Yanez v. Romero

• Decision Date: 07 April 1980
• Docket Number: No. 79-1003,79-1003
• Citation: 619 F.2d 851
• Parties: Willie YANEZ, Petitioner-Appellant, v. Levi ROMERO, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 851

619 F.2d 851

Willie YANEZ, Petitioner-Appellant, v. Levi ROMERO, Warden, Respondent-Appellee.

No. 79-1003.

United States Court of Appeals, Tenth Circuit.

Argued Feb. 14, 1980.

Decided April 7, 1980.

Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for petitioner-appellant.

Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N. M. (Jeff Bingaman, Atty. Gen., Santa Fe, N. M., with her on brief), for respondent-appellee.

Before McWILLIAMS, DOYLE and McKAY, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This cause is before us on writ of habeas corpus which challenges a state court conviction of guilty in a criminal case. It is brought pursuant to 28 U.S.C. § 2254. The embattled incident is an arrest which was made in a service station restroom by New Mexico police. The police had observed the defendant and another person enter the restroom and had followed them into the room by bursting into it where they saw a hypodermic needle which gave the appearance of having been used. There were fresh needle marks on the arm of the petitioner. Following their having made observations, petitioner was arrested and transported to a hospital and was then asked to give a urine sample. He refused, and the allegation is that he was threatened with being catheterized in order to secure the sample. He acknowledged that he submitted to the giving of the sample, but did so as a result of the threat. The result of the testing of the sample was positive. The petitioner was then charged with the unlawful possession of morphine. He was found guilty of unlawful possession of morphine and he sought relief in the U.S. District Court for New Mexico. This was denied, and it is this judgment which he seeks to reverse.

The cause was appealed from the state district court to the New Mexico Supreme Court. The conviction was there affirmed, and after exhausting state remedies the present petition for writ of habeas corpus was instituted. The federal trial court denied the petitioner's request for an evidentiary hearing and dismissed the petition.

The contentions of the petitioner are as follows:

1. That the actual conviction was that of being a narcotics addict in that the morphine that he was convicted of possessing was found solely in his body fluids. The argument is that this conviction is in conflict with Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

2. That the search of his body by means of the urine sample was under threat of catheterization, and this constituted a violation of his constitutional rights.

3. That the court below erred in denying his motion for an evidentiary hearing in order to determine the circumstances under which the urine sample was taken.

I.

Was the conviction violative of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), in that the defendant was in effect convicted of being an addict? Our answer is no.

Defendant contends that there was no evidence of his possession of narcotics other than that which established that he had morphine or heroin in his body. An effort was made by counsel (for the defendant) to have an evidentiary hearing in order to establish that the defendant was an addict at the time. This was denied.

The California statute under which Robinson was convicted provided that "No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the State to prescribe and administer narcotics." The statute also requires the defense to prove that the case comes within the exception.

The evidence established in Robinson that the subject showed evidence of being an addict and that he had scar tissue and discoloration on the inside of his right arm. Also, the arm showed numerous needle marks and a scab just above the crook of the elbow. The Supreme Court recognized the breadth of the power of a state to regulate the drug traffic, a power which had been outlined in Whipple v. Martinson, 256 U.S. 41, 41 S.Ct. 425, 65 L.Ed. 819 (1921). The Court concluded:

This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the "status" of narcotic addiction a criminal offense, for which the offender may be prosecuted "at any time before he reforms." California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.

370 U.S. at 666, 82 S.Ct. at 1420. The possession of narcotics as a crime was held to be a valid approach and was distinguished. Addiction, on the other hand, was recognized as a disease which could not be the subject of prosecution; that the effort to prosecute violated the Eighth and Fourteenth Amendments.

In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), the Supreme Court distinguished the situation in which the accused was not being convicted of the status of chronic alcoholic but rather was being convicted for drunkenness in public; that the Robinson doctrine had no application to this. Texas, it was held, had the authority to define the specific offense of drunkenness in public "which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being 'mentally ill, or a leper . . . .' Id., (370 U.S.) at 666 (82 S.Ct. at 1420)." 392 U.S. at 532, 88 S.Ct. at 2154.

A reading of the decision in Robinson and that in Powell makes clear the proposition that the New Mexico statute was within the scope of the state's power, was valid on its face and was not invalid as applied.

II.

Was the obtaining of the urine sample an unlawful search or a deprivation of due process under Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)?

The facts in Rochin were gross and extreme. The police forcibly entered the home of the accused without a warrant. When the officers entered the bedroom, they found the defendant partly dressed on the side of the bed on which his wife was lying. The officers saw some capsules on the bedside stand and asked "Whose stuff is this?" Thereupon, Rochin seized the capsules and put them into his mouth. The three officers jumped upon him and attempted to forcibly extract them. The force that they applied was not productive. He was then handcuffed and taken to a hospital where one of the doctors forced an emetic solution through a tube into Rochin's stomach against his will. The stomach pumping produced vomiting, and in the vomited matter the two capsules were found. These proved to contain morphine. At the trial the chief evidence against the accused was the two capsules. He was convicted and the conviction was affirmed in the intermediate state appellate court. The Supreme Court of California affirmed, and the cause proceeded to the Supreme Court of the United States. The Supreme Court, in a classic opinion of Justice Frankfurter, condemned the police actions, saying that "This is conduct that shocks the conscience." Id. at 172, 72 S.Ct. at 209.

The petitioner maintains here that this was a violation of the Fourth and Fourteenth Amendments. At the same time, reliance is placed upon the Supreme Court's decision in Rochin, supra. It is possible that the conduct here is a violation of the Fourth-Fourteenth Amendments, but it is also a possible violation of the due process clause of the Fifth Amendment. That was the basis for the Supreme Court's ruling in Rochin. It was the ruling that the conduct shocked the conscience that was responsible for the Supreme Court's ruling. The opinion added:

Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.

342 U.S. at 172, 72 S.Ct. at 209.

Our view is that the stronger argument for exclusion is the Fifth Amendment prohibition which is somewhat broader than the limitation provided by the Fourth Amendment. The Supreme Court was moved by the offense to human dignity and the conflict with ordered liberty. This does not say that exclusion of evidence that resulted from the Rochin facts governs the outcome in the present case. Our determination that it is primarily a due process contention serves to offset the state's argument that a review is precluded by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Stone had been a murder case which resulted in a conviction in the California courts. The important evidence was a revolver found on the person of the accused when he was arrested for violating a vagrancy ordinance. The trial judge rejected the respondent's contention that the testimony should have been excluded because the ordinance was unconstitutional and the arrest was invalid. The appellate court affirmed, holding that it was unnecessary for illegality of the arrest to be determined since it was ruled that receipt of the revolver was harmless. The respondent then applied for habeas corpus in the federal district court. The judge there ruled that the arresting officer had probable cause and that even if the ordinance was unconstitutional, the deterrent purpose of the exclusionary rule was not such that it had to be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. The Court of Appeals...