Request By:
Hon. Gary L. Littleton
Carter County Attorney
Grayson, Kentucky 41143
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James S. Goldberg, Assistant Attorney General
This letter is in response to your correspondence of March 31, 1977, in which you state that several law enforcement officials have observed several people going into and coming out of a small grocery store, carrying beer or whiskey in their hands. The store itself has very few grocery items for sale and the owner of the store has been previously convicted of dealing in alcoholic beverages, in violation of your local option law. Therefore, you ask whether an affidavit based upon these facts would constitute reasonable grounds to issue a search warrant for this grocery store.
In essence, you are requesting this Office to render a factual, rather than a legal, opinion. In that regard, we note that under KRS 242.370 (1), it is stated:
"When an officer or any reputable citizen files an affidavit with any circuit judge, county judge, police judge or justice of the peace, describing premises or a vehicle, where alcoholic beverages are sold, disposed of or possessed in violation of this chapter, the judge or justice shall by his warrant cause the premises or vehicle to be searched for the detection of any alcoholic beverages which are possessed, or kept for disposition, in violation of this chapter."
See also
Gross v. Metcalf, 311 Ky. 616, 224 S.W.2d 938 (1949).
In addition, § 10 of the Kentucky Constitution states:
"The 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."
Therefore, under KRS 242.370, the information you possess should be filed in affidavit form with the circuit judge, county judge, police judge or justice of the peace. The statutory authority and duty to make a proper and final determination as to whether such factual evidence is legally sufficient to issue a search warrant rest solely with these court officials and not the Attorney General's Office. Of course, the affidavit must demonstrate sufficient probable cause before a judge or justice will issue such a warrant.
We hope that this opinion will satisfactorily answer your question. If we can be of any further service, please do not hesitate to call upon us.