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People v. Kokesh6/21/1971
ce. Although Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), would have permitted the forceful taking of a blood sample to prevent the loss of evidence of intoxication, the police could not obtain blood from a person under investigation by misstating the purpose for which the blood sample was taken. Graves v. Beto, 424 F.2d 524 (5th Cir. 1970). See also, Goodman v. United States, 285 F.Supp. 245 (D.C. Cal. 1968), where corporate books and records obtained by fraud and deception were suppressed.
To permit the police to utilize a treating doctor and a nurse as disguised agents of the police is to permit a fraud. The defendant's doctor and his nurse were agents of the police and obtained the urine sample under the guise of assisting in diagnosis and treatment.
For the reasons stated, I would suppress the sample and all tests made from the sample.
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