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11 A.L.R.5th 52, *

ALR 5th; Copyright (c) 1999 Lawyers Cooperative Publishing Co.

ANNOTATION
LAWFULNESS OF SEARCH OF PERSON OR PERSONAL EFFECTS UNDER MEDICAL EMERGENCY
EXCEPTION TO WARRANT REQUIREMENT

Tracy A. Bateman, J.D.

11 A.L.R.5th 52

TOTAL CLIENT-SERVICE LIBRARY(R) REFERENCES


The following references may be of related or collateral interest to a user
of this annotation.

Annotations
See the related annotations listed in the body of the annotation.

Encyclopedias and Texts


68 Am Jur 2d, Searches and Seizures �� 44, 56
8 Federal Procedure, L Ed, Criminal Procedure � 22:159
12 Federal Procedure, L Ed, Evidence �� 33:388, 33:390

Practice Aids
7 Federal Procedural Forms, L Ed, Criminal Procedure �� 20:571-20:575,
20:621
8 Am Jur Pl & Pr Forms (Rev), Criminal Procedure, Forms 241, 245, 247, 258
22 Am Jur Pl & Pr Forms (Rev), Searches and Seizures, Forms 71-73, 75, 81-86

5 Am Jur Trials 331, Excluding Illegally Obtained Evidence

Federal Statutes
U.S.C.A. Const. Amend. 4,
USCS Federal Rules of Evidence Rule 104
USCS Federal Rules of Civil Procedure Rules 12(b)(3), 12(f), 41(e), 41(f)

Digests and Indexes


L Ed Digest, Search and Seizure �� 11, 25
ALR Digest, Search and Seizure �� 5, 15, 16, 17
ALR Index, Baggage; Briefcase; Clothing; Criminal Procedure Rules; Drugs and
Narcotics; Evidence; Exclusion and Suppression of Evidence; Health; Medical
Care and Treatment; Privacy; Purses and Wallets; Search and Seizure

Auto-Cite(R)
Cases and annotations referred to herein can be further researched through
the Auto-Cite(R) computer-assisted research service. Use Auto-Cite to check
citations for form, parallel references, prior and later history, and
annotation references.

RESEARCH SOURCES
The following are the research sources that were found to be helpful in
compiling this annotation.

Encyclopedias
68 Am Jur 2d, Searches and Seizures �� 44, 56
79 CJS, Searches and Seizures � 66(a-c)

Texts
Cook, Constitutional Rights of the Accused � 3:34
Hall, Search and Seizure �� 7:10-7:12
2 LaFave, Search and Seizure 2d �� 5.4(c), 5.5(d)
Orfield's Criminal Procedure Under the Federal Rules � 41
1 Ringel, Searches and Seizures, Arrests and Confessions � 10.4(2)
Wharton's Criminal Procedure 13th Ed �� 169-177
14 Words and Phrases (Emergency Aid Doctrine, Emergency Doctrine, Emergency
Exception)

Law Review Articles


Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under
the Fourth Amendment, 22 Buffalo L Rev 419 (1972)

Electronic Search Query


(search! w/25 emergency w/25 aid or medical w/25 pocket or purse or wallet
or luggage or briefcase or bag)

West Digest Key Numbers


Criminal Law 394.4(13)
Drugs and Narcotics 182(3), 184, 184(1, 3, 5)
Military Justice 1066
Searches and Seizures 23, 24, 39, 42, 53, 192

--------------------

CONTENTS:
To view a section or subsection, transmit p* and its number. Ex.,p*1 or p*1a
To view the Table-of-Cases, transmit p*cases
To view the Index (where available), transmit p*index

I. Preliminary Matters

� 1. Introduction
[a] Scope
[b] Related annotations

� 2. Summary and comment


[a] Summary
[b] Practice pointers

II. Searches of Victims of Vehicular Accident

� 3. Where person being treated by medical professionals at time of search


� 4. Where person not being treated by medical professionals at time of search
[a] Evidence found held admissible
[b] Evidence found held not admissible

III. Searches of Persons Found Suffering from Unknown Ailment

� 5. Where person found unconscious


� 6. Where person found semiconscious, disoriented, incoherent, or otherwise
unable to provide identification or information regarding condition
[a] Search held reasonable
[b] Search held not reasonable

IV. Other Searches

� 7. Shooting victims
[a] In general
[b] After identification found
� 8. Stabbing victims
� 9. Persons known to be intoxicated
� 10. Victims of apparent drug overdose
[a] Search held reasonable
[b] Search held not reasonable
� 11. Victims of apparent mental illness
[a] Search held reasonable
[b] Search held not reasonable
� 12. Domestic violence
[a] Search held reasonable
[b] Search held unreasonable

[*cases] Jurisdictional Table of Cited Statutes and Cases n*

- - - - - - - - Footnotes - - - - - - -

n* Statutes, rules, regulations, and constitutional provisions bearing on the


subject of the annotation are included in this table only to the extent, and in
the form, that they are reflected in the court opinions discussed in this
annotation. The reader should consult the appropriate statutory or regulatory
compilations to ascertain the current status of relevant statutes, rules,
regulations, and constitutional provisions.

For federal cases involving state law, see state headings.

- - - - - - - - End Footnotes - - - - - - - -
UNITED STATES
State v. Gilbert, 24 Kan. App. 2d 159, 942 P.2d 660 (1997)-� 12[a]
United States v Barone (1964, CA2 NY) 330 F2d 543-� 2[a]
United States v Black (1988, CA6 Ky) 860 F2d 1080, 1988 US App LEXIS
14189-� 5
United States v Dunavan (1973, CA6 Tenn) 485 F2d 201-�� 5, 6[b]
United States v Haley (1978, CA8 Mo) 581 F2d 723-� 5
Vauss v United States (1966) 125 US App DC 228, 370 F2d 250-�� 5, 6[b],
10[a]

ALASKA
Schraff v State (1975, Alaska) 544 P2d 834-�� 2[a], 6[b]

CALIFORNIA
People v Gomez (1964, 1st Dist) 229 Cal App 2d 781, 40 Cal Rptr 616-� 5
People v Gonzales (1960, 4th Dist) 182 Cal App 2d 276, 5 Cal Rptr 920-��
6[b], 8

COLORADO
People v Wright (1991, Colo) 804 P2d 866, 11 ALR5th 947-�� 2[a, b], 3

FLORIDA
Evans v State (1978, Fla App D3) 364 So 2d 93-� 6[a]
Shepherd v State (1977, Fla App D1) 343 So 2d 1349-� 7[b]
State v Hutchins (1994, Fla App D2) 636 So 2d 552, 19 FLW D 1027-�� 9,
10[a]

ILLINOIS
People v Rossi (1981, 2d Dist) 102 Ill App 3d 1069, 58 Ill Dec 291, 430 NE2d
233-� 6[b]
People v Smith (1969) 44 Ill 2d 82, 254 NE2d 492-�� 2[b], 3, 6[b],
7[a]
People v Smith (1970) 47 Ill 2d 161, 265 NE2d 139-� 6[a, b]
People v Tyler (1991, 5th Dist) 210 Ill App 3d 833, 155 Ill Dec 240, 569
NE2d 240-�� 3, 7[a]

KANSAS
State v Nelson (March 21, 1985, Kan App) Slip Op-� 9
State v. Gilbert, 24 Kan. App. 2d 159, 942 P.2d 660 (1997)-� 12[b]

MARYLAND
Bouldin v State (1975) 26 Md App 545, 338 A2d 404-� 3
Floyd v State (1975) 24 Md App 363, 330 A2d 677-� 7[a]

MINNESOTA
State v Auman (1986, Minn App) 386 NW2d 818-� 10[a]

MISSOURI
State v Miller (1972, Mo) 486 SW2d 435-�� 2[b], 5, 6[b]

NEW JERSEY
State v Agent (1968) 101 NJ Super 190, 243 A2d 846-� 5

NORTH DAKOTA
Fargo, City of v Ternes (1994, ND) 522 NW2d 176-�� 4[a], 9

OHIO
State v Underwood (April 28, 1982, Ohio App, 12th Dist, Clermont Co) Slip
Op-� 6[b]

OREGON
Oregon Supreme Court in State v Newman (1981) 292 Or 216, 637 P2d 143-� 9
State v Hampton (1982) 59 Or App 512, 651 P2d 744-� 11[b]
State v Marsh (1969) 1 Or App 351, 462 P2d 459-�� 4[b], 11[a]
State v Newman (1981) 292 Or 216, 637 P2d 143-� 9
State v Watson (1989) 95 Or App 134, 769 P2d 201-�� 4[b], 11[a]

SOUTH CAROLINA
State v Patrick (1970) 255 SC 130, 177 SE2d 545-� 7[a]

TEXAS
Broadnax v State (1984, Tex App Houston (14th Dist)) 666 SW2d 283-�� 2[b],
4[a]
Perez v State (1974, Tex Crim) 514 SW2d 748-� 5
Tijerina v State (1979, Tex Crim) 578 SW2d 415-� 5
Vargas v State (1976, Tex Crim) 542 SW2d 151-� 5

WASHINGTON
State v Hutchison (1990) 56 Wash App 863, 785 P2d 1154-� 5
State v Jordan (1971) 79 Wash 2d 480, 487 P2d 617-�� 2[a], 5, 6[b]
State v Loewen (1982) 97 Wash 2d 562, 647 P2d 489-�� 2[b], 3
State v Lowrimore (1992) 67 Wash App 949, 841 P2d 779-� 11[a]
State v. Dempsey, 88 Wash. App. 918, 947 P.2d 265 (Div. 3 1997)-� 11[a]

WEST VIRGINIA
Wagner v Hedrick (1989, W Va) 383 SE2d 286-�� 2[b], 3

WISCONSIN
State v Prober (1980) 98 Wis 2d 345, 297 NW2d 1-�� 2[b], 10[b]

The medical emergency exception will support a warrantless search of a person or


personal effects when the person is found in an unconscious or semiconscious
condition and the purpose of the search is to discover evidence of identification
and other information that might enhance the prospect of administering appropriate
medical assistance. However, if the court finds that the facts do not support a
medical emergency, the search is not reasonable and any evidence found will not be
admissible. For example, in the recent case of People v Wright (1991, Colo) 804
P2d 866, 11 ALR5th 947 the court held that a warrantless search of the defendant's
purse, conducted by the police officer while the defendant was under the care of
medical personnel and conscious and coherent, was not based on exigent
circumstances and thus was constitutionally unreasonable. Those cases in which the
courts addressed the lawfulness of a search of a person or personal effects under
the medical exception to the warrant requirement are collected and analyzed in
this annotation.

