FORTUNE J. WILLIAMS, M.D. V. COMMONWEALTH OF KENTUCKY
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FORTUNE J. WILLIAMS, M.D .
V.
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
02-CR-00029
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Reversing and Remanding
A Lewis Circuit Court jury convicted Appellant, Fortune J . Williams, M .D., of four
counts of unlawfully prescribing a controlled substance in violation of KRS §
218A.1404(3) . For these crimes, Appellant was sentenced to twenty (20) years
imprisonment . Appellant now appeals to this Court as a matter of right. Ky. Const. §
110(2)(b) . For the reasons set forth herein, we reverse Appellant's convictions and
remand this case for a new trial.
In 2001, the Lewis County Sheriffs Office began receiving complaints about
traffic problems at Dr. Williams' medical clinic in Lewis County. Upon further
investigation, the sheriff's office confirmed that a large number of out-of-state vehicles
were parked in the clinic's lot and that people were loitering in and about the clinic. The
sheriffs office further determined that numerous persons emerging from the clinic
appeared to be under the influence of intoxicants and thus, began making arrests of
those persons for driving under the influence . At this point, the sheriffs office contacted
the Attorney General who in turn contacted the Office of Drug Control with the Cabinet
for Health and Family Services . Ron Burgess from the Attorney General's Office and
Bob Kelly from the Office of Drug Control were directed to immediately initiate a joint
investigation.
On January 24, 2001, Mr. Kelly requested and received a report from the
Kentucky All-Schedule Prescription Electronic Reporting (KASPER) System concerning
the type and quantity of drugs being prescribed by Appellant . The report revealed that
Appellant was prescribing large quantities of multiple controlled substances to several
patients . The activity was suspicious because several of these patients were between
the ages of twenty-five (25) and thirty-five (35), and it appeared as if they were filling the
prescriptions two or three times a month .
After reviewing the KASPER reports and the information from the sheriff's office,
Mr. Burgess and Mr. Kelly jointly set up a sting operation . They sent three informants to
pose as new patients at Dr. Williams' clinic. The informants testified that they went to
the clinic complaining of various ailments . The informants gave information and fake
medical records to nurses. When they finally saw Dr. Williams, he spent three to fifteen
minutes with each of them before prescribing controlled substances . At no time did Dr.
Williams perform a physical examination of any of the informants . On follow-up visits,
Dr. Williams simply asked the informants whether anything had changed from the last
visit before renewing each of the informants' prescriptions .
In July 2001, upon conclusion of the sting operation, Mr. Burgess filed a
grievance with the Kentucky Board of Medical Licensure, which then became involved
with the investigation . The Board's investigator, Eric Tout, asked Mr . Burgess and Mr.
Kelly to prepare a list of patients that "they felt the Medical Board needed to look at ." A
list of thirty-five (35) patients was prepared by Mr. Burgess and Mr. Kelly and
transmitted to Mr. Tout. At that point, Mr. Tout testified that he believed that he had
authority, pursuant to former KRS § 311 .605(2)', to conduct a warrantless raid on Dr.
Williams' clinic for the purpose of seizing these patients' files and collecting any other
evidence that may have pertinence to the investigation . On September 26, 2001, Mr.
Tout, Mr. Burgess, Mr. Kelly, and several agents from both the Lewis County sheriff's
office and the state police conducted a warrantless raid on Dr. Williams' clinic.2 During
the raid, patient files and other evidence were seized . This evidence revealed that
Appellant was seeing approximately 100 to 150 patients per day and prescribing large
quantities of controlled substances . The evidence also disclosed that nurses had most
all contact with patients, even to the point of pre-printing prescriptions for Appellant's
signature. Evidence from both the raid and the investigation previously conducted by
Mr. Burgess and Mr. Kelly was admitted against Appellant at trial .
Appellant was convicted by jury of four counts of unlawfully prescribing a
controlled substance in violation of KRS 218A .1404(3) . Appellant alleges several errors
which entitle him to a new trial. For the reasons set forth herein, we are compelled to
reverse Appellant's convictions.
Appellant first alleges that his Fourth Amendment rights were violated when
several law enforcement agencies, acting in concert, conducted a warrantless raid on
Prior to July 12, 2006, former KRS § 311 .605(2) gave agents of the Board of Medical
Licensure "power and authority to administer oaths, to enter upon premises at all times
for the purpose of making inspections, to seize evidence, including but not limited to
psychiatric or nonpsychiatric records, to interrogate all persons, and to require the
?roduction of books, papers, documents, or other evidence ."
Curiously, members of the media were also present for the raid .
