CLIFFORD CARRIER V. COMMONWEALTH OF KENTUCKY
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RENDERED : JUNE 17, 2004
TO BE PUBLISHED
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2002-SC-0509-DG
CLIFFORD CARRIER
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-2281-MR
LIVINGSTON CIRCUIT COURT NO. 1999-CR-0033
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
REVERSING
Appellant, Clifford Carrier, entered a conditional guilty plea in the Livingston
Circuit Court to fifteen counts of sexual offenses against minors. He received a
sentence of ten years . On appeal, the Court of Appeals affirmed the convictions,
rejecting Appellant's claim that incriminating evidence contained in records obtained
from his psychologist should have been suppressed, as the evidence was (1)
wrongfully obtained, and (2) protected by the psychotherapist-patient privilege
contained in KRE 507. This being a matter of first impression in Kentucky, we
granted discretionary review. After hearing oral arguments and reviewing the
record, we reverse the decision of the Court of Appeals and remand for a new trial .
The sexual offenses at issue were committed between May 1, 1990, and
December 12, 1993 . Although claims of sexual abuse perpetrated by Appellant
were investigated in 1993, no charges were brought at that time . In January 1999,
after the abuse victims reached adulthood, the county attorney filed an ex parte
motion in the Livingston District Court styled "Verified Motion for Records." On the
basis of a state police investigation of sodomy and sexual abuse committed by
Appellant against small children, the motion sought all records pertaining to
Appellant in the possession of Dr. John Runyon, Appellant's psychologist . The
motion alleged that three victims had made accusations against Appellant, and that
a Ms. Laverne Carrier (Appellant's ex-wife) was willing to testify that Appellant had
confessed his sexual offenses to Dr. Runyon .
The motion and subsequent order read as follows verbatim :
COMMONWEALTH OF KENTUCKY
LIVINGSTON DISTRICT COURT
COMMONWEALTH OF KENTUCKY
V.
PLAINTIFF
VERIFIED MOTION FOR RECORDS
DEFENDANT
CLIFFORD L. CARRIER
Comes now the Commonwealth of Kentucky, by and through the
Livingston County Attorney, and moves this Honorable Court for an Order
directing the release of all records, files, documents, and all other information
relating to Clifford L. Carrier, d.o.b. 10/03/26 , SS#XXX-XX-XXXX, in the
possession of Psychological Associates and/or Dr. John C. Runyon . As grounds
for this motion, the Commonwealth states that Detective Kevin Pelphrey,
Kentucky State Police, is conducting an investigation regarding sodomy and
sexual abuse, by Mr. Carrier, of small children . Detective Pelphrey has the
testimony of three (3) victims regarding said criminal sexual activity. Mr. Carrier
advised Ms. Laverne Carrier, who is willing to testify, that he confessed his illegal
sexual activity to Dr. Runyon, of Psychological Associates . The requested
information is material to the Commonwealth's investigation .
Respectfully Submitted,
/s/ Billy N. Riley
Livingston County Attorney
2
P.O. Box 97
Smithland, KY 42081
(270) 928-2880
Verification
I hereby certify that, to the best of my knowledge and belief, the contents
of the foregoing motion are true and correct .
/s/ Det . Kevin Pel phrev
COMMONWEALTH OF KENTUCKY
LIVINGSTON DISTRICT COURT
COMMONWEALTH OF KENTUCKY
VS.
PLAINTIFF
ORDER
CLIFFORD L. CARRIER
DEFENDANT
Upon motion of the Commonwealth of Kentucky, the Court being advised
of the necessity of certain information in an ongoing investigation of the
Commonwealth, and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Dr. John
C. Runyon and/or Psychological Associates release to Detective Kevin Pelphrey
of the Kentucky State Police, any and all files, documents, and other information
in their possession or within their knowledge regarding Clifford L. Carrier.
ENTERED this the 26th day of January, 1999.
/s/ Jill Clark
Judge
CERTIFICATE OF EXECUTION
I hereby certify that the foregoing Order has been executed by personally
delivering an exact copy of same to and receiving information from Mr. John C.
Runyon and this the 28th day of January 1999 at 11 :38 a.m.
/s/ Det . Kevin Pelphrey
Det. Kevin Pelphrey, K.S.P.
Although the motion was styled Commonwealth v. Clifford L. Carrier , at the time
the order was issued on January 26, 1999, there was neither a case nor controversy
involving Appellant appearing on the docket of the Livingston District or Circuit Court .
Interestingly, neither the motion nor the order were stamped "filed" by the district court,
and, in fact, the only file stamp found on the motion is by the Livingston Circuit Court
dated July 6, 1999, after Appellant's indictment on June 30, 1999 .
Similarly, the only
stamp on the district court's order reflects that it was entered by the circuit court on July
7, 1999 .
In October 1999, defense counsel filed a motion in limine to suppress all
evidence obtained from the psychological records .
