Could a Kentucky prosecutor demand someone’s records with an investigative subpoena before any criminal case was in court?

Plain-English summary

The Kentucky Attorney General concluded in 2015 that a prosecutor or police agency could not compel a person’s records with an ordinary subpoena duces tecum when the criminal matter was still investigative, no case was pending in court, and no arrest had occurred. The opinion identified three other sources of authority: a grand jury subpoena, a valid search warrant, or a subpoena power expressly granted for a particular investigation by statute.

The AG distinguished grand jury process from an investigator’s own subpoena demand. It also described specific statutory powers for the Attorney General and other officials in defined subject areas. The conclusion was limited to records sought during an investigation before a pending court matter.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a prosecutor issue an ordinary investigative records subpoena on their own?

The AG said no in the precharge circumstances it analyzed. A subpoena needed grand jury authority or a particular statutory grant.

Could a grand jury demand documents before a court case was pending?

Yes. The opinion said grand jury subpoenas could compel witnesses to produce designated books, papers, documents, or other objects.

Could officers obtain records through a search warrant?

Yes, if the warrant met the constitutional and procedural requirements the opinion described, including a sworn showing of probable cause.

Background and statutory framework

The Hopkins County Attorney asked about “criminal investigative subpoenas duces tecum.” The AG cited R.Cr. 5.06 for grand jury subpoenas and Ky. Const. § 10 for search warrants. It gave KRS 500.120, KRS 205.8469, and KRS 15.243(2)(e) as examples of limited statutory subpoena authority. It cited Stengel v. Kentucky Bar Ass’n, 162 S.W.3d 914, 919 (Ky. 2005), on grand jury independence.

Citations and references

Authorities: Ky. Const. § 10; R.Cr. 5.06; KRS 500.120; KRS 205.8469; KRS 15.243(2)(e).

Case cited: Stengel v. Kentucky Bar Ass’n, 162 S.W.3d 914, 919 (Ky. 2005).

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Pages/Opinions.aspx
• Original Word document: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG15-021.doc

Original opinion text

OAG 15-021

December 30, 2015

Subject: Whether a prosecutor or a law enforcement agency may obtain records of an individual through a “criminal investigative subpoena duces tecum” related to a matter that is not pending in court.

Requested by: Byron L. Hobgood

Hopkins County Attorney

Written by: S. Travis Mayo

Syllabus: A prosecutor or a law enforcement agency may not obtain records of an individual through a subpoena duces tecum where the matter is not pending in court. Such records may be obtained in such matters only through a grand jury subpoena, through a search warrant, or under special circumstances specifically prescribed by Kentucky statute.

Statutes construed: KRS 15. 243; KRS 72.025, 72.405, 72.420; KRS 500.120;

KRS 205.8469

U.S. Const. amend. IV

Ky. Const. § 10

OAGs cited: OAG 80-97; OAG 80-206; OAG 82-459; OAG 89-62

Opinion of the Attorney General

Byron L. Hobgood, the Hopkins County Attorney, has requested an opinion of this office on the issue of investigative subpoenas duces tecum. Specifically, Mr. Hobgood has requested an opinion regarding the use of so-called “criminal investigative subpoenas duces tecum” in matters that are in the investigative stage, but are not pending in court and have not resulted in an arrest. In responding to the request for an opinion, an analysis of Kentucky law is necessary regarding authority to procure documents in criminal matters in which a court case is not pending and law enforcement has not made an arrest. In his request, Mr. Hobgood references such examples as a grand jury subpoena, statutory authority for the Attorney General or the Kentucky State Police Commissioner under KRS 500.120, and a search warrant.

We advise that in matters where a criminal case is not pending in court and in which a law enforcement agency has not arrested an individual who is the subject of a criminal investigation, neither a prosecutor nor a law enforcement agency may obtain records pertaining to the individual or the investigation by way of a subpoena duces tecum. Rather, such records may only be obtained by way of a grand jury subpoena, a search warrant, or a subpoena authorized by Kentucky statute.

I. A Grand Jury Subpoena May Compel the Production of Records in Matters that are Not Pending in Court.

While the Kentucky Rules of Criminal Procedure do not authorize the issuance of a “criminal investigative subpoena duces tecum,” they do permit the compulsory production of documents in matters not pending in court through the issuance of a grand jury subpoena. Established under Kentucky Constitution section 248, the grand jury is an investigative body that acts independently of the prosecuting attorney or the judge. Stengel v. Kentucky Bar Ass’n, 162 S.W.3d 914, 919 (Ky. 2005) (citing United States v. Dionisio, 410 U.S. 1, 16 (1973)). The grand jury is functionally independent from the judicial branch, as is evident in the scope of its power to investigate criminal conduct and in the manner in which that power is exercised. Id. (citing Hoskins v. Miracle, 150 S.W.3d 1, 17 (Ky. 2004)).

The power of the grand jury to investigate the possible commission of crime and return indictments is rather broad. See Branzburg v. Hayes, 408 U.S. 665, 688 (1972). See also OAG 80-97, OAG 82-459. Under Kentucky Rule of Criminal Procedure 5.06, the grand jury has authority to issue subpoenas for witnesses. The Clerk of the Court shall issue subpoenas for witnesses upon the request of the foreperson of the grand jury or the attorney for the Commonwealth. R.Cr. 5.06. As in other judicial proceedings, the attendance of witnesses may be coerced, unless, and until, their attendance is excused or modified by a requesting party. R.Cr. 5.06. Further, a grand jury subpoena may command the person who is subpoenaed to produce books, papers, documents, or other objects designated in the subpoena, to the grand jury foreperson, or the Commonwealth’s Attorney or his agent. Id.