I. Preliminary Matters

[*1] Introduction

[*1a] Scope

This annotation collects and analyzes state and federal cases dealing with the
lawfulness n1 of the search n2 of a person or personal effects n3 under the
medical emergency exception n4 to the warrant requirement. To be within the scope
of this annotation, the search must have been performed by a police officer or at
the direction of a police officer. n5

- - - - - - - - Footnotes - - - - - - -

n1 This issue in the cases usually involves the admissibility of evidence found
as a result of the search, which turns on the reasonableness of the search.

n2 As to what constitutes a "search," see, generally, 68 Am Jur 2d, Searches and


Seizures � 8.

n3 "Person or personal effects" would include searches of clothing, purse, wallet,


briefcase, and the like. This annotation does not include premises searches or
searches of vehicles.

n4 The medical emergency exception is a variant of the exigent circumstances


doctrine. It is sometimes referred to by other terms such as the "emergency aid"
exception, and some courts merely discuss it as an exigent circumstance.

n5 For a discussion of the admissibility, in a criminal case, of evidence obtained


by a search by a private individual, see the annotation at 36 ALR3d 553; and
regarding the necessity that police obtain a warrant before taking possession of,
examining, or testing evidence discovered in a search by a private person, see the
annotation at 47 ALR4th 501.

- - - - - - - - End Footnotes - - - - - - - -

Readers are cautioned that any constitutional provisions, legislative enactments,


court rules, or regulations bearing directly upon this subject are discussed
herein, and included in the Jurisdictional Table of Cited Statutes and Cases, only
to the extent that they are reflected in the reported cases within the scope of
this annotation. To ascertain the current status of these provisions, it is
necessary to consult the appropriate constitutional, statutory, court rule, or
regulatory compilation.

[*1b] Related annotations Search and seizure: reasonable expectation of privacy


in tent or campsite. 66 ALR5th 373. Admissibility of evidence discovered in search
of defendant's property or residence authorized by defendant's spouse (resident or
nonresident)-state cases. 65 ALR5th 407. Propriety of search of nonoccupant
visitor's belongings pursuant to warrant issued for another's premises. 51 ALR5th
375. Admissibility of evidence discovered in search of adult defendant's property
or residence authorized by defendant's minor child—state cases. 51 ALR5th
425. Search and seizure: lawfulness of demand for driver's license, vehicle
registration, or proof of insurance pursuant to police stop to assist motorist. 19
ALR5th 884. Admissibility, in criminal case, of physical evidence obtained without
consent by surgical removal from person's body. 41 ALR4th 60. Lawfulness of
warrantless search of purse or wallet of person arrested or suspected of crime. 29
ALR4th 771. Sufficiency of showing of reasonable belief of danger to officers or
others excusing compliance with "knock and announce" requirement-state criminal
cases. 17 ALR4th 301. Adequacy of defense counsel's representation of criminal
client regarding search and seizure issues. 12 ALR4th 318. Lawfulness of
"inventory search" of motor vehicle impounded by police. 48 ALR3d 537. Comment
Note.-"Fruit of the poisonous tree" doctrine excluding evidence derived from
information gained in illegal search. 43 ALR3d 385. Violation of federal
constitutional rule (Mapp v Ohio) excluding evidence obtained through unreasonable
search or seizure, as constituting reversible or harmless error. 30 ALR3d 128.
Comment Note.-Federal Constitution as affecting admissibility of evidence obtained
by illegal search and seizure. 84 ALR2d 959. Modern status of rule governing
admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.
Searches and seizures by health officers without warrant. 13 ALR2d 969. Supreme
Court's views as to the federal legal aspects of the right of privacy. 43 L Ed 2d
871.

[*2] Summary and comment

[*2a] Summary

The Fourth Amendment to the United States Constitution does not prohibit all
searches and seizures, but only unreasonable searches and seizures. n6 Warrantless
searches are per se unreasonable unless they fit within one of the few
specifically established and well-delineated exceptions to the warrant
requirement. These exceptions have been jealously and carefully drawn and the
burden falls upon the state to prove that the exigencies of the situation made the
course imperative. These exceptions include a search of abandoned property; a
search in hot pursuit of a fleeing felon; a search, with probable cause, to avoid
destruction of a known seizable item; a search of a movable vehicle; an
"inventory" search; a search pursuant to voluntary consent; a "stop and frisk"
search; "emergency aid"; and a search incident to an arrest. n7

- - - - - - - - Footnotes - - - - - - -

n6 See 68 Am Jur 2d, Searches and Seizures � 2.

n7 See Schraff v State (1975, Alaska) 544 P2d 834. See, generally, 68 Am Jur 2d,
Searches and Seizures �� 35-59.

- - - - - - - - End Footnotes - - - - - - - -

The emergency exception appears to have originated in United States v Barone


(1964, CA2 NY) 330 F2d 543, cert den 377 US 1004, 12 L Ed 1053, 84 S Ct 1940, in
which the court recognized that the right of the police to enter and investigate
in an emergency without the accompanying intent to either search or arrest was
inherent in the very nature of their duties as peace officers, and derived from
the common law. n8 The medical emergency exception will support a warrantless
search of a person or personal effects when the person is found in an unconscious
or semiconscious condition and the purpose of the search is to discover evidence
of identification and other information that might enhance the prospect of
administering appropriate medical assistance, and the rationale is that the need
to protect life or avoid serious injury to another is paramount to the right of
privacy and is thus justified for what would otherwise be an invalid search in the
absence of an emergency. n9 Whether such an emergency exists depends on the facts
of each case. n10

- - - - - - - - Footnotes - - - - - - -

n8 See Schraff v State (1975, Alaska) 544 P2d 834. See also Mascolo, "The
emergency doctrine exception to the warrant requirement under the Fourth
Amendment," 22 Buffalo L Rev 419 (1972).

n9 See People v Wright (1991, Colo) 804 P2d 866, 11 ALR5th 947.

n10 See State v Jordan (1971) 79 Wash 2d 480, 487 P2d 617.

- - - - - - - - End Footnotes - - - - - - - -

Where the person being searched was involved in a vehicular accident, courts have
found the particular search of the person or personal effects unreasonable when
they were being treated by medical professionals at the time of the search,
finding no medical emergency under those circumstances (� 3). However, where the
vehicular accident victim was not being treated by medical professionals, one
court held that the particular search was reasonable and the evidence found
admissible, (� 4[a]), while another court held that, even if the search was
reasonable because of a need to find medical information, evidence found was not
admissible (� 4[b]).

Where police found a person who was unconscious and suffering from an unknown
ailment, courts have held that the particular warrantless search of the person or
personal effects was reasonable based on a need to find identification or medical
information in order to diagnose the person's condition or aid in treatment (� 5).
Where a person was found semiconscious, disoriented, incoherent or otherwise
unable to provide identification or information regarding his or her condition,
some courts have held that the particular warrantless search of the person or
personal effects for identification or something which would account for the
defendant's condition was reasonable (� 6[a]), while others held that the
particular search was not justified by the emergency aid exception to the warrant
requirement, apparently because the motive for the search was not medical
assistance (� 6[b]).

Some courts have held that particular warrantless searches of a shooting victim's
person or personal effects were justified by a need to determine the victim's
identity or other information related to treatment and were therefore reasonable
(� 7[a]). However, one court held that continuing to search the victim's person or
personal effects after identification was found was not reasonable (� 7[b]). One
court has also held that the particular warrantless search of a stabbing victim's
person or personal effects was justified by a need to determine the victim's
identity or other information related to treatment and was therefore reasonable (�
8).

Courts have held that a warrantless search of the person or personal effects to
identify a person known to be intoxicated was not justified by the medical
emergency exception to the warrant requirement (� 9). Where a search was made of
the person or personal effects of one the police believed to be the victim of a
drug overdose, one court held that the particular warrantless search was
reasonable and justified by the exigent circumstances facing the officers and
their obvious desire to facilitate medical treatment (� 10[a]), while another
court held that the particular search was not reasonable where it was not
motivated by a perceived need to render medical assistance (� 10[b]). Where police
took a person into custody because they reasonably believed him in need of
immediate care for mental illness, one court held that they were justified in
searching him for anything which might be reasonably related to his treatment (�
11[a]). However, another court found that an allegation by the police that their
warrantless search of a person, who they were investigating to determine if he was
mentally fit to be on duty as a security guard, was justified by the emergency
exception to the warrant requirement was not supported by the evidence (� 11[b]).

[*2b] Practice pointers

Cases regarding lawfulness of the search of a person or personal effects under the
medical emergency exception to the warrant requirement are usually raised on a
motion to suppress in a case where the person has been charged with a crime
involving possession of the thing that was seized during the search. n11 However,
sometimes the person is objecting to the introduction of evidence that links him
to another crime. n12 The first consideration of defense counsel in deciding
whether to file a motion to suppress is the potential effect of the evidence he is
seeking to suppress, so where the essence of the offense is possession of the
items seized, defense counsel should make a motion to suppress whenever there is
any likelihood of success. n13 Other factors defense counsel should consider
include the strength of the other evidence, n14 opportunities it provides for
discovery, n15 the danger of making damaging admissions in the course of moving to
suppress, n16 the necessity for the accused's testimony, n17 and the need for
preserving the suppression question for appeal in the event of a conviction. n18

- - - - - - - - Footnotes - - - - - - -

n11 See, for example, State v Loewen (1982) 97 Wash 2d 562, 647 P2d 489; and
Broadnax v State (1984, Tex App Houston (14th Dist)) 666 SW2d 283.

n12 See, for example, Wagner v Hedrick (1989, W Va) 383 SE2d 286; and People v
Smith (1969) 44 Ill 2d 82, 254 NE2d 492.

n13 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 65.
n14 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 64.

n15 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 67.

n16 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 68.

n17 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 69.

n18 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 71.

- - - - - - - - End Footnotes - - - - - - - -

Where defense counsel decides to file a motion to suppress, the motion should be
broad and include a request for suppression of all evidence that may have been
illegally obtained and is detrimental to the interests of the defendant. n19
Defense counsel should make the motion and accompanying documents brief and
sketchy so that counsel will not educate the prosecution and witnesses and so
that, as the evidence develops, he may be in a position to vary his theory to
conform to the proof. n20 At the hearing on the motion to suppress, defense
counsel may establish a prima facie case for suppression by the defendant's own
testimony, the testimony of third-party witnesses, the testimony of law
enforcement officers, or some combination of these. n21

- - - - - - - - Footnotes - - - - - - -

n19 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 73.

n20 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 74.

n21 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 77.

- - - - - - - - End Footnotes - - - - - - - -

If the motion to suppress is denied, defense counsel must decide if the case
should proceed to trial. If introduction of the evidence is likely to convict and
the outcome of the case is entirely dependent on the appellate disposition of the
suppression questions, it would be futile to spend the time and money necessary
for trial, and defense counsel may want to attempt to arrive at a stipulation with
the prosecution by which judgment will be rendered on the basis of the evidence
introduced at the pretrial hearing. n22 If the case does proceed to trial, a
cautious defense counsel will interpose a continuing objection to the introduction
of such evidence whenever the prosecution seeks to offer it. n23

- - - - - - - - Footnotes - - - - - - -

n22 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 110.

n23 See 5 Am Jur Trials 331, Excluding Illegally Obtained Evidence � 114.

