Opinion
A100019.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ROSHAWN COLDCLEUGH, Defendant and Appellant.
Appellant, Roshawn Coldcleugh, appeals from the trial courts denial of her motion to suppress evidence found during an emergency room examination. She contends that the trial court erred by determining there was no state action constituting a search under the Fourth Amendment, and by concluding that no telephonic warrant was needed for a search justified by a medical emergency. We discern no error and affirm the order.
BACKGROUND
Officer Michael Rood (Officer Rood) stopped Roshawn Coldcleugh (Coldcleugh) for driving with expired registration tags. Officer Rood smelled marijuana coming from inside the car and asked Coldcleugh to step outside for a field sobriety test. When Officer Rood asked Coldcleugh if she had any weapons or drugs in her possession, she handed him seven pieces of what he suspected to be base cocaine. Officer Rood placed Coldcleugh under arrest and searched her car, finding two wrapped items of marijuana in the glove compartment and several "dime" baggies in the trunk.
When Officer Rood began to transport Coldcleugh to the police department, she began to cry and scream. Coldcleugh first claimed that her handcuffs were too tight, but after they were loosened, she stated that she was three months pregnant and was having a miscarriage. Officer Rood called the fire department and an ambulance to meet them at the police station. The fire department medics asked Coldcleugh to check her vagina for bleeding. She did so, but reported no signs of bleeding. However, as Coldcleugh was placed on a stretcher to be transported to the hospital, Officer Rood noticed what appeared to be a plastic baggie sticking out of the right front of her pants. Officer Rood removed the baggie, which contained what he believed to be more drugs, and he noticed that the bag appeared to have blood on it.
Coldcleugh was taken by ambulance to Doctors Medical Hospital in San Pablo, where Officer Rood contacted an emergency room physician, Dr. Ahwah. Officer Rood informed the doctor that Coldcleugh was under arrest, that she was complaining that she was having a miscarriage, and that he feared she might have placed drugs in her vagina and anus, because he had found blood on a baggie which he had removed from her pants. Dr. Ahwah concluded that if Coldcleugh was hiding drugs in her vagina and anus, she could be injured and possibly suffer a drug overdose. For this reason, Officer Rood decided to have Coldcleugh searched, pursuant to Welfare and Institutions Code section 5150, because she had refused to be examined. After receiving approval from his supervisor, Officer Rood authorized Dr. Ahwah to examine Coldcleughs vagina and anus.
When Dr. Ahwah informed Coldcleugh that he intended to conduct a pelvic examination, in order to prevent a drug overdose and check for vaginal bleeding, she became agitated and fought with the nurses who were assisting the doctor. Coldcleugh was then held down as Dr. Ahwah removed two baggies containing suspected base cocaine from her vagina and anus. No warrant for this search was obtained. Dr. Ahwah also determined that Coldcleugh was not pregnant.
The substance in the bags tested positive for cocaine, which Officer Rood believed Coldcleugh possessed for sale because of the large quantity and the lack of any paraphernalia suggesting personal use. Officer Rood also opined that the marijuana found in Coldcleughs car was a usable amount, but apparently was intended for personal use.
The trial court concluded that because the search was performed by a doctor, pursuant to Welfare and Institutions Code section 5150, there was no state action to constitute a search. The court also determined that even if there had been state action, the warrantless search of Coldcleugh was justified by the exigent circumstances of the medical emergency presented by Coldcleughs condition, as well as by the possibility that evidence would be destroyed. Therefore, the court denied Coldcleughs motion to suppress the evidence removed from her body during Dr. Ahwahs examination. Subsequently, Coldcleugh changed her plea and received two years court probation and forty-five days of county jail time, with thirty-two days of credit. Coldcleugh was also order to pay restitution, lab analysis fees, and drug education program fees. Coldcleugh filed this timely appeal.
