State v. Comeaux

818 S.W.2d 46, 1991 Tex. Crim. App. LEXIS 167, 1991 WL 117450

• Court: Court of Criminal Appeals of Texas
• Decided: July 3, 1991
• Docket: 318-90
• Status: Published

Opinions

OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Pervis Joseph Comeaux, appellee, charged with driving while intoxicated, TEX.REV.CIV.STAT.ANN. art. 6701Z-1, filed a pretrial motion to suppress the result of a blood alcohol content analysis conducted upon a sample of his blood. He argued that the blood sample was seized and analyzed in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution. The trial court granted ap-pellee’s motion and suppressed the State’s evidence of appellee’s blood alcohol content. The State appealed from this ruling, Art. 44.01 V.A.C.C.P. A panel of the Court of Appeals at Austin affirmed the trial court’s suppression of the evidence. The Court of Appeals held that the appellee did not consent to the State’s seizure and use of his blood sample. The court also held that there was state action in the seizure and analysis of the blood sample. State v. Comeaux, 786 S.W.2d 480 (Tex.App. — Austin 1990).

We granted the State’s petitions for discretionary review to decide whether, under these facts, the State’s seizure of appellee’s blood sample amounted to state action and violated appellee’s right against unreasonable search and seizure. U.S.CONST. amend. IV and XIV; TEX. CONST, art. 1, sec. 9. The State specifically requests that we review that portion of the court’s of appeals opinion which appears to base its finding of state action upon the fact that the chemical analysis of appellant’s blood was conducted in a state pathology laboratory. We affirm the holding of the Court of Appeals. We hold that there was state action in the seizure and analysis of appel-lee’s blood in violation of appellee’s right to be free from unreasonable search and seizure.

To make a determination of whether there was state action necessitates a recital of the pertinent facts herein. Appellee was driving home from a party that he had catered when a car, travelling toward ap-pellee’s van, crossed over into his lane and hit his van head-on. The driver of the car hitting appellee’s van was killed. Appellee sustained minor injuries and was taken to Brackenridge Hospital.

Department of Public Safety [D.P.S.] Trooper Chester L. Dixon was called to the scene of the accident. At some point after he ascertained that appellee would be taken to the hospital, he radioed the D.P.S. dispatcher and requested that a blood sample be obtained from appellee. The dispatcher contacted an Austin police officer, Craig Jackson, who was on duty at Brackenridge hospital, and informed him of the request. Trooper Dixon testified that at the time he called the dispatcher he had no reason to suspect that appellee had consumed any alcohol. Dixon also testified that he did not want appellee placed under arrest, nor did he believe that he had probable cause to do so. In fact, Dixon testified that prior to his receipt of the blood alcohol content analysis result, he did not believe that ap-pellee was intoxicated at the time of the accident.

While appellee was at the hospital, a sample of his blood was ordered taken by appellee’s attending physician. This sample was taken in order to provide appellee with medical treatment. (The tests performed on appellee’s blood as ordered by the physician did not include a blood alcohol content analysis.)

Officer Jackson requested a portion of appellee’s blood sample from the nurse on duty. She refused to give him any of ap-pellee’s blood without authorization. Officer Jackson then presented her with a form entitled “Statutory Authorization: Mandatory Blood Specimen.” This form stated that the appellee was under arrest (which in fact he was not), required appellee to give a sample of his blood, and ordered the nurse to acquire the sample. After receiving the form, the nurse provided Officer Jackson with the sample of appellee’s blood.

The Supreme Court of the United States has held that obtaining a blood sample from an accused falls within the Fourth Amendment’s protection of persons against unreasonable searches and seizures¹. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Texas constitutional protection against unreasonable searches and seizures² has been held to be at least as extensive as the Fourth Amendment. See and compare Bower v. State, 769 S.W.2d 887 (Tex.Cr. App.1989), cert. denied 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989); Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983). Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991). We have specifically held that under Article 1, Section 9, of the Texas Constitution “the taking of a blood sample is a search and seizure.” Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978), cert. denied 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979), reh. denied 444 U.S. 888, 100 S.Ct. 190, 62 L.Ed.2d 124 (1979); Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982).

The State contends, however, that the seizure of appellee’s blood does not fall within the purview of Article 1, Section 9, or the Fourth Amendment because of the absence of state action.