- - - - - - - - End Footnotes - - - - - - - -

In determining whether a search is justified by the medical emergency exception to


the warrant requirement, some jurisdictions require that both a subjective and
objective test be met. First, the searching officer must actually be motivated by
a perceived need to render aid or assistance; and second, even if the requisite
motivation is found to exist, it must be shown that a reasonable person under the
circumstances would have thought an emergency existed. n24 However, at least one
court has held that the motive of the officers in performing the search was not
relevant where the objective facts showed a medical emergency. n25

- - - - - - - - Footnotes - - - - - - -

n24 See, for example, State v Prober (1980) 98 Wis 2d 345, 297 NW2d 1 (ovrld on
other grounds by State v Weide, 155 Wis 2d 537, 455 NW2d 899); People v Wright
(1991, Colo) 804 P2d 866, 11 ALR5th 947; and State v Loewen (1982) 97 Wash 2d 562,
647 P2d 489.

n25 See State v Miller (1972, Mo) 486 SW2d 435.

- - - - - - - - End Footnotes - - - - - - - -

II. Searches of Victims of Vehicular Accident

[*3] Where person being treated by medical professionals at time of search n26

The courts in the following cases held that the particular warrantless search of
the person or personal effects of one who was apparently involved in a vehicular
accident was not justified by a medical emergency, and therefore was
constitutionally unreasonable, where the person was being treated by medical
professionals at the time of the search.

- - - - - - - - Footnotes - - - - - - -

n26 For cases involving treatment of victim by paramedics, see � 4.

- - - - - - - - End Footnotes - - - - - - - -

In People v Wright (1991, Colo) 804 P2d 866, 11 ALR5th 947, the court held that a
warrantless search of the defendant's purse, conducted by the police officer while
the defendant, who had been involved in a car accident, was under the care of
medical personnel and conscious and coherent was not based on exigent
circumstances and thus was constitutionally unreasonable. The defendant, charged
with possession of a controlled substance, filed a pretrial motion to suppress on
the basis that the evidence underlying the charge was seized without a warrant in
violation of the United States and Colorado Constitutions. When the police officer
arrived at the scene of the car accident, the defendant was conscious and
paramedics were at the site. The police officer attempted to speak to the
defendant, but paramedics were attending to her, so he did not interrupt. One of
the paramedics handed the officer the defendant's purse, but he did not open it
and did not attempt to obtain identifying information from the defendant at this
time. The defendant was taken to the hospital by ambulance. The officer
investigated the scene and then brought the defendant's purse to the hospital
where he was informed that she was in the X-ray room and would be there for some
time. Rather than attempting to contact the defendant, the officer searched the
defendant's purse looking for her driver's license, car registration and proof of
insurance in order to complete his accident report. He observed a small zipper bag
inside the purse, opened it, and found what appeared to be a "cocaine kit." He
then opened a larger bag and found some marijuana and pills. After completing his
search of the purse, the officer contacted a narcotics officer who identified the
pills as methamphetamine. The court noted that the contents of a purse or wallet
are of an extremely personal nature and any warrantless search can be justified
only under the exigent circumstances exceptions to the warrant requirement, which
included emergency situations that pose a threat to the life or safety of the
person searched or others. The state relied on the so-called medical emergency
variant of the exigent circumstances doctrine to support the search of the purse
at the hospital. The court pointed out that the medical emergency exception will
support a warrantless search of a person's purse or wallet where the person is
found in an unconscious or semiconscious condition and the purpose of the search
is to discover evidence of identity and other information that might enhance the
prospect of administering appropriate medical assistance. The court continued that
two factors predominate the analysis of warrantless searches and seizures under
the medical exception: first, there must be facts which, when objectively
analyzed, establish the existence of a real and immediate danger to the life or
safety of another; and second, the officer's purpose in conducting the search must
be to render aid or assistance to the endangered person. The court concluded that,
under the facts of the instant case, the state's reliance on this exception was
misplaced, finding that when the officer searched the defendant's purse at the
hospital he was not confronted with a situation that posed a threat to the
defendant because she was under the care of medical personnel, was conscious and
coherent, and fully able to provide information that might be useful in her
diagnosis and treatment. In addition, the court found that the evidence showed
that the officer's sole purpose in searching the purse was not to obtain
information that might possibly have been useful in diagnosing or treating the
defendant, but to obtain information needed for his accident report.

Where the police officer did not arrive at the hospital until an hour after the
accident when hospital personnel were already attending to the defendant, the
court in People v Tyler (1991, 5th Dist) 210 Ill App 3d 833, 155 Ill Dec 240, 569
NE2d 240, held that the officer's search of a car accident victim's pants after
they had been removed from him at the hospital was not reasonable where the
purpose was to determine his identity. In support of its argument that the officer
acted reasonably in searching the defendant's pants for his wallet in order to
determine his identity, the state cited People v Smith (1969) 44 Ill 2d 82, 254
NE2d 492, � 7[a]. However, the court found that Smith was distinguishable because,
in that case, the wallet was taken from the victim at the scene of the incident
and here the officer did not have the same need to ascertain the victim's identity
or information of value in handling him, such as blood type, possible diabetic
condition, or inability to tolerate certain medications.

In Bouldin v State (1975) 26 Md App 545, 338 A2d 404, revd on other grounds n27
276 Md 511, 350 A2d 130, the court found that the search of the defendant
motorcycle accident victim's clothing was difficult to justify as seeking identity
in a medical emergency where the defendant was already hospitalized and being
prepared for examination before the search began. The court also noted that the
absence of medical rationale was obvious from the police officer's testimony that
he went to the hospital in order to arrest the defendant. The defendant was
involved in a motorcycle accident and was taken to the hospital. When the police
officer attempted to ascertain the defendant's identity by radioing the license
plate number to the Department of Motor Vehicles, he was informed that those
license plates had been stolen. The officer testified that he went to the hospital
with a twofold purpose in mind-to check on the defendant's condition and to place
him under arrest. When the officer arrived at the hospital, the defendant was
unconscious and being prepared for examination. The officer searched the
defendant's clothing to find some identification and found glassine bags
containing a white powdery substance which was discovered to be heroin.

- - - - - - - - Footnotes - - - - - - -

n27 The court reversed the holding that the search was justified as a lawful
search incident to arrest.

- - - - - - - - End Footnotes - - - - - - - -
Where, at the time of the officer's search of the defendant's tote bag in order to
find identification, the defendant, a victim of an apparent automobile accident,
was being treated by medical personnel and was beginning to regain consciousness,
the court in State v Loewen (1982) 97 Wash 2d 562, 647 P2d 489, held that it was
not reasonable for the officer to assume a life-threatening emergency existed so
as to justify the warrantless search. The defendant and her son were the occupants
of a wrecked automobile found lodged against a dirt embankment in a parking lot at
the airport. According to the airport security officer who discovered them, the
defendant's lip was bleeding and she was disoriented, as if in shock, and was
unable to identify herself or her child. The security officer looked through a
wallet found on the floor of the car in an effort to determine the defendant's
identity, and found a concealed weapon permit, but no driver's license or
photograph. The security officer radioed the sheriff's office for assistance and a
deputy sheriff arrived a few minutes later. The deputy sheriff decided to take the
defendant to the hospital. Before doing so, he performed a pat-down search for a
weapon because of the permit, and found a cocaine sniffer. Then he placed the
wallet on top of the tote bag and took her to the hospital. Upon arriving at the
hospital, the defendant was taken to the emergency room and her tote bag,
containing the wallet, was left at the nurses' station. The deputy sheriff then
decided to search the tote bag to get a positive identification of her. He
testified that he found a plastic baggie with some leafy material in it right on
top of the tote bag, then found the wallet, and lastly found a baggie of
phencyclidine (PCP) or angel dust. The nurse who assisted in the search testified
that the wallet was found first. After searching the tote bag, the deputy returned
to the emergency room and again asked the defendant for her name. By that time she
was better oriented and gave him her name. In spite of her motion to suppress, the
material discovered in her tote bag was admitted in evidence at her trial and she
was convicted of possession of a controlled substance. Since the search of the
tote bag was conducted without a warrant, the court noted that it must initially
determine whether it falls within some exception to the constitutional mandate
prohibiting warrantless searches. The court continued that warrantless searches by
police officers have been upheld when an emergency situation has been found to
have existed, such as where persons were found seriously injured or unconscious
and the search had been completed for the express purpose of finding
identification, medical alert cards, or the names of persons to call in case of an
emergency. The court found that, to come within the medical emergency exception,
it must be satisfied both subjectively and objectively that the search was
actually motivated by a perceived need to render aid or assistance. Applying this
test to the facts of the case, the court found that the search was initiated by
the deputy and not by the nurse, and at the time the search was undertaken, the
defendant was being treated by trained medical personnel and was beginning to
regain consciousness, and concluded that it was not reasonable for the deputy to
assume a life-threatening emergency existed so as to justify the warrantless
search. The court pointed out that the deputy may have subjectively perceived a
need to search the tote bag, but it could not be said objectively that a
reasonable person would have thought an emergency existed or continued to exist.

In Wagner v Hedrick (1989, W Va) 383 SE2d 286, the court held the search of the
defendant motorcycle accident victim's clothing for identification was reasonable
given the circumstances which existed in the hospital emergency room, but rejected
the state's contention that the emergency exception to the warrant requirement
justified the search. The defendant was involved in a motorcycle accident and was
taken to the hospital. The investigating police officer went to the hospital in
order to complete an accident report and check on the condition of the victims.
The officer testified that he found an extremely chaotic emergency room. The
defendant was apparently conscious but also intoxicated and in extreme pain, as
was his traveling companion. The officer attempted to identify the victims in
order to complete his accident report. The person who filled out the hospital
admissions sheet testified that the defendant appeared to be coherent, but she put
a question mark next to his name because he appeared uncertain or hesitant about
giving it to her. When the officer questioned the defendant as to his identity, he
concluded that the defendant either could not answer questions or did not want to
answer questions because of the pain he was in. The officer then looked in the
pockets of the defendant's pants, which had been put in a box under the bed, and
found a gold coin. He later discovered that the coin had been stolen from a murder
victim and that the defendant was a suspect. At the hearing to suppress the gold
coin and all evidence obtained as a result of the gold coin, the court held that
the defendant had no reasonable expectation of privacy in the pants once he
brought them into the emergency room of the hospital, and concluded that the
officer acted both reasonably and in good faith when he searched the defendant's
pants for identification, in light of the circumstances in the hospital emergency
room which frustrated his attempts to identify these accident victims. The court,
however, rejected the state's argument that the emergency exception justified the
search, finding that the officer's search was very similar to a limited search for
identification undertaken to facilitate a noncriminal disposition of a person in
police control and that in this situation it is clearly unnecessary to find a
reasonable belief of a medical emergency. In this case, the court did not find
evidence of the kind of medical emergency required by the medical emergency
doctrine where the defendant was already receiving treatment for his injuries.

