Cook v. Commonwealth
826 S.W.2d 329
Ky.
1992
Check Treatment

*1 public mation contained in the record in would, law,

this case as a matter of consti- clearly per-

tute a unwarranted invasion privacy.

sonal

Accordingly, the decision of the Court of

Appeals and the order of the Franklin Cir-

cuit Court are reversed. This matter is

remanded to Franklin Circuit Court with judgment

directions to enter a consistent opinion.

with this

STEPHENS, C.J., LAMBERT,

LEIBSON, SPAIN

WINTERSHEIMER, JJ„ concur.

REYNOLDS, J., dissents. COOK, Appellant,

Jericho Kentucky,

COMMONWEALTH of

Appellee.

No. 90-SC-874-DG.

Supreme Kentucky.

March 1992. Dean, Riggs, Math-

Mark D. T. Sherman Dean, is, Shelbyville, Riggs, Prather and appellant. *2 Gorman, murder, Gen., Atty. David A. indicted for one count of three Chris Sex- Gen., Gillig, Attys. first-degree assault and ton and John S. Asst. counts of one Div., Frankfort, driving influence. Appellate David count of under the Cook Criminal Matthews, Reynolds, Reyn- pretrial suppress filed a motion to Myles B. blood olds, hearing Shelbyville, appellee. suppression test At the for results. general giving of

made a denial consent to have his He said he did not blood drawn. WINTERSHEIMER, Justice. Trooper talking with Westbrook remember is a appeal This from decision of seeing only and that he remembered a Appeals of in a homicide Court vehicular preacher personnel while in and medical in re- Appeals the Court of case hospital. He said he did not remember sup- versed the order of the circuit court anyone police in a did uniform and pressing of Cook’s blood alcohol evidence him blood drawn from for content after the fatal accident. cooperative He claim to be tests. did presented whether the issues are judge granted everyone. The circuit sup- in proper circuit used the test court suppression indicating motion that the pressing the results of the blood alcohol have advised of the defendant should been test; any im- whether there was kind of blood, purpose taking for his and that the failing in to that plied coercion advise Cook prove an prosecution required was to intel- sample for the blood was taken criminal simply a volun- ligent opposed as to waiver investigative pre- purposes, and whether Appeals reversed tary one. is the standard that ponderance of evidence of court and this the decision the circuit prove must to vol- the Commonwealth meet discretionary review. granted Court untariness. Appeals correctly of reversed in an acci- Cook was involved automobile of court the decision the circuit because an when he crashed his vehicle into dent prose- that erroneously determined oncoming The other driver was ac- car. intelligent required to an cution was companied by pregnant his wife and simply a opposed to waiver as infant there daughter. In Cook’s vehicle consent. in passengers other addition were two the record indi- of careful examination of the other car was the driver. driver voluntarily gave freely and cates that Cook one instantly, except all others killed test. The determi- his consent the blood seriously injured. were that by the court consent nation circuit police responded The first officer who given in intelligently this search must be empty whisky partially a bottle found application of was erroneous situation that the car smelled car and noted Cook’s the Fifth principles consent under of strongly Trooper Westbrook of alcohol. Amendment a Fourth Amendment go to the and was directed then arrived Suppression issue. search and seizure Upon hospital had been taken. where Cook improper. test results was the blood arrival, gave the blood alcohol Westbrook Kentucky’s that must observe We personnel and later hospital kit to content 186.566(1), statute, K.R.S. implied consent Cook. Westbrook assumed talked with Cook was apply in this situation. does not hospital had obtained written custody. in police or not under arrest sample because he for the blood sent registered the alcohol not. The blood test here involves test administered percent. .21 content to be Con- to the Federal Amendment the Fourth California, 384 police or stitution. Schmerber not under arrest Cook was 1826, 757, 16 L.Ed.2d 