product than it is to these “public” records which have historically been found to be outside the privilege. The daily management records of a sole proprietor or practitioner are, of course, testimonial by their very nature. Doe, supra; Braswell, supra. Somehow, these testimonial records transmogrify into “public” records simply because a regulatory agency requires that they be kept. Braswell, supra; Doe, supra; Fisher, supra; Shapiro, supra. I disagree. The act of regulation does not destroy the essential nature of an accounting as a private record. “If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses.” Shapiro, 335 U.S. at 34, 68 S.Ct. at 1393 (Frankfurter, J., dissenting).

Moreover, although the privilege has been eroded by numerous exceptions, see generally Note, Organizational Papers, supra, I believe that the privilege continues to cover the business records of the sole proprietor or practitioner when a subpoena forces the sole proprietor or practitioner to “repeat or affirm the truth of the contents of the documents sought.” Doe, 465 U.S. at 610-611, 104 S.Ct. at 1241. It is undisputed that subpoenaing such records makes them “compelled” in the Fifth Amendment sense. Doe, supra; Fisher, supra. I note that when Arentzen voluntarily resigned as executor and attorney for the estate of Baehr his attorney, Dennis R. Primavera, turned over the records of the estate to its present executor, Meridian Bank. These records are therefore apparently available to the Orphans’ Court for its review. Requiring Arentzen to now create and produce an account of his management of the estate would compel him to restate, repeat, or affirm the truth of the contents in those records now in the possession of Meridian and available to the court. I am convinced that this action is the very essence of compelled testimony which is protected by the privilege. Doe, supra; Fisher, supra.

Based on the foregoing, I conclude that Arentzen may rightfully assert his fifth amendment privilege against self-incrimination with regard to the creation and production of an accounting of the estate of Baehr. Therefore, I would find that the trial court abused its discretion in finding Arentzen in contempt for failing to comply with its subpoena, and I would vacate the order of the trial court. Finally, I would remind this court that

[i]t has been repeatedly decided that [the Fifth Amendment] should receive a liberal construction, so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by [it], by imperceptible practice of courts or by well-intentioned but mistakenly overzealous executive officers.

Fisher, 425 U.S. at 417, 96 S.Ct. at 1584 (Brennan, J., concurring) {quoting Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921)). I believe that today’s majority opinion represents yet another “stealthy encroachment” on the fifth amendment on behalf of increasingly pervasive government regulations and judicial convenience. The cost of this encroachment is a further diminution of our personal liberties as guaranteed by the Bill of Rights.

      . Federal standards govern invocation of the privilege against self-incrimination in a state court proceeding. Commonwealth v. Carrera, 424 Pa. 551, 552-554, 227 A.2d 627, 629 (1967).

      . The applicability of this exception was brought to our attention by an amicus curiae brief.

      . In addressing the applicability of the collective entity exception to the privilege, Arentzen distinguished the act of producing the estate’s records, which he has already done and which is clearly required under the collective entity doctrine, from the act of creating and submitting the accounting, which, he claims, is a violation of the privilege. There is authority that the collective entity exception does not require a custodian of records to present oral testimony explaining the records: though the act of producing the records is testimonial to the extent that it identifies the records as those sought, still, the custodian "cannot lawfully be compelled, in the absence of a grant of adequate immunity from prosecution, to condemn himself by his own oral testimony.” Curdo v. United States, 354 U.S. 118, 123-124, 77 S.Ct. 1145, 1149, 1 L.Ed.2d 1225, 1229-1230 (1957). Nonetheless, this line of authority is not applicable to the required records exception. That exception specifically allows the government to require individuals, by law, to keep records so “that there may be suitable information of transactions which are the appropriate subjects of governmental regulation.” Shapiro, supra, 335 U.S. at 33, 68 S.Ct. at 1392, 92 L.Ed. at 1807 (emphasis added). Under this exception, the question is not whether Arentzen can be required to turn over records of a separate entity which are in his custody, rather, the inquiry addresses the three prong test for whether the government can require Arentzen, to maintain a certain type of record as an individual, not as a custodian. If the records in question are of the type normally kept, the purpose is essentially regulatory and the records have assumed public aspects, an individual can be required to create and produce them despite their equivalence to oral testimony. Grosso, supra. See abo, Shapiro, 335 U.S. at 17-18, 68 S.Ct. at 1384, 92 L.Ed. at 1798-1799 “business records kept under requirement of law by private individuab in unincorporated enterprises were ‘public documents which defendant was required to keep, not for his private use, but for the benefit of the public, and for public inspection.’" (Footnote omitted, emphasis added and deleted). Thus the government can validly require an individual to create such records. Id. at n. 24 (citation omitted).

      . We note that the nature of the waiver in the required records exception differs from that inherent in the collective entity exception. A custodian of the records of a collective entity "has voluntarily assumed a duty which overrides his claim of privilege only with respect to the production of the records themselves." Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544, 55 L.Ed. 771, 779 (1911) (emphasis in original). By contrast, the required records exception by its very name indicates that the government can, by law, require that certain types of records be kept. Shapiro, supra. See also, State Real Estate Commission, supra 441 Pa. at 165, 271 A.2d at 249 ("The mere act of entering or remaining in an activity that has become subject to a required reporting or recording of information ... constitutes a waiver of the privilege against incrimination insofar as the [activity] is involved.”). Unlike the collective entity exception, the required records exception applies to the person in his individual capacity, not merely in his custodial capacity, thereby broadening the extent of the waiver involved. See, In re Grand Jury Proceedings, supra at 171: “These obligations to keep and produce the records are in a sense consented to as a condition of being able to carry on the regulated activity involved." Indeed, the exception would have little application if an individual could say: Yes, if the records existed I would be required to turn them over to the government, however, as I have refused to comply with the regulations by failing to create the records, I am entitled to invoke the privilege. The implied duty to create the records by entering the regulated field refutes such an argument.

      . These rights are also embodied in the Constitution of Pennsylvania, art. I, §§ 1-26.

      . The privilege is not available to corporations or other organizational entities but only to individuals. See Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988); United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906). Furthermore, the privilege traditionally applies only to private papers and documents. See Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). In the last fifteen years, the Supreme Court has further defined and restricted the privilege, concluding that it is not the contents of private papers which are privileged, but rather their testimonial nature and the compelled act of producing the papers against which the privilege may be asserted. See Braswell, supra; United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). See generally Saltzburg, The Required Records Doctrine: Its Lessons For The Privilege Against Self-Incrimination, 53 Chi.L.Rev. 6 (1986); Note, Organizational Papers And The Privilege Against Self-Incrimination, 99 Harv.L.Rev. 640 (1986); Note, Fifth Amendment Limitations On The Compelled Production Of Evidence, 25 Am.Crim.L.Rev. 509 (1988).

      . A sole proprietor or practitioner may also resist a subpoena for business records on the ground that the act of producing the records would entail testimonial self-incrimination. Braswell v. United States, 487 U.S. 99, 108 S.Ct. 2284, 101 L.Ed.2d 98 (1988); United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Instantly, I do not believe that the act of producing an accounting of the estate would be incriminating in and of itself and therefore have not addressed this additional basis for assertion of the privilege.


source: Caselaw Access Project

author: WIEAND, Judge: KELLY, Judge,

license: Public Domain

text:
    596 A.2d 811
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles BAGLEY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1990.
    Filed July 30, 1991.
    Reargument Denied Sept. 27, 1991.

