RENDERED: MAY 6, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 07-CR-00198
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER, NICKELL, AND STUMBO, JUDGES.
KELLER, JUDGE: Vanessa Carter (Carter) appeals from the circuit court's denial
of her motion to suppress information about her which was obtained by a police
officer from records in the Kentucky All-Schedule Prescription Electronic
Reporting System (KASPER). For the following reasons, we affirm.
The facts are not in dispute. Detective George Workman (Workman)
received information from a physician's office and another detective that Carter
was possibly "doctor shopping." Workman then requested a KASPER report from
the Cabinet for Health and Family Services regarding Carter's prescription
medication history. The KASPER report indicated that Carter had obtained overlapping prescriptions for various scheduled medications from several different
physicians. Workman contacted several of Carter's physicians who reported that
they were unaware that Carter had obtained over-lapping prescriptions and, had
they known, they would not have prescribed Carter's medication. Workman then
arrested Carter and she was charged with and indicted on a number of counts of
obtaining controlled substances by deception.
Following her indictment, Carter filed a motion to suppress, arguing
that Workman conducted an unlawful search of KASPER. The trial court,
somewhat reluctantly, denied Carter's motion. Carter then entered a conditional
guilty plea and this appeal followed.
STANDARD OF REVIEW
Generally, the standard of review on a suppression motion is twofold,
with deference being granted to the trial court as to factual findings and the trial
court's legal conclusions being subject to de novo review. See RCr 9.78;
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002); Adcock v.
Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). However, because the issues on
appeal primarily involve questions of law, our review herein is de novo.
Carter argues that: (1) she had a reasonable expectation of privacy in
her prescription records and those records were protected from warrantless search
and seizure; and (2) even if her records in KASPER were not protected from
unlawful search, Workman did not have sufficient justification to conduct his
search. The Commonwealth argues that: (1) a review of KASPER records is not a
"search;" (2) even if that review is a search, Carter had no reasonable expectation
of privacy; and (3) Workman's KASPER review was within the parameters set
forth in Kentucky Revised Statute (KRS) 218A.202.
At the outset, we note that "[a]ll searches without a valid search
warrant are unreasonable unless shown to be within one of the exceptions to the
rule that a search must rest upon a valid warrant." Gallman v. Commonwealth, 578
S.W.2d 47, 48 (Ky. 1979). Therefore, we first address whether Carter had any
expectation of privacy and whether Workman's review of her KASPER records
amounted to a search.
In support of her argument that she had an expectation of privacy and
that her prescription records were protected from warrantless search, Carter cites to
a case from Louisiana and to cases from a number of Federal Courts of Appeal.
While the federal cases are of some interest, we note that the majority of them
involve a person's expectation of confidentiality, i.e. that medical information will
not be shared with third parties, rather than the expectation of privacy, i.e.
protection from government intrusion.
However, the Louisiana case, State v. Skinner, 10 So.3d 1212 (La.
2009), involved a criminal investigation that is similar to the case herein. In
Skinner, the district attorney received a tip from a pharmacist that Skinner was
obtaining medication with multiple overlapping prescriptions. Based on that tip,
the district attorney filed motions for production of prescription and medical
records in district court. The district court issued an order requiring eight
pharmacies to produce Skinner's records. The district attorney then prosecuted
Skinner based on information derived from those records. On appeal, the
Louisiana Supreme Court held that, absent one of the narrowly drawn exceptions,
Skinner's prescription records were protected from warrantless search and seizure
as part of a criminal investigation. Because the district attorney failed to obtain a
search warrant, the Louisiana Supreme Court concluded that the information
obtained from the pharmacies should have been suppressed.
Having noted the above, we are bound to follow the dictates of our
Supreme Court. SCR 1.030(8)(a). In Williams v. Commonwealth, 213 S.W.3d 671
(Ky. 2006), the Supreme Court of Kentucky determined that the citizens of the
Commonwealth have no expectation of privacy with regard to their pharmacy
records in KASPER.
It is axiomatic that “application of the Fourth
Amendment [and Section 10 of Kentucky's constitution]
depends on whether the person invoking its protection
can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate
expectation of privacy’ that has been invaded by
government action.” Smith v. Maryland, 442 U.S. 735,
740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). . . . [W]e find
that examination of KASPER reports by authorized
personnel pursuant to KRS §§ 218A.202 (6)(a) & (b)
does not constitute a “search” under the Fourth
Amendment or Section 10 of Kentucky's constitution,
since citizens have no reasonable expectation of privacy
in this limited examination of and access to their
Id. at 682.
Our Supreme Court then analogized records in KASPER to pen registers,
which are used by telephone companies to track incoming and outgoing calls. Pen
registers only track phone numbers and the time calls are made or received. They
do not reveal anything about the content of the calls. As noted by our Supreme
Court, the United States Supreme Court held that citizens have no expectation that
such information is private.1 Id.
In similar fashion, a KASPER report conveys only
limited data to a restricted number of persons. First, it
does not report the dispensation of all substances by
practitioners or pharmacists but only those substances
classified as “Schedules II, III, IV, and V controlled
substances.” KRS § 218A.202(1). Second, nothing in a
KASPER report discloses a patient's condition, treatment,
or communications with his or her physician, as the
report merely conveys the patient's name, the drug
dispensed, the date of dispensing, the quantity dispensed,
the prescriber, and the dispenser. KRS § 218A.202(4).