Following the denial of that motion,
Appellant accepted the conditional plea agreement, and judgment was entered
accordingly .
Appellant first argues that, contrary to the Court of Appeals' conclusion, the
motion for production of his psychological records falls short of both the procedural
requirements and probable cause necessary for issuance of a search warrant.
Asserting that the district court's order was overly broad, Appellant notes that it
authorized the seizure of all files, documents, and records relating to Appellant, rather
than just those documents containing evidence of his alleged "confession of sex crimes
against minors ." Finally, Appellant contends that his ex-wife's allegation that he told her
he had confessed to the psychologist did not constitute probable cause for issuance of
a search warrant .
The Court of Appeals opined that the county attorney's "Verified Motion For
Records" was "essentially the equivalent of a request for a search warrant ." The court
reasoned further that the detective's verification of the grounds upon which the motion
was sought "would meet the requirements of RCr 13 .10," and that there was probable
cause for issuance of the order authorizing seizure of the records . We disagree .
Section 10 of the Kentucky Constitution mandates that "[t]he people shall be
secure in their persons, houses, papers and possessions, from unreasonable search
and seizure ; and no warrant shall issue to search any place, or seize any person or
thing, without describing them as nearly as may be, nor without probable cause
supported by oath or affirmation ."' The procedural requirements for the issuance of a
search warrant are set forth in RCr 13 .10, which provides, in pertinent part:
(1) Upon affidavit sufficient under Section 10 of the Kentucky
Constitution and sworn to before an officer authorized to
administer oaths as provided in Rule 2 .022 for the swearing of
complaints, a search warrant may be issued by a judge or other
officer authorized by statute to issue search warrants .
Kentucky courts have repeatedly held that no search warrant shall be issued
unless supported by an affidavit alleging probable cause . Beemer v. Commonwealth ,
Ky., 665 S .W.2d 912, 914 (1984) ; Embry v. Commonwealth , Ky., 492 S.W.2d 929, 932
(1973); Guth v . Commonwealth , Ky. App., 29 S .W.3d 809 (2000) . Furthermore, both
the Kentucky Constitution §10 and the Fourth Amendment require that probable cause
be supported by "oath or affirmation ."
i The Fourth Amendment to the United States Constitution similarly provides :
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized .
The complaint is a written statement of the essential facts constituting the offense
charged . It shall be made under oath and signed by the complaining party before a
judge or a person who (a) is legally empowered to administer oaths and (b) has been
authorized to administer such oaths to a complaining party by written order of a judge
for the county having venue of the offense charged. RCr 2 .02 .
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2
An oath or affirmation is a subscription to the truth of that to which it is made .
An affirmation is a substitute for an oath, except that it does not invoke the Deity, where
there is an expression of scruples against taking an oath . 58 Am .Jur.2d Oath and
Affirmation §2 (2002) . "To make a valid oath or affirmation, there must be some overt
act which shows that there was an intention to take an oath or affirmation on the one
hand and the intention to administer it on the other ; mere intention, not accompanied by
an unambiguous act, is insufficient ." Bd. of Elections v. Bd. Of Educ . , Ky. App., 635
S .W .2d 324, 327 (1982) (citations omitted) .
In order to have a valid statement under
oath, the attention of the person to be sworn must be called to the fact that his or her
statement is not a mere assertion, but must be sworn to, and he or she must do some
corporal act in recognition of this. 58 Am.Jur.2d ., supra, at §16.
An affidavit is a written statement of fact under oath sworn to or affirmed by the
person making it before some person who has authority under the law to administer
oaths and officially certified by the officer under his or her seal of office . Id . §3. An
affidavit implies the taking of an oath as to the truth of its contents . Bd . of Elections ,
supra .
Here, although the county attorney filed a "Verified Motion for Records," the
Court of Appeals construed it as the equivalent of an affidavit for a search warrant.
However, contrary to the requirements of RCr 13 .10, there is no indication that the
motion was "sworn to before an officer authorized to administer oaths ." This "affidavit"
contains only bare allegations made by the county attorney and a certification by the
detective . Notably, neither signature was even notarized . As such, the motion clearly
fails to meet the procedural requirements of RCr 13 .10 for an affidavit supporting a
6
search warrant . The Constitutional demand of an oath or affirmation requires more
than a mere verification of a police officer .
We note that in Spradling v . Hutchinson , 253 S .E.2d 371 (W .Va . 1979), the West
Virginia Supreme Court of Appeals held that there was no significant distinction
between an "affirmation" and a "certification" since both are subscriptions to the truth .
Spradling , however, concerned information contained in a police application form,
wherein the statement at issue was, "I hereby certify that there are no willful
misrepresentations in, or falsifications of, the above statements and answers to
questions ." Id . a t 770 . Here, in comparison, the detective's verification provided, "I
hereby certify that, to the best of my knowledge and belief, the contents of the foregoing
motion are true and correct ." We perceive an important distinction between both the
substance and form of the document in this case and that present in Spradlinq .