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his clinic. "The Court long has recognized that the Fourth Amendment's prohibition on
unreasonable searches and seizures is applicable to commercial premises, as well as
to private homes." New York v. Burger, 482 U .S . 691, 699, 107 S .Ct. 2636, 96 LEd.2d
601 (1987). Just like private residences, a search of commercial premises is
"presumptively unreasonable if conducted without a warrant." See v. City of Seattle,
387 U .S . 541, 543, 87 S.Ct. 1737,18 L.Ed .2d 943 (1967) ; see also, Marshall v.
Barlow's, Inc. , 436 U .S. 307, 311, 98 S .Ct. 1816, 56 L.Ed.2d 305 (1978).
The Commonwealth contends that the warrantless raid in this case was
permissible pursuant to the exception set forth in Burger, supra. In Burner, supra, the
United States Supreme Court held that a warrant was not required for "administrative
inspections" of "commercial property employed in `closely regulated' industries ." Id . at
700, 107 S .Ct. at 2642 . However, in order to proceed forward with a Burner analysis,
we must make two initial findings : (1) that the medical profession is a "closely regulated
industry," and (2) that this search was conducted for administrative, rather than law
enforcement, purposes. Id. at 700-702, 107 S .Ct. at 2642-44 ; see also , Griffin v.
Wisconsin , 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) ("Although we
usually require that a search be undertaken only pursuant to a warrant . . ., we have
permitted exceptions when special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement impracticable.")(internal quotations
and citations omitted) .
.
Even if we were to presume that the medical profession is a "closely regulated
industry" for the purposes of conducting warrantless searches of private physicians'
offices and medical files,3 the Commonwealth has failed to make any credible showing
that the search in this case was conducted for an administrative rather than law
enforcement purpose . Accordingly, the - rger exception is not applicable.
Bu
The seminal case regarding this issue is Ferguson v. City of Charleston , 532
U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). In Ferguson, a state hospital, in
conjunction with law enforcement, set up a program where the hospital drug tested
pregnant women's urine (presumably, without their consent) whenever hospital
personnel suspected that the pregnant women were using illicit substances. Id . at 71,
3 The answer to this query is by no means clear. On the one hand, it is apparent that
the medical profession is one of the most pervasively regulated industries in the
Commonwealth . See, e.g_, KRS § 311 .555 ("It is the declared policy of the General
Assembly of Kentucky that the practice of medicine and osteopathy should be regulated
and controlled . . . in order to prevent empiricism and to protect the health and safety of
the public."); KRS § 311 .560 (prohibiting the practice of medicine or osteopathy without
a license) ; KRS § 311 .565 (establishing Board of Medical Licensure's power to
"[p]romulgate reasonable administrative regulations establishing moral, physical,
intellectual, educational, scientific, technical, and professional qualifications of
applicants for licenses"); KRS § 218A .202 (establishing electronic database to monitor
and record the dispensation of certain controlled substances by practitioners and
pharmacists within the Commonwealth) ; KRS § 215 .590 (cases of active tuberculosis
must be reported to state authorities) ; KRS § 620.030 (duty to report suspected child
abuse or neglect) ; KRS § 258 .065 (duty to report animal bites to state authorities) ; 902
KAR 2:020 (duty to report an array of ailments, including HIV, syphilis, plague, and
gonorrhea) .
On the other hand, it also seems self-evident that some degree of privacy exists
in the procurement of health care . See Thacker v. Commonwealth , 80 S .W.3d 451, 454
(Ky. App. 2002) (reasonable expectation of privacy in medical records) ; Health
Insurance Portabilitv and Accountability Act (HIPAA) Privacy Rules, codified at 45
C.F.R. parts 160 and 164 (use and disclosure of protected health information generally
prohibited except as permitted within confines of the Act); Ferguson v. City of
Charleston , 532 U .S. 67, 78,121 S.Ct. 1281, 149 L.Ed .2d 205 (2001)("The reasonable
expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a
hospital is that the results of those tests will not be shared with nonmedical personnel
without her consent."); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 550 (9th Cir.
2003)("all provision of medical services in private physician's offices carries with it a
high expectation of privacy for both physician and patient") ; see also , Ralph Ruebner &
Leslie Ann Reis, Hippocrates To HIPAA: A Foundation for a Federal Physician-Patient
Privilege, 77 Temp. L. Rev. 505 (Fall 2004) (arguing that public policy has emerged to
favor increased confidentiality in and privacy of patient health information) .
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121 S.Ct. at 1285 . When tests came back positive, the pregnant women were given a
choice - go to drug treatment or have the results turned over to police . Id .