      Ann Aschauer Osborne, Asst. Dist. Atty., Media, for Com.
    Jeremy T. Ross, Philadelphia, for appellee.
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

During an investigation into the suspicious death of the wife of Charles Bagley, police obtained and executed twelve search warrants. After Bagley had been arrested and charged with criminal homicide, he moved to suppress evidence seized pursuant to the execution of eight such warrants. After hearings thereon, the trial court suppressed evidence seized pursuant to four warrants. The Commonwealth appealed. It has certified that the suppression court’s order, if allowed to stand, will effectively terminate the prosecution. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

At or about 1:00 a.m. on March 26, 1989, Easter Sunday, Charles Bagley arrived at the emergency room of Paoli Memorial Hospital, carrying the body of his wife, Yvonne. Bagley said that his wife had been electrocuted accidentally when an electrical appliance had fallen into the hot tub in which she had been bathing. He was overheard by emergency room personnel to say that he had torn apart the bathroom in which the accident had occurred and was considering the burning of his home. Bagley also said that he did not want police to be notified about his wife’s death. Later the same day, the administrative nurse at the hospital notified Radnor Township Police of the incident and expressed the opinion that the circumstances were suspicious. She told police that she had observed a laceration above Mrs. Bagley’s right eye and bruises on her body. She also narrated the statements which had been made by the defendant-appellee upon his earlier arrival at the hospital. Based on this information, Radnor Township Police and the District Attorney of Delaware County began an investigation which culminated in Bagley’s arrest for the killing of his wife.

In reviewing an appeal by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the [suppression] court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1353-1354 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-763 (1989). “We will ... affirm the decision of the suppression court ‘if it can be sustained for any reason whatsoever, even if the [suppression] court offered an erroneous reason to support its action.’ ” Commonwealth v. Bowers, 400 Pa.Super. 377, 381, 583 A.2d 1165, 1167 (1990), quoting Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See also: Commonwealth v. Shaw, 494 Pa. 364, 368 & n. 1, 431 A.2d 897, 899 & n. 1 (1981); Commonwealth v. Nelson, 320 Pa.Super. 488, 493-494, 467 A.2d 638, 641 (1983).

Search Warrant No. 12504

Search warrant no. 12504 was issued on March 26, 1989, Sunday, and was executed the same day, at or about 1:30 p.m., by Detective Joseph Maguire of the Radnor Township Police Department. The warrant identified the criminal violation being investigated as “Suspicious Death” and authorized police to search the Bagley home for and seize “[a]ny items which may be related to the death of Yvonne Bagley.” The affidavit of probable cause which supported the issuance of the search warrant stated:

On 26 March 89 at 0954 hours, Officer Antoini of the Radnor Township police Department received a phone call at the police station from a Janet Dragish, the administrative nurse at Paoli Memorial Hospital. Janet Dragish told Officer Antoini that at approximately 0100 hours on 26 March 89, a Charles Bagley brought his wife into Paoli Memorial Hospital wrapped in a wet blanket and stated that she was in a hot tub in their home and an electric light fell into the hot tub and electrocuted her. Janet Dragish stated that she felt that the death was suspicious and felt that the police should be called.
On 26 March 89, at 1110 hours, Sgt Leighton spoke to Janet Dragish by phone in which she states that she had viewed the body of Yvonne Bagley and saw a laceration above the right eye, and that there were other bruises on her body. Janet Dragish was told by Charles Bagley that he had torn the room apart where this incident took place and that he was thinking about setting fire to the house. Based on the above mentioned facts, this affiant asks that a search warrant be issued to process the home for any evidence such as fibers, hair, prints and any other items which may have to do with the suspicious death of Yvonne Bagley.

The suppression court held that the search warrant was defective on its face because, in violation of Pa.R.Crim.P. 2006(e), it failed to identify any crime which had been committed and also because it did not particularly describe the property for which the warrant had been issued. The Commonwealth argues on appeal that, given the limited information possessed by the police concerning Yvonne Bagley’s death, search warrant no. 12504 stated the items being sought as specifically as possible under the circumstances, thereby passing constitutional muster. The Commonwealth also argues that, to the extent the warrant may have technically violated Pa.R.Crim.P. 2005(b) and 2006(e), the violations were not of constitutional dimension and did not require suppression of the evidence seized.

“It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched____ In addition, the search may not go beyond the scope of the warrant.” Commonwealth v. Eichelberger, 352 Pa.Super. 507, 513, 508 A.2d 589, 592 (1986), citing Pennsylvania Constitution, Article I, Section 8; Pa.R.Crim.P. 2005(b) and (c); and Commonwealth v. Searles, 450 Pa. 384, 302 A.2d 335 (1973). See also: Commonwealth v. Reese, 520 Pa. 29, 32, 549 A.2d 909, 910 (1988), cert. denied, — U.S.-, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); Commonwealth v. Bleigh, 402 Pa.Super. 169, 174-176, 586 A.2d 450, 453 (1991).

The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. 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 Marron 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). An overbroad warrant is unconstitutional because it authorizes a general search and seizure.

Commonwealth v. Santner, 308 Pa.Super. 67, 69-70 n. 2, 454 A.2d 24, 25 n. 2 (1982), cert. denied, 468 U.S. 1217, 104 S.Ct. 3585, 82 L.Ed.2d 883 (1984). In interpreting the particularity requirement set forth in Article I, Section 8 of the Pennsylvania Constitution, the Supreme Court has said:

The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized “as nearly as may be____” The clear meaning of the language is that a warrant must describe the items as specifically as is reasonably possible. This requirement is more stringent than that of the Fourth Amendment, which merely requires particularity in the description. The Pennsylvania Constitution further requires the description to be as particular as is reasonably possible. See Commonwealth v. Reese, 520 Pa. 29, 31-32, 549 A.2d 909, 910 (1988) (Nix, C.J., dissenting) (Pennsylvania particularity requirement more stringent than that of the Fourth Amendment because Pennsylvania particularity requirement precedes probable cause requirement).
It is settled Fourth Amendment jurisprudence that a warrant must specifically list the things to be seized. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). “The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). The more rigorous Pennsylvania constitutional provision requires no less.
Although some courts have treated overbreadth and ambiguity as distinct defects in warrants, e.g. Commonwealth v. Santner, 308 Pa.Super. 67, 68 n. 2, 454 A.2d 24, 25 n. 2 (1982), both doctrines diagnose symptoms of the same disease: a warrant whose description does not describe as nearly as may be those items for which there is probable cause. Consequently, in any assessment of the validity of the description contained in a warrant, a court must initially determine for what items probable cause existed. The sufficiency of the description must then be measured against those items for which there was probable cause. 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.

Commonwealth v. Grossman, 521 Pa. 290, 296-297, 555 A.2d 896, 899-900 (1989) (footnote omitted).

