LEO THACKER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
June 21, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001321-MR
LEO THACKER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN ADAMS, JUDGE
ACTION NOS. 01-CR-00029 & 01-CR-00152
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
On May 4, 2001, Leo Thacker pled guilty in Fayette
Circuit Court to several counts of obtaining, and several counts
of attempting to obtain a controlled substance by means of fraud,
in violation of KRS 218A.140.
By judgment entered May 29, 2001,
Thacker was sentenced to five years’ probation in lieu of a fiveyear prison sentence as a second-degree persistent felony
offender.1
Pursuant to RCr 8.09, he reserved his right to appeal
from that judgment and now contends that the trial court erred
when it denied his motion to suppress evidence.
Thacker claims
that the evidence was tainted by an enforcement officer’s misuse
1
KRS 532.080.
of an electronic prescription-monitoring system.
The system is
maintained by the Cabinet for Health Services and the so-called
KASPER or Kentucky all schedules prescription electronic
reporting system.
Convinced that the officer’s use of the KASPER
system violated neither KRS 218A.202, the defining statute, nor
constitutional provisions against unreasonable searches and
seizures, we affirm.
A Lexington-Fayette County police officer arrested
Thacker on April 27, 2000, for driving under the influence.
In
the course of the arrest, the officer found in Thacker’s
possession prescription drug containers for four different
controlled medications and a bottle of codeine-containing cough
medicine.
She also learned that Thacker had recently been
charged in another county with offenses related to prescription
forgery.
The officer reported this information to a detective in
the narcotics unit of the Lexington Metro Police Department.
The
detective, in turn, filed a request with the Drug Enforcement and
Professional Practices branch of the Department for Public
Health,2 for a KASPER report on Thacker.
The KASPER report,
which is based on data supplied by dispensers of controlled
substances (primarily pharmacists), is in essence a history of
the subject’s prescription activity within Kentucky since January
1999, when the prescription monitoring system became
operational.3
The report indicated that Thacker had obtained
2
The Department is the agency within the Cabinet for Health Services, which among
other duties, oversees controlled substances.
3
KRS 218A.202, effective as of July 15, 1998, provides in subsection (1) that
(continued...)
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what appeared to be overlapping prescriptions; that is,
simultaneous or nearly simultaneous prescriptions from different
doctors for similar medications.
The detective contacted the
reported pharmacies to verify that Thacker had indeed received
the controlled medications, and then contacted the reported
doctors to inquire if Thacker had made them aware of the other
prescriptions.
All of the doctors informed him that Thacker had
not made them aware of his other prescriptions, and each stated
that if they had been made aware they would not have given
Thacker an additional prescription.
The doctors’ statements were
the basis of the detective’s testimony before the grand jury,
which indicted Thacker on January 17, 2001.
Thacker contends that the detective’s use of KASPERderived information in his communication with the doctors and in
his testimony before the grand jury violated the confidentiality
provisions of KRS 218A.202, and that his examination of the
KASPER data amounted to an unreasonable search and seizure under
both the federal and Kentucky constitutions.
For the following
reasons, we reject both of these contentions.
3
(...continued)
[t]he Cabinet for Health Services shall establish an electronic system for
monitoring Schedules II, III, IV, and V controlled substances that are dispensed
within the Commonwealth by a practitioner or pharmacist or dispensed to an
address within the Commonwealth by a pharmacy licensed by the Kentucky Board
of Pharmacy.
According to its manager, who testified at Thacker’s suppression hearing, the monitoring
system consists of an electronic repository of records for each controlled substance dispensed in
Kentucky. The records include the names of the prescriber, the dispenser, and the patient; the
type and amount of medication; and the date of dispensing. The repository is intended to give
both doctors and law enforcement officers efficient access to a patient’s or suspect’s medication
history.
-3-
Subsection (6) of KRS 218A.202 authorizes the Cabinet
to release data from the monitoring system to, among a very few
others,
(b) A state, federal, or municipal officer
whose duty is to enforce the laws of this
state or the United States relating to drugs
and who is engaged in a bona fide specific
investigation involving a designated person;
. . .
(d) A properly convened grand jury pursuant
to a subpoena properly issued for the record;
. . . [and]
(e) A practitioner or pharmacist who requests
information and certifies that the requested
information is for the purpose of providing
medical or pharmaceutical treatment to a bona
fide current patient.
Subsection (6) further provides that
[f] person who receives data or any report of
the system from the cabinet shall not provide
it to any other person or entity except by
order of a court of competent jurisdiction.
Thacker contends that government access to the
monitoring data for the purpose of law enforcement is subject to
the guarantees against unreasonable searches and seizures
contained in the federal Fourth Amendment and Section 10 of our
state constitution.
Release of the data to an officer without a
search warrant, therefore, is presumptively unreasonable and
unconstitutional, according to Thacker, unless some exception to
the warrant requirement applies.4
Thacker seems to argue that
even if KRS 218A.202(6)(b) provides an exception to the warrant
requirement, nevertheless, the requesting officer should be
required to demonstrate that he has probable cause to believe
that the data will reveal evidence of a crime.
4
Farmer v. Commonwealth, Ky., 6 S.W.3d 144 (1999).
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In this case, he
insists, not only did the Cabinet not demand a showing of
probable cause before releasing the KASPER report to the officer,
but probable cause was lacking.