The Ferguson Court stated that in order for the hospital's warrantless search
program to qualify as being "administrative" or "special needs" in nature, its immediate
purpose must be "divorced from the State's general interest in law enforcement." Id. at
79, 121 S.Ct. at 1289 . The hospital argued that its warrantless drug testing program did
satisfy such a guideline since its ultimate goal was to protect the health and welfare of
both mothers and their unborn children by curtailing the use of illegal substances during
pregnancy. Id . at 70, 121 S .Ct. at 1284. However, the Supreme Court cited two factors
which ultimately undermined the hospital's position : (1) the evidence was not
inadvertently acquired in the course of routine treatment, but was obtained "for the
specific purpose of incriminating those patients," and (2) there was excessive
entanglement with law enforcement in both the development and application of the drug
testing policy . Id. at 85-86, 121 S .Ct. at 1292-93 (emphasis in the original). These two
factors, the Court held, were too inextricably entwined with an immediate law
enforcement purpose to justify the warrantless search as being "administrative" or
"special needs" in nature.
In this case, the Commonwealth asserts that the warrantless search was a valid
administrative inspection conducted pursuant to former KRS § 311 .605(2) for the
primary purpose of investigating an administrative grievance filed with the Board of
Medical Licensure . However, just like in Ferguson , supra . two factors ultimately
undermine the Commonwealth's position: (1) the raid in this case was conducted for the
immediate and sole purpose of collecting incriminating evidence against Appellant; and
(2) there was excessive entanglement with law enforcement in both the Board's
investigation of Appellant and in the resulting warrantless raid at his office .
While we agree with the Commonwealth that "[t]he discovery of evidence of
crimes in the course of an otherwise proper administrative inspection does not render
that search illegal or the administrative scheme suspect," Burger, supra, at 716, 107
S .Ct. at 2651, warrantless inspections do become unconstitutional when both the
administrative agency's investigation and resulting search are inextricably entwined with
law enforcement personnel and law enforcement objectives . As Justice Kennedy
stated in his concurring opinion in Ferguson , supra, "the active use of law enforcement,
including arrest and prosecutions, as an integral part of a program which seeks to
achieve legitimate, civil objectives" is not sustainable under the Fourth Amendment. Id .
at 88, 121 S .Ct. at 1294 (Kennedy, J ., concurring) .
In this case, an active criminal law enforcement investigation had been ongoing
for six months prior to the engagement of the administrative agency in this case. The
Board of Medical Licensure did not initiate a civil investigation into the matter until a
formal grievance was filed by the criminal investigators . When the Board's investigation
proceeded, it was in complete conjunction with the uninterrupted criminal investigation .
Indeed, not only did the criminal investigators supply the Board with all underlying facts
and evidence to support its investigation, but the criminal investigators also determined
which files were to be seized by the Board and then accompanied and assisted the
4 Generally, the subjective motivations of individual state actors are irrelevant when
considering whether a search or seizure is reasonable under the Fourth Amendment.
However, the U.S. Supreme Court has recognized special needs and administrative
search cases to be an exception to this rule. Compare United States v. Knights, 534
U .S . 112, 122, 122 S .Ct. 587, 593, 151 L.Ed.2d 497 (2001) with Indianapolis v.
Edmond , 531 U .S. 32, 45,121 S .Ct. 447,148 L.Ed.2d 333 (2000) and Ferguson, supra,
at 79, 121 S.Ct. at 1289.
Board during the actual raid . Such excessive entanglement with law enforcement
simply belies any notion that the warrantless raid in this case was somehow "divorced
from the State's general interest in law enforcement ." Ferguson, supra, at 79, 121 S .Ct.
at 1289; see also, New Jersey v. T.L .O. , 469 U .S. 325, 341, n . 7, 105 S .Ct. 733, 83
L.Ed.2d 720 (1985) (distinguishing searches carried out by administrative authorities
"acting alone and on their own authority" from those conducted "in conjunction with or at
the behest of law enforcement agencies").
Moreover, in determining when a warrant requirement is unsuitable in any
particular circumstance, the U .S. Supreme Court has always analyzed whether "the
burden of obtaining a warrant is likely to frustrate the governmental purpose behind the
search ." O'Connor v. Ortega , 480 U .S. 709, 720, 107 S.Ct. 1492, 94 L.Ed .2d 714
(1987) (quoting Camara v. Municipal Court , 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1731,
18 L.Ed .2d 930 (1967)) . In Burger, supra, the Supreme Court found that obtaining a
warrant for each administrative inspection in that case was not practical "because stolen
cars and parts often pass quickly through an automobile junkyard," and thus, the delay
involved in obtaining a warrant would likely frustrate the regulatory purpose . Id. at 710,
107 S .Ct. at 2648. In contrast, a warrant requirement was imposed upon regulatory
inspections conducted by the Occupational Safety and Health Administration (OSHA) in
Marshall v. Barlow's . Inc. , supra, since requiring a warrant in that situation would not
"impose serious burdens on the inspection system or the courts, [would not] prevent
5 We completely reject the Commonwealth's specious argument that the presence of
four different state agencies was necessary to ensure security during the warrantless
raid. While it is reasonable to conclude that the Lewis County sheriff's office or even the
state police were necessary to protect the personal safety of Mr. Tout, the agent from
the Board of Medical Licensure, it is not reasonable or even plausible to conclude that
investigative agents from the Attorney General's office and the Office of Drug Control
were also necessary to accomplish this task .