We have reviewed search warrant no. 12504 in the instant case and the circumstances surrounding its issuance, and we agree that the warrant was defective. A close reading of the affidavit of probable cause, construing it in a realistic and common sense manner, leads to the inescapable conclusion that the warrant was issued not upon a showing of reasonable probability that a crime had been committed, but, rather, upon nonspecific suspicions surrounding the death of Yvonne Bagley. As a result, the warrant stated no crime but suggested only that it had been issued in the investigation of a suspicious death. It authorized police to seize anything that may have been related to Mrs. Bagley’s death. This was done without stating any cause for believing that Yvonne Bagley’s death had been a criminal homicide. It is readily apparent, therefore, that the primary purpose for the search warrant was not to search for specific evidence of a crime which had been committed, but merely to allow police to conduct a general investigation to determine whether Yvonne Bagley’s death might have been criminal.

The use of a search warrant as a general investigatory tool is prohibited by both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. “A search warrant serves to authorize the seizure of identifiable and existing property. It is not available as a general investigatory tool to be used in place of a grand jury.” In re Casale, 512 Pa. 548, 555, 517 A.2d 1260, 1263 (1986). “[M]ere suspicions do not constitute probable cause to support a search warrant.” Commonwealth v. Smith, 511 Pa. 36, 47, 511 A.2d 796, 801 (1986), cert. denied, 479 U.S. 1006, 107 S.Ct. 643, 93 L.Ed.2d 700 (1986). See also: Commonwealth v. Corleto, 328 Pa.Super. 522, 528-529, 477 A.2d 863, 866 (1984); Commonwealth v. Kanouff, 315 Pa.Super. 392, 394-395, 462 A.2d 251, 252 (1983). A search warrant “may not be issued unless the affidavit alleges a preexisting crime.” Comment (b) to Pa.R.Crim.P. 2002. See: United States ex rel. Campbell v. Bundle, 327 F.2d 153, 162-163 (3d Cir.1964); Commonwealth ex rel. Ensor v. Cummings, 416 Pa. 510, 512-513, 207 A.2d 230, 231 (1965). See also: Pa.R.Crim.P. 2006(e). We conclude, therefore, that the suppression court correctly invalidated search warrant no. 12504 as a general investigative tool.

We reject the Commonwealth’s contention that the police were entitled in good faith to rely upon the magistrate’s determination that a warrant could properly be issued. In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), the Pennsylvania Supreme Court held that there is no good faith exception to the exclusionary rule applicable to violations of Article I, Section 8 of the Pennsylvania Constitution.

The Commonwealth’s contention that the initial search of the Bagley home was made with Bagley’s voluntary consent presents a more difficult issue. This argument is based on events which occurred prior to arrival of the search warrant. These circumstances appear from the suppression court’s findings of fact as follows:

2. At approximately noon on March 26, 1989, Detective Michael Honicker of the Delaware County Criminal Investigation Division went to the defendant’s residence at 240 Radnor-Chester Road, Radnor, Pennsylvania. Detective Honicker was accompanied by a uniformed officer of the Radnor Township Police Department.
3. Detective Honicker went to the defendant’s residence for the purpose of taking a statement from the defendant concerning the death of his wife, and to await the arrival of a search warrant, the application for which was being prepared, in order to “process the residence as a crime scene.”
4. Upon arriving at the defendant’s residence, Detective Honicker knocked on the door which was answered by a person other than the defendant. Detective Honicker identified himself and asked to speak to Mr. Bagley.
5. The defendant walked out and met Detective Honicker and the uniformed officer who was with him, and he led them back to the living room area of the house. Upon meeting the defendant, Detective Honicker again identified himself and told the defendant that his purpose in being there was to investigate the death of defendant’s wife.
6. While speaking to defendant, Detective Honicker noted the presence of other people in the house and asked defendant why those persons were present. The defendant told the detective that they were in the process of cleaning the upstairs floor of the house.
7. Detective Honicker requested that defendant summon downstairs the people who were on the upstairs floor of the house and instruct them to stop their cleaning work. Detective Honicker explained to defendant that he wanted the cleaning stopped “... because we were in the process of obtaining a search warrant to process the residence for a crime scene.”
8. The defendant complied with Detective Honicker’s direction and called the people downstairs. He further told Detective Honicker that a search warrant would not be needed, but Detective Honicker advised the defendant that it was “our policy.”
9. When the people in defendant’s house came downstairs, they were taken to another area of the house by the uniformed officer who accompanied Detective Honicker.
10. Detective Honicker was alone with the defendant in the living room area of the house. He advised the defendant of his Miranda warnings, and asked defendant if he wished to give a statement concerning his wife’s death.
11. The defendant told Detective Honicker that he would give a statement, and he proceeded to explain his version of the events surrounding the death of his wife.
12. During the course of making his statement, the defendant told Detective Honicker that it would be easier to explain the events if he showed the detective what happened; with Detective Honicker’s agreement, the defendant proceeded to take Detective Honicker to the various areas of the house where the events had occurred.
13. The defendant took Detective Honicker into the bedroom and bathroom areas. While in the bathroom area, Detective Honicker noticed that various fixtures and faucets were missing, and he was shown by the defendant the electrical outlet into which the defendant claimed the soldering gun which had caused his wife to be electrocuted was plugged.
14. After showing Detective Honicker various areas of the house, the defendant then took him outside. The defendant told him that he had attempted to destroy the soldering gun and electrical wire by burning them in the fireplace, and had then removed them from the fireplace and put them outside in the trash with other items removed from the bathroom.
15. The defendant then showed Detective Honicker the items removed from the bathroom and the charred remains of the soldering gun and electrical wire which were in bags standing next to trash cans outside the house.
16. Detective Honicker and the defendant returned to the house and sat down so that the detective could prepare a written statement of the defendant’s version of the events surrounding his wife’s death.
17. While Detective Honicker was preparing the written statement, other detectives and police officers arrived at the Bagley residence with search warrant No. 12504 at approximately 1:15 to 1:30 P.M.
18. The warrant was read to the defendant, and a search of the premises was then conducted.

It is well settled that if a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. See: Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See also: Commonwealth v. Latshaw, 481 Pa. 298, 303, 392 A.2d 1301, 1304 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979); Commonwealth v. Boyer, 455 Pa. 283, 286, 314 A.2d 317, 318 (1974); Commonwealth v. Walsh, 314 Pa.Super. 65, 73, 460 A.2d 767, 771 (1983). The consent, however, must be “given freely, specifically, unequivocally, and voluntarily.” Commonwealth v. Mamon, 449 Pa. 249, 255, 297 A.2d 471, 475 (1972). See also: Commonwealth v. Harris, 429 Pa. 215, 221, 239 A.2d 290, 293 (1968); Commonwealth v. Lowery, 305 Pa.Super. 66, 74, 451 A.2d 245, 248-249 (1982). “[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2047-2048, 36 L.Ed.2d at 862-863. See also: Commonwealth v. Hubbard, 472 Pa. 259, 274-275, 372 A.2d 687, 693-694 (1977); Commonwealth v. Smagala, 383 Pa.Super. 466, 474, 557 A.2d 347, 350 (1989); Commonwealth v. Elliott, 376 Pa.Super. 536, 553, 546 A.2d 654, 662 (1988). The burden of proving a valid consent to search rests upon the Commonwealth. Commonwealth v. Griffin, 232 Pa.Super. 163, 167-168, 336 A.2d 419, 421 (1975) . See also: United States v. Sebetich, 776 F.2d 412, 424 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988); Commonwealth v. Woods, 240 Pa.Super. 72, 75, 368 A.2d 304, 306 (1976); Commonwealth v. Tribblett, 242 Pa.Super. 164, 167, 363 A.2d 1212, 1213 (1976) .