908 taking U.S. custody to or at the time of the prior Amendment is (1966), the Fifth held that He not advised taking a blood implicated by the Ari- rights pursuant Miranda v. suspect, but that sample a criminal zona, from 86 S.Ct. 384 U.S. for testing search does constitute subsequently He such physical implicates Trooper real or hospital evidence which Westbrook was at the quite according the Fourth Amendment. some time to his testi- mony speak until he was able to with Cook. It fundamental all Cook, lying he did talk to “He When *3 searches without a warrant are unreason I getting there. think the other ones were they able unless it can be shown that come testimony trooper treatment.” The of the exceptions within one of the to the rule fully indicates that Cook was conscious at pursuant a search must be made to a spoke him the time he and that he was valid warrant. Coolidge Hamp v. New trooper able to understand what the shire, 443, 2022, 403 U.S. 91 S.Ct. 29 saying responsive questions. and to his (1971). L.Ed.2d 564 Consent is one of the nothing in There is the record that shows exceptions requirement to the for a war the physical defendant’s mental or condi- Watson, rant. United States v. 423 U.S. give tion was such that he was unable to 411, 820, (1976). 96 S.Ct. 46 L.Ed.2d 598 permission police to allow the to obtain determining The for test if consent is con sample. a blood The record does not indi- stitutional is set out in Schneckloth v. Bus cate that Cook was confused or tricked into tamonte, 218, 2041, 412 U.S. 36 S.Ct. giving fairly his blood He was (1973). question The of volun apprised police of what the wanted and tariness turns on scrutiny a careful of all it, why they wanted and the consent was surrounding the specific circumstances in a freely voluntarily given. That is all case. requires. the Fourth Amendment There was no or constructive duress coercion. When the required circuit court the Schneckloth. prosecution that consent was intel ligently given, placed improper burden clearly here record demonstrates prosecution. on the The correct standard voluntarily that Cook consented to and co- involves only. consent operated in the search. no seri- There was repudiation ous testimony given by of the require The law does not that Cook trooper. the The addition of the element of rights be advised of his Miranda or that he intelligent improper consent is in this situa- right had a to refuse the search. Hohnke tion. Commonwealth, v. Ky., 451 S.W.2d 162 (1970). All required that was to establish support record does not ar the consent was that the consent was voluntar gument any implied that there was kind of ily given in view of all the circumstances. arising coercion out of a failure to advise Sebastian, Ky., Commonwealth v. sample being Cook that (1973). S.W.2d 417 A careful examination sought purpose for the of a criminal inves of the entire record pros indicates that the tigation. The record does not indicate that by ecution had established preponderance anything by was offered Cook to refute the given by evidence that the consent trooper’s testimony as to the events in the freely Cook was and voluntarily obtained hospital emergency trooper room. The any express implied without threat or or specifically using recalled term “blood Matlock, coercion. Cf. United States v. speaking alcohol content” when with Cook. 164, 988, 415 U.S. 94 S.Ct. 39 L.Ed.2d 242 trooper also observed the blood (1974). by hospital employee taken and recalled transcript review of the suspi of evidence of that he told that he Cook was under suppression hearing driving indicates that Cook cion for under the influence. Cook reasonably intelligent young is a person any police has failed kind to demonstrate who English overreaching way is able to understand the lan- in any which is related guage express and can given. question himself in an under- the consent of volun standable fashion. He claims by objective that he did tariness is to be determined seeing any police police by at the hos- evaluation conduct and not pital giving or consent to the subjective perception reality. search. defendant’s C.J., STEPHENS, LAMBERT, Connelly, 479 U.S.

