By GINA KINSLOW
GLASGOW — It is up to the Kentucky Court of Appeals to determine the constitutionality of a state law regarding the use of pharmacy logs recording the purchase of non-prescription drugs considered to be methamphetamine precursors as evidence in criminal cases.
Ten Barren Circuit Court cases involving defendants who were arrested for unlawful possession of a methamphetamine precursor were continued until June 15 earlier this week pending the outcome of a court of appeals decision. The court of appeals could decide to overturn those convictions.
“All we are waiting on is their decision as to whether the law is constitutional to allow law enforcement to look at the logs —the Sudafed logs — and use that to get more evidence or use that as evidence itself in a crime,” said Traci Peppers, assistant commonwealth’s attorney for Barren County.
The cases are among the first to test the constitutionality of a state law, KRS 218A.1446, that was passed by the 2005 Kentucky General Assembly to control access to large quantities of ephedrine or pseudoephedrine products, which is used to manufacture methamphetamine.
Barren Circuit Court Judge Phil Patton ruled in September 2007 that the law was constitutional, but his ruling is being challenged by the defendants who appeared in his court earlier this week.
The statute requires non-prescription drugs containing ephedrine/pseudoephedrine be sold only by licensed pharmacists. Those who buy the over-the-counter drugs are required by law to produce a government photo identification and sign a log book recording their name, address and date of birth, as well as the quantity they’ve purchased.
The defendants say the law violates the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution and Sections 2, 10 and 11 of the Kentucky Constitution. They have challenged the portion of the statute that makes the logs subject to random and warrantless inspection by law enforcement officers, and argue the random and warrantless inspection with any “articulable individualized suspicion” is an unconstitutional search and seizure, according to Patton’s ruling.
The defendants were indicted after Barren-Edmonson County Drug Task Force agents inspected logs from several pharmacies. The indictments allege the defendants purchased more than 9 grams of ephedrine/pseudoephe-drine as a precursor of methamphetamine within a 30-day period, which is prohibited by the state law. The defendants are asking evidence obtained in the inspections be suppressed as an unconstitutional search and seizure.
Patton pointed out in his ruling that the intent of the state law was to deter the manufacture of methamphetamine and since its passage there has been a decline in meth manufacturing cases.
“The statute serves a legitimate public purpose,” Patton wrote. “The underlying challenge to KRS 218A.1446 is the claim that all evidence obtained from the inspection of logs should be suppressed. In seeking suppression, a defendant must establish a ‘reasonable expectation of privacy.’ Without a reasonable expectation of privacy, the defendant lacks standing to challenge the introduction of evidence garnered pursuant to the search.”
Members of the public can readily observe the purchase of such over-the-counter drugs, which may also be recorded by a pharmacy’s security camera, he wrote.
“The very limited information disclosed by the customer at the pharmacy counter is not unreasonable given the public purpose to deter the manufacture of methamphetamine,” Patton wrote.
He further stated the defendants failed to demonstrate that the law was unreasonable or arbitrary and did not establish a violation of privacy.
If the Court of Appeals overturns Patton’s ruling, the defendant’s cases could be overturned, as well as an additional case involving defendant Chris Pitcock, who was also arrested for unlawful possession of a meth precursor (first offense). Pitcock entered a conditional guilty plea in July 2006 pending the outcome of the Court of Appeals’ decision, Peppers said.
Jeff Scruggs, who heads up the Barren-Edmonson County Drug Task Force, supports Patton’s ruling in the case and hopes the Court of Appeals upholds the judge’s opinion.
“I think the judge made a good ruling on it,” he said. “It’s not like you’re going into someone's house without a search warrant. I’m supportive of the judge’s ruling and I hope it stands. I don’t think it’s evasive on their rights if a log is kept. It would be different if it was a log that didn’t benefit a majority of the people. I think it benefits a majority of the people when it limits the manufacturing of methamphetamine.”
If the Court of Appeals declares the law unconstitutional it will set law enforcement back several years in curbing the manufacture and use of methamphetamine, Scruggs said.