[*4] Where person not being treated by medical professionals at time of search
n28

[*4a] Evidence found held admissible

The court in the following case held that the particular warrantless search of the
person or personal effects of one who was apparently involved in a vehicular
accident was justified by a medical emergency, and therefore was constitutionally
reasonable and evidence found in the search was admissible where the person was
not being treated by professional medical personnel at the time of the search.

- - - - - - - - Footnotes - - - - - - -

n28 This section includes cases where the person is being treated by
paramedics.

- - - - - - - - End Footnotes - - - - - - - -

Fact that police officers knew that defendant had been in serious accident and
that much blood was inside defendant's vehicle and leading to front door of
defendant's trailer, coupled with officers' testimony that they entered trailer
because they believed emergency assistance was necessary and, in fact,
administered first aid to defendant upon their entry, was sufficient to support
warrantless entry of trailer and admissibility of blood sample taken later from
defendant. City of Fargo v Ternes (1994, ND) 522 NW2d 176.

Where the defendant had been involved in an automobile accident and was only
semiconscious and incoherent, the court in Broadnax v State (1984, Tex App Houston
(14th Dist)) 666 SW2d 283, held that the officer was making a proper and necessary
search for identification, so it was clearly within the "emergency" exception to
the search warrant requirement, and the trial court was correct in denying the
motion to suppress and admitting the firearm found in her purse into evidence. As
the result of driving the wrong way down a one-way street, the defendant was
involved in an automobile accident. An ambulance attendant examined the defendant
and determined that she did not need to be transported to the hospital. When the
police officer arrived, he immediately talked to the defendant in an effort to
learn her identity, but because she was only semiconscious and incoherent, he was
unsuccessful. He then moved the defendant to his police car and placed her in the
back seat. Thereafter, he returned to the defendant's car and, in the course of
searching the car, found a gun inside her purse. She was charged with possession
of a firearm by a convicted felon. The defendant claimed that the warrantless
search did not fit into any of the exceptions to the warrant requirement. The
court, however, found that one of the established exceptions to the warrant
requirement was the "emergency doctrine," the rationale of which was that there
was a need to act immediately to protect or preserve life or to prevent serious
injury. The court noted that under this exception, officers may search a person
found unconscious for identification, names of relatives and physicians, and
medical history, and that the test on appeal was whether the officer reasonably
believed that a warrantless search was justified by an emergency. The court
concluded that the state's burden of proof was adequately met here where the
record indicated that the defendant was repeatedly asked who she was, but was too
incoherent to give an intelligible answer. The court continued that, believing her
to be intoxicated, the officer placed her in the back of his car and searched her
purse for identification, and that before he initiated the search he was in
custody of a nameless, unidentified woman, who was an accident victim, a potential
criminal suspect, and the operator of an immobile vehicle that necessarily was
going to be towed away. The court also pointed out that the officer was unsure of
her physical condition and did not know when, or if, she would become coherent.

[*4b] Evidence found held not admissible

Where the victim of a vehicular accident was not being treated by professional
medical personnel at the time of the search, the court in the following case held
that even if a warrantless search of the person or personal effects was justified
by a medical emergency, evidence found in the search was not admissible in a
criminal trial.

In State v Watson (1989) 95 Or App 134, 769 P2d 201, the court held that even if
the police officer's search of the accident victim's purse was necessitated by the
demands of immediate medical attention, evidence of criminal activity discovered
would not be admissible in a criminal trial. When the officer arrived at the
accident scene, he found an overturned van and emergency medical technicians
providing medical assistance to the defendant, who was lying on the ground. The
defendant was only semiconscious and could not provide the officer with pertinent
information. A passenger in the defendant's car told the officer the defendant's
name and street she lived on, but did not know her middle name, her precise
address, her telephone number or birthdate. In order to gather information to
assist in the defendant's medical treatment and to complete his accident report,
the officer reached into the overturned vehicle and retrieved a purse that he
thought might contain the defendant's driver's license. In the purse, he
discovered a baggie of marijuana. The trial court granted the defendant's motion
to suppress the evidence found in her purse, reasoning that the officer had
sufficient information from other sources and, therefore, did not need to search
the purse for purposes of medical treatment or to complete his report. The state
contended that the seizure was lawful, because opening the purse was authorized as
part of the "community caretaking" function, and that when an officer is carrying
out that function, his actions are reasonable. The state argued that the officer
acted reasonably, given the administrative and medical need for information, and
that he lawfully opened the purse and lawfully seized the contraband that was in
plain view after the purse was opened. However, the court pointed out that, when
presented with situations not directly related to a criminal investigation, police
may enter protected areas to render aid or assistance, notwithstanding a lack of
statutory authority, but, under Article I, section 9 of the Oregon Constitution,
any evidence discovered is inadmissible in a criminal prosecution. n29
- - - - - - - - Footnotes - - - - - - -

n29 But see State v Marsh (1969) 1 Or App 351, 462 P2d 459, � 11[a], where the
court held that evidence found in a search of a person detained because he was in
need of immediate care or treatment for mental illness was admissible.

- - - - - - - - End Footnotes - - - - - - - -

III. Searches of Persons Found Suffering from Unknown Ailment

[*5] Where person found unconscious

The courts in the following cases held that the particular warrantless search of
the person or personal effects of one who was found unconscious and suffering from
an unknown ailment was reasonable based on a need to find identification or
medical information in order to diagnose the person's condition or aid in
treatment.

Where passersby found the defendant in a disabled car, foaming at the mouth and
unable to talk, and a police officer thereafter arranged for the defendant's
transportation to a hospital, after which the passersby turned over two locked
briefcases and a motel key found in the defendant's car, the court in United
States v Dunavan (1973, CA6 Tenn) 485 F2d 201, held that the officer's search of
one of the briefcases for identification or other information potentially helpful
to hospital personnel in diagnosing and treating the defendant's condition
satisfied the medical emergency exception, where he was unconscious at the time of
the search, and sums of money taken in a bank robbery and recovered from the
briefcase were admissible in evidence against the defendant. The defendant
contended that the District Court erred in failing to suppress the evidence seized
in the two briefcases because it had been seized in violation of the Fourth
Amendment. On first consideration of this appeal, the court was unable to
ascertain from the record the time relationship between the defendant's
hospitalization, his treatment there, and his release from the hospital and the
happening of the search of the first briefcase. In a hearing, the court found that
the defendant was not conscious before 6:25 p.m., and that the police officers
entered the defendant's motel room in order to find some identification or
something to give to the hospital and to obtain the keys to the briefcases found
with the defendant for the same purpose, at approximately 5:15 p.m., and that the
first briefcase was opened a few minutes later, at approximately 5:20 p.m.
Therefore, the court found it clear that the police not only did not know the
defendant had regained consciousness when they entered the room and opened the
first briefcase, he in fact had not regained consciousness. The court found the
critical problem to be whether the officers who opened the first briefcase, taken
from the defendant's car, did so, as they asserted, as a matter of rendering
emergency aid to a person in a seizure, or whether this explanation of their
search was a pretext, and concluded that their conduct was pursuant to a lawful
lifesaving mission. The court noted that there appeared to be an emergency life-
saving exception to the Fourth Amendment's warrant requirement, citing cases from
other circuits on the right to enter a dwelling without a warrant to render
emergency aid. While recognizing that there may be cases where police assertions
of Good Samaritan motives might, as charged here, be pretextual rather than real,
the court agreed that a legitimate life-saving purpose may provide another example
of exigent circumstances which excuse failure to follow the warrant requirements
of the Fourth Amendment.

Where the defendant was found unconscious on an airplane and a police officer was
asked by medical personnel to look in her purse for identification or medication
to assist in diagnosing her condition, the court in United States v Black (1988,
CA6 Ky) 860 F2d 1080, 1988 US App LEXIS 14189, n30 held that the search did not
violate the Fourth Amendment, since the defendant was unconscious, had not been
conclusively diagnosed, and was still unidentified. Airline personnel who found
the victim were unable to revive her and called the paramedics. A police officer
also responded to the call. While the paramedic was checking the defendant's vital
signs, he asked the officer to check the defendant's purse for any medical
information, medication, or identification. The paramedic testified that "[a]n
unknown, unconscious person, [is] a life-threatening situation because you don't
know what the problem is." When the officer looked in the purse, he found a wallet
which contained pieces of identification containing several different names; a
bottle containing antibiotics, which he gave to the paramedic; and, in a cigarette
case, crystals, which he did not immediately recognize as crack. The defendant and
her belongings were then transported to the hospital. The officer accompanied the
defendant and was asked by the emergency room nurse to try to find some specific
identification of the defendant or at least to locate something that would
identify her medical problem. The officer went back to the purse and found what he
believed was cocaine. The defendant was subsequently indicted for possession with
the intent to distribute crack and cocaine and moved to suppress the evidence,
contending that the search of her purse violated the Fourth Amendment's
prohibition against unreasonable search and seizure. The state claimed that the
search was required to deal with a life-threatening emergency, and the court found
that it carried its burden. The court determined that it was reasonable for a
police officer to search the effects of an unconscious person in an effort to
determine the person's identity or any evidence of medical history which might be
useful in treatment. The court found that the officer was not motivated by a
suspicion of criminal activity when asked by the paramedic to look for
identification or medications to assist in a diagnosis of the defendant's
condition, and his first search was conducted in an attempt to help in an
emergency situation, and the defendant did not contend otherwise. The court also
found that the second search was conducted at the request of the emergency room
nurse and, under the circumstances, was not unreasonable since the defendant had
not been conclusively diagnosed and was still unidentified.

- - - - - - - - Footnotes - - - - - - -

n30 This opinion is not recommended for full-text publication. Sixth Circuit
Rule 24 limits citation to specific situations. Please see Rule 24 before citing
in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served
on other parties and the court. This notice is to be prominently displayed if this
decision is reproduced.

- - - - - - - - End Footnotes - - - - - - - -

In United States v Haley (1978, CA8 Mo) 581 F2d 723, cert den 439 US 1005, 58 L Ed
2d 681, 99 S Ct 618, the court held that a search of what appeared to be the
defendant's briefcase for identification or medical alert cards was reasonable
where the officer found the defendant lying in the street, and he reasonably
believed him to be in need of medical assistance. The officer found the defendant
lying in the street and stopped to investigate and determine what was wrong. He
attempted to rouse the man, but was successful in doing so only momentarily. The
man gave the officer his name and told him he was not hurt, then lapsed into
unconsciousness. The officer did not smell liquor on the man's breath. An
individual at the scene told the officer that he believed that the man had left
the scene of an accident a few blocks away. The officer then attempted to
ascertain the identity of the car and the man. He looked in the man's pants
pockets, but was unsuccessful. He then looked into the car and noticed a zippered,
leather briefcase in the front seat, took the briefcase out of the car, and opened
it to look for identification. Inside he found several papers identifying the man
and a firearm forming the basis of the defendant's conviction for carrying a
concealed weapon. The court held that the warrantless search of the briefcase was
justified by the particular exigent circumstances present in the case. The court
noted that the officer was presented with an emergency situation when he observed
the defendant lying in the street, and he reasonably believed that the defendant
was in need of immediate assistance. The court also pointed out that the
defendant's lapse from consciousness did not appear to be attributable to alcohol
and the defendant indicated that he was not hurt. Therefore, the court concluded
that it was reasonable for the officer to seek identification or medical alert
cards which might be of assistance and, when he found none on the defendant's
person, it was reasonable to obtain identification from what he believed to be the
defendant's briefcase.

