# State v. Comeaux

> Court of Criminal Appeals of Texas · July 3, 1991 · 818 S.W.2d 46

URL: https://www.frixlaw.com/law-library/cases/9774120

## Case

- **Full name:** The STATE of Texas, Appellant, v. Pervis Joseph COMEAUX, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 3, 1991
- **Citations:** 818 S.W.2d 46; 1991 Tex. Crim. App. LEXIS 167; 1991 WL 117450
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Maloney, McCormick, Miller, White, Benavides
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9774120

## How later opinions describe it (automated extraction)

- finding the Texas Medical Practice Act as evidence of society's regard for an expectation of privacy in the blood sample at issue in that case

## Opinion text

McCORMICK, Presiding Judge,
dissenting.
I dissent. The plurality finds that because appellee maintained “an expectation of privacy” in the blood specimen after such had been removed from his body, ap-pellee can assert Fourth Amendment claims when the police seize the blood from the hands of a third party. This is analytically incorrect.
The Supreme Court has consistently held that a person has no legitimate expectation of privacy in objects or information that he voluntarily turns over to third parties who subsequently release them to authorities. See, e.g., Smith v. Maryland, 442 U.S. 735, 743-744 , 99 S.Ct. 2577, 2581-2582 , 61 L.Ed.2d 220 (1979); United States v. Miller, 425 U.S. 435, 442-444 , 96 S.Ct. 1619, 1623-1625 , 48 L.Ed.2d 71 (1976); Couch v. United States, 409 U.S. 322, 335-336 , 93 S.Ct. 611, 619-620 , 34 L.Ed.2d 548 (1973); United States v. White, 401 U.S. 745, 752 , 91 S.Ct. 1122, 1126 , 28 L.Ed.2d 453 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302 , 87 S.Ct. 408, 413 , 17 L.Ed.2d 374 (1966); Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963). Specifically, in Miller , the Supreme Court found that a bank depositor had no “expectation of privacy” in financial information that he had “voluntarily conveyed ... to banks and exposed to their employees in the ordinary course of business.” 425 U.S. at 442 , 96 S.Ct. at 1623 . Further and quite significantly, the Miller Court found that a person’s expectation that materials in the hands of third parties will be protected from authorities is inconsequential in the analysis. The Court explained:
“[T]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.... This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” 425 U.S. at 443 , 96 S.Ct. at 1624 (emphasis added).
In short, the question of whether appellee has a privacy interest in blood that he has relinquished to medical workers is superfluous if the police conduct in obtaining the specimen is not proscribed by the Fourth Amendment.
In the case before us, private, non-governmental parties relinquished a blood specimen to police after they properly secured that specimen from appellee for medical purposes. Where a non-governmental party has “a legitimate independent motivation” for engaging in the challenged conduct, the Fourth Amendment does not apply. See United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.1990) (concluding that for the conduct of a party to be subject to the Fourth Amendment that party must have acted with the intent to assist the government in its investigations for administrative purposes and not for an independent purpose). Consequently, evidence obtained by private parties and turned over to the police is not obtained in violation of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 475 , 41 S.Ct. 574, 576 , 65 L.Ed. 1048 (1921); Attson, 900 F.2d at 1433 (holding that doctor who drew blood for “purely medical reasons” did not possess *57 the requisite intent to engage in a search or seizure under the Fourth Amendment).
There is no evidence before this Court that police played any role in the initial decision to extract blood from appellee. To the contrary, all evidence conclusively shows that blood was taken by medical personal acting only upon their own initiative. Appellee’s attending physician ordered the specimen taken so that he could treat appellee — not for any police investigation. As the plurality correctly concedes:
“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 appel-lee, not for any governmental purposes. 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 19, of the Texas Constitution do not apply to his actions in this case.” 818 S.W.2d at 50, citing United States v. Jacobsen 466 U.S. 109, 115 , 104 S.Ct. 1652 [1657], 80 L.Ed.2d 85 (1984) and Vargas v. State, 542 S.W.2d 151, 153 (Tex.Cr.App.1976).