The suppression court found that Bagley’s consent had not been voluntary. It based its finding upon the decision of the United States Supreme Court in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The issue before the Supreme Court in Bumper was “whether a search can be justified as lawful on the basis of consent when that 'consent’ has been given only after the official conducting the search has asserted that he possesses a warrant.” Id., 391 U.S. at 548, 88 S.Ct. at 1791, 20 L.Ed.2d at 802. The Supreme Court held that there could be no valid consent under such circumstances, reasoning as follows:

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Id., 391 U.S. at 548-550, 88 S.Ct. at 1792, 20 L.Ed.2d at 802-803 (footnotes omitted). See also: Commonwealth v. White, 459 Pa. 84, 327 A.2d 40 (1974), cert. denied, 421 U.S. 971, 95 S.Ct. 1967, 44 L.Ed.2d 461 (1975); Commonwealth v. Banahasky, 250 Pa.Super. 495, 378 A.2d 1257 (1977); Commonwealth v. Pichel, 229 Pa.Super. 103, 323 A.2d 113 (1974). But see: Earls v. State, 496 S.W.2d 464 (Tenn.1973) (Bumper v. North Carolina does not establish blanket prohibition against finding voluntary consent after existence of a search warrant is made known; rather, State must show by clear and convincing evidence that consent was not based upon warrant or coerced by other factors).

Numerous cases decided since Bumper have found consents to search voluntary despite the fact that police threatened to seek or to obtain search warrants if consent were not given. See: United States v. Garcia, 890 F.2d 355, 360-362 (11th Cir.1989) (consent to search voluntarily given even though preceded by police threat to seek warrant); United States v. Twomey, 884 F.2d 46, 50-52 (1st Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990) (consent valid where police said they intended to get warrant if consent to search not given); Commonwealth v. Woods, supra (statement by police officer that he would procure search warrant if defendant did not consent to search was not so implicity coercive as to render consent involuntary). See generally: 3 W. LaFave, Search and Seizure, § 8.2(c) (2d Ed. 1987) (collecting cases). See also: United States v. Castillo, 866 F.2d 1071, 1081-1082 (9th Cir.1989); United States v. Long, 866 F.2d 402, 404-405 (11th Cir.1989); United States v. Stallings, 810 F.2d 973, 976 (10th Cir.1987); United States v. Raines, 536 F.2d 796, 801 (8th Cir.1976), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); United States v. Faruolo, 506 F.2d 490, 493-495 (2d Cir.1974); United States v. Boukater, 409 F.2d 537, 538 & n. 2 (5th Cir.1969); State v. Owens, 418 N.W.2d 340, 343-344 (Iowa 1988); People v. McClure, 39 Cal.App.3d 64, 69-70, 113 Cal.Rptr. 815, 818-819 (1974). Thus, it has been said that “ ‘where law enforcement officers indicate only that they will attempt to obtain or are getting a warrant such a statement cannot serve to vitiate an otherwise consensual search.’ ” United States v. Dennis, 625 F.2d 782, 793 (8th Cir.1980), quoting United States v. Culp, 472 F.2d 459, 461 n. 1 (8th Cir.1973), cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973). See: United States v. Tutino, 883 F.2d 1125, 1137 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990) (consent given after police said they were in process of getting search warrant was voluntary; such a statement by police was not coercive).

Instantly, Detective Honicker did not represent to appellee that he had a warrant authorizing him to conduct a search. He also did not threaten to obtain a warrant if appellee did not consent to a search. In fact, Detective Honicker had no intention of conducting a search. His purpose in going to appellee’s home was to take a statement from appellee and to await the arrival of the search.warrant, which was then being obtained by Detective Maguire. However, Honicker did say to appellee that a warrant was being obtained. Bagley responded by telling Detective Honicker that a search warrant would not be needed. In the face of this manifestation of consent, Honicker informed Bagley that it was police “policy” to wait for the search warrant. Appellee was then advised of his Miranda rights and began giving a statement concerning the death of his wife. During this statement, Bagley said that it would be easier to show the detective how the events surrounding his wife’s death had occurred. Appellee then took Detective Honicker on a tour of various areas of the house and the surrounding grounds and specifically pointed out to him all the evidence which was later seized.

Viewing the totality of these circumstances, we are satisfied that appellee voluntarily granted consent for Honicker to inspect his home. The circumstances of Bagley’s conversation with Honicker prior to the arrival of the search warrant belie any suggestion of coercion, either of an express or implied nature. It was appellee who, without a request to do so, insisted upon showing Honicker around the house so that he could better explain his own exculpatory version of the events leading to his wife’s death, specifically pointing out to the detective all of the items of evidence which were subsequently seized. Although the actual seizure of evidence from appellee’s home was not made until after the invalid warrant had arrived, Bagley, by his prior actions in freely showing evidence to Detective Honicker, abandoned any reasonable expectation of privacy which he enjoyed with respect to such property. See: Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”). See also: United States v. Paulino, 850 F.2d 93, 97 (2d Cir.1988), cert. denied, 490 U.S. 1052, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989) (in order to demonstrate reasonable expectation of privacy in area searched, person challenging search must first demonstrate subjective desire to keep his effects private); United States v. Berrong, 712 F.2d 1370, 1373 (11th Cir.1988), cert. denied, 467 U.S. 1209, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984) (same). Cf. United States v. Horowitz, 806 F.2d 1222, 1226 (4th Cir.1986) (defendant’s willful disclosure of his employer’s trade secrets to a competing bidder for a government contract vitiated any reasonable expectation of privacy he may have had in them); United States v. Buettner-Janusch, 646 F.2d 759, 766-767 (2d Cir.1981), cert. denied, 454 U.S. 830, 102 S.Ct. 126, 70 L.Ed.2d 107 (1981) (defendant college professor forfeited any reasonable expectation of privacy in enclosed areas of his laboratory by granting permission to use the areas to an undergraduate research assistant, a fellow professor and at least eight other persons). Because Honicker had been invited to inspect the Bagley home, he was voluntarily placed in a position where he could observe various items of evidence. Because these items were rendered obvious by his conduct, Bagley voluntarily surrendered any right of privacy with respect thereto. With respect to the items which appellee had already placed into the trash outside his home, moreover, he manifested a clear intent to abandon any reasonable expectation of privacy in such property even prior to the time when he voluntarily showed such items to Detective Honicker. See: California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy exists in trash left for collection in an area accessible to the public). See also: Commonwealth v. Perdue, 387 Pa.Super. 473, 480-482, 564 A.2d 489, 492-493 (1989); Commonwealth v. Cihylik, 337 Pa.Super. 221, 486 A.2d 987 (1985); Commonwealth v. Minton, 288 Pa.Super. 381, 390-392, 432 A.2d 212, 216-217 (1981). Therefore, police could subsequently seize the items of evidence even though the search warrant had been improperly issued. The invalidity of the warrant did not compel the suppression of this evidence. The suppression court erred when it held otherwise.