DISCUSSION
The parties agree that the standard of review for this appeal is well established. In ruling on motions to suppress, trial courts make findings of fact, which are reviewable under the deferential substantial evidence standard, and determine the applicable rule of law before applying it to the facts to determine whether there has been any legal error. (People v. Alvarez (1996) 14 Cal.4th 155, 182, 187; accord, People v. Ayala (2000) 23 Cal.4th 225, 255; People v. Williams (1988) 45 Cal.3d 1268, 1301.) On review, appellate courts must " ` "measure the facts, as found by the trier, against the constitutional standard of reasonableness." " (People v. Loewen (1983) 35 Cal.3d 117, 123.)
Appellant argues that the trial court erred by concluding that there was no state action and that the search was justified by exigent circumstances. Appellant contends that because Dr. Ahwah removed the contraband from Coldcleughs body at Officer Roods direction while she was in custody he was, therefore, a state actor. Appellant also argues that the procedure was a state action because three police officers assisted Dr. Ahwah by holding Coldcleugh down while she was searched. Relying upon Jensen v. Lane County (9th Cir. 2002) 222 F.3d 570, 574, in which the Ninth Circuit applied the " `close close nexus/joint action test, " appellant contends that Dr. Ahwah collaborated with Officer Rood in conducting the search and was a "willful participant in joint action" with the state. (Ibid.) Appellant further argues that the search was unreasonable because the prosecution failed to show that obtaining a telephonic warrant was impractical under the circumstances. Appellant contends that telephonic warrants are readily accessible and that Officer Rood had time to obtain such a warrant prior to the search of Coldcleughs body.
Relying upon Dyas v. Superior Court (1974) 11 Cal.3d 628, 633, footnote 2, respondent responds that there is only state action where the police "either requested the illegal search or knowingly allowed it to take place without protecting the third partys rights." Respondent argues that because the search was justified by exigent circumstances, as well as the emergency aid exception, it was not a prohibited state action. Respondent contends that the danger of possible dissipation of the evidence into Coldcleughs body, along with the danger that Coldcleugh herself might be killed by a drug overdose, justified the search and made a telephonic warrant impractical and unnecessary. Finally, respondent argues that Coldcleughs behavior, coupled with the drugs found in her vehicle at the time of her arrest, provided probable cause to believe she was a danger to herself under Welfare and Institutions Code section 5150 and that the search was therefore justifiable to prevent harm to her.
We find ample and substantial evidence to support the trial courts conclusions. The warrantless search of Ms. Coldcleughs body cavities was not a state action and was justified by both the emergency aid and exigent circumstances exceptions.
There Was No State Action
The test to determine whether the procedure to extract the baggies from Coldcleughs body was a state action is the " `close nexus/joint action " test. (Jensen v. Lane County, supra, 222 F.3d at p. 574.) In order for a private actor to be considered to have a close nexus or joint action with the state, the state must be " `so far insinuated into a position of interdependence with the [private party] that it was a joint participant in the enterprise. " (Id. at p. 575.) Evidence obtained by a private actor must be suppressed if that person acted as an agent of the police who either requested an illegal search or allowed it without protecting the rights of the party being searched. (Dyas v. Superior Court, supra, 11 Cal.3d at p. 633 & fn. 2.)
Here, Dr. Ahwah does not appear to have been a state agent. Although Officer Rood had custody of appellant and authorized the procedure, it was Dr. Ahwah who worried that Coldcleughs life was in danger and asked for permission to proceed. Dr. Ahwah also testified that if Officer Rood had not decided to hold Coldcleugh under Welfare and Institutions Code section 5150, he would have done so himself for medical reasons. Dr. Ahwah was thus acting on his own, and not solely at the direction of Officer Rood. Dr. Ahwahs main purpose was not to provide evidence of a crime, but to protect Coldcleugh from injury. Neither Dr. Ahwahs position, nor his actions, had the primary purpose of law enforcement. (See, Dyas v. Superior Court, supra, 11 Cal.3d at p. 635.)
Although police officers aided in restraining Coldcleugh while Dr. Ahwah extracted the baggies, this does not present such a close nexus between the doctor and the police as to make them joint participants in the enterprise. Had the officers not helped to restrain Coldcleugh, this job would likely have been done by other hospital personnel. The main purpose of the restraint was to treat Coldcleugh, not to further Officer Roods arrest.
Finally, even if Dr. Ahwah had acted jointly with the police, constituting a state action, the search was still reasonable by Fourth Amendment standards because it was justified by the emergency aid and exigent circumstances exceptions.