II. Law Enforcement May Obtain Records with a Search Warrant Meeting the Requirements of the United States and Kentucky Constitutions.

In addition to compelling the production of documents through a grand jury subpoena, a law enforcement agency may obtain documents by way of a valid search warrant. Pursuant to R.Cr. 13.10(1), a judge or other officer authorized by statute may issue a search warrant upon the submission of a sworn affidavit that is sufficient under Section 10 of the Kentucky Constitution. Mirroring the Fourth Amendment to the United States Constitution, Kentucky Constitution Section 10 prohibits the issuance of a warrant without describing the place to be searched “as nearly as may be, nor without probable cause supported by oath or affirmation.” Thus, no warrant shall be issued unless supported by an affidavit alleging probable cause. Carrier v. Commonwealth, 142 S.W.3d 670, 673 (Ky. 2004), and Rawls v. Commonwealth, 434 S.W.3d 48, 58 (2014).

The determination of whether or not probable cause exists is made under the totality of the circumstances. Rawls, 434 S.W.3d at 58 (citing Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005)). Probable cause can be found where the facts stated in the affidavit show “a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quoting Moore, 159 S.W.3d at 329).

III. Statutory Authority Exists for Issuing Subpoenas Duces Tecum During the Investigative Stages in Certain Circumstances.

Just as the Kentucky Rules of Criminal Procedure provide authority for obtaining documents during a criminal investigation, some Kentucky statutes grant the power to issue subpoenas in specific circumstances. As Mr. Hobgood points out in his request for an opinion, KRS 500.120 allows the Attorney General and the Commissioner of the Department of Kentucky State Police to issue subpoenas in cases involving the use of an Internet service account in the exploitation of children and other cases. KRS 500.120(1)-(2). The statute states that the Attorney General or Commissioner “may issue in writing and cause to be served a subpoena requiring the production” of “any records or other documentation relevant to the investigation.” KRS 500.120(1)-(3). The subpoena must describe the objects required to be produced and must provide a return date with a reasonable period of time for the objects to be assembled and made available. KRS 500.120(5). In addition, the statute requires that the Attorney General destroy the records or documentation produced, or return them to the person who produced them, if no case or proceeding arises from the production. KRS 500.120(6).

Under KRS 205.8469, the Attorney General also has authority to subpoena documents in investigations related to the enforcement of KRS 205.8451 to KRS 205.8483, which involve criminal offenses related to the use of Kentucky Medical Assistance Program funds or services. The Attorney General may subpoena witnesses or documents to the grand jury, the District Court, or the Circuit Court of the county or counties where venue lies. KRS 205.8469(2). Further, the Attorney General may also “subpoena witnesses or documents to the Office of the Attorney General to secure testimony for use in civil or criminal trials, investigations, or hearings affecting the Cabinet for Health and Family Services.” Id.

Kentucky statute also grants the Attorney General subpoena power in investigating potential criminal violation of Kentucky election laws. Pursuant to KRS 15.243(1), the Attorney General shall enforce all of Kentucky’s election laws by civil or criminal processes. In enforcing those laws, the Attorney shall issue subpoenas for the production of “any books, papers, correspondence, memoranda or other records, ... that he deems relevant to the purposes of any investigation.” KRS 15.243(2)(e).

Along with the above statutory authority, KRS 72.420(1) grants authority to county coroners to issue subpoenas duces tecum during an inquest in a coroner’s case. See OAG 80-206 (recognizing the statutory authority for a coroner to issue subpoenas duces tecum). A “coroner’s case” is defined as “a case in which the coroner has reasonable cause to believe that the death of a human being within his county was caused by any of the conditions set forth in KRS 72.025.” KRS 72.405(2). Under KRS 72.025, coroners must require a post-mortem examination to be performed when, among other circumstances: the death of a human being appears to be caused by homicide or violence; the death appears to be the result of a fire or explosion; the death appears to indicate child abuse prior to death; the death appears to be other than natural; or when the post-mortem decomposition of a human corpse exists to the extent that external examination of it cannot rule out injury or where the circumstances of death cannot rule out the commission of a crime.

In OAG 89-62, this office acknowledged the broad authority of the Coroner to conduct investigations falling within his or her jurisdiction. In response to a Coroner’s Subpoena or other written demand regarding a deceased person, a hospital must produce medical and psychiatric records of the person. OAG 89-62. The compelling state and public interest in the coroner correctly determining the cause of death overwhelms any privilege held by an authorized representative of the deceased person, including the psychiatric-patient privilege. Id.

IV. Conclusion

In summary, absent specific authority under Kentucky statute or the Kentucky Rules of Criminal Procedure, a subpoena duces tecum may not be issued to obtain documents in matters where a criminal case is not pending and law enforcement officials have not arrested an individual. Under R.Cr. 5.06, the grand jury foreperson or the attorney for the Commonwealth may request that a grand jury subpoena be issued to witnesses, who may also be compelled to produce documents under the subpoena. As R.Cr. 13.10 provides, a law enforcement agency may procure documents from an individual through a search warrant meeting the requirements of the Fourth Amendment to the United States Constitution and Kentucky Constitution Section 10. Further, certain Kentucky statutes provide authority for some public officials to issue subpoenas for the production of documents in specific circumstances involving the investigation of possible criminal conduct. Other than through a grand jury subpoena, a valid search warrant, or a subpoena authorized by Kentucky statute, neither a prosecuting attorney nor a law enforcement agency may obtain records of an individual through a subpoena duces tecum in matters that are not pending in court.

JACK CONWAY

ATTORNEY GENERAL

S. Travis Mayo

Assistant Attorney General