People v. Duroncelay

CARTER J.

I dissent.

I am of the opinion that the taking of the blood sample for a blood alcohol test in the absence of consent by defendant constituted an unreasonable search and seizure in violation of his constitutional rights. I feel that the taking of blood from defendant is a far different thing from the search of his car at the time of the accident. The available evidence leads to the inference that rather than consenting, *773 defendant tried to refuse to permit the blood sample to be taken.

In People v. Haeussler, 41 Cal.2d 252 [ 260 P.2d 8 ], in which I dissented, the question of unreasonable search and seizure was not decided. I was of the opinion there, as I am here, that the taking of such a blood sample for the purpose of obtaining evidence to be used against the nonconsenting person is both a deprivation of due process and an unreasonable search and seizure in violation of both the federal and state Constitutions. The only justification for taking blood from a person who does not consent thereto is that it is deemed necessary by competent medical personnel in order to save the person’s life. Taking of a blood specimen from a nonconsenting person to obtain evidence which may be used against him is also a denial of the privilege against self-incrimination.

In Breithaupt v. Abram, 352 U.S. 432 [ 77 S.Ct. 408 , 1 L.Ed.2d 448 ], on which the majority relies here, Mr. Chief Justice Warren dissented with Mr. Justice Black and Mr. Justice Douglas concurring. Mr. Chief Justice Warren said:

“The judgment in this case should be reversed if Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ], * is to retain its vitality and stand as more than an instance of personal revulsion against particular police methods. I cannot agree with the Court when it says, ‘we see nothing comparable here to the facts in Rochin.’ It seems to me the essential elements of the cases are the same and the same result should follow.

“There is much in the Court’s opinion concerning the hazards on our nation’s highways, the efforts of the State to enforce the traffic laws and the necessity for the use of modern scientific methods in the detection of crime. Everybody can agree with these sentiments, and yet they do not help us particularly in determining whether this case can be distinguished from Rochin. That case grew out of police efforts to curb the narcotics traffic, in which there is surely a state interest of at least as great magnitude as the interest in highway law enforcement. Nor does the fact that many *774 States sanction the use of blood test evidence differentiate the cases. At the time Eochin was decided illegally obtained evidence was admissible in the vast majority of States. In both Bochin and this case the officers had probable cause to suspect the defendant of the offense of which they sought evidence. In Eochin the defendant was known as a narcotics law violator, was arrested under suspicious circumstances and was seen by the officers to swallow narcotics. In neither ease, of course, are we concerned with the defendant’s guilt or innocence. The sole problem is whether the proceeding was tainted by a violation of the defendant’s constitutional rights.

“In reaching its conclusion that in this case, unlike Eochin, there is nothing ‘brutal’ or ‘offensive’ the Court has not kept separate the component parts of the problem. Essentially there are two: the character of the invasion of the body and the expression of the victim’s will; the latter may be manifested by physical resistance. Of course, one may consent to having his blood extracted or his stomach pumped and thereby waive any due process objection. In that limited sense the expression of the will is significant. But where there is no affirmative consent, I cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest. The Court, however, states that ‘the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right.’ This implies that a different result might follow if petitioner has been conscious and had voiced his objection. I reject the distinction.

“Since there clearly was no consent to the blood test, it is the nature of the invasion of the body that should be determinative of the due process question here presented. The Court’s opinion suggests that an invasion is ‘brutal’ or ‘offensive’ only if the police use force to overcome a suspect’s resistance. By its recital of the facts in Eochin—the references to a ‘considerable struggle’ and the fact that the stomach pump was ‘forcibly used’ * —the Court finds Eochin distinguishable from this case. I cannot accept an analysis that would make physical resistance by a prisoner a prerequisite to the existence of his constitutional rights.

“Apart from the irrelevant factor of physical resistance, *775 the techniques used in this case and in Kuchin are comparable. In each the operation was performed by a doctor in a hospital. In each there ivas an extraction of body fluids. Neither operation normally causes any lasting ill effects. The Court denominates a blood test as a scientific method for detecting crime and cites the frequency of such tests in our everyday life. The stomach pump too is a common and accepted way of making tests and relieving distress. But it does not follow from the fact that a technique is a product of science or is in common, consensual use for other purposes that it can be used to extract evidence from a criminal defendant without his consent. Would the taking of spinal fluid from an unconscious person be condoned because such tests are commonly made and might be used as a scientific aid to law enforcement?

“Only personal reaction to the stomach pump and the blood test can distinguish them. To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law-enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force or by stealth.”