The Search Was Justified by the Circumstances
Unjustified searches beneath the surface of a persons body may violate the Fourth Amendments protection against unreasonable searches. (Schmerber v. California (1966) 384 U.S. 757, 769-771; accord, People v. Scott (1978) 21 Cal.3d 284, 291.) A warrantless search within a persons body must be incident to a valid arrest and may only occur where there are exigent circumstances, such as the need to prevent loss or destruction of evidence, or in a medical emergency. (People v. Bracamonte (1975) 15 Cal.3d 394, 401-403; People v. Superior Court [Hawkins] (1972) 6 Cal.3d 757, 762-763; see also, People v. Scott, supra, 21 Cal.3d at pp. 291-292; People v. Jones (1971) 20 Cal.App.3d 201, 210.)
Under the emergency aid doctrine, police may assist people who are in danger of physical harm, including those who cannot care for themselves, and while such assistance may result in obtaining evidence of a crime, a warrant is not required. (People v. Ray (1999) 21 Cal.4th 464, 471-472; Tamborino v. Superior Court (1986) 41 Cal.3d 919, 924.) The emergency aid doctrine may be invoked where the police are not engaged in crime solving activities, but are concerned with the welfare of the person. (People v. Ray, supra, at p. 471.)
Searches within a persons body are permissible if "done by medical personnel using proper medical procedures and if done without brutality which `shocks the conscience." (People v. Jones , supra, 20 Cal.App.3d at p. 206, citing, Schmerber v. California, supra, 384 U.S. at pp. 759-760.) Where there is reason to believe that drug filled balloons contained within the body may break open and dissipate, the potential health hazard, as well as the fear of destruction of evidence, would justify a search into the body. (People v. Bracamonte, supra, 15 Cal.3d at p. 405.) Resistance by the person being searched does not by itself make an otherwise legal search illegal. (Id. at p. 406.)
Although Officer Roods purpose in arresting and transporting Coldcleugh was in conjunction with crime solving activities, he was not motivated by that purpose when he asked the fire department medics to take her to the hospital. Rather, it was Coldcleughs claim that she was having a miscarriage which prompted Officer Rood to have her taken to the hospital, instead of immediately placing her in jail. Had Officer Rood not been concerned about Coldcleughs medical condition, he could have placed her directly in custody and either had her searched after she was booked, or waited for her to naturally pass the baggies under supervision. The officer was justified in relying on appellants claims of physical distress.
The search was performed by Dr. Ahwah, and nothing suggests it was particularly brutal or shocking. Even more invasive procedures have routinely been upheld as reasonable, even where force was necessary. Several cases have approved the use of emetics, epsom salts, and even the insertion of tubes to induce vomiting, as reasonable procedures under the Fourth Amendment. (People v. Jones, supra, 20 Cal.App.3d at pp. 207-208; see, Blefare v. United States (9th Cir. 1966) 362 F.2d 870, 874; Lane v. United States (5th Cir. 1963) 321 F.2d 573, 576; King v. United States (5th Cir. 1958) 258 F.2d 754, 755.) Digital extraction of items from body cavities and even the use of a rectal probe have been held to be neither brutal nor shocking. (See, People v. Woods (1956) 139 Cal.App.2d 515, 520-521; Blackford v. United States (9th Cir. 1957) 247 F.2d 745.)
Therefore, the trial court did not err in concluding that the warrantless search of Coldcleughs body cavities was justified. The same facts describing the medical emergency posed by Coldcleughs condition also justified the search under the exigent circumstances exception.
Exigent circumstances include emergency situations which require " ` swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. . . . " (People v. Lucero (1988) 44 Cal.3d 1006, 1017.) Where there is reason to fear imminent destruction of evidence, police may conduct a search without obtaining a warrant. (People v. Seaton (2001) 26 Cal.4th 598, 632.) One way to determine whether an exigency existed at the time of the search is to examine the officers conduct to see whether it is consistent with the actions of reasonable officers in emergency situations. (People v. Dickson (1983) 144 Cal.App.3d 1046, 1065, 1069-1070.)