Furthermore, we conclude that the motion falls short of establishing probable
cause for the issuance of a search warrant . Under Kentucky Constitution §10, it is
insufficient for an affiant applying for a search warrant to state his "information and
belief' of the existence of facts sought to be discovered by the warrant ; rather the
affidavit must be supported by a statement of facts sufficient to create probable cause.
Vick v. Commonwealth, 204 Ky. 513, 264 S .W . 1079 (1924) . See also Duncan v.
Commonwealth , 297 Ky . 217, 179 S.W.2d 899 (1944) ; Byars v. United States , 273 U.S .
28, 47 S .Ct. 248, 71 L.Ed . 520 (1927), overruled on other grounds as recognized by
Elkins v. United States , 364 U .S. 206, 80 S.Ct. 1437, 4 L.Ed .2d 1669 (1960).
Other than Appellant's ex-wife's assertion, it does not appear from the motion
that either the county attorney or the detective had any independent knowledge of
7
Appellant's psychological treatment history with Dr. Runyon, or even that such existed .
The motion is void of any information as to when the treatment occurred, when
Appellant allegedly confessed to Dr. Runyon, when Appellant informed his ex-wife that
he had done so, or whether Dr. Runyon had ever filed a report of the misconduct . This
lack of specificity likely explains why the motion sought "all records, files, documents,
and all other information" relating to Appellant in the possession of Dr. Runyon . Thus,
even if Detective Pelphrey's certification could be considered a valid affirmation or oath,
it was not sufficient to establish probable cause supporting a warrant.
Appellant next argues that the Commonwealth obtained his psychological
records in violation of the psychotherapist-patient privilege found in KRE 507. In fact,
the Court of Appeals, relying on this Court's decision in Mullins v. Commonwealth , Ky .,
956 S .W.2d 210, 211 (1997), held that KRS 620.050 abrogates the professionalclient/patient privilege if it is used in the case of dependent, neglected or abused
children . Nonetheless, Appellant contends that the provisions in KRS Chapter 620
should not be applied after the child victims have reached adulthood and no longer
need protection as dependent, neglected or abused children . He focuses upon the
statutory reporting requirements of KRS 620 .030(1) when there is "reasonable cause to
believe that a child is [as opposed to was] dependent, neglected or abused . . . ." The
harm at which the statute is directed - prevention of abuse of children in an ongoing
abusive relationship - is not furthered by abrogating the psychotherapist-patient
privilege years later, Appellant argues, and will deter sex abusers from seeking needed
treatment .
The Court of Appeals reasoned that the provisions of KRS Chapter 620 applied
regardless of whether the victims were in imminent danger of abuse:
Under KRS 620 .030(1) and (2), the duty to report arises
when there is 'reasonable cause to believe that a child is
dependent, neglected or abused.' (emphasis added) . In the
present case, that would have been at the time appellant
confessed to Dr. Runyon that he had sexually abused the
victims . However, KRS 620 .050(2) contains no requirement
that the challenged evidence be recent or relate to a recently
abused or neglected child. That statute merely speaks in
terms of 'evidence regarding a dependent, neglected, or
abused child .' Thus, in our view, if the person had a duty
under KRS Chapter 620 to report the neglect or abuse at the
time the communications were made , whether or not the
records of these communications were being sought
contemporaneously, then the claimed privilege to these
records is abrogated by the statute. In essence, KRS
Chapter 620 is triggered not by the time when the
communications (or records thereof) regarding the abuse or
neglect is being sought but rather by the time the
communications regarding the abuse is made. Accordingly,
the trial court properly found that the records of Dr. Runyon
in the instant case, although not sought until 1999, were not
privileged .
While Appellant makes a valid point that the purpose of KRS 620.050 is to
protect children presently in an abusive environment, he fails in his contention that once
a child reaches the age of majority the statute should have no effect.
Importantly, however, KRS 620.050(2) [now (3)] does not relate to all of the
professional's records pertaining to the patient, but rather only to the report the
professional is required to file . The statute directs that the professional-patient privilege
is not a ground for "refusing to report" or for "excluding evidence" about a neglected or
abused child in a proceeding resulting from a report, but it does not specify how records
not reported by the professional are to be obtained . We can perceive of no manner by
which these records may be obtained other than by consent or by a legally sufficient
search warrant.
Rather than following the prescribed procedure of presenting facts to a Grand
Jury and obtaining a subpoena for the psychologist's records, or obtaining a valid
search warrant in accordance with the provision of Rules of Criminal Procedure 13.10,
the Commonwealth pursued a novel course of discovery authorized neither by statute
nor the Rules of Criminal Procedure. While there are many exceptions to the probable
cause and warrant requirements, we can conceive of no justification to permit the
furtherance of a law enforcement investigation by use of legal processes in the absence
of court authorization. Accordingly, we hold that the manner in which Dr. Runyon's
records were obtained fails to satisfy the reasonableness requirement of the Fourth
Amendment to the Constitution of the United States and Section Ten of the Constitution
of the Commonwealth of Kentucky. Accordingly, we reverse the decision of the Court
of Appeals and remand this matter to the Livingston Circuit Court for further
proceedings consistent with this opinion .
