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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
, presenting only a minor bodily intrusion [citation]." (Ibid.) And in People v. Nokes (1986) 183 Cal. App. 3d 468 [228 Cal. Rptr. 119], the court concluded it was unreasonable to permit the
defendants to force a surgical intrusion into the bodies of their children, whom they had allegedly molested, to search for exculpatory evidence.
The final case in the line is People v. Melton (1988) 44 Cal. 3d 713 [244 Cal. Rptr. 867, 750 P.2d 741], cert. den. 488 U.S. 934 [102 L.Ed.2d 346, 109 S.Ct. 329], a capital case, in which the Supreme Court upheld the trial court's refusal to order a witness to submit to chemical drug tests. The defendant in Melton believed a key prosecution witness was testifying under the influence of narcotics. The trial court ordered certain external examinations of the witness to detect recent drug use, but declined to order that the witness submit a sample of blood or urine for chemical testing. After first ruling it was "manifest" that nonparties to criminal proceedings "have equal rights [to a defendant's] against unreasonable bodily searches" (id., at p. 738), the Melton court applied the Scott test and upheld the trial court's decision. The court noted that the "plus" aspect of the Scott test may require only a "very slight" showing once there is probable cause for "only a minimal intrusion, such as a blood test." (Ibid.) The court upheld the order because there was no probable cause that the witness was drug-intoxicated and that evidence of such intoxication would be discovered in his blood.
The "probable cause-plus" test was ultimately adopted by the United States Supreme Court in Winston v. Lee (1985) 470 U.S. 753 [84 L.Ed.2d 662, 105 S.Ct. 1611]. The Winston court read Schmerber to require not only probable cause, but a balancing of the various circumstances of a proposed surgical intrusion to determine whether it is reasonable. "The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure." (Winston, supra, at p. 760 [84 L.Ed.2d at p. 669].) The factors to be weighed include the severity of the intrusion, the extent to which it endangers life or health, and the benefit to be gleaned from the evidence to be discovered. (Id., at pp. 761-763 [84 L.Ed.2d at pp. 669-671].)
Petitioner essentially contends Melton and its predecessors apply to the exclusion of Skinner, because Melton is supposedly based on the state as well as the federal Constitution. She argues there is no indication Scott and Melton were based solely on federal constitutional law, and points to a passage of Melton which observes, by way of preamble to the Fourth Amendment discussion, " umerous cases have recognized a person's right, under due process and search and seizure protections provided by both state and federal Constitutions, to be free from unwarranted bodily intrusions by agents of government. [Citations.]" (People v. Melton, supra, 44 Cal. 3d at p. 737, italics added.)
Petitioner's reliance on the Scott-Melton line is understandable. Real party conceded below it had no probable cause that petitioner was infected with HIV. Thus, there is no probable cause that the evidence sought by real party would be found, i.e., that a test of petitioner's blood would reveal HIV antibodies. Under Scott-Melton, Proposition 96's blood testing scheme would be unconstitutional absent probable cause that the assailant was HIV-infected, and absent passage of the additional balancing test.
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