People v. Scott

CLARK, J., Dissenting.

Applying the balancing test set forth in the majority opinion, I conclude that the medical examination ordered by the court did not constitute an unreasonable search or seizure under the circumstances.

Stating the factors to be weighed in the balance, the majority hold that “where a warrant authorizing a bodily intrusion is sought, the issuing authority after finding probable cause to believe the intrusion will reveal evidence of crime, must apply an additional balancing test to determine whether the character of the requested search is appropriate. Factors which must be considered include the reliability of the method to be employed, the seriousness of the underlying criminal offense and society’s consequent interest in obtaining a conviction .. ., the strength of law enforcement suspicions that evidence of crime will be revealed, the importance of the evidence sought, and the possibility that the evidence may be recovered by alternative means less violative of Fourth Amendment freedoms. . . .

“These considerations must, in turn, be balanced against the severity of the proposed intrusion. Thus, the more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure’s necessity.” (Ante, p. 293, citations omitted.)

The severity of the proposed intrusion. It is appropriate to begin discussion with this factor for, as the majority recognize, it is the most important of the several variables. “[T]he more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure’s necessity.” (Id.) Conversely, of course, the less severe the proposed intrusion, the lesser the requisite showing of, for example, reliability.

In this case there was uncontradicted evidence that the intrusion was minor. The People’s evidence was presented by means of declarations *299 filed in the trial court, defendant offering no evidence to the contrary, either before or after the examination. In his declaration Dr. Woodling stated that the examination ordered here—manually massaging the prostate through the rectum to obtain a semen sample—takes about 15 minutes and is not painful. In rejecting defendant’s Fourth Amendment claim, the Court of Appeal observed, “prostatic examinations are a routine form of examination, conducted by urologists for many urinary disorders.”

The Ninth Circuit has held that the gentle probing of the rectum incident to a rectal search, or any other body cavity search conducted in a medically approved manner, is not a degrading or shameful physical assault as those terms were used in Rochin v. California (1952) 342 U.S. 165 [ 96 L.Ed. 183 , 72 S.Ct. 205 , 25 A.L.R.2d 1396 ], Indeed, the court stated that a rectal search is a less pronounced intrusion than the puncturing of the skin pursuant to a blood test. (Rivas v. United States (9th Cir. 1966) 368 F.2d 703, 711 ; see also Blackford v. United States (9th Cir. 1957) 247 F.2d 745, 752-753 .) The Blackford court said of the rectal search in that case “As to the actual physical examinations, they were conducted by qualified physicians, under sanitary conditions, with the use of medically approved procedures. This kind of examination is a routine one which countless persons have undergone. It is an uncomplicated and nonhazardous procedure. It normally is not painful to a healthy person.” (Id., at p. 752.)

Indeed, the majority appear to concede that this examination was not especially “intense, unusual, prolonged, uncomfortable [or] unsafe,” for their conclusion that it was “severe” is based, instead, on the ground that it significantly invaded defendant’s “dignity and privacy.” (Ante, p. 294.)

The short answer to this objection is that defendant should have looked to his dignity before he molested his daughter. In rejecting the claim that a rectal search is an affront to dignity, Judge Chambers in his concurring opinion in Blackford v. United States, supra, aptly observed: “[A]s I see it, the Supreme Court’s policy is to uphold human dignity. ... [If] But here it was Blackford who created, who first takes us into this disgusting sequence. ... I do not say that the depraved have no rights. But I do say that to my sensibilities all of the shockingness was Blackford’s.” ( 247 F.2d at p. 754 .)

As for privacy, investigation of sex offenses, by virtue of the subject matter, involves inquiry into matters ordinarily considered private. The *300 nature of the proof is such that the physical evidence, if any, is likely to be derived from a private portion of the defendant’s body. (See, e.g., Brent v. White (5th Cir. 1968) 398 F.2d 503, 509 (scraping of defendant’s penis to determine whether there was evidence of victim’s menstrual blood permitted in rape case); Commonwealth v. Tarver (1975) — Mass. — [ 345 N.E.2d 671, 676 ] (taking of pubic hair samples of accused upheld in case involving sexual assault of a child); State v. Riley (1975) 303 Minn. 251 [ 226 N.W.2d 907, 909 ] (police permitted to conduct in-custody close-range inspection of defendant’s penis without a warrant in a rape case where the victim had described sores on penis of her assailant). Certainly the victim of a sexual assault can attest to the fact that investigation of such a crime necessarily involves what would otherwise be an intolerable invasion of privacy—the protocol for medical treatment of such a victim includes an examination of her entire body for evidence of force or trauma, a thorough pelvic examination, taking of evidentiary smears from the appropriate orifice (vagina, anus or mouth—depending on the nature of the assault) and combing for foreign pubic hair. (See, e.g., Queen’s Bench Foundation Rape Victimization Study, Preliminary Research Findings and Recommendations (1 Jan. 1975) pp. 32-33.)