Lambert, C.J, Cooper, Graves, Johnstone, and Stumbo, J .J . concur.
Keller, J ., dissents by separate opinion in which Wintersheimer, J . joins.
The Kentucky Rules of Criminal Procedure provide the following method for initiating a
prosecution .
RCr 6.02 - Use of indictment and information
(1) All offenses required to be prosecuted by indictment pursuant to Section 12
of the Kentucky Constitution shall be prosecuted by indictment unless the
defendant waives indictment by notice in writing to the circuit court, in which
event the offense may be prosecuted forthwith by information .
(2) All other offenses shall be prosecuted by indictment, information,
complaint, post-arrest complaint, or, in the case of traffic offenses or fish
and wildlife offenses, may be prosecuted by uniform citation.
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COUNSEL FOR APPELLANT
Linda Roberts Horsman
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General
Dennis W. Shepherd
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : JUNE 17, 2004
TO BE PUBLISHED
,,$uyrrmr Qlaurf of '~firnfurkg
2002-SC-0509-DG
CLIFFORD CARRIER
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-2281-MR
LIVINGSTON CIRCUIT COURT NO. 1999-CR-0033
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent and vote to affirm the Court of Appeals because the
allegation of error upon which the majority opinion reverses the judgment in this case
was not preserved by Appellant for our review . The record is clear that the Appellant
did not contest the procedural and legal sufficiency of the "Verified Motion for Records"
either before the trial court or the Court of Appeals . Instead, he argued in the lower
courts that the seizure of his psychiatric records violated his right to due process of law
because the "warrant" was issued ex parte, which prevented him from asserting the
psychotherapist/patient privilege prior to the issuance of the search warrant. The
Appellant also moved to suppress statements he made to his psychotherapist on the
basis that the exception to the asserted privilege did not apply.
I. ANALYSIS
The Court cannot properly address whether the "Verified Motion for Records"
was a sufficient "affidavit" to support the issuance of the "Order'T'warrant" because the
issue was not presented to the trial court and therefore not preserved for appeal . "It
goes without saying that errors to be considered for appellate review must be precisely
preserved and identified in the lower court."' Or, as Justice Lukowsky stated it in easily
understood language, "The appellants will not be permitted to feed one can of worms to
the trial judge and another to the appellate court.
,2
At no time prior to the filing of his brief in this Court did the Appellant address or
challenge the sufficiency of the "affidavit" and the arguments that he did make were not
broad enough to include the new ones he brings before this Court. Appellant does not
seek review of this claimed error under RCr 10 .26 as palpable error resulting in
"manifest injustice," and the majority opinion appropriately does not find "manifest
injustice" resulting from a palpable error.
In his "Supporting Memorandum for Motion in Limine," filed with the trial court,
the Appellant challenged only (1) the applicability of the exception to the
psychotherapist/patient privilege and (2) the fact that he was not given notice and an
opportunity to be heard prior to the "compelled production" of his psychiatric records . In
his "Motion to Reconsider," also filed with the trial court, Appellant stated that the
"precise point of Defendant's motion . . . is whether the privilege is abrogated in the
present case when there is no `child,' no ongoing allegations of `abuse[,]' and thus no
need to protect the interests of a child which is the statutory purpose of Chapter 620 of
the Juvenile Code."
Skaggs v. Assad, By and Through Assad , Ky., 712 S .W.2d 947, 950 (1986)
(citing Combs v. Knott County Fiscal Court, Ky., 141 S .W .2d 859 (1940); CR
76 .12(4)(c)(iv)) .
2 Kennedy v. Commonwealth , Ky., 544 S .W .2d 219, 222 (1976).
To the Court of Appeals, the Appellant made the following arguments : (1) that
the "Verified Motion" ("Motion") was not filed with the district court and was not filed with
the circuit court until he was indicted, (2) that there was no case or controversy
involving the Appellant at the time the Motion was heard, (3) that the Appellant was not
notified when the Motion was to be heard, (4) that the Commonwealth should have
convened a grand jury, (5) that the district court did not issue a written ruling to explain
its actions, (6) that there were no exigent circumstances as no child was presently being
abused because the child had reached the age of majority, (7) that the
Commonwealth's actions were so egregious that they violated his right to due process
of law, (8) that the procedures were not those to obtain a search warrant, (9) that it was
unfair to seek privileged documents from third parties without notice to the owner of the
privilege, (10) that the documents were not in danger of being destroyed or moved, and
(11) that the exception to the privilege was not applicable . The Court of Appeals
affirmed the trial court's decision that the exception applied after the victim reached the
age of majority and also gratuitously addressed the Motion as an affidavit providing
probable cause for the seizure of the records .
