Carrier v. Commonwealth

Dissenting opinion by

Justice KELLER.

I respectfully dissent and vote to affirm the Court of Appeals because the allegation of error upon which the majority opinion reverses the judgment in this case was not preserved by Appellant for our review. The record is clear that the Appellant did not contest the procedural and legal sufficiency of the “Verified Motion for Records” either before the trial court or the Court of Appeals. Instead, he argued in the lower courts that the seizure of his psychiatric records violated his right to due process of law because the “warrant” was issued ex parte, which prevented him from asserting the psychotherapist/patient privilege prior to the issuance of the search warrant. The Appellant also moved to suppress statements he made to his psychotherapist on the basis that the exception to the asserted privilege did not apply.

I. ANALYSIS

The Court cannot properly address whether the ‘Verified Motion for Records” was a sufficient “affidavit” to support the issuance of the “Order”/“warrant” because the issue was not presented to the trial court and therefore not preserved for appeal. “It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in *677the lower court.”1 Or, as Justice Lukow-sky stated it in easily understood language, “The appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court.”2

At no time prior to the filing of his brief in this Court did the Appellant address or challenge the sufficiency of the “affidavit” and the arguments that he did make were not broad enough to include the new ones he brings before this Court. Appellant does not seek review of this claimed error under RCr 10.26 as palpable error resulting in “manifest injustice,” and the majority opinion appropriately does not find “manifest injustice” resulting from a palpable error.

In his “Supporting Memorandum for Motion in Limine,” filed with the trial court, the Appellant challenged only (1) the applicability of the exception to the psychotherapist/patient privilege and (2) the fact that he was not given notice and an opportunity to be heard prior to the “compelled production” of his psychiatric records. In his “Motion to Reconsider,” also filed with the trial court, Appellant stated that the “precise point of Defendant’s motion ... is whether the privilege is abrogated in the present case when there is no ‘child,’ no ongoing allegations of ‘abusef,]’ and thus no need to protect the interests of a child which is the statutory purpose of Chapter 620 of the Juvenile Code.”

To the Court of Appeals, the Appellant made the following arguments: (1) that the “Verified Motion” (“Motion”) was not filed with the district court and was not filed with the circuit court until he was indicted, (2) that there was no case or controversy involving the Appellant at the time the Motion was heard, (B) that the Appellant was not notified when the Motion was to be heard, (4) that the Commonwealth should have convened a grand jury, (5) that the district court did not issue a written ruling to explain its actions, (6) that there were no exigent circumstances as no child was presently being abused because the child had reached the age of majority, (7) that the Commonwealth’s actions were so egregious that they violated his right to due process of law, (8) that the procedures were not those to obtain a search warrant, (9) that it was unfair to seek privileged documents from third parties without notice to the owner of the privilege, (10) that the documents were not in danger of being destroyed or moved, and (11) that the exception to the privilege was not applicable. The Court of Appeals affirmed the trial court’s decision that the exception applied after the victim reached the age of majority and also gratuitously addressed the Motion as an affidavit providing probable cause for the seizure of the records.

The challenges the Appellant now makes did not arise until after the Court of Appeals mentioned that the ‘Verified Motion” was akin to an affidavit for a search warrant, as evidenced by the fact that the Appellant’s brief filed with this Court encompasses all the arguments made to the Court of Appeals with the addition of the new challenges to the procedural sufficiency of the “affidavit” and the probable cause determination.

“Ordinarily, a trial court cannot be held in error for having failed to do something it was not asked to do,”3 and where the *678grounds stated on appeal as the basis for the exclusion of evidence were different from the grounds asserted at the trial, and the grounds urged on appeal were never brought before the trial court, the reviewing court is precluded from considering them.4

This Court expressed similar views in Richardson v. Commonwealth,5 when the defendant, to suppress a letter he had written, stated grounds on appeal that were different from those asserted at the trial and were never brought before the trial court[:]6

“An objection made in the trial court will not be treated in the appellate court as raising any question for review which is not within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection, so that the question may be fairly held to have been brought to the attention of the trial court.”7