Mr. Justice Douglas, with whom Mr. Justice Black joined, wrote, in addition, a separate dissenting opinion in which he said;

“The Court seems to sanction in the name of law enforcement the assault made by the police on this unconscious man. If law enforcement were the chief value in our constitutional scheme, then due process would shrivel and become of little value in protecting the rights of the citizen. But those who fashioned the Constitution put certain rights out of the reach of the police and preferred other rights over law enforcement.

11 One source of protection of the citizen against state action is the Due Process Clause of the Fourteenth Amendment. Our decisions hold that the police violate due process when they use brutal methods to obtain evidence against a man and use it to convict him. Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ]; Chambers v. Florida, 309 U.S. 227 [ 60 S.Ct. 472 , 84 L.Ed. 716 ], But the conception of due process is not limited to a prohibition of the use of force and violence against an accused. In *776 Leyra v. Denno, 347 U.S. 556 [ 74 S.Ct. 716 , 98 L.Ed. 948 ], we set aside a conviction where subtle, nonviolent methods had been used to exact a confession from a prisoner. For it was obvious that coercion might be the product of subtlety as well as of violence. We should take the same libertarian approach here.

“As I understand today’s decision there would be a violation of due process if the blood had been withdrawn from the accused after a struggle with the police. But the sanctity of the person is equally violated and his body assaulted where the prisoner is incapable of offering resistance as it would be if force were used to overcome his resistance. In both cases evidence is used to convict a man which has been obtained from him on an involuntary basis. I would not draw a line between the use of force on the one hand and trickery, subterfuge, or any police technique which takes advantage of the inability of the prisoner to resist on the other. Nor would I draw a line between involuntary extraction of words from his lips, the involuntary extraction of the contents of his stomach, and the involuntary extraction of fluids of his body when the evidence obtained is used to convict him. Under our system of government, police cannot compel people to furnish the evidence necessary to send them to prison. Yet there is compulsion here, following the violation by the police of the sanctity of the body of an unconscious man.

“And if the decencies of a civilized state are the test, it is repulsive to me for the police to insert needles into an unconscious person in order to get the evidence necessary to convict him, whether they find the person unconscious, give him a pill which puts him to sleep, or use force to subdue him. The indignity to the individual is the same in one case as in the other, for in each is his body invaded and assaulted by the police who are supposed to be the citizen’s protector.”

The views expressed by Mr. Chief Justice Warren and Mr. Justice Douglas are particularly applicable to the ease at bar. Here we do not have an unconscious person but one who, with the only strength he had, tried to refuse to have the blood test taken. A majority of this court is of the opinion, however, that since the blood sample was taken with all medical precautions the conduct of the law enforcement officers was neither brutal nor shocking and, as in the Breithaupt case, because blood tests are everyday occurrences which are undergone by persons consenting thereto for one reason or another, there is nothing wrong with a blood test *777 taken from one who either does not consent or is incapable of making his wishes lmown. I do not agree and the time will come when this court will be forced by the Supreme Court of the United States to revamp its theories on this subject as it has been forced to do in the past in other instances. (Ro chin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ].)

It appears to me that this case illustrates the whittling-down process which a majority of this court has engaged in since the Cahan case was decided. (People v. Cahan, 44 Cal.2d 434, 445 [ 282 P.2d 905 ].) Prior to the Cahan case I had long advocated the inadmissibility of evidence illegally obtained, and finally a majority of this court saw fit to adopt the view that evidence so obtained was not admissible. However, by its holding here that evidence obtained by force from a nonconsenting person was not unlawfully obtained, the salutary rule of the Cahan case is evaded.

As I said in my dissenting opinion in People v. Haeussler, 41 Cal.2d 252, 263, 265 [ 260 P.2d 8 ], “Because I believe in the dignity and security of the individual and agree with the framers of the Bill of Rights that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’ should ‘not be violated,’ (emphasis added). I cannot sanction the conduct of the prosecution officers in this case, and would, therefore, reverse the judgment.”

For the foregoing reasons I would reverse the judgment.

This ease originated in California. A majority of this court held that Rochin’s constitutional rights had not been invaded. Mr. Justice Sehauer and I dissented from the denial of a petition for hearing (People v. Rochin, 101 Cal.App.2d 140, 143, 149 [ 225 P.2d 1, 913 ]). The United States Supreme Court reversed the District Court of Appeal (Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ]).

ActualIy, the struggle in Rochin occurred in the defendant’s home after the officers had broken in. He was arrested and taken to a hospital, and there was no evidence that he struggled there.