Where two police officers found the defendant unconscious on a public street and
were unable to rouse him, the court in Vauss v United States (1966) 125 US App DC
228, 370 F2d 250, held that a search of the man to secure identification, if
possible, and then to prepare a report for the hospital concerning the sick man
was lawful. In the process of searching the defendant, the officers did not find
identifying material, but found white powder which appeared to be narcotics. On
appeal, the defendant asserted that the narcotics found on his person were
illegally seized and should have been suppressed. The court noted that if evidence
is discovered by search, its admissibility turns on whether the search was lawful,
in other words, reasonable under the circumstances, and that where a reasonable
search happens to produce evidence of a crime as a by-product, the fact that it
was not so intended was irrelevant. The court continued that a search of one found
in an unconscious condition was both legally permissible and highly necessary,
because there is a positive need to see if the person is carrying some indication
of a medical history, the rapid discovery of which could save his life. The court
also pointed out a need to identify persons so found in order to notify friends
and relatives. Finally, the court noted that the fact that the cause of the
defendant's unconsciousness was not known in no way impaired but enhanced the need
and inherent power to search the defendant.

Where the defendant was found unconscious and an ambulance driver, who was also a
police officer, looked through his pocket in order to find some identification and
determine what was wrong with him, the court in People v Gomez (1964, 1st Dist)
229 Cal App 2d 781, 40 Cal Rptr 616, held that the officer acted reasonably under
the facts of ths case and did not need to blind himself as to what he discovered
while doing so. The defendant appealed a judgment convicting him of possession of
herion, contending that the heroin was illegally obtained from his person. The
defendant was moved by ambulance from a parked car to the emergency hospital. He
was unconscious, there was froth on his mouth, and he appeared to be having
convulsions. At the hospital, efforts were made to restore the defendant's
breathing, which had stopped three or four times. While the doctor and the nurse
were engaged in treating the defendant, the ambulance driver went through the
defendant's pockets to find out who he was and what might be wrong. After learning
the defendant's identity from the contents of his wallet, the officer looked into
the defendant's shirt pocket and found a folded paper wrapped in tinfoil which
proved to contain herion. The officer showed what he found to the doctor and
nurse. Whether this aided them in their treatment was not clear from the record.
The defendant later regained consciousness and explained his condition as being
caused by two injections of heroin. The officer testified that his purpose in
continuing the search after learning the defendant's identity was that, when a
person is unconscious, it is necessary to search for a "Medic-Alert" tag or
something else indicating what might be wrong.

In Perez v State (1974, Tex Crim) 514 SW2d 748, the court held that a search of a
person found in an unconscious condition is necessary and lawful under the
emergency or exigent circumstances doctrine, noting that the rapid discovery of a
medical history carried on the person might save his life, and there is also a
need to identify the person and to determine if the names of relatives, friends,
and physicians can be found so they may be notified. The defendant was found,
apparently unconscious, by the manager of a motel. The manager was unable to
awaken the defendant and, fearing that he might be dying, called the police. The
officer attempted to revive the defendant and asked him what was wrong, but he got
no response. The officer then noticed things that led him to believe that the
defendant had just had a "fix" of narcotics. The officer then asked the defendant
his name, but the defendant did not answer. In order to ascertain whether the
defendant was carrying any identification, the officer searched his pockets and
found a pink balloon containing a brown powder later determined to be heroin. The
defendant was placed under arrest. The court held that even if the officer had not
observed the drug paraphernalia, giving him probable cause to search the
defendant, he would have been called upon to search under the emergency doctrine.

See Vargas v State (1976, Tex Crim) 542 SW2d 151, cert den 429 US 1109, 51 L Ed 2d
562, 97 S Ct 1144, where there was no question raised regarding the search for
identification conducted in the ambulance upon the unconscious defendant by the
police officer, who had responded to a call regarding a sick party at a fire
station, but the court noted that if the herion-filled balloon had been discovered
during the warrantless search of the defendant in the ambulance, the heroin would
have been admissible in evidence because a search would have been justified under
the "emergency" or "exigent circumstances" doctrine. The court pointed out that a
search of a person found in an unconscious condition was reasonable and necessary
for the purposes of identification and possible discovery of a medical history
carried on the person. The heroin was discovered after an initial examination of
the defendant's clothing by the nurse at the hospital, which produced a pistol,
requiring the nurse to call the police.

See Tijerina v State (1979, Tex Crim) 578 SW2d 415, where the court held that it
was reasonable for the police officer to remove the unconscious defendant from his
car based on the need to determine his medical condition, and that, when the
officer then determined that the defendant was intoxicated, a search made incident
to an arrest was proper and a gun found during this search was admissible. A
police officer found the defendant sprawled out on the seat of a car in the early
morning hours with his wallet open on the floor and was unable to rouse him. The
court believed that it was logical for the officer to conclude that the defendant
may have been the victim of an attack, and that the officer's action was proper in
removing the defendant from the car under the emergency or exigent circumstances
doctrine. The officer testified that his first thought was that the defendant had
been robbed or stabbed or something like that. In his attempt to arouse the
defendant, he detected an odor of alcohol. After the officer was able to get the
defendant to come around a bit, he got him out of the car. The officer found no
evidence of injury and determined that the defendant was in a state of
intoxication and felt that he might possibly be in some sort of danger or need
some protection. The officer arrested the defendant and in frisking him found a
gun in his pocket. The defendant argued that because the officer did not determine
that he was intoxicated until he removed him from the car, the arrest was without
probable cause and that the gun seized in a search incident thereto was the result
of an unlawful search. The court noted that prior case law had held that a search
of a person found in an unconscious condition was necessary and reasonable,
because the rapid discovery of a medical history carried on the person of one
found to be unconscious might save his life. In the instant case, the court
continued, if the defendant had been the victim of a robbery and had been stabbed
or physically harmed, the discovery of the injury by the officer could have
resulted in treatment which may have saved his life. The court rejected the
defendant's contention that the action of the officer in removing him from the car
constituted an illegal arrest, finding that after the defendant was removed from
the vehicle, the officer determined that he was intoxicated and a danger to
himself and, hence, the defendant's arrest and the search incident thereto, which
resulted in the seizure of the gun, was legal.

See State v Hutchison (1990) 56 Wash App 863, 785 P2d 1154, where the court held
that although no medical emergency existed, the search of the defendant's clothing
in order to determine identity and method of disposition was lawful where the
defendant was in danger and in need of aid or assistance. The police were called
to investigate a person lying in a parking lot, apparently unconscious. The police
attempted to rouse him and lift him to his feet. The defendant staggered about in
a stupor so the officer seated him in the back of the patrol car. The officer did
not know the cause of the defendant's condition but did not believe the man needed
medical attention so did not take him to the hospital. At the time, the officer
believed the defendant would be in physical danger if left in the parking lot. The
officer attempted to communicate with the defendant but the man was unresponsive
to the officer's questions and had to be awakened several times. In an effort to
determine whether the defendant carried identification indicating an address where
he could be taken or what other disposition could be made of him, the officer
conducted a search of his clothing. In the defendant's jacket he found drugs and
drug paraphernalia. The state challenged the trial court's findings at the
suppression hearing that no medical emergency existed and that the state failed to
show a sufficient emergency or exigent circumstances. The court agreed with the
trial court's finding that no medical emergency existed, but noted that this did
not end the inquiry. The court continued that numerous decisions had recognized
that police officers are expected to render aid and assistance on a regular basis
to persons who, although perhaps not in need of immediate professional medical
treatment, are in danger and in need of help, and that searches performed as a
part of providing such aid, if reasonable and in good faith, are generally
allowed. The court found that, in the instant case, it was undisputed that at the
time of the search, the defendant was in need of aid and assistance because the
officer had a reasonable and legitimate concern that he would be in danger if
abandoned in the parking lot, and that the officer did not search him for criminal
or investigatory purposes but in an effort to determine what should be done with
him. The court concluded that the officer's community caretaking duties required
that he render aid to the defendant who, if allowed to remain lying in the parking
lot or staggering about in an impaired condition, would have been in danger of
injury or death, and the only reasonable option for the officer was to ascertain
the defendant's identity and any information that would aid in his disposition.

The courts in the following cases as well held that the particular warrantless
search of a person, or personal effects of one who was found unconscious and
suffering from an unknown ailment, was reasonable based on a need to find
identification or medical information in order to diagnose the person's condition
or aid in treatment, where-

-the police officer found the defendant lying on the restroom floor, checked him
to see if he had any bumps on his head or any reason why he had passed out, then
patted down his pockets and found a paper sack containing some pills and a
syringe, even though the officer did not state the reason of his search as for
identification or evidence of medical condition, finding that the objective facts
were what gave rise to the right and duty of the police in a situation such as
this and it would be unrealistic to require that the officer first state his
motive for the search. State v Miller (1972, Mo) 486 SW2d 435.

-the defendant was brought unconscious to the police headquarters by two


unidentified men and, while he was still unconscious, was searched by the police
who discovered marijuana on his person, finding that in this case there was
nothing to indicate to the police that the defendant had violated the law, but the
police officers had an unconscious man on their hands, who was obviously sick or
injured, and it then became absolutely necessary for the officers to search the
defendant to discover his identity, next of kin, and possible information which
would indicate that he was suffering some chronic disease. State v Agent (1968)
101 NJ Super 190, 243 A2d 846.

-the defendant was found unconscious in a motel room and the police searched his
jacket and bag looking for identification, noting that the Fourth Amendment only
denounces warrantless searches that are unreasonable and that whether a given
search is reasonable depends upon the facts, circumstances and exigencies
confronting the officers conducting the search, and finding the exigencies
confronting the officers in this case similar to those confronting the police in
State v Agent (1968) 101 NJ Super 190, 243 A2d 846, this section. State v Jordan
(1971) 79 Wash 2d 480, 487 P2d 617.

[*6] Where person found semiconscious, disoriented, incoherent, or otherwise


unable to provide identification or information regarding condition

[*6a] Search held reasonable

Where a person was found semiconscious, disoriented, incoherent or otherwise


unable to provide identification or information regarding his or her condition,
the courts in the following cases held that the particular warrantless search of
the person or personal effects for identification or something which would account
for the defendant's condition was reasonable.