Search Warrants Nos. 13665, 12505 and 17105

Search warrant no. 13665 was executed at the Bagley residence on March 30, 1989. The warrant was issued for items described as follows: “Examination and Inspection of the Electrical system, Photographs, Shelf and cardboard box that was in the Bathroom on the Shelf.” The affidavit of probable cause, which was incorporated by reference into the warrant, recited that the Commonwealth was requesting the warrant to be issued to authorize police “TO SEARCH THE BATHROOM, MASTER BEDROOM AND ADJACENT AREAS FOR THE TYPE OF ELECTRICAL SERVICE LOCATED IN THESE AREAS INCLUDING, INTER ALIA: BEING WALL OUTLETS, WALL SWITCHES, WIRING, CIRCUIT BREAKERS AND VOLTAGE OR ELECTRICAL CURRENT.” The inventory recites the items seized as follows: (1) one duplex receptacle; (2) tape wrapped around receptacle; (3) one 20 amp circuit breaker; (4) one roll of twenty-four photographs taken of the scene; and (5) one videotape of the scene. Subsequent testing of the receptacle and circuit breaker revealed that both had been in working order and that the circuit breaker had been turned off manually and not by a surge of electricity.

Search warrant no. 12505 was issued for “Wires in Bathroom adjacent to Master Bedroom for inspection & testing. Address book of decedent, or letters to or from the decedent, a diary of the decedent, or other materials providing names and addresses of relatives or persons close to the decedent____” This warrant was executed on April 12, 1989, and the following items of evidence were seized: (1) two outlets from bathroom; (2) exposed wires from bathroom light fixtures; (3) one letter found in kitchen dated 4/4/89 signed Charles Bagley; (4) one envelope found in Kitchen-Selective Insurance, New Jersey; (5) one telephone bill dated 3/21/89 found in kitchen; (6) airplane baggage claim tickets for Pan Am # 822635; (7) paper with passport information and business card for travel agency; (8) address book found in living room; (9) Century 21 name tag from John Matthews, Inc. Realtors; (10) note from front door of residence from Sonja White; (11) various phone numbers and addresses; (12) letter from Honeywell Protection Services to Charles Bagley; and (13) letter from Bar-clays Bank in England dated 3/13/89.

Finally, search warrant no. 17105 was issued on the basis of an affidavit which requested a warrant “FOR THE PURPOSE OF TESTING THE ORIGINAL CIRCUIT, OUTLET, HOT TUB, WITH THE SAME CIRCUMSTANCES RELATING TO THE DEATH OF YVONNE BAGLEY.” The warrant named the items to be seized as follows: “To recreate and Duplicate and Reconstruct the same circumstances of the Death of Yvonne Bagley as it related to the electrical supply in the residence on the evening of her Death. The use by her of the Jacuzzi (hot tub).” Pursuant to this warrant, an expert hired by the Commonwealth simulated the events of March 26, 1989, as described by appellee, in order to determine whether Yvonne Bagley’s death could have been caused by electrocution. Following this simulation, the expert formed an opinion that “Yvonne Bagley did not and could not have sustained either a lethal shock or an incapacitating shock due to an accidental contact with an intact soldering gun as Charles Bagley has claimed.” The expert’s testing led him to the further conclusion that the type of soldering gun to which appellee had attributed his wife's death “is incapable of producing a lethal or incapacitating shock to a human subject who makes direct or indirect contact with the soldering gun while it is plugged into an operating electrical outlet and while the subject is bathing in a bathtub.”

The suppression court, in suppressing evidence seized and information obtained pursuant to these warrants, concluded that the warrants had been issued for improper and unauthorized purposes. The court reasoned as follows:

Neither the examination, inspection and testing of an electrical system nor the recreation and duplication of circumstances surrounding a victim’s death qualifies under any of the purposes authorized by Rule 2002. A search warrant serves to authorize the seizure of identifiable and existing property. It is not available as a general investigatory tool to be used in place of a grand jury. In re Casale, 512 Pa. 548, 517 A.2d 1260 (1986). Accordingly, we conclude that any evidence obtained pursuant to warrants 12505, 13665 and 17105 as the result of examination, inspection and testing of the electrical system at the Bagley residence or the recreation of the events surrounding the death of Yvonne Bagley must be suppressed.
Pursuant to warrant No. 13665, the police also took twenty-four photographs of the Bagley residence and a videotape of the scene. These items likewise are not authorized under the purposes set forth in Rule 2002 and also must be suppressed. Furthermore, the inventory receipt for warrant No. 13665 shows that a duplex receptacle, tape wrapped around the receptacle and a “20 amp circuit breaker” were seized from the Bagley residence. A reading of the warrant application shows, however, that the identification of items to be searched for and seized states the following, “Examination and inspection of the electrical system, photographs, shelf and cardboard box that was in the Bathroom on the shelf.” The warrant application does not seek the seizure of any portions of the electrical system of the house. Accordingly, the seizure of the receptacle, tape and circuit breaker were not authorized by the warrant and these items also must be suppressed.

The Commonwealth argues on appeal that this reasoning was erroneous and that the warrants were properly issued under Pa.R.Crim.P. 2002(c) for property which constituted evidence of the commission of a criminal offense.

Prior to the issuance of these search warrants the police had information which contradicted appellee’s statement that his wife had died as a result of an accidental electrocution. The medical examiner, following an autopsy, concluded that the cause of Mrs. Bagley’s death was homicide by drowning. This, together with additional information set forth in the affidavits of probable cause, provided probable cause for the issuance of search warrants nos. 13665, 12505 and 17105.

The purpose for the issuance of the warrants was to obtain evidence of the commission of a crime, pursuant to Pa.R.Crim.P. 2002(c), by confirming that Mrs. Bagley’s death had not been caused by accidental electrocution. The electrical system at the Bagley residence constituted identifiable and existing property which was properly the object of a search warrant. The electrical system was described adequately as being that servicing the area of the master bedroom and bathroom. This was sufficient to preclude an unnecessarily broad roaming of the house by police.

