U.S. v. Attson

• Decision Date: 19 April 1990
• Docket Number: No. 89-10041,89-10041
• Citation: 900 F.2d 1427
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. ATTSON, Defendant-Appellant.

Page 1427

900 F.2d 1427

UNITED STATES of America, Plaintiff-Appellee, v. Thomas P. ATTSON, Defendant-Appellant.

No. 89-10041.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 9, 1990.

Decided April 19, 1990.

David Lee Titterington, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.

Wallace H. Kleindienst, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona (Phoenix).

Before WALLACE, ALARCON and LEAVY, Circuit Judges.

WALLACE, Circuit Judge:

Attson appeals from his conviction for manslaughter pursuant to 18 U.S.C. Secs. 1111 and 1152. Attson unsuccessfully moved in the district court to suppress evidence of a blood alcohol analysis conducted by a government-employed doctor. It is this denial he raises before us. The district court had jurisdiction under 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

In the early morning hours of June 21, 1986, Attson was driving his vehicle on Route 7 near Chinle, Arizona. Attson lost control, drove off the road, and crashed, resulting in the death of one of his passengers. Attson was taken to the Chinle Public Health Service Hospital for emergency medical treatment.

At the hospital, Attson signed a consent form that allowed him to receive emergency medical care. The district court found that in signing this consent form Attson "did not consent to the taking of blood for police use," but did consent to its use for medical purposes. (Emphasis added.) Although Attson did not appear to be seriously hurt, medical personnel detected the scent of alcohol on his breath and Dr. Patel, Attson's attending physician, reasoned that the presence of alcohol in Attson's body might mask symptoms of serious pain and might be important in determining the sorts of medicines that could be administered. Dr. Patel instructed Nurse Ginnane to draw a blood sample, send it to the hospital laboratory for a blood-alcohol analysis, and write the blood alcohol level on Attson's chart. Ginnane did so. At oral argument, the government conceded that Dr. Patel and the other members of the medical staff who treated Attson were employees of the federal government.

As the district court observed, the record contained some evidence suggesting that the police present in the hospital had requested Dr. Patel to take a blood sample. Dr. Patel, however, testified that he drew the blood sample and analyzed it for medical reasons alone. The district court was persuaded by Dr. Patel's testimony and found that Dr. Patel "normally requests a blood sample in this type of accident for medical reasons" and "that he indeed drew the blood for medical reasons."

After the blood sample was taken from Attson and analyzed, the information regarding Attson's blood alcohol level remained with the hospital and was not divulged to the police. The hospital only released the information on Attson's blood alcohol level pursuant to a grand jury subpoena nearly a year after the accident. The prosecution introduced evidence of Attson's blood alcohol level at Attson's trial for manslaughter.

The district court's findings of fact relating to suppression of evidence are reviewed for clear error. United States v. Walther, 652 F.2d 788, 791 (9th Cir.1981) (Walther ). The scope of application of the fourth amendment presents an issue of law which is reviewed de novo. Jones v. Berry, 722 F.2d 443, 446 n. 4 (9th Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984).

II

This case presents what is apparently an issue of first impression in this circuit: whether the strictures of the fourth amendment apply to the conduct of a government doctor who, for medical reasons, takes a blood sample from a criminal suspect and conducts a blood alcohol analysis on that sample.

The fourth amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Implicit in this language is the notion that the amendment applies to a limited range of governmental conduct. The phrase "searches and seizures" connotes that the type of conduct regulated by the fourth amendment must be somehow designed to elicit a benefit for the government in an investigatory or, more broadly, an administrative capacity. Thus, unlike the "state actor" requirement of the fourteenth amendment, the fourth amendment cannot be triggered simply because a person is acting on behalf of the government. Instead, the fourth amendment will only apply to governmental conduct that can reasonably be characterized as a "search" or a "seizure." Therefore, as the District of Columbia Circuit stated in Jones v. McKenzie, 833 F.2d 335, 338 (D.C.Cir.1987), amended in part, 878 F.2d 1476 (D.C.Cir.1989), "[t]o determine whether a given governmental activity is of the kind that is prohibited by the Fourth Amendment we must first ask whether the action is a 'search' [or a 'seizure']." This threshold inquiry is particularly appropriate where the challenged conduct falls outside the area to which the fourth amendment most commonly and traditionally applies--law enforcement.