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inspections necessary to enforce the statute, or [would not] make then less effective ."
Id. at 316, 98 S.Ct. at 1822. With the evidence available before the raid, we perceive
absolutely no reason whatsoever (and the Commonwealth identifies none) why the
miniscule delay in obtaining a warrant would have frustrated the governmental purpose
of any of the authorities in this case . 6
When the foregoing circumstances are considered and balanced in their totality,
we are unable to sustain the warrantless raid of Appellant's office under any type of
"special needs" or Burger exception to the warrant requirement. In plain words, neither
Section 10 of Kentucky's Constitution nor the Fourth Amendment permits administrative
statutes or agencies to be utilized or exploited as a means to conduct searches and
seizures for law enforcement purposes without first obtaining (1) consent; or (2) a valid
warrant. Accordingly, the evidence seized during the raid must be excluded as being
obtained in violation of Appellant's Fourth Amendment rights .
6 Indeed, effective July 12, 2006, KRS 311 .605(2) has been amended to read as
follows :
(a) For the purpose of enforcing the provisions of KRS 311 .550 to
311 .620, agents of the board shall have the power and authority:
1 . To administer oaths;
2. To enter upon professional premises during periods when those
premises are otherwise open to patients or the public ,
3. To obtain evidence, including but not limited to psychiatric or
nonpsychiatric records, by consent or pursuant to a
subpoena
or search warrant;
4. To interview all persons ; and
5 . To require the production of books, papers, documents, or other
evidence, either by consent or pursuant to a subpoena or search
warrant.
2006 Kentucky Laws Ch . 175 (SB 127) (approved April 5, 2006)(emphasis added).
Thus, agents of the Board of Medical Licensure no longer have statutory authority to
obtain or seize evidence without a warrant or a subpoena .
In light of our holding that former KRS § 311 .605(2) was unconstitutionally
applied in this case, we need not address Appellant's argument that the former statute
was facially unconstitutional even if it was constitutionally applied .
We also reject the Commonwealth's argument that Illinois v. Krull , 480 U.S . 340,
107 S .Ct. 1160, 94 L.Ed .2d 364 (1987) should be applied to save the evidence collected
during the raid from being suppressed at trial . Any reliance on former KRS §
311 .605(2) was simply unreasonable in light of the excessive and unauthorized
entanglement with law enforcement that was present in this case. Id . at 348-49, 107
S .Ct. at 1166 (good faith exception inapplicable where it can be found that state actors
"had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment")(quoting United States v. Peltier, 422
U .S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975)) .
II.
Given the illegality of the raid itself, we must next determine whether statements
made by Appellant to Mr. Tout and Mr. Kelly during the raid should have been
suppressed as "fruit of the poisonous tree ." In Brown v. Illinois , 422 U.S . 590, 95 S .Ct.
2254, 45 L.Ed .2d 416 (1975), the U.S . Supreme Court stated :
We need not hold that all evidence is 'fruit of the poisonous tree' simply
because it would not have come to light but for the illegal actions of the
police . Rather, the more apt question in such a case is whether, granting
establishment of the primary illegality, the evidence to which instant
Former KRS § 311 .605(2) only gave agents of the Board of Medical Licensure
authority to conduct warrantless searches of and seizures within physicians' offices .
The former statute gave no similar authority to the other investigators (namely, Mr.
Burgess from the Attorney General's office and Mr. Kelly, from the Office of Drug
Control) who accompanied and assisted the Board's agent during the warrantless
search. While it could be argued that Mr. Kelly had statutory authority to conduct the
warrantless search in his own right, see KRS § 218A.240, we decline to address the
constitutionality of this statute at this time since the Commonwealth does not contend
that KRS § 218A .240 in anyway authorized this search .
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objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary
taint.
Id . at 599, 95 S.Ct. at 2259 (quoting Wong Sun v. United States, 371 U.S. 471, 487-88,
83 S .Ct. 407, 417, 9 L.Ed .2d 441 (1963)) .
In this case, several people from various agencies converged on Appellant's
office at approximately 10:30 a.m . Appellant's office staff testified that uniformed and
non-uniformed persons entered simultaneously through both the front door and the back
door. The Lewis County Sheriff and one of his deputies stood at the front door and
prevented any patients from entering the premises during the raid . As patients were
cleared from the building, two of the non-uniformed investigators reportedly started to
open exam room doors in the clinic in an attempt to locate Appellant . When Appellant
was found in an exam room, Appellant was directed into an office where he was
confronted by Mr. Tout (Board of Medical Licensure), Mr. Kelly (Office of Drug Control),
and Mr. Burgess (Attorney General's office) .
