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Thacker v. Commonwealth6/21/2002
TO BE PUBLISHED
OPINION AFFIRMING
On May 4, 2001, Leo Thacker pled guilty in Fayette Circuit Court to several counts of obtaining, and several counts of attempting to obtain a controlled substance by means of fraud, in violation of KRS 218A.140. By judgment entered May 29, 2001, Thacker was sentenced to five years' probation in lieu of a five-year prison sentence as a second-degree persistent felony offender. Pursuant to RCr 8.09, he reserved his right to appeal from that judgment and now contends that the trial court erred when it denied his motion to suppress evidence. Thacker claims that the evidence was tainted by an enforcement officer's misuse of an electronic prescription-monitoring system. The system is maintained by the Cabinet for Health Services and the so-called KASPER or Kentucky all schedules prescription electronic reporting system. Convinced that the officer's use of the KASPER system violated neither KRS 218A.202, the defining statute, nor constitutional provisions against unreasonable searches and seizures, we affirm.
A Lexington-Fayette County police officer arrested Thacker on April 27, 2000, for driving under the influence . In the course of the arrest, the officer found in Thacker's possession prescription drug containers for four different controlled medications and a bottle of codeine-containing cough medicine. She also learned that Thacker had recently been charged in another county with offenses related to prescription forgery. The officer reported this information to a detective in the narcotics unit of the Lexington Metro Police Department. The detective, in turn, filed a request with the Drug Enforcement and Professional Practices branch of the Department for Public Health, for a KASPER report on Thacker. The KASPER report, which is based on data supplied by dispensers of controlled substances (primarily pharmacists), is in essence a history of the subject's prescription activity within Kentucky since January 1999, when the prescription monitoring system became operational. The report indicated that Thacker had obtained what appeared to be overlapping prescriptions; that is, simultaneous or nearly simultaneous prescriptions from different doctors for similar medications. The detective contacted the reported pharmacies to verify that Thacker had indeed received the controlled medications, and then contacted the reported doctors to inquire if Thacker had made them aware of the other prescriptions. All of the doctors informed him that Thacker had not made them aware of his other prescriptions, and each stated that if they had been made aware they would not have given Thacker an additional prescription. The doctors' statements were the basis of the detective's testimony before the grand jury, which indicted Thacker on January 17, 2001.
Thacker contends that the detective 's use of KASPER-derived information in his communication with the doctors and in his testimony before the grand jury violated the confidentiality provisions of KRS 218A.202, and that his examination of the KASPER data amounted to an unreasonable search and seizure under both the federal and Kentucky constitutions. For the following reasons, we reject both of these contentions.
Subsection (6) of KRS 218A.202 authorizes the Cabinet to release data from the monitoring system to, among a very few others,
(b) A state, federal, or municipal officer whose duty is to enforce the laws of this state or the United States relating to drugs and who is engaged in a bona fide specific investigation involving a designated person; . . .
(d) A properly convened grand jury pursuant to a subpoena properly issued for the record; . . .
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