Having decided that the challenged conduct in this case is not covered by the Fourth Amendment, the plurality’s analysis should have been complete. The plurality, however, confuses the issues when it equates a “privacy interest” with a right to contest a search or seizure under the Fourth Amendment. The Supreme Court has concluded that an individual possesses a “privacy interest” in his blood for Fourth Amendment purposes, Schmerber v. California, 384 U.S. 757, 769 , 86 S.Ct. 1826, 1835 , 16 L.Ed.2d 908 (1966), but the Court has never intimated that invasion of privacy interests without governmental action implicate Fourth Amendment protection. The issue of whether the police officer’s challenged conduct in this case qualifies as conduct covered by the Fourth Amendment should not be muddled with the issue of whether appellee possessed a “reasonable expectation of privacy” in blood that is in possession of medical personnel. See United States v. Katz, 389 U.S. 347, 360-361 , 88 S.Ct. 507, 516-517 , 19 L.Ed.2d 576 (1967) (Harlan, J. concurring). That is, if the taking of blood from hospital personnel was not the kind of governmental conduct regulated by the Fourth Amendment, ap-pellee’s protected privacy interests under that Amendment could not have been infringed upon. This Court need not reach the issue of whether there exists an expectation of privacy in blood possessed by a third party if we find that there has not been a governmental search of or seizure from appellee. See United States v. Att-son, 900 F.2d 1427, 1431 (9th Cir.1990).
The plurality opinion simply goes awry when it protects “privacy interests” even though there has been no governmental action in the initial search or seizure.
As to Judge Campbell's concurrence, I simply remind the Court that in Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987), this Court would not allow the State to raise alternative grounds for upholding the trial court’s ruling regarding a motion to suppress certain evidence when the State had not presented such grounds to the Court of Appeals. Specifically, this Court wrote:
“Our State constitution limits this Court’s discretionary appellate power to review ‘a decision of a Court of Appeals in a criminal case as provided by law.’ Tex.Const. art. Y, § 5; see also Tex. R.App.Proe. 202(a). Our own rules of procedure further limit our review to those particular grounds raised in the petition and granted by this Court. Tex. R.App.Proc. 202(d)(4); see McCambridge v. State, 712 S.W.2d 499 , 500 n. 2 (Tex.Cr.App.1986) (discretionary review strictly limited to ground raised and granted in the petition); Eisenhauer v. State, 678 S.W.2d 947, 956 (Tex.Cr.App.1984) (Clinton, J. dissenting) (‘Our grant of review was no broader than the ground present *58 ed....’) By doing so, we have narrowed our appellate focus to a particular issue, thus avoiding wholesale review of an entire case. See, e.g., McCambridge, supra at 501 n. 1 (issue of voluntariness of consent granted for review). Given these constitutional and procedural restrictions upon our review power, ‘our discretionary review is limited to those points of error decided by the Court of Appeals, included in petitions for [discretionary] review is limited to those points of error decided by the courts of appeals, included in petitions for discretionary review and granted as grounds for review.’ ” Angel v. State, 740 S.W.2d at 729-730 . (opinion per Campbell, J.) (emphasis added; brackets in original).
This Court granted the State’s petition in this case for one reason only — to determine if there was a Fourth Amendment violation. The concurrence apparently finds that there is no such violation. 818 S.W.2d at 54. The Court of Appeals did not address whether the evidence should have been excluded on State grounds and appel-lee did not file a cross-petition asking that this Court make that determination. Consequently, the issues discussed in the concurrence are not before us. According to our own rules of appellate procedure, if there are other reasons why the taking of blood from a third party should be excluded from evidence in this case, then the Court of Appeals should be the first to address that question.
Because of the foregoing, I respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774120. Public record. Not legal advice.