Mr. Burgess testified that he had given Miranda warnings to Appellant when he
visited Appellant's office on a prior occasion . When Mr. Burgess identified himself,
Appellant told him that he believed that he did not have to talk to him . Mr. Burgess
complied with Appellant's request and left the room. Thereafter, Mr. Tout identified
himself as being from the Board of Medical Licensure and told Appellant that he wanted
to talk to him about a complaint filed against him with the Board . Appellant agreed to
talk with Mr. Tout, and after the questioning ceased, Appellant was not arrested or
detained in anyway .
In Brown v. Illinois , supra, the Supreme Court identified several factors that were
relevant in determining whether statements made during an illegal search or detention
are "act[s] of free will unaffected by the initial illegality." Id . at 603, 95 S .Ct. at 2261 .
Voluntariness is a threshold requirement . Id . at 604, 95 S.Ct. at 2262. Other factors to
be considered also include: (1) where there is an illegal detention or arrest, the giving of
Miranda warnings; (2) the temporal proximity of the illegality and the statements ; (3) the
presence of intervening circumstances ; and (3) the purpose and flagrancy of the official
misconduct . Id. When the totality of the circumstances are weighed and considered,
we believe that Appellant's statements are sufficiently attenuated to purge them from
the taint of the illegal search, and thus, are admissible.
Initially, we believe the voluntariness threshold has clearly been satisfied . The
trial court found that Appellant's statements were voluntary, and such a finding will be
considered conclusive when supported by substantial evidence. Henson v.
Commonwealth , 20 S.W .3d 466, 469 (Ky.1999) . Appellant argues that his statements
to Mr. Tout and Mr. Kelly were involuntary because he felt intimidated and compelled to
make them by KRS § 311 .990(6). KRS § 311 .990(6) provides that it is a Class A
misdemeanor to willfully resist, prevent, impede, obstruct, threaten, or interfere with the
Board of Medical L.icensure or any of its members or agents in the administration of its
official duties . Id. Perhaps this would have qualified as a colorable argument were
there any indication on the record that (1) Appellant was aware of and concerned about
this statute during the interrogation ; or (2) Mr. Tout or Mr. Kelly somehow threatened
Appellant, either directly or impliedly, with prosecution if he did not comply with their
requests or answer their questions.
Moreover, we find nothing in the record suggesting that any other kind of
intimidation or coercion occurred in this instance . While Appellant may have felt some
general pressure to cooperate with the agents who approached him during the raid at
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his office, such general pressure does not render an otherwise consensual encounter
involuntary. See I .N.S . v. Delgado , 466 U.S . 210, 216,104 S.Ct. 1758, 1762, 80
L.Ed.2d 247 (1984) ("While most citizens will respond to a police request, the fact that
people do so, and do so without being told they are free not to respond, hardly
eliminates the consensual nature of the response."); United States v. Dra on, 536 U.S.
194, 122 S.Ct. 2105, 153 L .Ed .2d 242 (2002) (general pressure to cooperate with police
officers who approached defendants on a crowded bus not sufficient to render the
encounter involuntary). Indeed, Appellant felt free enough to tell one of the agents
whom he recognized as a law enforcement officer to leave the room during the
questioning . Considering such circumstances in their totality, there is nothing to
indicate that Appellant's statements were anything other than "the product of an
essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte ,
412 U.S . 218, 225, 93 S .Ct. 2041, 2047, 36 L .Ed .2d 854 (1973) . Accordingly, we find
the trial court's finding of voluntariness to be supported by substantial evidence, and
thus, conclusive.
We also find that Appellant was not seized or in anyway detained at the time he
was approached and questioned by the agents. The raid was conducted during an
admittedly busy time of day, with several agents and officers loudly announcing their
presence to the many persons occupying the building. However, we find such
circumstances to be markedly similar to the circumstances in Delqado , supra, where the
Immigration and Naturalization Service ("INS") conducted unannounced "factory
surveys" of several workforces for the purpose of searching for illegal aliens . Id. at 212213, 104 S.Ct. at 1760-61 . The Supreme Court rejected the factory workers' claim "that
the entire work forces of the two factories were seized for the duration of the surveys
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when the INS placed agents near the exits of the factory sites" and systematically
questioned each employee regarding their immigration status . Id . at 218, 104 S.Ct. at
1763. When the circumstances in this case are viewed in their totality, we also cannot
say that Appellant was seized or somehow did not feel free to leave when he was
approached by the investigators and asked questions at his place of business .
In light of the entirely voluntary nature of Appellant's statements and the fact that
Appellant was never placed in custody, we believe such intervening circumstances
distinguish this case from Brown, supra , and the bulk of its progeny where the
defendant was detained or placed in custody prior to questioning . In addition, the
misconduct in this instance was not particularly flagrant as the warrantless raid was not
designed or executed for the purpose of inducing Appellant to make statements, but
rather, it was designed and executed for the purpose of seizing evidence from the clinic
without the need to first obtain (1) consent; or (2) a warrant. When such circumstances
are weighed and considered in their totality, we believe Appellant's statements were
"sufficiently an act of free will to purge the primary taint of the unlawful invasion ."