We are inclined to agree with Thacker that in general
the constitutional provisions against unreasonable searches and
seizures apply to the state’s use of an individual’s medical data
in its efforts to enforce the criminal laws against him or her.
The Fourth Amendment and Section 10 apply whenever law
enforcement officers invade a citizen’s reasonable expectation of
privacy.5
Medical records, we believe, are within this protected
area.6
Whether pharmacy records are entitled to the same
protection is not as clear.
Pharmacy records have long been
subject to police inspection, so the expectation of privacy in
them is lessened.7
We need not decide this issue, however, for
even if pharmacy and other controlled substance records in
possession of the state are entitled to Fourth-Amendment and
Section 10 protection, the Supreme Court has recognized an
exception to the warrant and probable cause requirements that is
pertinent to them.
The exception is for administrative searches
in furtherance of the State’s regulation of industries that pose
5
Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); LaFollette
v. Commonwealth, Ky., 915 S.W.2d 747 (1996).
6
Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000). Yeoman v. Commonwealth Health
Policy Board, Ky., 983 S.W.2d 459 (1998).
7
KRS 218A.230, formerly KRS 218.140 and 218.160.
-5-
large risks to the public’s health, safety, or welfare.8
exception has also been recognized in Kentucky.9
This
Under this
exception, administrative searches undertaken on less than
probable cause--even searches in furtherance of the criminal
laws--may nevertheless be reasonable if (1) the state has a
substantial interest in regulating the particular industry, (2)
the regulation providing for the search reasonably serves to
advance that interest, and (3) the regulation informs
participants in the industry that searches will be made and
places appropriate restraints upon the discretion of the
inspecting officers.10
Kentucky clearly has a substantial interest in
regulating the sale and distribution of drugs and in attempting
to trace their movement through the channels of commerce.11
8
It
New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987).
9
Hughett v. Housing & Urban Development Commission, Ky. App., 855 S.W.2d 340
(1993). Thacker notes that in Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992), our
Supreme Court recognized a somewhat broader right to privacy under the due process provisions
of Kentucky’s Constitution than the United States Supreme Court has recognized under the
Fourteenth Amendment. Similarly, he contends, we should extend the protection afforded by
Section 10 of our constitution beyond that of the federal Fourth Amendment. Our Supreme
Court, however, has consistently held that Section 10's guarantee against unreasonable searches
does not exceed the federal one. Colbert v. Commonwealth, Ky., 43 S.W.3d 777 (2001). We
leave any departure from that rule to our Supreme Court. To the extent that Thacker challenges
the constitutionality of KRS 218A.202 itself (as opposed to the particular search in this case) as
violative of the right to privacy recognized in Wasson, his argument was not properly raised or
preserved in the trial court and thus is not subject to review. Brashars v. Commonwealth, Ky., 25
S.W.3d 58 (2000).
10
Burger, 482 U.S. at 702-03; see also Morgan v. New Hampshire Board of Pharmacy,
742 A.2d 101 (N.H. 1999).
11
Cf. Whalen v. Roe, 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); Vermont v.
Welch, 624 A.2d 1105 (Vt. 1992); Stone v. City of Stow, 593 N.E.2d 294 (Ohio 1992).
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is no less clear that the prescription monitoring system, with
its substantial safeguards against inappropriate disclosure of
data, reasonably advances that interest.
The detective testified
that, by eliminating the need to inquire about a suspect at
virtually every pharmacy in the county, the KASPER reports have
significantly streamlined his prescription-fraud investigations.
Finally, the statute makes clear to practitioners and patients
that the data is subject to limited police inspection, and the
requirement that officers articulate to the Cabinet bona fide
suspicions that the individual about whom they are inquiring has
violated a provision of KRS Chapter 218A appropriately restrains
their discretion.
We agree with the trial court, furthermore, that the
individualized-suspicion requirement, whatever its exact relation
to probable cause, was more than satisfied in this case.
Thacker, likely a recent prescription forger, was caught
intoxicated and in possession of a large number of containers for
prescription pain relievers that are often abused.
This was
sufficient evidence to justify the search of Thacker’s KASPER
report.
Even if the search was valid, Thacker next contends,
the detective’s use of the KASPER data to direct his
investigation amounted to a disclosure of that data in violation
of KRS 218A.202(6)(f), the provision that a recipient of KASPER
data not disclose it without a court order.
We do not agree,
however, that the detective’s use of Thacker’s data amounted to a
disclosure.
The detective testified that he showed the report to
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no one, including the grand jury, nor did he tell anyone what the
report contained.
His asking the doctors who prescribed the
overlapping medications whether Thacker told them of other
prescriptions and whether they would have prescribed differently
if he had told them disclosed nothing to the doctors.
of course, a question is not a statement.
Generally,
The basis for the
detective’s questions need not have been and was not disclosed.
On the contrary, the disclosures occurred in the opposite
direction: the doctors gave information to the detective.
It was
that information, not the KASPER data, that the detective then
presented to the grand jury.
The detective’s use of Thacker’s
KASPER report to elicit that information efficiently did not
violate KRS 218A.202(6).
For these reasons, we affirm the May 29, 2001, judgment
of the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia A. Sneed
Lexington, Kentucky
Albert B. Chandler III
Attorney General
David A. Sexton
Assistant Attorney General
Frankfort, Kentucky
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