In Henson v. Commonwealth,8 the defendant challenged the constitutionality of his confession. At trial, his grounds were that police officers obtained his confession by coercion. On appeal the defendant asserted that the confession should have been suppressed because it was obtained in violation of the Fifth and Fourteenth Amendments to the United States Constitution and § 11 of the Kentucky Constitution. This Court refused to review the error because the defendant “failed to argue before the trial court that his confession was inadmissible for the reason he now alleges on appeal.”9

Most significantly, in Todd v. Commonwealth,10 a case that is a mirror image of the present case, the defendant argued to the trial court that the evidence obtained from his residence should be suppressed because the police entered without exigent circumstances and the affidavit supporting the subsequently obtained warrant was inadequate. On appeal, the defendant argued that he was denied due process of *679law by the admission of the evidence obtained through a warrantless search of his residence.

This Court concluded that:

This latter concern was never presented to the trial court for a ruling; thus, accordingly there was no action thereon for appellate review. “The policy of RCr 9.22 and 10.12 is to require a defendant in a criminal case to present to the trial court those questions of law which may become issues on appeal. The appellate court reviews for errors, and a nonruling is not reviewable when the issue has not been presented to the trial court for decision.” Turner v. Commonwealth, Ky., 460 S.W.2d 345, 346 (1970). “Appellate practice is a science. Members of the legal profession are required to know and carefully comply with the rules pertaining thereto.” White v. Hardin County Board of Education, Ky., 307 S.W.2d 754, 756 (1957).11

Like the defendant in Todd, Appellant here argued due process violations to the trial court and the Court of Appeals and now makes affidavit and probable cause sufficiency arguments in his appeal to this Court. Thus, contrary to the belief held by the majority opinion, issues relating to the insufficiency of an affidavit are not inherently connected with due process claims such that the Appellant should “be permitted to feed one can of worms to the trial judge and another to the appellate court.”12

This reasoning especially holds true when, in this instance, the Appellant had the “burden of attacking the warrant and thus the seizure.”13 As the Appellant had the burden of proving that the affidavit was insufficient and it appearing that the Appellant did not bring this issue to the attention of the trial court or the Court of Appeals, the Appellant waived his right to have this issue considered in this appeal.

‘"Violations of constitutional [and other rights] may be waived by failure to make timely and appropriate objection,” but “in an aggravated case involving violations of such proportions” that a defendant is deprived of due process, “the appellate court may grant relief notwithstanding failure to make proper objection.”14 “In the past, this Court has held that a failure to properly preserve by objection even those alleged errors with constitutional dimensions means that this Court will not review them,” since “the constitutional nature of Appellant’s claim does not automatically elevate any alleged error to the point where this Court should review it under RCr 10.26.”15 “Just as [the Court should] *680decline to dine upon this new can of worms [regarding the sufficiency of the affidavit and probable cause] ... [the Court should also] decline to open a third can of worms by grossly expanding the scope of our palpable error review.”16

However, since the analysis of the sufficiency of the affidavit contained within the majority opinion is as equally vexing as this Court’s willingness to entertain issues not preserved for our review, I also write separately on the sufficiency of the “affidavit” and the probable cause determination.

According to RCr 13.10, a judge may issue a search warrant upon an affidavit sufficient under § 10 of the Kentucky Constitution and sworn to before an officer authorized to administer oaths.17

“[A]ffidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion .... Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area .... [Wfhen a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than commonsense, manner.”18

This commonsense interpretation was used in Clark v. Commonwealth,19 where the highest court in Kentucky at the time determined that a search warrant was valid when it was based on a complete and proper affidavit even though the maker of the affidavit testified that he did not swear to it. Therefore, the fact that the affidavit in Appellant’s ease does not appear to have been notarized, although a violation of RCr 13.10, is not a violation of such proportions that the Appellant was deprived of due process.

With regard to the new challenge to the probable cause determination, an affidavit provides a sufficient foundation for probable cause when it sets forth facts establishing a substantial basis for concluding that a search would uncover evidence of wrongdoing.20

The affidavit stated that Detective Kevin Pelphrey obtained statements from three victims that they were sexually abused by the Appellant. It also stated that Laverne Carrier, Appellant’s former wife, was willing to testify that Appellant told her that he confessed his illegal sexual activity to Dr. Runyon. Based on Laverne Carrier’s statement, corroborated by the victims’ statements that Det. Pelphrey previously obtained, the Commonwealth sought a search warrant to obtain all of Dr. Runyon’s files, documents, and other information relating to Appellant.