Brown, supra , at 599, 95 S.Ct. at 2259. Cf. Rawl ngs v. Kentucky, 448 U .S. 98, 100
S .Ct. 2556, 65 L .Ed .2d 633 (1980) (statements made while being illegally detained were
sufficiently attenuated to be considered "acts of free will unaffected by any illegality in
the initial detention") . Accordingly, we do not believe that Appellant's statements are
subject to suppression as "fruit of the poisonous tree ."
Ill.
Appellant next alleges that KRS §§ 218A.202 (6) (a) & (b) are facially
unconstitutional because the language contained therein infringes upon well-recognized
Fourth Amendment freedoms. "A facial challenge to a legislative Act is, of course, the
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most difficult challenge to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be valid ." Rust v. Sullivan ,
500 U .S. 173, 183, 111 S.Ct. 1759,1767 (1991). "Mhe violation of the Constitution
must be clear, complete and unmistakable in order to find the law unconstitutional ."
Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Company, 983 S.W.2d
493, 499 (Ky. 1998).
KRS § 218A .202 establishes the Kentucky All-Schedule Prescription Electronic
Reporting (KASPER) System, an electronic database which monitors and records the
dispensation of certain controlled substances within the Commonwealth by practitioners
and pharmacists .$ KRS § 218A.202 (6) sets forth those persons, programs, or bodies
who are authorized to receive data from the KASPER System . Subsection (a) permits
disclosure of KASPER data to any agency responsible for the licensure, regulation, or
discipline of practitioners or pharmacists "who [are] authorized to prescribe, administer,
or dispense controlled substances" if the designated representative of that agency "is
involved in a bona fide specific investigation involving a designated person ." KRS §
218A.202(6)(a) . Similarly, subsection (b) permits disclosure of KASPER data to any
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 designated person ." KRS § 218A.202(6)(b) .
8 Appellant does not challenge, nor need we address, the overall constitutionality of the
electronic monitoring system itself, including its primary function to collect and compile
data regarding the dispensation of controlled substances within the Commonwealth .
See Whalen v. Roe, 429 U .S . 589, 97 S .Ct. 869, 51 L.Ed .2d 64 (1977) (statute
establishing KASPER-type system in New York was not an unconstitutional invasion of
privacy); Yeoman v. Commonwealth , Health Policy Board , 983 S.W.2d 459, 473-74 (Ky.
1998)(statute that allowed collection of private medical data by Kentucky Health Policy
Board was not an unconstitutional invasion of privacy) .
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In Thacker v. Commonwealth, 80 S.W.3d 451 (Ky. App. 2002), the defendant
argued that a criminal investigator's warrantless examination of his KASPER report
pursuant to KRS § 218A.202(6)(b) was an unreasonable search under both the federal
and Kentucky constitutions . Id. at 455. The Court of Appeals disagreed, finding that
such examinations were permissible exceptions to the warrant requirement "for
administrative searches in furtherance of the State's regulation of industries that pose
large risks to the public's health, safety, or welfare ." Id . (citing to Burger, supra).
However, as we have just explained, the Court of Appeal's reasoning in Thacker , supra,
is misplaced, since a search cannot qualify as being administrative in nature unless its
immediate purpose is "divorced from the State's general interest in law enforcement."
Ferguson , supra, at 79, 121 S .Ct. at 1289. The immediate purpose of the warrantless
examination in Thacker, su ra, was certainly not "divorced from the State's general
interest in law enforcement," as the examination of the defendant's KASPER report was
conducted to uncover evidence of criminal wrongdoing for use in criminal proceedings .
Thacker, supra, at 453. Thus, we hereby overrule Thacker, supra , to the extent that the
Court found the administrative search exception to the warrant requirement to be
applicable in this case.
The result in Thacker , supra , was nonetheless correct, however, because the
access to data authorizations contained within KRS §§ 218A.202 (6) (a) & (b) are
facially constitutional even without application of the administrative search exception to
the warrant requirement . 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,
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99 S .Ct. 2577, 61 L .Ed .2d 220 (1979). As foreshadowed in Thacker, supra , we 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 prescription records .