A.

"Only rarely ... has the [Supreme] Court considered the nature of fourth amendment restrictions on the conduct of government officials in noncriminal investigations." The Supreme Court, 1986 Term--Leading Cases, 101 Harv.L.Rev. 119, 230 (1987). Even rarer are the instances in which the Court has considered the application of the fourth amendment to noncriminal noninvestigatory governmental conduct. Yet, when the Court has considered the application of the fourth amendment to governmental conduct in a noncriminal context, it has been careful to observe that the application of the amendment is limited.

In O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), the plurality chronicled the steady expansion of the scope of the fourth amendment into non-law enforcement areas, observing that

[t]he strictures of the Fourth Amendment ... have been applied to the conduct of governmental officials in various civil activities. New Jersey v. T.L.O., 469 U.S. 325, 334-35 [105 S.Ct. 733, 738-39, 83 L.Ed.2d 720] (1985). Thus, we have held in the past that the Fourth Amendment governs the conduct of school officials, see [id.], building inspectors, see Camara v. Municipal Court, 387 U.S. 523, 528 [87 S.Ct. 1727, 1730, 18 L.Ed.2d 930] (1967), and Occupational Safety and Health Act inspectors, see Marshall v. Barlow's, Inc., 436 U.S. 307, 312-313 [98 S.Ct. 1816, 1820-1821, 56 L.Ed.2d 305] (1978).

Id. at 714-15, 107 S.Ct. at 1497; see also National Treasury Employees Union v. Von Raab, --- U.S. ----, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989) (holding that the fourth amendment applies to the conduct of government employers who conduct drug tests on their employees). Yet, while the reach of the fourth amendment has been extended to include various types of governmental conduct outside the traditionally recognized area of law enforcement, the Court has been careful to limit this expansion to governmental conduct that can reasonably be said to constitute a "search" or a "seizure" within the meaning of the fourth amendment. The types of non-law enforcement conduct to which the Court has extended the scope of the amendment are thus typically motivated by some sort of investigatory or administrative purpose designed to elicit a benefit for the government. In New Jersey v. T.L.O., 469 U.S. 325, 334-35, 105 S.Ct. 733, 738-39, 83 L.Ed.2d 720 (1985) (T.L.O.), for example, the Supreme Court stated that the fourth amendment applies to governmental conduct whether " 'the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.' " Id., quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 1820-21, 56 L.Ed.2d 305 (1978) (Marshall ) (emphasis added). Thus, while the Court in T.L.O. extended the reach of the fourth amendment to the conduct of school administrators, it made that extension in the context of "investigative" activities--activities that fall squarely within the meaning of the terms "searches" or "seizures." Similarly, in National Treasury Employees, the Court expanded the reach of the fourth amendment "beyond the normal need for law enforcement" noting that the drug tests challenged in that case were "intrusion[s] serv[ing] special governmental needs." 109 S.Ct. at 1390. Of course, conduct actuated by investigatory motives is not the only type of governmental conduct regulated by the fourth amendment. The Court has held that the fourth amendment applies, in differing degrees, to governmental conduct carried out for administrative, as well as criminal investigatory, purposes. Camara v. Municipal Court, 387 U.S. 523, 535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967) (Camara ).

Under the proper factual circumstances, therefore, governmental conduct that is motivated by investigatory or administrative purposes will fall within the scope of the fourth amendment since such conduct constitutes a search or seizure, the type of conduct that is regulated by the amendment. This, in turn, implies that governmental conduct which is not actuated by an investigative or administrative purpose will not be considered a "search" or "seizure" for purposes of the fourth amendment. In order for us to determine whether non-law enforcement governmental conduct can be considered a "search" or "seizure" under the fourth amendment, it is therefore necessary for us to evaluate whether such conduct has as its purpose the intention to elicit a benefit for the government in either its investigative or administrative capacities.

B.

The necessity of such an inquiry is evident in the reasoning of the cases expanding the scope of the fourth amendment to non-law...