Hendrix v. State

843 So. 2d 1003, 2003 Fla. App. LEXIS 6190, 2003 WL 1986986
CourtDistrict Court of Appeal of Florida
DecidedMay 1, 2003
DocketNo. 1D02-1192
StatusPublished
Cited by2 cases

This text of 843 So. 2d 1003 (Hendrix v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hendrix v. State, 843 So. 2d 1003, 2003 Fla. App. LEXIS 6190, 2003 WL 1986986 (Fla. Ct. App. 2003).

Opinion

WEBSTER, J.

Appellant, convicted following a jury trial of possession of cocaine and tampering with evidence, seeks review of an order denying his motions to suppress a plastic bag containing cocaine, which appellant had swallowed and subsequently vomited during the course of medical treatment performed in response to ingestion of the bag. Because we conclude that there is competent, substantial evidence to support the trial court’s finding that the warrant-less retrieval was justified by exigent circumstances, and that the medical procedure performed was reasonable, we affirm.

I.

The evidence presented at the suppression hearings established the following. Two officers saw appellant sitting in a car in the parking lot of an abandoned convenience store, which was “a bad drug and prostitution area.” One of the officers observed a white male leaning into the car’s window, and suspected a drug transaction. Although the car’s engine was running and its lights were on, it had no tag light. The officer approached appellant, and asked to see some identification, which appellant provided. Because the car was running and appellant seemed unusually nervous, the officer asked appellant to step out of the car, for his safety. The officer also asked for permission to search appellant and his car, which was denied. Appellant “started looking around as if he wanted to run.” Therefore, the officer patted appellant down, and placed him in the rear of his patrol car. Although the officer did not feel any weapon, he did feel a plastic bag, which he thought might contain drugs. While the officer was calling for a K-9 unit and checking appellant’s identification, he saw appellant pull from a pocket a clear plastic bag approximately seven inches square (which was described as more the size of a freezer bag than a sandwich bag) containing a white substance that appeared to be cocaine. Appellant put the bag in his mouth and began to chew. He then swallowed the bag. A struggle ensued when the officer tried to stop appellant. The officer arrested appellant for tampering with evidence and battery on a law enforcement officer. Then, because the officer had “seen people die” from swallowing cocaine, the officer and his partner rushed appellant to the hospital.

At the hospital, appellant refused treatment. The officer consulted with a doctor, who told him that a person could die from ingesting cocaine. Believing that appellant would be in danger of dying if not treated, the officer signed a Baker Act form stating that he believed appellant was mentally ill because he was refusing treat[1006]*1006ment notwithstanding a substantial likelihood that he would suffer serious harm if not treated. Appellant was then treated. The officer acknowledged having told medical personnel that, if possible, he would like them to retrieve the bag.

One of the doctors who treated appellant in the emergency room testified that appellant denied ingesting any substance, but that he did not believe appellant. He said that appellant could have died from ingesting cocaine. He also said that swallowing a freezer bag could be life-threatening because it could cause a bowel obstruction. Because of these concerns, the doctor said he would have treated appellant even if the officer had not signed the Baker Act form.

That doctor and another, who had also treated appellant, testified that they followed the treatment protocol for toxic in-gestions. A nasal-gastric tube was placed through appellant’s nose and down into his stomach. Appellant was then given charcoal to neutralize the contents of his stomach, and a substance called “Golytely” to cause rapid evacuation of his bowels. Appellant was also given Reglan intravenously to try to prevent vomiting. The process normally takes two to six hours to complete. However, notwithstanding the Re-glan, appellant vomited the plastic bag containing cocaine. According to the doctors, the procedure performed was absolutely necessary, given the way appellant presented at the emergency room.

One doctor testified that the procedure performed was a very common one, which was minimally intrusive. He said that the procedure is “as uncomfortable as having diarrhea.” The other doctor testified that the procedure would not generally be painful. There would merely be some “abdominal discomfort.”

The trial court denied the motions to suppress, finding that the warrantless retrieval of the bag was justified by exigent circumstances in the form of a life-threatening emergency and the imminent destruction of evidence, and that the medical procedure performed was reasonable. At trial, appellant was found not guilty of battery on a law enforcement officer, but guilty of possession of cocaine and tampering with evidence. This appeal follows.

II.

Appellant does not challenge either his initial stop, or his subsequent arrest. His sole argument on appeal is that the trial court’s denial of his motions to suppress the bag was erroneous because its noncon-sensual removal from his stomach violated the Fourth Amendment to the United States Constitution and article I, sections 12 and 23, of the Florida Constitution.

A.

Article I, section 23, of the Florida Constitution mandates that, “except as otherwise provided” by that document, “[ejvery natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” Our supreme court has held that this “right of privacy is a fundamental right” which “is much broader in scope than that of the Federal Constitution.” Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 547, 548 (Fla.1985). It has also held that, pursuant to article I, section 23, “a compe tent person has the constitutional right to choose or refuse medical treatment.” In re Guardianship of Browning, 568 So.2d 4, 11 (Fla.1990). Appellant argues that, because the bag was obtained as the result of the state’s failure to honor his refusal of medical treatment, the bag should have been suppressed. We disagree.

We conclude that article I, section 23, has no bearing on the issue raised by appellant. Rather, the question is wheth[1007]*1007er, notwithstanding appellant’s refusal to consent to treatment, the recovery of the bag was the result of an “unreasonable search,” as that term is used in article I, section 12, of the Florida Constitution and the Fourth Amendment to the United States Constitution. Article I, section 12, of the Florida Constitution mandates that the protection against unreasonable searches afforded by that provision “be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” “Article I, section 23, does not modify the applicability of [a]rti-cle I, section 12, so as to provide more protection than that provided under the Fourth Amendment.” L.S. v. State, 805 So.2d 1004, 1008 (Fla. 1st DCA 2001) (citing State v. Hume, 512 So.2d 185, 188 (Fla.1987), and State v. Jimeno, 588 So.2d 233 (Fla.1991)).

B.

Appellant contends that his motions to suppress should have been granted because no warrant was obtained before the medically intrusive body search was conducted. Again we disagree.

Both article I, section 12, of the Florida Constitution and the Fourth Amendment to the United States Constitution proscribe “unreasonable searches.” “A warrantless search is presumptively unreasonable ....

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843 So. 2d 1003, 2003 Fla. App. LEXIS 6190, 2003 WL 1986986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendrix-v-state-fladistctapp-2003.