The federal courts have interpreted the Fourth Amendment and Fed.R.Crim.P. 41, which is similar to Pa. R.Crim.P. 2002, to permit search warrants which authorize the seizure of intangible evidence. See: Michigan Bell Telephone Co. v. United States, 565 F.2d 385, 389 (6th Cir.1977). See also: United States v. New York Telephone Co., 434 U.S. 159, 168-170, 98 S.Ct. 364, 370-371, 54 L.Ed.2d 376, 387-388 (1977); United States v. Mesa-Rincon, 911 F.2d 1433, 1436 (10th Cir.1990); United States v. Torres, 751 F.2d 875, 877-878 (7th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985). In United States v. Villegas, 899 F.2d 1324 (2d Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990), the Court of Appeals for the Second Circuit held that a search warrant had been issued properly for the purpose of surreptitiously entering a premises and photographing therein a suspected cocaine manufacturing operation. In rejecting the argument that search warrants may only authorize the seizure of tangible evidence, the Second Circuit reasoned:

First, we note that Rule 41 does not define the extent of the court’s power to issue a search warrant. Obviously the Fourth Amendment long antedated the Federal Rules of Criminal Procedure, which were first adopted in 1944. Given the Fourth Amendment’s warrant requirements, and assuming no statutory prohibition, the courts must be deemed to have inherent power to issue a warrant when the requirements of that Amendment are met. See, e.g., United States v. Torres, 751 F.2d 875, 877-79 (7th Cir.1984), cert. denied, 470 U.S. 1087, 105 S.Ct. 1853, 85 L.Ed.2d 150 (1985); Application of the United States of America In the Matter of an Order Authorizing the Use of a Pen Register, 538 F.2d 956, 959 (2d Cir.1976), rev’d on other grounds sub nom. United States v. New York Telephone Co., 434 U.S. 159, 164, 168, 98 S.Ct. 364, 368, 370, 54 L.Ed.2d 376 (1977) (“The Court of Appeals ... concluded that district courts have the power, either inherently or as a logical derivative of Fed.Crim.Proc. 41, to authorize pen register surveillance upon an adequate showing of probable cause.” “We ... agree with the Court of Appeals that the District Court had power to authorize the installation of the pen registers.”); United States v. Southwestern Bell Telephone Co., 546 F.2d 243, 245-46 (8th Cir.1976), cert. denied, 434 U.S. 1008, 98 S.Ct. 716, 54 L.Ed.2d 750 (1978); cf. United States v. Giordano, 416 U.S. 505, 554, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J., concurring in part and dissenting in part) (permissibility of search device not regulated by statute “depends entirely on compliance with the constitutional requirements of the Fourth Amendment”).
Second, though Rule 41 expressly mentions only “documents, books, papers and any other tangible objects,” it is clear that both the Rule and the Fourth Amendment extend to searches for and seizures of intangibles as well. See United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). In New York Telephone, the Court considered a warrant authorizing the use of pen registers that would disclose numbers called from a given telephone line. The Court rejected the contention that a warrant could not lawfully authorize a search for such intangibles, stating that “Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause.” Id. at 169, 98 S.Ct. at 370. It noted that what is seized in such an endeavor is information, finding that the above-quoted language of Rule 41(b) was
broad enough to encompass a “search” designed to ascertain the use which is being made of a telephone suspected of being employed as a means of facilitating a criminal venture and the “seizure” of evidence which the “search” of the telephone produces. Although Rule 41(h) defines property “to include documents, books, papers and any other tangible objects,” it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41.

Id. (footnote omitted).

The seizure of intangible evidence has been explored principally in the context of the interception of conversations. See, e.g., Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961) (conversations overheard by means of microphone touching heating duct); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967) (telephone conversations overheard by means of listening device attached to outside of public telephone booth); Berger v. New York, 388 U.S. 41, 54-60, 87 S.Ct. 1873, 1881-84, 18 L.Ed.2d 1040 (1967) (conversations intercepted by wiretap). The principle that neither Rule 41 nor the Fourth Amendment prohibits seizure of intangible property has been applied by the Supreme Court to uphold the interception of nonverbal auditory information, such as that gained through the use of pen registers, see United States v. New York Telephone Co., 434 U.S. at 169-70, 98 S.Ct. at 370-71, and that gained through the placement of location-monitoring beepers in movable property, see United States v. Knotts, 460 U.S. 276, 285, 103 S.Ct. 1081, 1087, 75 L.Ed.2d 55 (1983); see also United States v. Karo, 468 U.S. 705, 715, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984) (beeper).

This principle has also been applied by this Court to uphold a warrant authorizing the gathering of visual information through the use of a video camera. See United States v. Biasucci, 786 F.2d 504, 509 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986); accord United States v. Torres, 751 F.2d at 883 (upholding warrant authorizing television surveillance of “safe house”); see also United States v. Taborda, 635 F.2d 131, 139 (2d Cir.1980) (warrant required for viewing of private area through telescope).

Given these authorities, we reject Villegas’s contention that the district court had no power to issue a search warrant pursuant to which only intangible evidence would

be seized. Accord United States v. Freitas, 800 F.2d 1451, 1455 (9th Cir.1986) (ruling that search-without-physical-seizure warrant was authorized, though not validly issued because it (1) failed to make any provision for notice, and (2) lacked particularity as to the intangible property to be seized); see also United States v. Freitas, 856 F.2d 1425, 1433 (9th Cir.1988).

United States v. Villegas, supra at 1334-1335.

Applying the same rationale to the unusual facts of the instant case, we hold that the suppression court erred when it determined that Pa.R.Crim.P. 2002 did not permit the issuance of a search warrant authorizing police to enter the Bagley residence to conduct inspections and testing, to recreate certain events, and to take photographs or videotape things located therein. The rule permits a warrant to be issued for the taking of photographs and the testing of physical evidence in the home. Therefore, the court erred when it suppressed evidence obtained pursuant to these warrants; and that portion of its order must be reversed.

The suppression court also suppressed the receptacle, the tape wrapped around the receptacle and the circuit breaker which had been physically seized by police during the execution of search warrant no. 13665. The court reasoned that the warrant had not authorized police to seize any physical evidence and only permitted inspection and testing. Reading the warrant in a common sense and non-technical manner, however, suggests that the electrical system of the house was identified by the warrant as the evidence to be seized. Although it would not have been practical for police to seize the entire electrical system of the Bagley home, such things as a receptacle and circuit breaker could reasonably be the subject of seizure pursuant to warrant. While it is true that the warrant itself identified the evidence to be searched for and seized as “Examination and Inspection of the Electrical System,” the affidavit of probable cause, which was incorporated by reference and attached to the warrant, specifically listed as objects of the search the wall outlets and circuit breakers associated with the electrical supply to the master bedroom and bathroom of the Bagley house. Thus, although the warrant may have been awkwardly worded, it provided police with authority to seize specific portions of the electrical system which had been identified therein. Even where the description of things to be searched for and seized by the warrant is defective, suppression will not be required where an adequate description is contained in the affidavit of probable cause and the affidavit has been incorporated by reference and is attached to the warrant. See: United States v. Johnson, 690 F.2d 60, 64-65 (3d Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 450 (1983). See also: United States v. Washington, 852 F.2d 803, 805 (4th Cir. 1988), cert. denied, 488 U.S. 974, 109 S.Ct. 512, 102 L.Ed.2d 547 (1988); United States v. Leary, 846 F.2d 592, 603 (10th Cir.1988); United States v. Weinstein, 762 F.2d 1522, 1531-1532 (11th Cir. 1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d 917 (1986).

