State v. Comeaux

• Decision Date: 03 July 1991
• Docket Number: No. 318-90,318-90
• Citation: 818 S.W.2d 46
• Parties: The STATE of Texas, Appellant, v. Pervis Joseph COMEAUX, Appellee.
• Court: Texas Court of Criminal Appeals

Page 46

818 S.W.2d 46

The STATE of Texas, Appellant, v. Pervis Joseph COMEAUX, Appellee.

No. 318-90.

Court of Criminal Appeals of Texas En Banc.

July 3, 1991.

Christopher M. Gunter, Austin, for appellee.

Ken Oden, County Atty., Alia Moses, Asst. County Atty., Robert Huttash, State's Atty., and Carl E.F. Dally, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

MALONEY, Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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