According to Embry v. Commonwealth,21 “[t]he general rule has long been that an affidavit for a search warrant based on information furnished by a named individual is ordinarily sufficient to support the warrant.”22 The information about Appellant’s confession to Dr. Runyon was provided by Laverne Carrier, a *681named individual. Furthermore, the victims’ statements supported Laverne Carrier’s statement and provided a substantial basis for the belief that evidence of abuse would be found in the psychiatric records. Thus the “affidavit” was sufficient.

The majority opinion criticizes the “affidavit” because the information about the confession is not based on the officer’s or Commonwealth Attorney’s independent knowledge. I would point out that secondhand information, i.e., hearsay, may provide a basis for probable cause if the source of the hearsay is credible and “there is a factual basis for the information furnished.”23 Laverne Carrier was previously married to the Appellant and would have some knowledge of his private matters. Although one may question the veracity of the statement, given that the two were no longer married, her information, however, was corroborated by the independent statements previously given by the three victims.

In determining that the evidence should be suppressed, the majority deviates from Crayton v. Commonwealth24 and completely overlooks the good faith exception adopted therein: “[W]hen it appears that the affidavit was made in good faith but the warrant erroneously issued by virtue of judicial error, neither the Constitution nor sound public policy requires suppression of the evidence.”25

In this instance, the statement by a named individual, who would be privy to knowledge of the Appellant’s private matters, was corroborated by evidence the detective had already gathered. Based on this information, the detective was reasonable in believing that evidence of the abuse would be contained in the psychiatric files.

Alternatively, even under the majority’s analysis, suppression of the evidence does not serve the legitimate objective of evi-dentiary suppression because suppression after the affidavit has been subjected to judicial scrutiny “can have no deterrent effect upon police misconduct.”26

Though the description in the “affidavit” and the “warrant” was broad enough to encompass privileged items, the executing officer’s discretion was sufficiently limited in that he or she would reasonably know what items were to be seized from reading the description.27 Had any items to which the privilege still applied been seized, however, “complete suppression of all materials [would not have been] appropriate. The proper remedy [would have been] to return any [privileged] materials.”28 The Appellant does not, however, allege that any of the statements or documents obtained from Dr. Runyon concern anything *682other than a dependent, neglected or abused child. Therefore, Det. Pelphrey made the “affidavit” in good faith, it provided a sufficient basis for probable cause, and no manifest injustice is present to justify the result or review provided in the majority opinion.

The issues that were preserved by the Appellant and entitled to this Court’s review are (1) whether the exception to the psychotherapisi/patient privilege applies in this case and (2) whether the ex parte nature of the “search warrant” proceedings constituted a deprivation of the Appellant’s due process rights.

Although I agree with the majority that the exception extends past the time when the child victim reaches the age of majority, the scope of the exception is broader than that expressed in the majority opinion.

The majority states that only the report would be exempt from the privilege. In addition to the information that would be contained in the report required under KRS 620.030, the exception contained in KRS 620.050(2) plainly states that it also extends to “evidence regarding a dependent, neglected, or abused child or the cause thereof.”29 The majority opinion also indicates that the exception only operates in a proceeding resulting from a report. Appellant’s case did not result from a report yet the majority applies the exception. To resolve this conflict, I would point out that the exception is not so limited as set forth in the majority opinion because the statute clearly provides that the exception applies not only “in any judicial proceeding! ] resulting from a report pursuant to this section,” but also in “any criminal proceeding in District or Circuit Court regarding a dependent, neglected or abused child.”30

Although not addressed in the majority opinion, the Appellant asserts that he was deprived of due process of law because he was not given notice and an opportunity to assert the psychotherapist/patient privilege prior to the issuance of the search warrant. Since the Appellant was provided with an opportunity to assert the privilege subsequent to the execution of the search warrant, the Appellant was not deprived of due process of law by the ex parte proceedings.