The United States and Texas constitutional protections against unreasonable search and seizure apply only when the government conducts the search and/or seizure. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Vargas v. State, 542 S.W.2d 151 (Tex.Cr.App.1976) cert. denied 429 U.S. 1109, 97 S.Ct. 1144, 51 L.Ed.2d 562 (1977). However, “[although the Fourth Amendment does not apply to a search and seizure, even an arbitrary one, effected by a private party on his [or her] own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.” Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

To determine whether a private party acted as an instrument or agent of the government, the Supreme Court has advocated using the test of whether “in light of all the circumstances, the private citizen must be regarded as acting as an instrument or agent of the state.” Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971). The United States Courts of Appeals for the Ninth and Sixth Circuits look to whether the private actor had a legitimate independent motivation for taking the action which is challenged. See U.S. v. Walther, 652 F.2d 788, 792 (9th Cir.1981); U.S. v. Howard, 752 F.2d 220, 227 (6th Cir.), cert. denied 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985). If the seizure was independent of the government, even if government officials were present when the seizure occurred and were interested in the fruits of the seizure, the private party is not deemed to have acted as an agent of the government. See U.S. v. Attson, 900 F.2d 1427 (9th Cir.1990).

In this case the doctor was acting solely as appellee’s attending physician when he ordered that the blood be drawn from appellee. The doctor testified that he ordered a blood sample to be taken so that he could get a “complete blood count.” The State did not request the doctor to take the sample. The doctor wanted the blood only so that he could provide medical treatment for the appellee, not for any governmental purpose. Thus, the doctor was acting on his own initiative and had a legitimate independent motivation for his action. He was not acting as an instrument or agent of the State. Therefore, the Fourth Amendment to the United States Constitution and Article 1, Section 9, of the Texas Constitution do not apply to his actions in this case. U.S. v. 'Jacobsen, supra; Vargas v. State, supra.

The State would have us stop at this point and hold that since the blood sample was seized by a private party for solely private reasons, the protections against unreasonable searches and seizures are not implicated. The State offers authority from another jurisdiction in support of this position.³

Conversely, appellee argues that we must proceed further and look at how the State obtained his blood sample. Simply put, he asserts that the State acted when Officer Jackson took the blood sample from the nurse. He argues that this action by an officer of the State invokes the protections of the Fourth Amendment and Article 1, Section 9. Since a warrant was not procured and the State did not establish that an exception to the warrant requirement was applicable, appellee maintains that the evidence was correctly suppressed and the holding of the Court of Appeals should be affirmed.

We agree with appellee that the analysis does not end at the point where the blood sample was initially taken by the medical personnel.

The State complains that the Court of Appeals, in finding state action, focused on the fact that the blood alcohol content analysis was performed at the Texas Department of Public Safety laboratory. In addressing the issue of state action, the Court of Appeals limited its analysis to the following:

In cases where the courts determined whether there was state action in administering blood-alcohol tests, however, the private party performed the actual test. Weaver v. State, 721 S.W.2d 495 (Tex. App. — Houston [1st Dist.] 1986, pet. ref’d); Hayes v. State, 634 S.W.2d 359 (Tex.App. — Amarillo 1982). Here, the test was performed by the Department of Public Safety’s Lab. Although the nurse already had drawn blood, the officer seized that blood and ordered a test that the medical personnel did not request or require. It is the result of this test that was suppressed. Thus, there was state involvement in the search.

State v. Comeaux, 786 S.W.2d 480 (Tex.App.—Austin 1990).⁴ While the question of state versus private testing may be dis-positive of the state-action issue in an appropriate case, it is not the determining factor here.

The Court of Appeals went further than the State suggests, however, and also based its finding of state action on the fact that "the officer” seized appellee’s blood sample from the nurse. It is at this point in the chronology of the facts that the state became inextricably involved as an active participant.

Officer Jackson initiated contact with the nurse and requested appellee’s blood sample from her. She refused to give the sample to him until he presented her with a form entitled “Mandatory Authorization.” The nurse turned the sample over to Officer Jackson because he demanded it under an assertion of mandatory authority. She did not have an independent motive to turn the sample over to him. Her conduct was neither in the interest of or for the benefit of the hospital, nor in the interest of or for the benefit of the defendant. She was acting solely at the behest of police authority-

In order to present a State or Federal constitutional claim based on unlawful search and seizure, the appellee must be within the purview of constitutional protection. He must establish that he had a legitimate expectation of privacy in the invaded place or property, and that this expectation of privacy is one that society is prepared to accept as reasonable. Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979).

Here, we are presented with the question of whether an accused, after voluntarily giving a sample of his blood to a third party, maintains a legitimate expectation of privacy in that sample sufficient to allow him to object to what the third party does with the blood sample thereafter.⁵

To determine if the accused has made a showing of a legitimate right of privacy, courts may look to the totality of the circumstances. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Bower v. State, 769 S.W.2d 887 (Tex.Cr.App.1989). However, “legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 99 S.Ct. 421, 431 n. 12, 58 L.Ed.2d 387, 401 n. 12 (1978).

