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People v. Williams12/13/1976
ody orifices, the Ninth Circuit, in border search cases has had occasion to interpret the "clear indication" standard. To justify a warrantless intrusion into the body incident to a border search, there must be a clear indication that the intrusion will produce evidence. In Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), the court, citing Schmerber, said:
"An honest 'plain indication' that a search involving an intrusion beyond the body's surface is justified cannot rest on the mere chance that desired evidence may be obtained. Thus we need not hold the search of any body cavity is justified merely because it is a border search, and nothing more. There must exist facts creating a clear indication, or plain suggestion, of the smuggling. Nor need those facts reach the dignity of nor be the equivalent of 'probable cause' necessary for an arrest and search at a place other than a border.
". . . The uncertainty of what constitutes a 'clear indication' over and beyond a 'mere suspicion' is difficult, but not impossible to resolve." 368 F.2d at 710.
In Rivas, a previously convicted, registered user of narcotics, with "glary" eyes indicating the influence of narcotics, crossed the border. He was extremely nervous and had numerous recent needle marks on his arms. This evidence, in light of the well known practice of smuggling narcotics in the rectum, was held sufficient to constitute a "clear indication" that narcotics would be found in a physician's search of his rectum.
In the present case, the evidence of the defendant's drinking on the day of the shooting could support no more than a mere suspicion that she might have been intoxicated several hours later when the blood and urine tests were ordered. There was no proof that her beverage was alcoholic, how much she drank, or how long before the shooting she drank. The slight liquor smell on her breath may have indicated that alcohol had been consumed, but, by itself, did not clearly indicate intoxication. To
justify an internal search without consent or a warrant, there must be a "clear indication" that the defendant was intoxicated. But here there was mere suspicion uncorroborated by any of the familiar signs of intoxication.
In Schmerber, supra, the court described the evidence which gave rise to the "clear indication" of intoxication there:
"The police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath, and testified that petitioner's eyes were 'bloodshot, watery, sort of a glassy appearance.' The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness." 384 U.S. at 768, 769, 86 S.Ct. at 1834, 1835, 16 L.Ed.2d at 918, 919.
No such signs of this defendant's being drunk were observed either in her home or, later, at the hospital. Therefore, we hold that the searches which obtained blood and urine samples against her will were conducted without any clear indication that these fluids would produce evidence of intoxication or drug use, thus violating her rights under the Fourth Amendment and Article II, § 7 of the Colorado Constitution. The blood and urine test evidence was properly suppressed.
We affirm the trial court's rulings on the Motion to Suppress Evidence and remand the case to the trial court for further proceedings not inconsistent with this opinion.
Disposition
Rulings Affirmed.
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