[D]ue process does not categorically require a hearing before one is initially deprived of a[n] ... interest. Instead, the timing of a hearing (i.e., whether a hearing is required pre- or post-deprivation) is determined on a sliding scale basis that requires balancing the impact the taking has on the individual and the state interest being advanced.31

In the Appellant’s case, he was able to assert the privilege after the psychiatric records were seized. Because “[t]he issuance of a search warrant is [not] tantamount to a finding that all professional privileges are waived so as to preclude an assertion of those privileges after the *683search,”32 a hearing prior to the issuance of the “search warrant” was not necessary. When items which may or may not be privileged are seized, due process concerns are satisfied if the defendant has an opportunity to be heard, “on a document-by-doeument|7statement-by-statement basis,] with regard to [his] contention that various documents [and statements] are not covered by the ... exception to the privilege.” 33

While the proceedings for a search warrant are necessarily ex parte,34 a warrant may not issue without a neutral and detached magistrate “ ‘to weigh correctly the strength of the evidence ... against the individual’s interests in protecting his own liberty.” ’35 This safeguard coupled with the opportunity for the Appellant to be heard following the execution of the warrant fully satisfies any due process concerns. And that is exactly what occurred in this case; Appellant was not denied due process.

II. CONCLUSION

For the foregoing reasons I respectfully dissent and would affirm the Court of Appeals.

WINTERSHEIMER, J., joins this dissenting opinion.

.Skaggs v. Assad, By and Through Assad, Ky., 712 S.W.2d 947, 950 (1986) (citing Combs v. Knott County Fiscal Court, Ky., 283 Ky. 456, 141 S.W.2d 859 (1940); CR 76.12(4)(c)(iv)).

. Kennedy v. Commonwealth, Ky., 544 S.W.2d 219, 222 (1976).

. Arnold v. Commonwealth, Ky., 421 S.W.2d 366, 367 (1967); Hatton v. Commonwealth, Ky., 409 S.W.2d 818, 820 (1966) ("A nonrul*678ing cannot be erroneous when the issue has not been presented to the trial court for a decision.”).

.Gabow v. Commonwealth, Ky., 34 S.W.3d 63 (2000) (where a defendant who has specified his grounds for an objection at trial cannot assert new grounds on appeal); Grundy v. Commonwealth, Ky., 25 S.W.3d 76 (2000) (where the defendant could not use the guise of developing an argument to present a theory on appeal that differed from theory asserted at the trial court level); Port v. Commonwealth, Ky., 906 S.W.2d 327 (1995) (where defendant cannot pursue one theory at trial and another on appellate review); Commonwealth v. Duke, Ky., 750 S.W.2d 432 (1988) (where defendant cannot pursue one theory at trial and another on appellate review); Charles v. Commonwealth, Ky., 634 S.W.2d 407 (1982) (where grounds for objection on appeal were not properly presented as they differed from the grounds asserted at trial); Daugherty v. Commonwealth, Ky., 572 S.W.2d 861 (1978) (where different grounds of error from those presented to trial court are not properly preserved); Richardson v. Commonwealth, Ky., 483 S.W.2d 105 (1972) (where appellate court was precluded from considering grounds for exclusion of evidence that were never presented to trial court); Shelton v. Commonwealth, Ky.App., 928 S.W.2d 817 (1996) (where defendant’s arguments on appeal were not addressed to extent they differed from those made at trial).

. Ky., 483 S.W.2d 105 (1972).

. Id. at 106.

. Id. (quoting 24 C.J.S. Criminal Law § 1677 (date omitted)).

. Ky., 20 S.W.3d 466 (1999).

. Id. at 470 (citing McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977)) (The court was "not at liberty to review alleged errors when the issue was not presented to the trial court for decision.”).

.Ky., 716 S.W.2d 242 (1986).

. Id. at 248.

. Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1977).

. 8 LESLIE W. ABRAMSON, KENTUCKY PRACTICE § 18.1 (3d ed.1997); Bailey v. Commonwealth, Ky., 464 S.W.2d 232 (1971)("When the validity [of a search warrant] is challenged, the burden of producing evidence to the contrary is upon the challenger.”); Boles v. Commonwealth, Ky., 304 Ky. 216, 200 S.W.2d 467 (1947); Combs v. Commonwealth, Ky., 242 Ky. 793, 47 S.W.2d 725 (1932); Terrell v. Commonwealth, Ky., 244 S.W. 703 (1922).