The challenges the Appellant now makes did not arise until after the Court of
Appeals mentioned that the "Verified Motion" was akin to an affidavit for a search
warrant, as evidenced by the fact that the Appellant's brief filed with this Court
encompasses all the arguments made to the Court of Appeals with the addition of the
new challenges to the procedural sufficiency of the "affidavit" and the probable cause
determination .
"Ordinarily, a trial court cannot be held in error for having failed to do something
it was not asked to do ,,,3 and where the grounds stated on appeal as the basis for the
exclusion of evidence were different from the grounds asserted at the trial, and the
grounds urged on appeal were never brought before the trial court, the reviewing court
is precluded from considering them.4
This Court expressed similar views in Richardson v. Commonwealth ,5 when the
defendant, to suppress a letter he had written, stated grounds on appeal that were
different from those asserted at the trial and were never brought before the trial
court[ :] "6
"An objection made in the trial court will not be treated in the
appellate court as raising any question for review which is
not within the scope of the objection as made, both as to the
matter objected to and as to the grounds of the objection, so
3 Arnold v . Commonwealth , Ky., 421 S.W .2d 366, 367 (1967); Hatton v.
Commonwealth , Ky., 409 S .W .2d 818, 820 (1966) ("A nonruling cannot be erroneous
when the issue has not been presented to the trial court for a decision .").
4 Gabow v. Commonwealth, Ky., 34 S.W .3d 63 (2000) (where a defendant who
has specified his grounds for an objection at trial cannot assert new grounds on
appeal) ; Grundy v. Commonwealth , Ky., 25 S .W .3d 76 (2000) (where the defendant
could not use the guise of developing an argument to present a theory on appeal that
differed from theory asserted at the trial court level) ; Port v. Commonwealth , Ky., 906
S .W .2d 327 (1995) (where defendant cannot pursue one theory at trial and another on
appellate review) ; Commonwealth v . Duke, Ky., 750 S .W .2d 432 (1988) (where
defendant cannot pursue one theory at trial and another on appellate review); Charles
v. Commonwealth , Ky., 634 S .W .2d 407 (1982) (where grounds for objection on appeal
were not properly presented as they differed from the grounds asserted at trial) ;
Daugherty v. Commonwealth , Ky., 572 S.W.2d 861 (1978) (where different grounds of
error from those presented to trial court are not properly preserved) ; Richardson v.
Commonwealth , Ky., 483 S .W .2d 105 (1972) (where appellate court was precluded
from considering grounds for exclusion of evidence that were never presented to trial
court); Shelton v. Commonwealth , Ky. App., 928 S.W.2d 817 (1996) (where defendant's
arguments on appeal were not addressed to extent they differed from those made at
trial) .
5 Ky., 483 S .W .2d 105 (1972).
6 Id . at 106 .
that the question may be fairly held to have been brought to
the attention of the trial court."'
In Henson v. Commonwealth, $ the defendant challenged the constitutionality of
his confession . At trial, his grounds were that police officers obtained his confession by
coercion . On appeal the defendant asserted that the confession should have been
suppressed because it was obtained in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and § 11 of the Kentucky Constitution .
This Court refused to review the error because the defendant "failed to argue before the
trial court that his confession was inadmissible for the reason he now alleges on
appeal ."9
Most significantly, in Todd v. Commonwealth ,' ° a case that is a mirror image of
the present case, the defendant argued to the trial court that the evidence obtained
from his residence should be suppressed because the police entered without exigent
circumstances and the affidavit supporting the subsequently obtained warrant was
inadequate . On appeal, the defendant argued that he was denied due process of law
by the admission of the evidence obtained through a warrantless search of his
residence .
This Court concluded that:
Id. (quoting 24 C .J.S . Criminal Law § 1677 (date omitted)).
8 Ky., 20 S .W .3d 466 (1999) .
9 _Id . at 470 (citing McDonald v. Commonwealth , Ky ., 554 S .W .2d 84 (1977)) (The
court was "not at liberty to review alleged errors when the issue was not presented to
the trial court for decision .").
10
Ky., 716 S .W . 2d 242 (1986) .
This latter concern was never presented to the trial court for
a ruling ; thus, accordingly there was no action thereon for
appellate review. "The policy of RCr 9 .22 and 10.12 is to
require a defendant in a criminal case to present to the trial
court those questions of law which may become issues
on appeal . The appellate court reviews for errors, and a
nonruling is not reviewable when the issue has not been
presented to the trial court for decision ." Turner v.
Commonwealth, Ky., 460 S .W.2d 345, 346 (1970).