In Evans v State (1978, Fla App D3) 364 So 2d 93, cert den (Fla) 373 So 2d 457,
the court rejected the defendant's contention that a search of her purse was
illegal where the officer was unable to communicate with her and searched the
purse for something which would delineate a medical disability that could account
for her condition. A highway patrolman saw the defendant pull her car off the road
and stop. He approached the vehicle, but was unable to gain her attention,
although he observed that her eyes were open. The officer then gained entry to the
car and, with the defendant unable to communicate, examined her purse to inspect
her driver's license. After calling the rescue squad, a search was made to
determine the cause of her condition, and the officer found cocaine and charged
her with its possession. The court found that the search was not unreasonable in
the exigent circumstances.

Where police officers answered a radio call that a man was "down" in the hallway
of a hotel and found him lying on the floor, disoriented and incoherent, the court
in People v Smith (1970) 47 Ill 2d 161, 265 NE2d 139, held that a search of his
person for identification did not constitute a violation of the defendant's rights
against unreasonable search and seizure under the Fourth Amendment to the United
States Constitution. When the officers found the defendant, there was no
indication of alcohol on his breath nor any evidence of drinking, but he was very
disoriented and incoherent. They informed him that he was under arrest for
disorderly conduct. When he failed to answer questions concerning his identity,
what he was doing there, where he lived, and whether he had a wallet, the officers
then searched him, seeking some identification, and in the process found several
packets of marijuana in his back pocket. The defendant argued that the search was
illegal because it exceeded the scope of a search incident to arrest, which was
limited to a search for weapons and to prevent concealment of the fruits of the
crime for which he was being arrested. The court did not agree, noting that the
officers were summoned to investigate the circumstances involving a distressed
person and they found him in a stupor, apparently not caused by alcohol, totally
disoriented and unable to answer questions regarding his identity or condition.
The court continued that, for all the officers knew, the defendant may have been a
diabetic in shock or a distressed cardiac patient, so they were faced with an
emergency situation where the welfare of the individual was at stake. The court
concluded that under the circumstances of the case, the search of the defendant
and the seizure of narcotics from his person were reasonable and lawful and not a
violation of his constitutional rights.

[*6b] Search held not reasonable

Where the person was semiconscious, disoriented, incoherent or otherwise unable to


provide identification or information regarding his or her condition, the courts
in the following cases held that the particular warrantless search of the person
or personal effects was not justified by the emergency aid exception to the
warrant requirement, apparently because the motive for the search was not medical
assistance.

In Schraff v State (1975, Alaska) 544 P2d 834, the court held that the emergency
aid exception to the warrant requirement did not apply where the officer went to
the scene for the purpose of conducting a narcotics investigation, the defendant
was not totally unconscious and was accompanied by a companion who was somewhat
responsive, and the officer admitted that several motives, including crime scene
detection, prompted the search of the defendant's wallet. The officer was called
to a bar by another officer who had discovered marijuana in a car that the
defendant and his companion had driven off the road. Upon arriving at the bar, the
officer found the defendant and his companion in a seemingly intoxicated state,
but there were no alcoholic containers near the men and no smell of alcohol in
their vicinity. After giving them Miranda warnings, the officer asked the
defendant for identification. When the defendant did not respond, his companion
reached into the defendant's pocket and produced his wallet. While looking for
identification in the wallet, the officer discovered a folded aluminum foil packet
which contained cocaine. The court noted that, because of the defendant's
condition at the time of the search, it was possible to argue that the officer's
conduct was designed to provide crucial information in the rendition of emergency
aid, but determined that the facts in this case were distinguishable from cases
from other jurisdictions where the emergency aid exception had been held to apply.
n31

- - - - - - - - Footnotes - - - - - - -

n31 See United States v Dunavan (1973, CA6 Tenn) 485 F2d 201, � 5; Vauss v
United States (1966) 125 US App DC 228, 370 F2d 250, � 5; People v Gonzales (1960,
4th Dist) 182 Cal App 2d 276, 5 Cal Rptr 920, � 8; People v Smith (1970) 47 Ill 2d
161, 265 NE2d 139, � 6[a]; State v Miller (1972, Mo) 486 SW2d 435, � 5; and State
v Jordan (1971) 79 Wash 2d 480, 487 P2d 617, � 5.

- - - - - - - - End Footnotes - - - - - - - -

Where there was no evidence introduced to suggest that the defendant, who was
unresponsive when asked by the police to produce identification, was in need of
police assistance for medical reasons, the court in People v Rossi (1981, 2d Dist)
102 Ill App 3d 1069, 58 Ill Dec 291, 430 NE2d 233, held that there were no exigent
circumstances such as life-saving actions authorizing a search as an exception to
the general rule against warrantless searches. The police officer asked the
defendant and his companion to pull their car over because one of the tail lights
was out. The companion told the officer that the car belonged to the defendant.
When asked for identification, the defendant was incoherent. The officer then
removed the defendant's wallet to search it for identification and found a
controlled substance. As one justification for the search, the state relied upon
cases which authorized searches of incoherent persons for identification where
there was no probable cause to arrest but the defendant's physical condition
suggested a potentially serious illness requiring attention. n32 However, the
court pointed out that neither officer suggested at any time that they had concern
for the defendant's well-being except that he might fall on the rutted shoulder of
the road upon emerging from the vehicle, and this concern hardly would be
sufficient to warrant the intrusion to the person required by a search for a
wallet nor did the officers attribute the search to that reason.

- - - - - - - - Footnotes - - - - - - -

n32 See People v Smith (1970) 47 Ill 2d 161, 265 NE2d 139, � 6[a]; People v
Smith (1969) 44 Ill 2d 82, 254 NE2d 492, � 7[a]; and People v Gonzales (1960, 4th
Dist) 182 Cal App 2d 276, 5 Cal Rptr 920, � 8.

- - - - - - - - End Footnotes - - - - - - - -

Where the police officer found the defendant in a semiconscious condition, was
unable to communicate with her, and looked inside the defendant's jacket pocket
and found an opaque bottle marked "Tylenol," n33 the court in State v Underwood
(April 28, 1982, Ohio App, 12th Dist, Clermont Co) Slip Op No. 1113 (available on
LEXIS(R)), held that the medical emergency exception to the warrant requirement
was not applicable here because the contents of the bottle were retained by the
police and not used to determine medical treatment. The state contended that the
warrantless search of the defendant's jacket fell within the scope of the medical
emergency exception to the warrant requirement, urging the court to adopt this
exception, citing United States v Dunavan (1973, CA6 Tenn) 485 F2d 201, � 5, and
State v Prober (1980) 98 Wis 2d 345, 297 NW2d 1, � 10[b]. The court indicated that
the trial court was willing to accept such an exception but found that the facts
were inapposite to the state's argument. According to the trial court, the search
of the jacket could be within the exception to gain information with regard to
medicine, and finding the bottle of Tylenol would be justified under Dunavan,
allowing the bottle to be opened because of a medical emergency, but found that
such was not the case here where the contents of the bottle were retained by the
police and not used to determine medical treatment. The trial court noted that the
result would have been different had the contents been delivered to the life squad
for possible treatment purposes either with the life squad itself, or at the
hospital. The court concluded that the trial court's findings were supported by
the record, where the officer kept the bottle and, when the defendant was
transported to the hospital, the officer did not make anyone aware of the nature
of the contents of the bottle.

- - - - - - - - Footnotes - - - - - - -

n33 Although the opinion does not say, it is assumed that the bottle contained
some sort of illicit drug and the defendant was charged with its possession.

- - - - - - - - End Footnotes - - - - - - - -

IV. Other Searches

[*7] Shooting victims

[*7a] In general

The courts in the following cases held that the particular warrantless search of a
shooting victim's person or personal effects was justified by a need to determine
the victim's identity or other information related to treatment and was therefore
reasonable.

Where the defendant's wallet had been taken at the scene of the shooting by an
investigating officer who had found the defendant seriously wounded and in a
semiconscious condition, the court in People v Smith (1969) 44 Ill 2d 82, 254 NE2d
492, held that the removal of the wallet from his person by the officer and the
subsequent examination of the wallet at the police station did not infringe upon
the defendant's rights under the Fourth and Fifth Amendments to the United States
Constitution. The defendant was found guilty of murdering his wife's paramour and
appealed on the ground that his conviction was based on evidence obtained through
an illegal search. In the defendant's wallet, the police found a note addressed to
the police stating his intention to kill his wife's lover. The note was discovered
at the police station when officers examined and inventoried the personal effects
of the defendant following the gunfight between him and the victim. While holding
that the question regarding the admissibility of this evidence was waived because
it was not presented at trial, the court commented that it believed that the
conduct of the investigating officer, who secured the defendant's wallet and gun
at the scene of the shooting, was reasonable and an appropriate police measure.
The defendant was found at the scene of the shooting semiconscious and bleeding
from gunshot wounds. The court pointed out that a wallet typically contains cards
or other material identifying the owner, and that one reason for this is to permit
the owner's identification in the event of illness or accident, and it is common
for identifying material to also contain the identification of a person to be
notified in case of an emergency. The court found that the taking of the wallet of
the semiconscious man was not unreasonable conduct for the officer, and the fact
that it was apparently not necessary to use the wallet to identify him did not
disturb the reasonableness of its being taken. The court also found that securing
the wallet under the circumstances was reasonable and that it would not be
unreasonable to consider that the wallet might provide information of value in the
handling of the wounded man, such as blood type, intolerance to medication, and
the like. The court also noted that, considering the pressing circumstances which
confronted the officer, including the necessity of having the defendant brought to
a hospital as soon as possible, it was understandable that he did not examine and
inventory the wallet at the scene, but that this was done at the station house in
the presence of a policeman identified as the inventory officer. Finally, the
court found that the discovery of the note, which was addressed to the police, did
not convert the inventory process into an illegal search. n34

- - - - - - - - Footnotes - - - - - - -

n34 The instant case was distinguished in People v Tyler (1991, 5th Dist) 210
Ill App 3d 833, 155 Ill Dec 240, 569 NE2d 240, � 3, where the wallet was taken
from the victim at the hospital, so the officers did not have the same need to
search it to determine the victim's identity or information needed in handling
him.

- - - - - - - - End Footnotes - - - - - - - -

In Floyd v State (1975) 24 Md App 363, 330 A2d 677, the court held that a search
of a gunshot victim's clothing for identification was both legally permissible and
highly necessary, so that contraband inadvertently discovered was admissible in
evidence. The police officer responded to a radio message to investigate a
shooting and found the defendant in a prone position on the floor, bleeding
profusely from a wound in the right arm, two in the right leg and three in the
left leg. While waiting for the ambulance to arrive, the officer asked the
defendant his name and received no response. At the hospital, the defendant's
clothes were cut from his body so that he could receive treatment. Upon being
informed that the defendant was stable, the officer asked him if he wanted to
talk. The defendant responded that he was shot and had no time to talk. Believing
he had a possible homicide on his hands, the officer searched the defendant's
clothes for identification as well as for evidence that might be useful in a
homicide investigation. In the defendant's pants pockets, he found what proved to
be heroin. The court held that the search of the clothing was permissible because,
when the officer was unable to obtain the defendant's identity, he not only had a
right but a duty to look in his clothing for the purpose of endeavoring to
determine the shooting victim's identity.