Finally, pursuant to search warrant no. 12505, the police seized letters and other documents from the Bagley home. The suppression court held that these items were not evidence of a crime and, therefore, could not be seized pursuant to the warrant. The court reasoned as follows:

Pursuant to warrant No. 12505, the police also seized various letters, envelopes, telephone bills, a baggage claim check, a name tag, notes, an address book and papers with various phone numbers from the Bagley residence. A review of the affidavit of probable cause submitted in support of the application for this warrant shows that none of these items constituted contraband, fruits of a crime, things criminally possessed, property used as the means of committing a criminal offense or property constituting evidence of the commission of a criminal offense. Instead, seizure of these items was sought "... to determine those individuals who were likely to be the closest friends of the decedent ...” Under Rule 2002, a search warrant may not be issued for such broad investigatory purposes, and the items seized pursuant to warrant No. 12505 must be suppressed.

We agree with the suppression court that the documentary evidence seized pursuant to search warrant no. 12505 did not constitute evidence of the commission of a crime. Indeed, the affidavit of probable cause stated that police were seeking the documentary evidence named in the warrant because, during their investigation, they had been unable to determine the identity of Mrs. Bagley’s closest friends. The failure to identify the victim’s closest friends, however, did not provide police with probable cause to believe that the sought after documents were in any way connected to the murder of Mrs. Bagley. Moreover, although the warrant specified documents addressed to or by Mrs. Bagley, police also seized items addressed to appellee. These were not within the scope of the warrant. For these reasons, we affirm that part of the suppression court’s order which excluded documentary evidence seized pursuant to search warrant no. 12505.

Our conclusion that some of the evidence seized pursuant to search warrant no. 12505 was properly suppressed does not prevent our reversing the order suppressing evidence pertaining to the electrical system. The doctrine of severance mandates that invalid portions of a search warrant may be stricken and the remaining portions held valid, as long as the remaining portions of the warrant describe with particularity the evidence to be seized. See: United States v. Spilotro, 800 F.2d 959, 967-968 (9th Cir. 1986); United States v. Gomez-Soto, 723 F.2d 649, 654 (9th Cir.1984), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984). See also: United States v. Cardwell, 680 F.2d 75, 78 (9th Cir.1982); Commonwealth v. Casuccio, 308 Pa.Super. 450, 467-468, 454 A.2d 621, 629-630 (1982); Aday v. Superior Court, 55 Cal.2d 789, 796-98, 13 Cal. Rptr. 415, 420, 362 P.2d 47, 52 (1961). Where a search warrant authorizes seizure of some items for which there is probable cause and other items for which there is no probable cause, the warrant is not wholly invalid. In such cases, suppression will be required only of the evidence which was seized without probable cause. See: United States v. Diaz, 841 F.2d 1, 4 (1st Cir.1988); United States v. Freeman, 685 F.2d 942, 952-953 (5th Cir.1982). See also: United States v. Riggs, 690 F.2d 298, 300-301 (1st Cir.1982); United States v. Christine, 687 F.2d 749, 758-760 (3d Cir.1982). Instantly, search warrant no. 12505 was based on probable cause to examine the electrical system, which was particularly described as the object of the search. Therefore, the evidence obtained with respect to the electrical system is not subject to suppression merely because the warrant also authorized a search for documents without a showing of probable cause therefor.

To summarize, we hold that evidence seized from the Bagley home on March 26, 1989 was lawfully obtained by police pursuant to appellee’s voluntary consent, even though search warrant no. 12504 was invalid. We hold also that the evidence obtained by police via inspection and testing of the electrical system, recreation of appellee’s version of his wife’s death, and the taking of photographs and videotape of the bathroom and master bedroom areas of the Bagley house, as well as the physical seizure of specified portions of the electrical system, were properly authorized by search warrants nos. 13665, 12505 and 17105. Insofar as the suppression court ordered this evidence excluded, therefore, its order must be reversed. Insofar as the court suppressed documentary evidence seized without probable cause pursuant to warrant no. 12505, however, its order must be affirmed.

Order reversed in part, affirmed in part and remanded for further proceedings consistent with the foregoing Opinion. Jurisdiction is not retained.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring:

I join in all aspects of the majority’s well reasoned opinion save its discussion of the validity of search warrant No. 12504.

That a magistrate may not issue a search warrant without probable cause is axiomatic. In determining whether an affidavit is adequate to establish probable cause, the question to be answered is not whether there is sufficient evidence to prove guilt, but rather whether it is reasonably probable that the crime has been committed. Commonwealth v. DeLuca, 230 Pa.Super. 390, 397, 326 A.2d 463, 467 (1974). See also Alabama v. White, 496 U.S. -, -, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308 (1990) {quoting United, States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)). Information contained within the affidavit “is to be viewed with a common sense, non-technical ungrudging, and positive attitude.” Commonwealth v. Edwards, 493 Pa. 281, 290, 426 A.2d 550, 554 (1981) {citing Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973)). In resolving doubtful or marginal cases, our Supreme Court has instructed that courts should determine the answer by the preference accorded to warrants. Commonwealth v. Matthews, 446 Pa. 65, 71, 285 A.2d 510, 513 (1971); Commonwealth v. DeLuca, supra, 230 Pa.Super. at 395, 326 A.2d at 466. Finally, courts must pay due deference to the magistrate’s determination of whether probable cause has been established. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637, 645 (1969); Commonwealth v. Matthews, supra, 446 Pa. at 71-72, 285 A.2d at 513.

The affidavit of probable cause used to support the instant search warrant contained the following facts: 1) appellee brought the dead body of his wife to the hospital with the explanation that his wife had been accidently electrocuted while bathing in their home’s hot tub when an electric light fell into the water; 2) subsequent examination of the body revealed a laceration above the deceased’s right eye and various bruises about her body; 3) appellee claimed that he had “torn the room apart” where his wife had died before he left the home and was thinking of “setting fire to the house” upon his return; and 4) the police became aware of these facts via a phone call from a hospital nurse. In my opinion, viewing these facts together in a common sense, ungrudging and positive way, it was at least reasonably probable that: 1) appellee brought his dead wife to the hospital because he didn’t want the police to investigate the scene of her death; 2) appellee’s “electrocution” explanation was inconsistent with (or at least insufficient to account for) the subsequent examination of her body because appellee was lying with regard to her demise; and 3) that appellee had torn apart the room in which his wife had died before he brought her to the hospital because he was more concerned with destroying evidence of her fatal “accident” than he was with seeking emergency medical care. Granting due deference to the magistrate’s determination, and considering the preference accorded to warrants, it was not error, in my view, for the magistrate to have found that it was at least reasonably probable that appellee’s wife had been slain and that appellee was involved in the act.