"Appellate practice is a science . Members of the legal
profession are required to know and carefully comply with
the rules pertaining thereto ." White v. Hardin County Board
of Education, Ky., 307 S.W .2d 754, 756 (1957). 11
Like the defendant in Todd , Appellant here argued due process violations to the
trial court and the Court of Appeals and now makes affidavit and probable cause
sufficiency arguments in his appeal to this Court. Thus, contrary to the belief held by
the majority opinion, issues relating to the insufficiency of an affidavit are not inherently
connected with due process claims such that the Appellant should "be permitted to feed
one can of worms to the trial judge and another to the appellate court ."12
This reasoning especially holds true when, in this instance, the Appellant had the
"burden of attacking the warrant and thus the seizure." 13 As the Appellant had the
burden of proving that the affidavit was insufficient and it appearing that the Appellant
did not bring this issue to the attention of the trial court or the Court of Appeals, the
Appellant waived his right to have this issue considered in this appeal .
11 Id . at 248.
12 Kennedy v. Commonwealth , Ky ., 544 S.W.2d 219 (1977).
13 8
LESLIE W. ABRAMSON, KENTUCKY PRACTICE § 18 .1 (3d ed . 1997) ; Bailey v.
Commonwealth , Ky., 464 S .W .2d 232 (1971)("When the validity [of a search warrant] is
challenged, the burden of producing evidence to the contrary is upon the challenger.") ;
Boles v. Commonwealth , Ky., 200 S .W.2d 467 (1947); Combs v. Commonwealth , Ky.,
47 S .W .2d 725 (1932); Terrell v. Commonwealth , Ky., 244 S .W. 703 (1922) .
"Violations of constitutional [and other rights] may be waived by failure to make
timely and appropriate objection," but "in an aggravated case involving violations of
such proportions" that a defendant is deprived of due process, "the appellate court may
grant relief notwithstanding failure to make proper objection ." 14 "In the past, this Court
has held that a failure to properly preserve by objection even those alleged errors with
constitutional dimensions means that this Court will not review them," since "the
constitutional nature of Appellant's claim does not automatically elevate any alleged
error to the point where this Court should review it under RCr 10 .26 ." 15 "Just as [the
Court should] decline to dine upon this new can of worms [regarding the sufficiency of
the affidavit and probable cause] . . . [the Court should also] decline to open a third can
of worms by grossly expanding the scope of our palpable error review . ,16
However, since the analysis of the sufficiency of the affidavit contained within the
majority opinion is as equally vexing as this Court's willingness to entertain issues not
preserved for our review, I also write separately on the sufficiency of the "affidavit" and
the probable cause determination .
14
Futrell v . Commonwealth , Ky., 437 S.W .2d 487, 488 (1969) ; see also Sanders
v. Commonwealth , Ky., 609 S.W .2d 690 (1980); Burch v. Commonwealth , Ky., 555
S.W.2d 954 (1977); Ferguson v. Commonwealth , Ky., 512 S .W .2d 501 (1974); RCr
10 .26 (where the court may review a new claim if failure to do so would cause manifest
injustice) .
15
Henson v. Commonwealth , Ky ., 20 S .W .3d 466, 470-471 (1999) (citing Turner
v. Commonwealth , Ky., 460 S .W .2d 345 (1970) (right to counsel issue); Arnold v.
Commonwealth , Ky., 433 S.W .2d 355 (1968) (confrontation clause issue presented in a
Bruton-like context)) .
16
Henson , 20 S.W .3d at 471 .
According to RCr 13 .10, a judge may issue a search warrant upon an affidavit
sufficient under § 10 of the Kentucky Constitution and sworn to before an officer
authorized to administer oaths."
"[A]ffidavits for search warrants . . . must be tested and
interpreted by magistrates and courts in a commonsense
and realistic fashion . . . . Technical requirements of
elaborate specificity once exacted under common law
pleadings have no proper place in this area . . . . fW] hen a
magistrate has found probable cause, the courts should not
invalidate the warrant by interpreting the affidavit in a
hypertechnical, rather than common sense, manner." 8
This commonsense interpretation was used in Clark v. Commonwealth , 1 9 where the
highest court in Kentucky at the time determined that a search warrant was valid when
it was based on a complete and proper affidavit even though the maker of the affidavit
testified that he did not swear to it. Therefore, the fact that the affidavit in Appellant's
case does not appear to have been notarized, although a violation of RCr 13.10, is not
a violation of such proportions that the Appellant was deprived of due process.
With regard to the new challenge to the probable cause determination, an
affidavit provides a sufficient foundation for probable cause when it sets forth facts
establishing a substantial basis for concluding that a search would uncover evidence of
wrongdoing .2°
"
RCr 13 .10(1) .
Gossett v. Commonwealth , Ky., 426 S .W .2d 485, 486 (1968) (quoting United
States v . Ventresca, 380 U .S . 102, 85 S .Ct. 741, 13 L.Ed .2d 684 (1965)) (emphasis
added).
18
19
2°
Ky., 418 S.W.2d 241 (1967).
Beemer v. Commonwealth , Ky., 665 S .W .2d 912, 914 (1984); see Crayton v.
