Carter v. Commonwealth

358 S.W.3d 4, 2011 Ky. App. LEXIS 82, 2011 WL 1706517
CourtCourt of Appeals of Kentucky
DecidedMay 6, 2011
DocketNo. 2009-CA-000800-MR
StatusPublished
Cited by1 cases

This text of 358 S.W.3d 4 (Carter v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carter v. Commonwealth, 358 S.W.3d 4, 2011 Ky. App. LEXIS 82, 2011 WL 1706517 (Ky. Ct. App. 2011).

Opinion

OPINION

KELLER, Judge:

Vanessa Carter (Carter) appeals from the circuit court’s denial of her motion to suppress information about her which was obtained by a police officer from records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER). For the following reasons, we affirm.

FACTS

The facts are not in dispute. Detective George Workman (Workman) received information from a physician’s office and another detective that Carter was possibly [6]*6“doctor shopping.” Workman then requested a KASPER report from the Cabinet for Health and Family Services regarding Carter’s prescription medication history. The KASPER report indicated that Carter had obtained over-lapping prescriptions for various scheduled medications from several different physicians. Workman contacted several of Carter’s physicians who reported that they were unaware that Carter had obtained overlapping prescriptions and, had they known, they would not have prescribed Carter’s medication. Workman then arrested Carter and she was charged with and indicted on a number of counts of obtaining controlled substances by deception.

Following her indictment, Carter filed a motion to suppress, arguing that Workman conducted an unlawful search of KASPER. The trial court, somewhat reluctantly, denied Carter’s motion. Carter then entered a conditional guilty plea and this appeal followed.

STANDARD OF REVIEW

Generally, the standard of review on a suppression motion is twofold, with deference being granted to the trial court as to factual findings and the trial court’s legal conclusions being subject to de novo review. See RCr 9.78; Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002); Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998). However, because the issues on appeal primarily involve questions of law, our review herein is de novo.

ANALYSIS

Carter argues that: (1) she had a reasonable expectation of privacy in her prescription records and those records were protected from warrantless search and seizure; and (2) even if her records in KAS-PER were not protected from unlawful search, Workman did not have sufficient justification to conduct his search. The Commonwealth argues that: (1) a review of KASPER records is not a “search;” (2) even if that review is a search, Carter had no reasonable expectation of privacy; and (3) Workman’s KASPER review was within the parameters set forth in Kentucky Revised Statute (KRS) 218A.202.

At the outset, we note that “[a]ll searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant.” Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky.1979). Therefore, we first address whether Carter had any expectation of privacy and whether Workman’s review of her KASPER records amounted to a search.

In support of her argument that she had an expectation of privacy and that her prescription records were protected from warrantless search, Carter cites to a case from Louisiana and to cases from a number of Federal Courts of Appeal. While the federal cases are of some interest, we note that the majority of them involve a person’s expectation of confidentiality, i.e. that medical information will not be shared with third parties, rather than the expectation of privacy, i.e. protection from government intrusion.

However, the Louisiana case, State v. Skinner, 10 So.3d 1212 (La.2009), involved a criminal investigation that is similar to the case herein. In Skinner, the district attorney received a tip from a pharmacist that Skinner was obtaining medication with multiple overlapping prescriptions. Based on that tip, the district attorney filed motions for production of prescription and medical records in district court. The district court issued an order requiring eight pharmacies to produce Skinner’s records. The district attorney then prosecuted Skinner based on information derived [7]*7from those records. On appeal, the Louisiana Supreme Court held that,- absent one of the narrowly drawn exceptions, Skinner’s prescription records were protected from warrantless search and seizure as part of a criminal investigation. Because the district attorney failed to obtain a search warrant, the Louisiana Supreme Court concluded that the information obtained from the pharmacies should have been suppressed.

Having noted the above, we are bound to follow the dictates of our Supreme Court. SCR 1.030(8)(a). In Williams v. Commonwealth, 213 S.W.3d 671 (Ky.2006), the Supreme Court of Kentucky determined that the citizens of the Commonwealth have no expectation of privacy with regard to their pharmacy records in KAS-PER.

It is axiomatic that “application of the Fourth Amendment [and Section 10 of Kentucky’s constitution] depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).... [W]e find that examination of KASPER reports by authorized personnel pursuant to KRS §§ 218A.202(6)(a) & (b) does not constitute a “search” under the Fourth Amendment or Section 10 of Kentucky’s constitution, since citizens have no reasonable expectation of privacy in this limited examination of and access to their prescription records.

Id. at 682.

Our Supreme Court then analogized records in KASPER to pen registers, which are used by telephone companies to track incoming and outgoing calls. Pen registers only track phone numbers and the time calls are made or received. They do not reveal anything about the content of the calls. As noted by our Supreme Court, the United States Supreme Court held that citizens have no expectation that such information is private.1 Id.

In similar fashion, a KASPER report conveys only limited data to a restricted number of persons. First, it does not report the dispensation of all substances by practitioners or pharmacists but only those substances classified as “Schedules II, III, IV, and V controlled substances.” KRS § 218A.202(1). Second, nothing in a KASPER report discloses a patient’s condition, treatment, or communications with his or her physician, as the report merely conveys the patient’s name, the drug dispensed, the date of dispensing, the quantity dispensed, the prescriber, and the dispenser. KRS § 218A.202(4). Finally, KASPER data is not available to the general public, but rather only to specified personnel who certify that they are conducting “a bona fide specific investigation involving a designated person.” KRS § 218A.202(6)(a) & (b).

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Bluebook (online)
358 S.W.3d 4, 2011 Ky. App. LEXIS 82, 2011 WL 1706517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-commonwealth-kyctapp-2011.