The record reflects that appellee gave a sample of his blood in order to receive medical help only; he had no intention of allowing that sample to be used for any other purpose. Common sense dictates, in this age of blood testing for everything from HIV infection to drug use, that a person does not assume that, by giving a sample of blood for private testing, that blood sample could then be submitted to the State, or to any other person or entity, for a purpose other than that for which it was given.

Indeed, appellee’s attending physician, testifying at the pretrial hearing, told the court that if someone were to walk up to him and request a portion of his patient’s blood, even if it had already been drawn, that would be “violating someone’s body cavity and you have to have permission to do that ... The patient, as I understand, usually has to sign a release that says he gives permission for blood to be drawn from him by — for DPS purposes.”

The physician also testified that the consent form which a patient signs prior to treatment creates an agreement between the patient and the medical staff. Inherent in that agreement is the expectation on the part of the patient that the medical staff does not then gain the right to do whatever they wish with what the patient has provided to them. The law in Texas prohibits a medical professional or hospital employee from releasing any information about a patient.⁶ The Medical Practice Act, V.A.T.C.S., art. 4495b, sec. 5.08 provides:

(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and prive-leged and may not be disclosed except as provided in this section_

(g) Exceptions to confidentiality or pri-velege in court or administrative proceedings exist:

(6) in any criminal investigation of a physician ... This subsection does not authorize the release of any confidential information for the purpose of instigating or substantiating criminal charges against a patient;

(h) Exceptions to the privilege of confidentiality, in other than court or administrative proceedings, allowing disclosure of confidential information by a physician, exist only to the following:

(1) governmental agencies if the disclosures are required or authorized by law; (emphasis added).⁷

We have written in Chapa v. State, 729 S.W.2d 723, 728 fn. 3 (Tex.Cr.App.1987) that:

[wjhether a particular expectation of privacy is one society is willing to recognize .. is in the nature of a legal rather than a factual inquiry. All that is necessary to be proven as a factual matter is the particular context in which appellant harbored that expectation. It is then left to be resolved as a matter of law whether in the context shown society is willing to sanction that expectation as reasonable or legitimate.

There, this Court determined that society recognized that a person’s expectation of privacy in the interior of a taxicab was legitimate. We based that determination, in part, on the existence of city ordinances which established the right to privacy in a taxicab. “A clearer indicium of society’s preparedness to accept as reasonable an expectation of privacy ... could hardly be imagined.” Id.

Appellee has made a sufficient showing to establish that he had a legitimate expectation of privacy in the blood sample that he gave to the hospital personnel for purposes of medical treatment. Additionally, we recognize society’s regard for this expectation, as evidenced by the Texas Medical Practice Act cited above.⁸

Having determined that appellee falls within the protection of the constitutional provisions against unreasonable search and seizure, we must now determine whether the Court of Appeals erred in affirming the trial court’s ruling that the seizure was unlawful and the blood alcohol content analysis results were inadmissible.⁹

Although Sckmerber v. California, supra, proclaims that a search and seizure of a blood sample is protected by the Fourth Amendment, it is only those searches and seizures “which are not justified in the circumstances, or which are made in an improper manner” that violate the Fourth Amendment. Id. 86 S.Ct. at 1834. Where the officers have probable cause, exigent circumstances, and a reasonable method of extraction, then the search and seizure is not unreasonable and does not violate the Fourth Amendment. This Court has followed Sckmerber by requiring probable cause, exigent circumstances, and a reasonable method of extraction to be shown before a warrantless search and seizure of a blood sample will be held to be reasonable. See Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982); Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977); Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977); Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978), cert. denied 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979), reh. denied 444 U.S. 888,100 S.Ct. 190, 62 L.Ed.2d 124 (1979).

Here, according to their own testimony, the officers did not have probable cause. Nor were there exigent circumstances, since the blood sample had been removed from appellee’s body at or near the time of the accident. The warrantless search and seizure of appellee’s blood violated his constitutional protection against unreasonable search and seizure. U.S.CONST. amend. IV and XIV; TEX. CONST, art. 1, sec. 9. Therefore, the exclusionary rule requires suppression of the result of the blood alcohol content analysis. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Article 38.23, V.A.C.C.P.

Accordingly we affirm the judgment of the court of appeals.

MILLER and WHITE, JJ., concur in the result.

1 . The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. IV amend.

2 . Article 1, section 9 provides:

The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable searches and seizures, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

TEX.CONST. art. 1, sec. 9.