Commonwealth , Ky., 846 S .W .2d 684 (1992).
The affidavit stated that Detective Kevin Pelphrey obtained statements from
three victims that they were sexually abused by the Appellant . It also stated that
Laverne Carrier, Appellant's former wife, was willing to testify that Appellant told her
that he confessed his illegal sexual activity to Dr. Runyon . Based on Laverne Carrier's
statement, corroborated by the victims' statements that Det . Pelphrey previously
obtained, the Commonwealth sought a search warrant to obtain all of Dr. Runyon's
files, documents, and other information relating to Appellant .
According to Embry v. Commonwealth ,21 "[t]he general rule has long been that
an affidavit for a search warrant based on information furnished by a named individual
is ordinarily sufficient to support the warrant .,,22 The information about Appellant's
confession to Dr. Runyon was provided by Laverne Carrier, a named individual .
Furthermore, the victims' statements supported Laverne Carrier's statement and
provided a substantial basis for the belief that evidence of abuse would be found in the
psychiatric records . Thus the "affidavit" was sufficient .
The majority opinion criticizes the "affidavit" because the information about the
confession is not based on the officer's or Commonwealth Attorney's independent
knowledge . I would point out that second-hand information, i.e., hearsay, may provide
a basis for probable cause if the source of the hearsay is credible and "there is a factual
basis for the information furnished ." 23 Laverne Carrier was previously married to the
Appellant and would have some knowledge of his private matters . Although one may
21
Ky., 492 S. W .2d 929 (1973) .
22
Id . at 931 ; see also Emberton v. Commonwealth , Ky., 269 S.W.2d 206 (1954);
Mattingly v. Commonwealth , Ky., 221 S .W .2d 82 (1949).
23 8
LESLIE W. ABRAMSON, KENTUCKY PRACTICE §
18.27 (3d ed . 1997) ; KRE
1101(d)(5) (where the Kentucky Rules of Evidence do not apply in proceedings for
issuance of search warrants) .
question the veracity of the statement, given that the two were no longer married, her
information, however, was corroborated by the independent statements previously
given by the three victims.
In determining that the evidence should be suppressed, the majority deviates
from Crayton v. Commonwealth
24
and completely overlooks the good faith exception
adopted therein : "[W]hen it appears that the affidavit was made in good faith but the
warrant erroneously issued by virtue of judicial error, neither the Constitution nor sound
public policy requires suppression of the evidence
.,,25
In this instance, the statement by a named individual, who would be privy to
knowledge of the Appellant's private matters, was corroborated by evidence the
detective had already gathered . Based on this information, the detective was
reasonable in believing that evidence of the abuse would be contained in the psychiatric
files .
Alternatively, even under the majority's analysis, suppression of the evidence
does not serve the legitimate objective of evidentiary suppression because suppression
after the affidavit has been subjected to judicial scrutiny "can have no deterrent effect
upon police misconduct ." 26
Though the description in the "affidavit" and the "warrant" was broad enough to
encompass privileged items, the executing officer's discretion was sufficiently limited in
that he or she would reasonably know what items were to be seized from reading the
24
Ky .,
25
Id . at 688 .
26
Id .
846 S .W .2d 684 (1992).
- 1 0-
description .2' Had any items to which the privilege still applied been seized, however,
"complete suppression of all materials [would not have been] appropriate . The proper
,28
The Appellant does
remedy [would have been] to return any [privileged] materials .
not, however, allege that any of the statements or documents obtained from Dr. Runyon
concern anything other than a dependent, neglected or abused child . Therefore, Det.
Pelphrey made the "affidavit" in good faith, it provided a sufficient basis for probable
cause, and no manifest injustice is present to justify the result or review provided in the
majority opinion .
The issues that were preserved by the Appellant and entitled to this Court's
review are (1) whether the exception to the psychotherapist/patient privilege applies in
this case and (2) whether the ex parte nature of the "search warrant" proceedings
constituted a deprivation of the Appellant's due process rights .
27
New York v . P .J . Video, Inc. , 475 U.S . 868, 106 S.Ct. 1610, 89 L.Ed .2d 871
(1986); Wilson v. Commonwealth , Ky., 621 S .W .2d 894 (1981).
28 United States v. Skeddle, 989 F.Supp. 890, 897 (N.D. Ohio 1997) (citing
Weatherford v. Bursey, 429 U .S. 545, 97 S .Ct. 837, 51 L .Ed .2d 30 (1977) (rejecting
argument that intrusion into attorney-client communications constituted per se violation
of right to fair trial and effective assistance of counsel) ; National City Tradinq Corp . v.
