Carrier v. Commonwealth

142 S.W.3d 670, 2004 Ky. LEXIS 155, 2004 WL 1361595

• Court: Kentucky Supreme Court
• Decided: June 17, 2004
• Docket: 2002-SC-0509-DG
• Status: Published

Opinions

Opinion of the Court by

Justice GRAVES.

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 PLAINTIFF

V. VERIFIED MOTION FOR RECORDS

CLIFFORD L. CARRIER DEFENDANT

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 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/ Pet. Kevin Pelphrey

VS. ORDER

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/ Pet. 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 18.10,” 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.”¹ 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.”

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 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, 162 W.Va. 768, 253 S.E.2d 371 (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. at 770, 253 S.E.2d 371. 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 Spra-dling.

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 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 professional-client/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 620.080(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 Procedure³. 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.

1 . 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.

2 . 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.

3 . 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.