. Futrell v. Commonwealth, Ky., 437 S.W.2d 487, 488 (1969); see also Sanders v. Commonwealth, Ky., 609 S.W.2d 690 (1980); Burch v. Commonwealth, Ky., 555 S.W.2d 954 (1977); Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974); RCr 10.26 (where the court may review a new claim if failure to do so would cause manifest injustice).

. Henson v. Commonwealth, Ky., 20 S.W.3d 466, 470-471 (1999) (citing Turner v. Commonwealth, Ky., 460 S.W.2d 345 (1970) (right to counsel issue); Arnold v. Commonwealth, Ky., 433 S.W.2d 355 (1968) (confrontation clause issue presented in a Bruton-like, context)).

. Henson, 20 S.W.3d at 471.

. RCr 13.10(1).

. Gossett v. Commonwealth, Ky., 426 S.W.2d 485, 486 (1968) (quoting United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)) (emphasis added).

. Ky., 418 S.W.2d 241 (1967).

. Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914 (1984); see Crayton v. Commonwealth, Ky., 846 S.W.2d 684 (1992).

. Ky., 492 S.W.2d 929 (1973).

. Id. at 931; see also Emberton v. Commonwealth, Ky., 269 S.W.2d 206 (1954); Mattingly v. Commonwealth, Ky., 310 Ky. 561, 221 S.W.2d 82 (1949).

. 8 LESLIE W. ABRAMSON, KENTUCKY PRACTICE § 18.27 (3d ed.1997); KRE 1101(d)(5) (where the Kentucky Rules of Evidence do not apply in proceedings for issuance of search warrants).

. Ky., 846 S.W.2d 684 (1992).

. Id. at 688.

. Id.

. New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986); Wilson v. Commonwealth, Ky., 621 S.W.2d 894 (1981).

. United States v. Skeddle, 989 F.Supp. 890, 897 (N.D.Ohio 1997) (citing Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (rejecting argument that intrusion into attorney-client communications constituted per se violation of right to fair trial and effective assistance of counsel); National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) ("[t]o the extent that the files obtained here were privileged, the remedy is suppression and return of the documents in question, not invalidation of the search”) (citations omitted); United States v. Mittelman, 999 F.2d 440, 443 (9th Cir.1993) ( "separate legal rules are not necessary for remedying [law office] searches when they exceed the scope of the warrant”); In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847, 858 (9th Cir.1991) *682(Fourth Amendment exclusionary rule reaches only to items unlawfully seized, not those which were seized lawfully); United States v. Chuang, 696 F.Supp. 910, 915 (S.D.N.Y.1988) (“the fact that a search involved privileged documents does not render the entire search unreasonable, at least where there was good reason to believe that documents that could legitimately be searched would be found”)); cf. Crayton v. Commonwealth, Ky., 846 S.W.2d 684, 688 (1992) ("Try as we might ... we are unable to discover any deterrent effect in the suppression of evidence obtained pursuant to a search warrant when the police are acting in good faith.”); Beemer v. Commonwealth, Ky., 665 S.W.2d 912 (1984).

. KRS 620.050(2).

. KRS 620.050(2).

. United States v. Calor, 172 F.Supp.2d 900, 906 (E.D.Ky.2001).

. People v. The Superior Court of Los Angeles County, 37 Cal.App.4th 1757, 44 Cal.Rptr.2d 734, 742 (1995).

. United States v. Skeddle, 989 F.Supp. 890, 898 (N.D.Ohio 1997); Heller v. New York, 413 U.S. 483, 492, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) (The seizure of material for the purpose of preserving it as evidence, "pursuant to a warrant [] issued after a determination of probable cause by a neutral magistrate, [is constitutionally permissible if] following the seizure, a prompt judicial determination of the [privilege] issue in an adversary proceeding is available at the request of the interested party.”).

. United States v. Barone, 584 F.2d 118, 120 (6th Cir.1978).

. 8 LESLIE W. ABRAMSON, KENTUCKY PRACTICE § 18.51 (3d ed.1997) (quoting Steagald v. United States, 451 U.S. 204, 212, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)).