In response to the defendant's claim that a "hold-up" note, found when a search
was made of his person in an effort to establish his identity so that the consent
of relatives to an emergency operation might be sought, should have been excluded
as the fruit of an illegal arrest, the court in State v Patrick (1970) 255 SC 130,
177 SE2d 545, held that it would be pointless to inquire whether the defendant was
under arrest because the search was to establish his identity and was incident to
hospital procedures rather than to an arrest. The defendant was shot in an attempt
to rob a liquor store. When the police found the defendant, they promptly took him
to the hospital emergency room where the search was made. The court noted that, in
this emergency, the defendant was treated no differently than a helpless accident
victim. n35

- - - - - - - - Footnotes - - - - - - -

n35 While it is unclear from the opinion who performed the search, it appears
to have been performed by the police officers.

- - - - - - - - End Footnotes - - - - - - - -

[*7b] After identification found

The court in the following case held that, while the search of a shooting victim's
person or personal effects for identification was reasonable, it was not
reasonable to continue the search after finding identification, concluding that
the sole purpose was to find evidence of criminal activity.

In Shepherd v State (1977, Fla App D1) 343 So 2d 1349, cert den (Fla) 352 So 2d
175, the court held that while a search of the shooting victim's wallet for
identification was reasonable, after finding identification, it was not reasonable
to search a plastic bag found in the wallet. The defendant was taken to the
hospital emergency room and a deputy sheriff was dispatched to the hospital to
investigate the shooting. The medical staff had not identified the victim, so the
deputy searched his billfold for identification. In the currency section he found
a small bag, but could not see the contents. After talking to the defendant, the
deputy searched the billfold and the bag and found phencyclidine (PCP). The court
found that the second search of the billfold was for the sole purpose of obtaining
evidence of criminal activity.

[*8] Stabbing victims

The court in the following case held the particular warrantless search of a
stabbing victim's person or personal effects was justified by a need to determine
the victim's identity or other information related to treatment and was therefore
reasonable.

Where the defendant was found either unconscious or in severe shock and unable to
answer questions, with a ghastly and possibly fatal knife wound, the court in
People v Gonzales (1960, 4th Dist) 182 Cal App 2d 276, 5 Cal Rptr 920, held that a
search of the defendant's clothing for identification at the hospital was
reasonable, and the police officer was not required to close his eyes to
contraband simply because it was not connected with the initial purpose of the
search. When the police discovered the defendant, an ambulance was called and he
was taken to the hospital. While at the hospital, his clothes were cut away and
gone through for purposes of identification. Four marijuana cigarettes were found.
The doctor, two nurses, and a police officer were present during the search made
by an attendant, apparently at the request of the police officer. The ambulance
driver testified that such a search was routine procedure for identification of
injured people "in shock" in emergency cases. The defendant contended that the
narcotics were discovered during an unlawful search and therefore were erroneously
admitted as evidence. The court found the circumstances warranted the police
officer to clearly establish the stabbing victim's identity.

[*9] Persons known to be intoxicated

The courts in the following cases held that a warrantless search of the person or
personal effects to identify a person known to be intoxicated was not justified by
the medical emergency exception to the warrant requirement.

Police officer who took defendant into protective custody based on defendant's
apparent intoxication had reasonable cause to search defendant, during course of
which search officer found illegal drugs, where officer had been told that
defendant had also taken four or five pills and, when asked in ambulance what
pills he had taken, defendant answered that they were in his pocket. State v
Hutchins (1994, Fla App D2) 636 So 2d 552, 19 FLW D 1027.

In State v Nelson (March 21, 1985, Kan App) Slip Op No. 57,049 (available on
LEXIS(R)), the court held that the emergency doctrine did not justify a search of
the defendant's bag where the police officer testified that he knew the
unconscious defendant was intoxicated and was looking for identification. The
officer observed a car in a parking lot with the interior light on and the engine
running. A female appeared to be sitting behind the wheel. When the officer
returned 5 or 10 minutes later, the car was still there. When he approached the
car, he found the defendant slumped over the wheel. He rapped on the glass, but
she did not move, so he opened the door and tried to rouse her. He smelled alcohol
on her breath, and testified that he did not fear a heart attack, but just thought
she passed out from drinking too much. He testified that his next thought was to
find her identification so he could take her home. He began to look through the
car and found a bag on the floor of the back seat. When he opened the bag, he
found drug paraphernalia and cocaine. The defendant was charged with possession of
cocaine and moved to suppress the evidence found in the bag. The trial court found
that the warrantless search of the bag was illegal and that the seized fruits of
the search were inadmissible. The state relied on the so-called emergency
exception to the warrant requirement, which the court noted applied when the
purpose of the search was not the gathering of evidence, but the protection and
aid of people in distress. The court pointed out that there were three criteria to
be met in determining whether a warrantless search of the bag fell within the
emergency exception. The first, the court continued, was an objective test: did
the officer have reasonable grounds to believe there was an emergency at hand and
an immediate need for assistance; second, a subjective test: was the officer
primarily motivated by an intent to arrest or to seize evidence, or to render aid;
and third, a scope test: was there a sound basis to associate the emergency with
the area to be searched, in this case, the bag. The court found that the officer
knew at the time of the search that the defendant was not medically endangered,
but was only intoxicated from the use of alcohol, so the record did not support
the state's assertion that the officer subjectively or objectively believed he was
faced with a medical emergency. The court also noted that the Oregon Supreme Court
in State v Newman (1981) 292 Or 216, 637 P2d 143, cert den 457 US 1111, 73 L Ed 2d
1321, 102 S Ct 2915, this section, had held that ordinary alcohol intoxication was
not a medical emergency justifying an immediate search of an intoxicated person's
purse.

See City of Fargo v Ternes (1994, ND) 522 NW2d 176, � 4[a].

In State v Newman (1981) 292 Or 216, 637 P2d 143, cert den 457 US 1111, 73 L Ed 2d
1321, 102 S Ct 2915, the court held that it was not reasonable for the police in a
noncriminal and nonemergency situation to search the property of an intoxicated
person for identification at the time the person is taken into custody for
transportation to a treatment or holding facility. A police officer found the
defendant illegally parked and she appeared to be intoxicated. His attempts to
determine her identity were unsuccessful. Another officer arrived at the scene,
handcuffed the defendant, and placed her in the back of one of the patrol cars to
take her either to a detox or booking facility. They did not intend to charge her
with a violation of any law. After the defendant was placed in the patrol car, the
officer went to her vehicle and found a purse on the ground. The purse was closed
and he opened it without consent for the sole purpose of finding out who she was.
When he first opened the purse, he found a plastic bag containing white cross
pills, and, on further search, discovered additional pills and a wallet
identifying the defendant. The defendant was charged with possession of a
controlled substance and moved to suppress on the ground that the evidence was
unreasonably seized without a warrant and in violation of federal and state
constitutions, statutes, and case law. The court noted that a person who is
intoxicated in a public place may be taken home or to a treatment facility by the
police, or, if there is no appropriate treatment facility, may be taken to a city
or county jail where the person may be held until no longer intoxicated. The court
further noted that neither party contended that the officer was conducting a
criminal investigation at the time he opened the purse and that the facts of this
case did not present the officer with a medical emergency justifying an immediate
search. The court concluded that an individual's expectation of privacy in a purse
was probably greater than in any other property except the clothing worn by the
person, and it did not think that it was necessary for the police officer to know
the name of the person that he was going to transport to the treatment or holding
facility.

[*10] Victims of apparent drug overdose

[*10a] Search held reasonable

The court in the following case held that the particular warrantless search of the
person or personal effects of the apparent victim of a drug overdose was
reasonable and justified by the exigent circumstances facing the officers and
their obvious desire to facilitate medical treatment.

See State v Hutchins (1994, Fla App D2) 636 So 2d 552, 19 FLW D 1027, � 9.

In State v Auman (1986, Minn App) 386 NW2d 818, the court held that evidence
discovered by police officers during the course of a warrantless search for
identification of a drug overdose victim was admissible under the emergency
exception to the Fourth Amendment. The police officers responded to a call that
somebody had overdosed and found the defendant acting irrationally. The defendant
told them that someone had put drugs in his drink and he needed help. The officers
felt that the defendant was overdosing on drugs. The officers called for an
ambulance and then tried to learn the defendant's identity. They explained to the
defendant that they had to determine his identity so they could notify family and
friends of his condition and assist the ambulance crew when they arrived. The
defendant gave the officers permission to remove his wallet to look for
identification. An officer found what he believed to be the defendant's wallet,
but which turned out to be an eyeglass case. Inside the case, the officer found
drug paraphernalia. The officer testified that he did not expect to find
identification in the case and did not know what he would find. The trial court
held that the emergency exception to the warrant requirement applied here because
the officers searched the defendant with a reasonable belief that they were faced
with a medical emergency, but went on to conclude that the search was improperly
extended to the eyeglass case. The court, however, found that the search was
reasonable and justified by the exigent circumstances facing the officers and
their obvious desire to facilitate medical treatment. The court found that, based
on Vauss v United States (1966) 125 US App DC 228, 370 F2d 250, � 5, and United
States v Haley (1978, CA8 Mo) 581 F2d 723, cert den 439 US 1005, 58 L Ed 2d 681,
99 S Ct 618, � 5, had the defendant been completely unconscious rather than in a
drug-induced stupor, a complete search of him for identification would have been
reasonable, and did not believe that the reasonableness of this good-faith search
by concerned police officers turned on such inconsequential factual
dissimilarities, noting that if the police had not opened the eyeglass case until
after they determined that the defendant had no identification anywhere else, a
search of the "closed container" would have been completely justified.

[*10b] Search held not reasonable

The court in the following case held that a warrantless search of the person or
personal effects of the apparent victim of a drug overdose was not reasonable
where it was not motivated by a perceived need to render medical assistance.