Colorado LEIBSON, SPAIN, JJ., 93 L.Ed.2d 473 REYNOLDS and concur. argument Cook’s final COMBS,J., by separate opinion. dissents be to a Commonwealth should held clear positive convincing or clear and stan COMBS, Justice, dissenting. proof. agree. dard of do We I respectfully Ap- dissent. The Court of proof burden of Commonwealth is peals majority and the here believe that the by to demonstrate a prepon voluntariness upon imposed trial court an undue burden derance of the evidence. The United suppressed when he Commonwealth Supreme has that a States held state Taking results the blood test. *4 only preponderance need satisfy the stan consti- from a semi-conscious individual the dard where state bears the burden of seizure, except is prohibited tutes a which suppression proof hearing. Lego in a v. upon probable showing a of cause. If so 92 30 Twomey, U.S. necessary justify to the of much is issuance (1972); v. Mat United States writ, subjected a should not an individual to lock, supra. preponderance of The evi search, arrest, a under warrantless and not in applied dence standard one is the Ken at least be advised of the circumstances of Commonwealth, tucky. Ky., v. Tabor the seizure? (1981). S.W.2d 133 Williams Com Cf Appeals Court and this The of Court monwealth, Ky.App., 734 S.W.2d 810 appellant freely have found that consented. thing one consent a How can to without Cook’s citation to Diehl v. Common- Here, knowing consenting to? what one is wealth, (1984) Ky., un- 673 S.W.2d is appellant injured, seriously had to been convincing. attempt to use Cook’s the such that a had to an extent minister come Diehl, supra, in statement which observed hospital According the him. to attend findings fact that a trial court’s of are testimony he had to Trooper Westbrook’s raised, if sup- conclusive as to the issue he appellant Appellant tell where was. evidence, ported by does substantial not seeing the but remembers minister doesn’t nothing this It relate to situation. has seeing policeman, a and doesn’t remember proof prosecu- do of the with the burden on talking test. His about a blood pretrial suppression hearing tion at a but that officer condition was such the simply a discussion under what cir- safely place him under feel that he could findings may cumstances a trial court’s be this, report- man In this arrest. addition appellate an court. deemed conclusive on .21, of edly had a blood alcohol content Kentucky of remains clear. The law statutory the level more than twice on Commonwealth to burden was the intoxication. evidence, prove, by preponderance a sequence seem undisputed of events voluntarily consented to the tak- that Cook Trooper at Miller arrived to be as follows. ing of his blood. Trooper Westbrook the scene first. When this holding It the of Court that the is go the arrived, him to Miller told requiring the court erred Com- circuit hospital and obtain a blood victim to prove pretrial suppres- a monwealth to at his instruc- trooper followed intelli- hearing sion that the consent was sample kit with tions and took the distinguished freely given as from gently gave appro- and it to hospital him to the voluntarily standard of given. and The nurse hospital employee. priate preponderance of is the proof to be used trooper obtained writ- thought that the suppress- Accordingly, the order evidence. Trooper Westbrook ten consent and of ing test results was abuse it. Neither that had obtained thought she discretion. noted that Appeals The Court had. talking to commence Appeals is Westbrook did decision of the given the kit he’d appellant until after affirmed. unequivocally technician, The trial court found that immediately com- who finding This there was no consent. taking the conversa- menced blood. This court, than the trial of fact. Who better tion, Appeals from which the Court of the evidence observed who heard consent, voluntary found commenced witnesses, position to evaluate that is in a taking they had started the blood. after testimony? I that neither the Court submit case, This view of enjoy an advan- Appeals nor we such state, I patient’s injured and intoxicated tage. conclude cannot see how either court could taking voluntarily consented to the Appeals appears It that the Court goes saying of his blood. I think it without on placed too much reliance this have Court person “consenting” something testimony Trooper that a Westbrook. Per- consenting analogous to. situation which haps must know what she/he it was an King prompted Barons to secure from assuming the conversation Even Carta, Magna Chapter 28 of the John taken, I place took before the blood was henceforth shall provides: “No bailiff from could conclude cannot see how upon his law his own hare put any man to dialogue that the the officer and between saying, without credible witnesses appellant of a was evidence *5 it.” dialogue sent. This is as follows: people January From 1850 until Q: you Did advise Mr. Cook that was rule-making pow- judiciary denied the suspicion future under some 22 of According er. to Article Section charges? Assembly the 1850 constitution the General might I told him that there be alco- A: empowered possessed power. It was involved, hol, there alcohol promulgate employ three learned men to why and that’s we wanted the blood. procedure governing practice rules of Cook, Q: you Mr. Tell us how informed civil and criminal law. practice of both you you if remem- can remember. Can took that constitutional amendment Our you what said to him about the ber Assembly and the General power from alcohol test? our gave Section 116 of it to this Court. might there in- A: Just that be alcohol empowers this Court present constitution volved, why that’s we wanted the test. governing appellate its “prescribe rules That he’d been involved an accident practice jurisdiction ... and rules remember, I and the best he wanted procedure for the Court Justice.” cooperate you know— because— pursuant to that adopted RCr 9.78 was Q: So, you can I take it from that didn’t adjunct power and as such is now say you get into this as- didn’t —that sup- we are sworn constitution which against you pect, ‘This could be used Douglas, appear- in an article port. Justice might against you be evidence Review, pp. ing Law in the 49 Columbia a criminal case.’ decisis, 735-36, dealing with stare that, A: I’m sure he understood be- say: had this cause— de- looking at a constitutional judge that, my Q: you But tell him that’s compulsion to revere may have cision point? accept once history and what was past all else But remember above telling him that A: I don’t remember written. which he swore that it is the constitution specifically. defend, gloss not the support and my disagree I also brethren’s put on may have predecessors concluding por- struction of RCr 9.78. it. sup- “If rule is as follows: tion of that ported by evidence the factual substantial trial court shall be conclu-

finding of the limi- qualifications, no no

sive.” There are

tations.