United States, 635 F.2d 1020, 1026 (2d Cir.1980) ("[t]o the extent that the files obtained
here were privileged, the remedy is suppression and return of the documents in
question, not invalidation of the search") (citations omitted) ; United States v. Mittelman ,
999 F.2d 440, 443 (9th Cir.1993) ( "separate legal rules are not necessary for
remedying [law office] searches when they exceed the scope of the warrant"); In re
Grand Jury Subpoenas Dated Dec . 10, 1987, 926 F.2d 847, 858 (9th Cir.1991) (Fourth
Amendment exclusionary rule reaches only to items unlawfully seized, not those which
were seized lawfully) ; United States v. Chuang, 696 F.Supp. 910, 915 (S.D.N .Y.1988)
("the fact that a search involved privileged documents does not render the entire search
unreasonable, at least where there was good reason to believe that documents that
could legitimately be searched would be found")) ; _ Crayton v. Commonwealth , Ky.,
cf.
846 S .W .2d 684, 688 (1992) ("Try as we might . . . we are unable to discover any
deterrent effect in the suppression of evidence obtained pursuant to a search warrant
when the police are acting in good faith .") ; Beemer v. Commonwealth , Ky., 665 S .W .2d
912 (1984).
Although I agree with the majority that the exception extends past the time when
the child victim reaches the age of majority, the scope of the exception is broader than
that expressed in the majority opinion .
The majority states that only the report would be exempt from the privilege . In
addition to the information that would be contained in the report required under KRS
620 .030, the exception contained in KRS 620.050(2) plainly states that it also extends
to "evidence regarding a dependent, neglected, or abused child or the cause thereof.
,29
The majority opinion also indicates that the exception only operates in a proceeding
resulting from a report . Appellant's case did not result from a report yet the majority
applies the exception . To resolve this conflict, I would point out that the exception is not
so limited as set forth in the majority opinion because the statute clearly provides that
the exception applies not only "in any judicial proceeding[] resulting from a report
pursuant to this section," but also in "any criminal proceeding in District or Circuit Court
regarding a dependent, neglected or abused child .,,30
Although not addressed in the majority opinion, the Appellant asserts that he was
deprived of due process of law because he was not given notice and an opportunity to
assert the psychotherapist/patient privilege prior to the issuance of the search warrant.
Since the Appellant was provided with an opportunity to assert the privilege subsequent
to the execution of the search warrant, the Appellant was not deprived of due process
of law by the ex parte proceedings .
[D]ue process does not categorically require a hearing
before one is initially deprived of a[n] . . . interest. Instead,
the timing of a hearing (i .e ., whether a hearing is required
pre- or post-deprivation) is determined on a sliding scale
29 KRS 620 .050(2).
30
KRS 620 .050(2).
- 1 2-
basis that requires balancing the impact the taking has on
the individual and the state interest being advanced .31
In the Appellant's case, he was able to assert the privilege after the psychiatric records
were seized . Because "[t]he issuance of a search warrant is [not] tantamount to a
finding that all professional privileges are waived so as to preclude an assertion of
those privileges after the search ,,,32 a hearing prior to the issuance of the "search
warrant" was not necessary. When items which may or may not be privileged are
seized, due process concerns are satisfied if the defendant has an opportunity to be
heard, "on a document-by-document[/statement-by-statement basis,] with regard to [his]
contention that various documents [and statements] are not covered by the . . .
exception to the privilege .,,33
While the proceedings for a search warrant are necessarily ex parte,34 a warrant
may not issue without a neutral and detached magistrate "'to weigh correctly the
strength of the evidence . . . against the individual's interests in protecting his own
liberty . -35 This safeguard coupled with the opportunity for the Appellant to be heard
31
United States v. Calor, 172 F .Supp .2d 900, 906 (E.D. Ky. 2001).
32
People v. The Superior Court of Los Angeles County , 44 Cal . Rptr.2d 734, 742
(Cal. Ct. App. 1995).
33
United States v. Skeddle , 989 F .Supp . 890, 898 (N .D . Ohio 1997) ; Heller v.
New York, 413 U .S. 483, 492, 93 S .Ct. 2789, 37 L .Ed .2d 745 (1973) (The seizure of
material for the purpose of preserving it as evidence, "pursuant to a warrant [ ] issued
after a determination of probable cause by a neutral magistrate, [is constitutionally
permissible if] following the seizure, a prompt judicial determination of the [privilege]
issue in an adversary proceeding is available at the request of the interested party.") .
34
United States v . Barone , 584 F .2d 118, 120 (6th Cir. 1978) .
35
8
LESLIE W. ABRAMSON, KENTUCKY PRACTICE § 18 .51 (3d ed . 1997) (quoting
Steagald v. United States , 451 U .S . 204, 212, 101 S.Ct. 1642, 68 L .Ed .2d 38 (1981)) .
-1 3-
following the execution of the warrant fully satisfies any due process concerns. And
that is exactly what occurred in this case; Appellant was not denied due process .
II. CONCLUSION
For the foregoing reasons I respectfully dissent and would affirm the Court of
Appeals .
Wintersheimer, J ., joins this dissenting opinion .
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