Williams v. Com.

• Decision Date: 22 November 2006
• Docket Number: No. 2003-SC-0319-MR.,2003-SC-0319-MR.
• Citation: 213 S.W.3d 671
• Parties: Fortune J. WILLIAMS, M.D., Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

213 S.W.3d 671

Fortune J. WILLIAMS, M.D., Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2003-SC-0319-MR.

Supreme Court of Kentucky.

November 22, 2006.

Rehearing Denied February 22, 2007.

Margaret Foley Case, Department of Public Advocacy, Frankfort, for Appellant.

Gregory D. Stumbo, Attorney General, Jeffrey A. Cross, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

Opinion of the Court by Justice GRAVES.

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 Sheriff's 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 sheriff's 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)¹, 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.

I.

Appellant first alleges that his Fourth Amendment rights were violated when several law enforcement agencies, acting in concert, conducted a warrantless raid on 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 L.Ed.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 Burger, 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 Burger 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 Burger exception is not applicable.

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, 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.⁴ As Justice Kennedy stated in his concurring opinion in Ferguson, supra, ...