Finally, KASPER data is not available to the general
public, but rather only to specified personnel who certify
that they are conducting “a bona fide specific
investigation involving a designated person.” KRS §
218A.202(6)(a) & (b).
Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
Furthermore, it is well known by citizens that any
prescriptions they receive and fill will be conveyed to
several third parties, including their physician, their
pharmacy, and their health insurance company. As noted
by the Court of Appeals . . . pharmacy records have long
been subject not only to use and inspection by
pharmacies, physicians, and health insurance companies
but also to inspection by law enforcement and state
Id. at 683 (some citations omitted).
Our Supreme Court then reviewed other instances where citizens have little
or no expectation of privacy, including information on the outside of mail and
financial information conveyed to banks and bank employees. Id. Finally, our
Supreme Court recognized the competing interests of law enforcement and a
citizen's right to be free from unwarranted governmental intrusion. Balancing
those interests, the Court concluded
that disclosure of KASPER data to authorized law
enforcement personnel and other state actors pursuant to
KRS § 218A.202 by third parties who obtained the
information in the ordinary course of business does not
infringe upon or otherwise manipulate any wellrecognized Fourth Amendment or Section 10 freedoms.
Id. at 683-84.
Based on the preceding, we are constrained to hold that Carter had no
expectation that her KASPER prescription records were private or subject to
Fourth Amendment protection from warrantless search and seizure. However, we
feel obliged to point out what we believe are deficiencies in the Supreme Court's
analysis in Williams. Initially, we note that a pen register reveals only phone
numbers and the date and time of a telephone call. It does not reveal the substance
of the call, who made the call, or who answered the call. As a result, little
additional information can be gleaned from pen registers.
However, a prescription record reveals the type and amount of
medication prescribed, the prescribing physician, the date of the prescription, and
the pharmacy where the prescription was filled. With internet access or a
telephone book and a copy of the Physicians' Desk Reference, a person with the
information contained in a KASPER report may, within a fairly narrow range, be
able to determine the condition or conditions being treated. The Supreme Court's
statement to the contrary notwithstanding, we believe that the citizens of the
Commonwealth have a legitimate privacy expectation regarding their medical
Noting the preceding, we next address how to apply KRS 218A.202
under Williams and how we believe it should be applied.
2. Application of KRS 218A.202
Carter argues that Workman did not have sufficient justification under
KRS 218A.202 to request a report of her prescription records. KRS 218A.202(6)
provides, in pertinent part, that
[t]he Cabinet for Health and Family Services shall be
authorized to provide data to:
(b) A Kentucky peace officer certified pursuant to KRS
15.380 to 15.404, a certified or full-time peace officer of
another state, or a federal peace officer whose duty is to
enforce the laws of this Commonwealth, of another state,
or of the United States relating to drugs and who is
engaged in a bona fide specific investigation involving a
According to Carter, Workman was required to show that he had probable
cause to believe that a crime was being committed in order to establish that he was
"engaged in a bona fide specific investigation of a designated person." We are
constrained by Williams to disagree for two reasons. First, as stated above, Carter's
KASPER records under Williams are not subject to Fourth Amendment protection
from unreasonable search and seizure. Therefore, Workman was not required to
articulate a reason sufficient to meet Fourth Amendment requirements in order to
obtain Carter's records. He was only required to show that he was involved in a
bona fide specific investigation of a designated person.
Under Williams, Workman's testimony that he received information from
another detective and "someone" in a physician's office was sufficient to establish
that he was engaged in a bona fide specific investigation. Therefore, under
Williams, we are constrained to affirm.
However, we believe that, at a minimum, a police officer must have a
reasonable suspicion that criminal activity is afoot in order to establish that he is
conducting a bona fide specific investigation. See Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). As outlined in Terry and Williams v.
Commonwealth, 147 S.W.3d 1, 5 (Ky. 2004), an "'officer need not be absolutely
certain that the individual' is engaged in an unlawful enterprise; 'the issue is
whether a reasonably prudent man in the circumstances would be warranted in his
belief' that the suspect is breaking, or is about to break, the law." Williams, 147
S.W.3d at 5 (citing Terry, 392 U.S. at 27). We do not believe that placing this
standard on law enforcement personnel would create an undue hardship since it is
not likely that the KASPER records will disappear or otherwise be compromised
while an officer obtains verifiable information that criminal activity is afoot.
Furthermore, applying the standards from Terry and its progeny will clearly define
what constitutes a bona fide specific investigation.
We would not apply this standard to "[a] designated representative of
a board responsible for the licensure, regulation, or discipline of practitioners,
pharmacists, or other person who is authorized to prescribe, administer, or dispense
controlled substances[,]" KRS 218A.202, because persons subject to those
investigations do not have any expectation of privacy.
Because we are bound to follow Williams, we are constrained to
affirm. However, as noted above, we question at least a portion of the holding in
Williams, and would require law enforcement officers to comply with the standards
set forth in Terry v. Ohio and its progeny before undertaking a search of the
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General