Nonetheless, I agree with the majority's ultimate conclusion that the search warrant was invalid. Our Constitution, as well as the United States Constitution, proscribes warrants which do not describe with sufficient particularity the place(s) to be searched and the thing(s) to be seized. Commonwealth v. Grossman, 521 Pa. 290, 297-98, 555 A.2d 896, 899 (1989). While I agree with the Commonwealth that we must consider peculiar difficulties of complying with this requirement, I remain mindful that the very impetus for the Fourth Amendment as well as Article I, section 8 of our constitution, was the issuance of general writs of assistance which authorized searches only marginally more broad than that authorized herein. See Wakely v. Hart, 6 Binn. 315, 317-18 (1814); Commonwealth v. Rubin, 82 Pa.Super. 315, 319-20 (1923); Commonwealth v. Schaeffer, 370 Pa.Super. 179, 238, 536 A.2d 354, 383-84 (1987) (Kelly, J., concurring and dissenting). After due consideration of the difficulties in meeting the particularity requirement faced herein, I am not convinced that the instant search warrant’s authorization to search and seize “any items which may be related to death of Yvonne Bagley,” could not have been made less broad under the facts available to the applicants herein, e.g. by authorizing the search of only the room in which appellee claimed his wife had been electrocuted and authorizing the search for only such electrical items which may have caused her death or objects which could have inflicted the cut above her eye. I am therefore compelled to agree with the majority that the warrant issued was too broad. Accordingly, I concur.

      . Appellee has not sought to suppress this statement.

      . Pa.R.Crim.P. 2002 is as follows:
      Rule 2002. Purpose of Warrant
      A search warrant may be issued to search for and to seize:
      (a) contraband, the fruits of a crime, or things otherwise criminally possessed; or
      (b) property which is or has been used as the means of committing a criminal offense; or
      (c) property which constitutes evidence of the commission of a criminal offense.

      . Fed.R.Crim.P. 41 provides in relevant part:
      (b) Property or Persons Which May Be Seized with a Warrant.
      A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a crimnal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

        (h) Scope and Definition____ The term "property” is used in this rule to include documents, books, papers and any other tangible objects.
      Fed.R.Crim.P. 41(b) and (h).

      . Although the issue is not before us, such facts might well have justified the police to search or at least secure the scene based on exigent circumstances. See Commonwealth v. Ellis, 379 Pa.Super. 337, 342-48, 549 A.2d 1323, 1328 (1988) (fire investigation of three hours without search warrant is reasonable in order to discover and preserve evidence); Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978) ("exceptions [to the warrant requirement] arise where the need for prompt police action is imperative, [if] evidence sought to be presented is likely to be destroyed, or secreted from investigation____”). Cf. Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 214, 57 L.Ed.2d 290, 301 (1978) (search warrant necessary where police guard at door, and no emergency or threat of destruction of evidence.)

      . The instant warrant’s failure to specifically state the crime committed, in violation of Pa.R.Crim.P. 2006(e), 42 Pa.C.S.A. is not, in my opinion, a fatal defect. Such technical deficiencies, do not rise to the level of constitutional violations especially where, as here, it is obvious from context which crime was at issue. See Commonwealth v. O'Shea, 523 Pa. 384, 399, 567 A.2d 1023, 1029 (1989); Commonwealth v. Mason, 507 Pa. 396, 407, 490 A.2d 421, 426 (1985). Cf. Commonwealth v. Schilling, 312 Pa.Super. 43, 48, 458 A.2d 226, 229 (1983) ("Pa.R.Crim.P. 2005 has not been interpreted in such a hypertechnical manner so as to equate all errors to be violative of one’s Fourth Amendment rights).

      . The difficulty in complying with and the effect of enforcing a strict particularity requirement in investigating cases such as the instant one may be briefly summarized as follows. Normally, police are called to the scene of a potential murder and briefly conduct an investigation of the crime scene, searching for whatever evidence may have been left behind. Clues discovered during this initial crime scene search often include incriminating yet evanescent and easily destroyable evidence such as bloodstains, fingerprints, and signs of entry and egress. These in turn are often later used to justify another, more intrusive search of the crime scene authorized by warrant.
      Where, however, the victim's body is removed from a suspect’s home before the police are aware of the death, police have no opportunity to conduct the initial investigation of the scene of the death, and no constitutional authority to conduct a search of the recent crime scene once they become aware of the death absent a search warrant, exigent circumstances, or consent. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). In such cases police may reasonably believe that a murder has been committed but be sufficiently ignorant as to how it was committed to specify with particularity any items they may wish to seize or any places they may wish to search. To construe the particularity requirement strictly in this situation, may be to prohibit search of the scene entirely.
      Our constitutions mandate no such result. Although the particularity requirement of our constitution has been construed more rigidly than that of its federal counterpart, see Commonwealth v. Grossman, 521 Pa. 290, 296-99, 555 A.2d 896, 899-900 (1989), I believe the requirement must and does retain sufficient flexibility to account for the peculiar circumstances involved in procuring a warrant where there has been no initial opportunity to search the crime scene. See e.g. In re Search Warrant B-21778, 513 Pa. 429, 436-37, 521 A.2d 422, 426 (1987) (where investigation has no legitimate means of narrowing down the location of certain items to be seized particularity requirement not violated). Both the Fourth Amendment and Article I, Section 8 are designed to prevent unreasonable searches and seizures. Reasonableness is of course dependent upon circumstances. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985); Commonwealth v. Stamps, 493 Pa. 530, 537, 427 A.2d 141, 144 (1981). Where it is reasonably probable that a crime has been committed but police are not sufficiently certain how it was accomplished, it is necessary and thus reasonable to construe less rigidly the particularity requirement to allow police at least some access to the recent crime scene. Indeed, the United States Supreme Court has suggested:
      It may well be that the circumstances described by the Arizona Supreme Court [search of the scene of a recent homicide limited to determining circumstances of death] would usually be constitutionally sufficient to warrant a search of substantial scope. But the Fourth Amendment requires that this judgment in each case be made in the first instance by a neutral magistrate.

        Mincey v. Arizona, 437 U.S. 385, 395, 98 S.Ct. 2408, 2415, 57 L.Ed.2d 290, 302 (1978) (emphasis added). Several other jurisdictions have recognized this as well. See e.g. United States v. Kepner, 843 F.2d 755, 762, 763 (3rd Cir.1988) (warrant authorizing search for "documents, records and personal effect of Thomas Kepner” upheld as constitutional); United States v. Johnson, 541 F.2d 1311, 1314 (8th Cir.1976) ("the degree of specificity required when describing the goods to be seized may necessarily vary according to the circumstances and type of items involved"); Commonwealth v. Freiberg, 405 Mass. 282, 299, 540 N.E.2d 1289, 1300 (1989) (Because "police officers did not know what instrument had caused the victim’s severe head wounds ... the police could not be expected to describe with detailed precision the items to be seized when the exact characteristics of those items were not known to them.’’); State v. Repp, 117 Wis.2d 143, 153, 342 N.W.2d 771, 776 (App.1983) (search warrant authorizing search for " ‘things used in the commission of or [which] may constitute evidence of a crime, to wit; murder’ was sufficient.’’); State v. Hodges, 43 Or.App. 547, 551, 552, 603 P.2d 1205, 1207, 1208 (1979) (search warrant authorizing seizure of "any and all evidence which may relate to the possible murder of Sandra Hodges" particular and constitutional when "the police do not know that instrumentalities and other evidence of crime probably exist and they know the premises upon which such items will be found”).