In arriving at our holding today, we are guided by the U .S. Supreme Court's
holding in Smith v. Maryland , supra. In Smith , the Supreme Court considered the
warrantless, nonconsensual use of pen register surveillance by law enforcement
personnel. Id. at 741, 99 S.Ct. at 2581 . Pen registers are mechanical devises that are
installed on telephone company property . Id . These devises record all the incoming
and outgoing telephone numbers received or dialed by any particular telephone
number . Id . The Supreme Court found that since "[a]II telephone users" realize : (1) that
"they must 'convey' phone numbers to the telephone company ;" (2) "that the phone
company has facilities for making permanent records of the numbers they dial, for they
see a list of their long-distance (toll) calls on their monthly bills;" and (3) "pen registers
and similar devices are routinely used by telephone companies 'for the purposes of
checking billing operations, detecting fraud and preventing violations of law;"' then
citizens simply cannot entertain "any actual expectation of privacy in the numbers they
dial." Id. at 742, 99 S.Ct. at 2581 . The Smith Court also noted the limited information
actually gleaned from the pen register devises - identification of the telephone numbers
themselves and the date and time called but not any actual content of the
communication. Id. at 741, 99 S.Ct. at 2581 .
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
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practitioners or pharmacists but only those substances classified as "Schedules 11, 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).
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 in Thacker ,
supra, 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 regulatory agencies. Id , at 455 (citing KRS 218A .230, formerly
KRS 218 .140 and KRS 218.160).
In other cases, it has been held that citizens have no expectation of privacy in
information that is contained on the outside of one's mail, United States v. Choate , 576
F .2d 165 (9th Cir. 1978), or financial information that is "voluntarily conveyed to . . .
banks and exposed to their employees in the ordinary course of business ." United
States v. Miller, 425 U .S . 435, 442, 96 S.Ct. 1619, 1624, 48 L.Ed .2d 71 (1976). The
theory underlying each and every one of these cases, of course, is "(w)hat a person
knowingly exposes to the public . . . is not a subject of Fourth Amendment protection ."
Katz v. United States, 389 U.S . 347, 351, 88 S .Ct. 507, 511, 19 L .Ed .2d 576 (1976).
Certainly, we understand that as our society becomes more global, more serviceoriented, and more security conscious, we, as citizens, will find ourselves exposing
more and more of our personal information to both private and public third parties, such
a telephone companies, banks, grocery stores, credit card companies, health insurance
companies, and pharmacies. To some extent, these are the risks we have assumed by
living in such open societies. See Miller, supra, at 443, 96 S.Ct. at 1624 ("The depositor
takes the risk, in revealing his affairs to another, that the information will be conveyed by
that person to the Government . . . . This Court has held repeatedly that the Fourth
Amendment does not prohibit the obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if the information is revealed on the
assumption that it will be used only for a limited purpose and the confidence placed in
the third party will not be betrayed .") .
However, we are also mindful that it is our duty to jealously protect the wellrecognized freedoms that are guaranteed by both Section 10 of our Constitution and the
Fourth Amendment . If we perceived some sort of manipulation of these well-recognized
freedoms by the state, we would certainly find this to be a very different case. See
Smith, supra, at 741, n . 5, 99 S .Ct. at 2581 (imagining situations where the two-pronged
Katz analysis would provide inadequate Fourth Amendment protections, such as a case
where the government suddenly announced a nationwide warrantless entry program
into homes). As it is, we believe 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 well-recognized Fourth Amendment or
Section 10 freedoms . See also, Stone v. Stow , 593 N .E.2d 294, 301 (Ohio 1992)
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("patients and physicians have no reasonable expectation of privacy in prescription
records" other than right not to have the information disclosed to the general public) .
Accordingly, we conclude that KRS §§ 218A.202 (6) (a) & (b) are facially constitutional
and do not violate the confines of the Fourth Amendment or Section 10 of the Kentucky
Constitution .
IV.
Appellant next argues there was insufficient evidence to convict him of unlawfully
prescribing controlled substances pursuant to KRS § 218A .1404(3) since the statute
only applies to persons who are not practitioners at the time of the unlawful act. This
argument was recently addressed and rejected by this Court in Commonwealth v.
Sears ,
S.W.3d
(Ky. 2006) (rendered November 22, 2006, but not yet
final), and thus, need not be addressed any further in this opinion .
v.
Appellant contends that his conviction of four counts of unlawfully prescribing a
controlled substance in violation of KRS § 218A.1404(3) offends the U.S . Constitution's
proscription against Double Jeopardy, Section 13 of the Kentucky Constitution, and
KRS § 505.020(1)(c) . We disagree .
KRS § 218A.1404(3) states that "No person shall dispense, prescribe, distribute,
or administer any controlled substance except as authorized by law." KRS §
505.020(1)(c) provides that
a defendant may not be convicted of more than one offense
if "[t]he offense is designed to prohibit a continuing course of conduct and the
defendant's course of conduct was uninterrupted by legal process, unless the law
expressly provides that specific periods of such conduct constitute separate offenses ."
Appellant argues that KRS § 218A .1404(3), when read in conjunction with KRS §
- 20-
218A.170(3), was designed to prohibit a course of conduct, instead of specific periods
of conduct. Such an argument is completely unsupported by the plain language of KRS
§ 218A.1404(3), and therefore, must be rejected .