3 . The State relies on two early Pennsylvania cases, Commonwealth v. Tanchyn, 200 Pa.Super.Ct. 148, 188 A.2d 824 (1963) (held: no Fourth Amendment violation where seizure was made by private individuals, to wit: hospital personnel) and Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968) (held: no Fourth Amendment violation where police obtained the blood from hospital workers who extracted it for medical purposes).

In response to these cases relied upon by the State, appellee directs us to a more recent case from the same court, Commonwealth v. Cieri, 346 Pa.Super.Ct. 77, 499 A.2d 317 (1985). There, hospital personnel withdrew a blood sample for routine medical purposes, then the officer took the blood from the hospital personnel. The court wrote:

[T]he search proceeded in two distinct stages. Had nothing further occurred, [after the hospital personnel withdrew the blood sample] .. the withdrawal of appellant’s blood would have been a ‘private search’, not implicating appellant’s fourth amendment rights. When, however, [the nurse] handed appellant’s blood to [the officer], appellant’s fourth amendment rights were put at issue ... We must therefore, decide whether appellant’s fourth amendment rights were violated by the ensuing test for blood alcohol level.

IcL 499 A.2d at 321. (The court ultimately held that since the officers had probable cause and exigent circumstances were present, the Fourth Amendment was not violated.)

4 . The Court of Appeals relies on Hayes v. State, 634 S.W.2d 359 (Tex.App.—Amarillo 1982) and Weaver v. State, 721 S.W.2d 495 (Tex.App.— Houston [1st Dist.] 1986, pet. refd.). The Court’s interpretation of those cases, however, is somewhat misleading. In Hayes the court found that there was no state action after setting forth the facts in a sketchy fashion. In that case a medical technician obtained a blood sample from appellant at the doctor’s request. A lab technician then carried out the doctor's orders and ran a blood alcohol content analysis test. At some point thereafter, the opinion states neither when nor how, the state obtained the results. The court held that, even if they had found state action, the search and seizure would not have violated appellant’s rights since the officers had probable cause and exigent circumstances. Therefore, the Hayes opinion does not establish that the key factor in determining state action depends on who conducts the blood alcohol content analysis.

The the court in Weaver does not refer to who conducted the blood alcohol content analysis. The court did hold that, even though the state conducted an unlawful search and seizure of appellant’s blood, the hospital personnel also did a blood alcohol content analysis for medical purposes. Since that result was also admitted into evidence at the trial, the admission of the state's result was harmless.

5 . The dissent alleges that the "question of whether appellee has a privacy interest in blood that he has relinquished to medical workers is superfluous if the police conduct in obtaining the specimen is not proscribed by the Fourth Amendment.” Adopting the State’s argument, the dissent urges that the analysis should end once the blood is removed from appellant’s body. Appellee alleged that the police had no right to take his blood from the nurse, and we have found that the conduct of the police in obtaining the blood sample from the nurse constituted State action. Cf. Walter v. U.S., 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980).

6 . We note that appellee, in his motion to suppress, also contested the seizure of his blood sample under the Texas exclusionary rule. Article 38.23, V.A.C.C.P. Although the trial court did not file findings of fact, it is possible that the trial court could have found that the blood sample was obtained in violation of State law and excluded the blood alcohol content results pursuant to Article 38.23, V.A.C.C.P. Cf. Concurring opinion by Judge Campbell at p. 54, n. 1 (relying on Art. 4495 § 5.08, in effect at the time of the offense but which was deemed repealed as it related to criminal cases and criminal law matters by order of this Court effective September 1, 1986. See now Tex.R.Crim.Evid. 509). We do not address this alternative ground, however, as it was not presented to this Court for review. See Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1986) (Clinton, J. dissenting); Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987).

7 . This statute is cited as "a social, or ‘legislative fact’, helpful in resolution of the constitutional question whether in the context proven, society recognizes the asserted expectation of privacy as a reasonable one.” Chapa v. State, 729 S.W.2d 723, 728, fn. 3 (Tex.Cr.App.1987).

8 . Although it is true, as the dissenting opinion points out, that the United States Supreme Court has consistently held that there is no reasonable expectation of privacy in objects or information voluntarily turned over to third parties who subsequently release that object or information to government officials, it is also true that the Supreme Court has utilized the same test to determine whether a reasonable expectation of privacy exists which we utilize today. Smith v. Maryland, 442 U.S. 735, 743-744, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979); Hoffa v. U.S., 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); U.S. v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Couch v. U.S., 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973); U.S. v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. U.S., 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rakas v. Illinois, 439 U.S. 128, 144 n. 12, 99 S.Ct. 421, 431 n. 12, 58 L.Ed.2d 387, 401 n. 12 (1978).

9 . Article 38.23 provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

Article 38.23, V.A.C.C.P.