In State v Prober (1980) 98 Wis 2d 345, 297 NW2d 1 (ovrld on other grounds n36 by
State v Weide, 155 Wis 2d 537, 455 NW2d 899), the court held that the medical
emergency exception to the warrant requirement could not justify a warrantless
search of the defendant's purse where the police officer testified that the reason
for searching the purse was to inventory the contents of the defendant's car. The
defendant injected himself with heroin and was found unconscious in a motel room
which had been rented by someone else. The defendant regained consciousness when
the manager left to call the police, put the heroin and syringes into his purse,
put the purse in the trunk of his car and returned to the motel room. When the
police arrived, they arrested him for trespassing in the motel. The officer
testified that the defendant had bloodshot eyes and slurred speech, and was
drooling from the mouth and wearing "mussed" clothes. Because the defendant was
believed to be a trespasser, the motel manager asked that his car be removed from
the parking lot. The officer then went out to make an inventory search of the car.
In the trunk, he found a purse containing heroin. The court of appeals upheld the
warrantless search under the emergency exception on the ground that a reasonable
man "could believe" that the defendant had overdosed on a drug, and might be in
danger of losing his life. The court of appeals did not find it fatal that the
officer did not conduct the search because he thought a medical emergency existed,
so long as, viewed objectively, the circumstances justified that action. The court
found that unless the search or intrusion was motivated by the perceived need to
act in the face of an emergency or exigency, the emergency doctrine is not
applicable and will not justify the search, reasoning that conditioning the
availability of the emergency doctrine exception on the officer's motivation is
mandated by the doctrine's rationale that the preservation of human life is
paramount to the right of privacy protected by the Fourth Amendment. The court set
forth the test for a valid emergency warrantless search under the emergency
doctrine as requiring a two-step analysis: first, the search is invalid unless the
searching officer is actually motivated by a perceived need to render aid or
assistance; and second, even though the requisite motivation is found to exist,
until it can be found that a reasonable person under the circumstances would have
thought an emergency existed, the search is invalid. The court concluded that both
the subjective and objective tests must be met.

- - - - - - - - Footnotes - - - - - - -

n36 Overruled not on the medical emergency exception, but on that part of the
opinion addressing whether the search of a purse in an automobile was justified as
an inventory search.

- - - - - - - - End Footnotes - - - - - - - -

[*11] Victims of apparent mental illness

[*11a] Search held reasonable

The court in the following case held that where police took a person into custody
because they reasonably believed him in need of immediate care for mental illness,
they were justified in searching him for anything which might be reasonably
related to his treatment.

Where the defendant stipulated that he was suffering an emotional condition and
needed help because of his emotional condition at the time of the search, the
court in State v Marsh (1969) 1 Or App 351, 462 P2d 459, held that the police,
when lawfully taking a person into custody under ORS 426.215, which authorized
taking into custody any person who the officer reasonably believed was dangerous
to himself or any other person and who he had reasonable cause to believe was in
need of immediate care or treatment for mental illness, had the right to search
that person, not only for such articles as may be lawfully seized following a
valid arrest, but for such further objects, including pills or other apparent
medication, as may appear reasonably related to diagnosing or treating his
apparent mental or physical condition. While transporting the defendant to the
hospital, the police searched him and discovered marijuana. The court noted that
the apparent purpose of the statute was to secure immediate care and treatment of
the person taken into custody under it, and that seizure from his person of
articles reasonably related to the accomplishment of this purpose was proper. The
court continued that the fact that under such rule an object seized may be a
narcotic or other contraband did not affect the right to seize it, pointing out
that the prompt identification of the substance seized may well be the key to
effective emergency treatment. The court concluded that the fact that the article
proved to be contraband did not render the seizure invalid, nor was the state,
having validly seized it, required to close its eyes to the fact that its
possession may also be a crime. n37

- - - - - - - - Footnotes - - - - - - -

n37 But see State v Watson (1989) 95 Or App 134, 769 P2d 201, � 4[b], where the
court held that, even if the police officer's search of the accident victim's
purse was necessitated by the demands of immediate medical attention, evidence of
criminal activity discovered is not admissible in a criminal trial under Article
I, section 9 of the Oregon Constitution.

- - - - - - - - End Footnotes - - - - - - - -

Police officer responding to call about fight between defendant juvenile and her
mother had reasonable cause to believe medical emergency existed, and narcotics
found in defendant's purse were properly admitted in defendant's prosecution for
unlawful possession of methamphetamine, where defendant had been observed to be
emotionally unstable, her parents had said that she had threatened suicide and was
carrying knives, and officer searched defendant's purse to see if it contained
knives. State v Lowrimore (1992) 67 Wash App 949, 841 P2d 779.

Since defendant was in acutely paranoid state when he was seized for mental health
evaluation, police officer reasonably searched for weapons before exposing himself
and others to close contact with defendant; moreover, officer was not bound to
limit his search to weapons, and had obligation to identify and remove anything
with which defendant might harm himself and others, including street drugs. West's
RCWA 71.05.150(4)(b). State v. Dempsey, 88 Wash. App. 918, 947 P.2d 265 (Div. 3
1997).

[*11b] Search held not reasonable

The court in the following case held that the allegation by the police that their
warrantless search of a person, who they were investigating to determine if he was
mentally fit to be on duty as a security guard, was justified by the emergency
exception to the warrant requirement was not supported by the evidence.

Where the police officers, in response to a telephone call made to a security


agency's dispatcher by a department store security guard, went to the store at the
manager's request to ascertain whether the guard was fit to be on duty, the court
in State v Hampton (1982) 59 Or App 512, 651 P2d 744, held that the officer's
frisk of the guard was not justified by the emergency exception to the warrant
requirement. The dispatcher received a call from a person who purported to be the
store's guard and who stated that he was armed with mace, and that, if any of the
mannequins moved, he was going to mace them. Five police officers were dispatched
to the store and the manager requested that they locate the guard to ascertain
whether he was fit to be on duty. When they found the guard, he was not acting in
an unusual manner and did not appear to be unstable. The guard was then patted
down by two of the officers who discovered marijuana and hashish. In response to
the guard's motion to suppress, the state, as a last resort, suggested that the
frisk was justified by the emergency exception to the warrant requirement, which
applies when a person is in need of immediate aid. The court found that this
suggestion was not supported by the evidence which showed that the sole
explanation given by the police for the contact was to ascertain whether the guard
was fit to be on duty, and the officers made no inquiry of the guard about his
mental or medical condition. The court also pointed out that the state conceded
that when the officers contacted the guard there was no apparent emergency.

[*12] Domestic violence

[*12a] Search held reasonable

Officer's entry and subsequent warrantless search of defendants' home was


justified; officer had received report of domestic violence in home, caller told
officer that she and female defendant had been hit by male defendant, there were
signs of recent disturbance at home, and female defendant refused to allow officer
to enter home, which could have indicated that female defendant was hiding male
defendant in home, possibly against her will. U.S.C.A. Const.Amend. 4. State v.
Gilbert, 24 Kan. App. 2d 159, 942 P.2d 660 (1997), review denied, (Sept. 23,
1997).

[*12b] Search held unreasonable

Report of domestic violence does not per se establish exigent circumstances


justifying warrantless entry into private residence; each case must be decided
upon its particular facts and circumstances. U.S.C.A. Const.Amend. 4. State v.
Gilbert, 24 Kan. App. 2d 159, 942 P.2d 660 (1997), review denied, (Sept. 23,
1997).

[*index]
INDEX

Accident report, completing, �� 3, 4[b]


Aircraft, � 5
Alcohol, �� 3, 4[a], 5, 6, 9
Allergies to medications, �� 3, 7[a]
Angel dust, � 3
Arrest, intent to, � 3
Automobile accidents, �� 3, 4
Bank robbery, � 5
Blood type, �� 3, 7[a]
Car accidents, �� 3, 4
"Closed container", � 10[a]
Cocaine, �� 3, 5, 6, 9
Coherence or incoherence, �� 3, 4[a], 6
Comment and summary, � 2
Concealed weapons, �� 3, 5
Consciousness, �� 3-7[a]
Controlled substances, �� 3 et seq.
Convulsions, � 5
Crack cocaine, � 5
Danger to life or safety, � 3
Diabetic condition, �� 3, 6[a]
Disorderly conduct, � 6[a]
Disorientation, �� 3, 6
Drug overdose, � 10
Drugs and narcotics, �� 3 et seq.
Drunkenness, �� 3, 4[a], 5, 6, 9
Emergency operation, relatives' consent, � 7[a]
Eyeglass case, � 10[a]
Family and relatives, �� 4[a], 5, 7[a], 10[a]
Firearms, �� 4[a], 5
Friends, notification of, �� 5, 10[a]
Froth on mouth, � 5
"Good Samaritan" motives, � 5
Hashish, � 11[b]
Heroin, �� 3, 5, 7[a], 10[b]
History, medical, �� 4[a], 5
Hold-up note, � 7[a]
Homicide, � 7[a]
Hotels and motels, �� 5, 6[a], 10[b]
Incoherence or coherence, �� 3, 4[a], 6
Intent or purpose for search, �� 3, 5, 6[b], 7[b], 9-11[a]
Intolerance to certain medications, �� 3, 7[a]
Intoxicating liquors, �� 3, 4[a], 5, 6, 9
Introduction to annotation, � 1
Inventory search of car, � 10[b]
Knife wound, � 8
Liquor, �� 3, 4[a], 5, 6, 9
Marijuana, �� 3, 4[b]-6, 8, 11
Medical alert cards, �� 3, 5
Medical history, �� 4[a], 5
Medical professionals, treatment by, �� 3-5
Medication, search for, � 11[a]
Mental illness, � 11
Money taken in bank robbery, � 5
Motels and hotels, �� 5, 6[a], 10[b]
Motivation or purpose for search, �� 3, 5, 6[b], 7[b], 9-11[a]
Motorcycle accident, � 3
Motor vehicle accidents, �� 3, 4
Murder, � 7[a]
Note, hold-up, � 7[a]
Note addressed to police, � 7[a]
Notification of other persons, �� 3, 4[a], 5, 7[a], 10[a]
One-way street, � 4[a]
Overdose of drugs, � 10
Pain, � 3
Paramedics, treatment by, �� 3-5
PCP, � 3
Permit, concealed weapon, � 3
Phencyclidine, � 7[b]
Possession of controlled substance, �� 3 et seq.
Possession of firearm by convicted felon, � 4[a]
Practice pointers, � 2[b]
Preliminary matters, �� 1, 2
Purpose or motivation for search, �� 3, 5, 6[b], 7[b], 9-11[a]
Related annotations, � 1[b]
Relatives, �� 4[a], 5, 7[a], 10[a]
Report, accident, completing, �� 3, 4[b]
Restroom floor, � 5
Robbery, �� 5, 7[a]
Scope of annotation, � 1[a]
Security guard's fitness, � 11[b]
Seizures, � 5
Semi-consciousness, �� 4, 6, 7[a]
Shooting victims, � 7
Stabbing victims, � 8
Summary and comment, � 2
Treatment by medical professionals, �� 3-5
Unconsciousness, � 5
Unknown ailment, �� 5, 6
Vehicular accidents, �� 3, 4
Weapons, �� 3, 4[a], 5

Source: All Sources : Federal Legal - U.S. : Federal Court Cases and ALR,
Combined Courts
Terms: paramedic or emergency medical technician and law review (Edit Search)
View: Full
Date/Time: Thursday, March 23, 2000 - 5:12 PM EST

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