As discussed, supra, Officer Rood had several reasons to believe that it was necessary to immediately search Coldcleughs body to prevent imminent danger to her life. Officer Rood saw blood on the baggie which he found protruding from Coldcleughs pants during her transport to the hospital. Dr. Ahwah informed Officer Rood that there was a likelihood that the baggies in Coldcleughs body would break, causing her serious health problems from a drug overdose. This combination of circumstances would cause a reasonable police officer to consider Coldcleughs condition a medical emergency and, therefore, an exigent circumstance.
Additionally, there was an exigency presented by the possibility that the drugs would dissipate into Coldcleughs system, creating an imminent threat of destruction of evidence, as well as threatening her life. The baggie Officer Rood found protruding from Coldcleughs pants before she was taken to the hospital was not sealed; it was a fold-over style baggie. This type of bag was more likely to allow drugs to leak out into appellants body, thus destroying the evidence. It is well established that such danger of destruction of evidence justifies a search, even without obtaining a warrant. (Chimel v. California (1969) 395 U.S. 752, 762-763; see also, People v. Bracamonte, supra, 15 Cal.3d at p. 403.)
Where circumstances would lead a person of "ordinary care and prudence" to suspect or believe that another person is mentally impaired or disordered and is, therefore, a danger to themselves or others, there is probable cause to detain them under Welfare and Institutions Code section 5150. (People v. Triplett (1983) 144 Cal.App.3d 283, 287-288.) Coldcleughs erratic behavior, coupled with the possibility that she might have been in danger of a potentially fatal overdose, justified a detention under this section. It was reasonable to search within her body in order to prevent harm to her, bearing in mind her refusal of medical assistance. Indeed, the bags found inside her body were not securely sealed; and her life may have been saved by the search.
Finally, appellant urges us to expand the law by ruling that because telephonic warrants are relatively easy to obtain, they should be required even where there is such an exigency or medical emergency. We decline to do so. In each of the cases cited by appellant, where the court found a telephonic warrant was required or should have been obtained, there was no exigency or medical emergency. (See, People v. Morrongiello (1983) 145 Cal.App.3d 1 [where the police were following up on an informants tip]; People v. Blackwell (1983) 147 Cal.App.3d 646, 653 [where the court found the police officers claim of exigency mere pretext for obtaining evidence without a warrant]; Carleton v. Superior Court (1985) 170 Cal.App.3d 1182, 1200 [where the court found that "[n]owhere in [the] evidence [could] there be found an emergency or exigency"].) Indeed, "[e]xigent circumstances necessarily imply that there is insufficient time to get a [telephonic] warrant." (United States v. Echegoyen (9th Cir. 1986) 799 F.2d 1271, 1279, fn. 5.) The prosecutor need only show that obtaining such a warrant was made impractical by exigent circumstances, such as the medical emergency in this case, which made obtaining any type of warrant impractical. (See, Id. at p. 1279.)
Even though obtaining a telephonic warrant might take less than an hour, police officers must not delay necessary medical treatment to secure such a warrant. (People v. Trotman (1989) 214 Cal.App.3d 430, 434 [where the lack of a formal arrest or warrant was excused because of the exigent circumstances].) Police officers must consider humanitarian matters to be paramount where possible. (Ibid.) Delay due to obtaining a warrant must not result in the unnecessary loss of life. (People v. Hill (1974) 12 Cal.3d 731, 755.) Here, Officer Rood had every reason to believe that time was of the essence, because the drugs might have begun to spread into Coldcleughs body at any moment; and Dr. Ahwah had informed Officer Rood that if the drugs leaked into Coldcleughs body, she might suffer a fatal overdose. The failure to seek a telephonic warrant was not only justified, it was humane, because appellant might well have died while the officer was on the telephone awaiting a decision.
DISPOSITION
The trial courts order denying the motion to suppress is affirmed.
We concur: Kline, P. J., and Ruvolo, J.
At the request of appellant, we have taken judicial notice of the Welfare and Institution Code section 5150 form entitled, "Application for 72-hour Detention for Evaluation and Treatment," which was prepared by Officer Rood and admitted into evidence but omitted from the record.