Request By:
Mr. Robert W. Riley
Acting General Counsel
Department for Human Resources
209 St. Clair Street
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Victor Fox, Assistant Attorney General
In your letter of June 21, 1977, you requested our opinion as to the constitutionality of KRS 199.335(4). Specifically, you ask the following questions:
(1) Assuming that probable cause exists in a given case for the issuance of a search warrant pursuant to KRS 199.335(4), are there any constitutional reasons why a search warrant may not be issued under this law?
(2) Is KRS 199.335(4) in conflict with any statutory or case law in Kentucky?
The basic law of search warrants is found in Section 10 of the Kentucky Constitution, which reads as follows:
"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."
For purposes of your question, the key phrase is "nor without probable cause supported by oath or affirmation." See also RCr 13.10.
The statute in question provides that the report is sufficient grounds for the issuance of a search warrant. The report is not an affidavit, nor is it sworn to before the issuing officer; therefore, in and by itself, it cannot support the issuance of a search warrant. Wells v. Commonwealth, Ky., 329 S.W.2d 310 (1959); Rooker v. Commonwealth, Ky., 508 S.W.2d 570 (1974). The statute, in this context, is therefore unconstitutional.
However, the report could be used, the same as any other information received from informers, by the person requesting the search warrant and making the affidavit.
Because of the above answer to your first question, it is not necessary that your second question be answered directly.