In conclusion, the examination ordered here was not especially “intense, unusual, prolonged, uncomfortable [or] unsafe.” Nor, given the nature of the crimes charged, was it unreasonably offensive to defendant’s dignity or invasive of his privacy. The less severe the proposed intrusion, the lesser the showing that need be made as to the other factors to be weighed in the balance. Bearing this principle in mind, we now consider those factors.

The possibility that the evidence may be recovered by alternative means less violative of Fourth Amendment freedoms. This factor clearly weighed in favor of performing the examination, for defendant has never argued, nor do I understand the majority to now suggest, that a specimen could have been obtained by an “alternative means less violative of Fourth Amendment freedoms.”

The seriousness of the underlying criminal offense and society’s consequent interest in obtaining a conviction. This factor too weighed heavily in favor of the examination. The Legislature manifestly considered the charged crimes to be “serious” for when these offenses were committed and tried the penalty for incest was imprisonment for one to fifty years and the penalty for child molestation was one year to life imprisonment. Moreover, the charged offenses were aggravated insofar as the victim of *301 the incest was a child and the alleged molestation of that child consisted in completed acts of sexual intercourse. Consequently, society had great interest in obtaining available evidence supporting a conviction. Indeed, the majority do not contend otherwise.

The strength of law enforcement suspicions that evidence of crime will be revealed. This factor also supports the trial court’s order. Defendant’s daughter had trichomoniasis. Trichomoniasis is acquired through intercourse. The child had had intercourse with defendant and with no one else. 1 Therefore, she must have gotten trichomoniasis from defendant. If defendant had not been treated in the interim, he would still have trichomoniasis. If defendant did still have trichomoniasis there was a 70 percent chance that the test would reveal it. Clearly there was probable cause to believe that evidence of defendant’s alleged crime would be revealed by the examination.

The importance of the evidence sought. Sex offenses almost always occur in private, the only direct witnesses being the prosecuting witness and the defendant. Conviction therefore hinges upon the credibility of the prosecuting witness. (People v. Covert (1967) 249 Cal.App.2d 81, 88 [ 57 Cal.Rptr. 220 ].) In offenses of the sort committed here this problem is exacerbated by the prosecuting witness’ being a child. Question will arise as to whether the child distinguishes between truth and fantasy and appreciates her responsibility to tell the truth. (See, e.g., Ballard v. Superior Court (1966) 64 Cal.2d 159 [ 49 Cal.Rptr. 302 , 410 P.2d 838 , 18 A.L.R.3d 1416 ].) It is therefore invaluable in such a case to have circumstantial evidence tending to prove guilt or innocence. Certainly defense counsel recognized the value of this evidence insofar as it tended to prove defendant’s innocence, for in closing argument he told the jury “I think the medical testimony is about the best thing that an innocent man ... can do to disprove any insinuation of guilt.”

The reliability of the method to be employed. To characterize this procedure as 70 percent reliable is misleading. Admittedly, there is a 30 percent probability that the test will not reveal the presence of trichomoniasis in a man having the infection. But the important question is whether one is justified in placing confidence in a test result indicating that the subject does have trichomoniasis. The answer to that question is, as the majority concede, that the reliability of “positive” results is unchallenged.

*302 Having carefully weighed each of the aforementioned factors, I conclude that the examination did not constitute an unreasonable search or seizure and therefore would affirm the judgment.

The child so testified and as she was the victim of the crime her testimony was entitled to credit for the purpose of determining whether to perform the examination. (See People v. Ramey (1976) 16 Cal.3d 263, 268-269 [ 127 Cal.Rptr. 629 , 545 P.2d 1333 ].)