This Court has "a duty to accord to words of a statute their literal meaning unless
to do so would lead to an absurd or wholly unreasonable conclusion ." Bailey v. Reeves,
662 S .W.2d 832, 834 (Ky.1984). None of the words in the statute refer to a course of
conduct, but rather, they refer to singular and specific periods of conduct. Cf. Williams
v. Commonwealth , 178 S.W.3d 491, 495 (Ky.2005) (where statutory language defined
`performance' as `any play, motion picture, photograph or dance,' the Court stated that
"[t]he singular form of `photograph' read in conjunction with the term `any' clearly
indicates that the Legislature intended prosecution for each differing photograph).
Indeed, KRS § 218A.010(27) defines "prescription" as " a written, electronic, or oral
order for a drug or medicine ." Thus, the plain words of the statute clearly indicate that
each dispensation, prescription, distribution, or administration of any controlled
substance in violation of the law is a specific period of conduct constituting a separate
offense .
On August 7, 2001, Appellant issued two separate "written orders" to a single
patient, one for Valium, a Schedule IV Controlled Substance, and one for Vicodin, a
Schedule III Controlled Substance. On September 5, 2001, Appellant again issued two
separate "written orders" to a single patient, one for Valium, a Schedule IV Controlled
Substance, and one for Vicodin, a Schedule III Controlled Substance. Since each
prescription (a .k.a . order) for a controlled substance is a specific period of conduct
constituting a separate offense under KRS § 218A.1404(3), then the four charges for
the four separate prescriptions issued on August 7 and September 5 did not in any way
- 2 1-
violate the U .S. Constitution's proscription against Double Jeopardy, Section 13 of the
Kentucky Constitution, or KRS § 505.020(1)(c) . See Gray v. Commonwealth , 979
S .W.2d 454, 455 (Ky. 1998) (multiple convictions for identical drug sales between the
same persons on the same date, but at different times, does not violate double jeopardy
or constitute multiple punishment for the same crime), overruled on other grounds by
Morrow v. Commonwealth , 77 S .W.3d 558 (Ky. 2002) .
Appellant argues alternatively that Commonwealth v. Grubb , 862 S .W.2d 883
(Ky. 1993) requires that the two prescriptions written on August 7, 2001 (as well as the
two prescriptions written on September 5, 2001) must be merged since they were
written at the same time and transmitted to the same patient . In Grubb , supra, our
predecessor court held that "[a] single sales transaction between the same principals at
the same time and place which violates a single statutory provision does not justify
conviction or a sentence for separate crimes, even though more than one item of a
controlled substance (of the same schedule) is involved ." Id . at 884. We believe
Grubb, supra , is distinguishable in that it involved (1) a trafficking statute ; and (2) the
sale of the same scheduled narcotic drugs. Id .
While the prescriptions written by Appellant on August 7, 2001, and September
5, 2001, were transmitted at the same time and to a single patient, they involved two
different "orders" for two different classes or schedules of drugs. The issuing of two
separate prescriptions for two separate classes or schedules of drugs is sufficiently
distinguishable to constitute separate offenses under KRS § 505.020(1)(c) . See
Williams , supra , at 494-95 (defendant properly convicted of separate offenses
pertaining to each of multiple nude photographs of child taken in quick succession) ;
Grubb, supra at 885 ("it may be justifiable . . . to impose separate punishments for the
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possession of different classes (schedules) of drugs on the ground that different items
clearly present different threats to society") (referring to Kroth v. Commonwealth , 737
S .W.2d 680 (Ky. 1987)).
VI .
Appellant contends his convictions and sentence were the result of (1) selective
prosecution on account of race in violation of the Fourteenth Amendment of the U.S .
Constitution ; and (2) racial profiling in violation of KRS § 15A.195 . Upon careful review
of the record, we find no error on the part of the trial court in finding that Appellant failed
to carry his burden to prove either of these claims. See United States v. Armstrong , 517
U .S . 456, 465, 116 S .Ct. 1480, 134 L.Ed.2d 687 (1996).
VII .
We need not discuss the remainder of Appellant's arguments as we find any
alleged errors contained therein to be rendered moot by this opinion or otherwise
unlikely to recur upon remand. Ice v. Commonwealth , 667 S.W.2d 671, 680 (Ky.1984) .
For the reasons set forth herein, the judgment of the Lewis Circuit Court is
vacated and the case is remanded for further proceedings consistent with this opinion .
Lambert, C .J ., Graves, McAnulty, Roach, and Scott, JJ., concur. Minton and
Wintersheimer, J .J., concur in result only.
ATTORNEY FOR APPELLANT
Margaret Foley Case
Department of Public Advocacy
Suite 301, 100 Fair Oaks Lane
Frankfort, KY 40601
ATTORNEY FOR APPELLEE
Gregory D. Stumbo
Attorney General
Jeffrey A. Cross
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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