Marmolejo v. State , 1987 Tex. App. LEXIS 8327 ( 1987 )

743 S.W.2d 669 (1987)

Manuel Sotelo MARMOLEJO, Appellant,
v.
The STATE of Texas, Appellee.

No. 08-86-00285-CR.

Court of Appeals of Texas, El Paso.

September 16, 1987.

Tony Chavez, Robert V. Garcia, Jr., Chavez & Garcia, Odessa, for appellant.

Al W. Schorre, Jr., Dist. Atty., Randall Fluke, Asst. Dist. Atty., Midland, for appellee.

Before OSBORN, C.J., and FULLER and WOODARD, JJ.

OPINION

FULLER, Justice.

Appellant's motion to suppress was overruled and he then entered a nolo contendere plea pursuant to a plea bargain. Appellant received a fifteen-year prison sentence with the understanding and agreement of the State, as well as the trial court, that he retain the right to appeal the contentions raised in his pretrial motion to suppress. We find no error in the trial court's overruling the motion to suppress, and therefore affirm the judgment of conviction.

The sheriff's office of Midland County received an informant's tip that Appellant and his wife were cruising South and East Midland, selling heroin. Fearing that the heroin would be sold before a warrant could be obtained, the officers began cruising the area, searching for Appellant and his wife. The officers spotted Appellant's vehicle, pulled it over, approached on foot and observed Appellant swallowing what appeared to be a yellow balloon. Balloons were observed on the front seat between the Appellant and his wife. Appellant and his wife were arrested and taken to the sheriff's office where an evidentiary warrant was prepared. They were then transported to the hospital where the warrants were shown to the attending physician. Appellant was x-rayed and returned to an examination room where an emetic was administered by means of an esophageal tube. The Appellant refused to cooperate and had to be physically restrained. Appellant, after the admission of the emetic, regurgitated and a balloon was recovered that contained heroin and cocaine.

Appellant filed a motion to suppress which raised the question of probable cause for the issuance of the body search warrant and questioned the warrantless stop and arrest by the officers. On this appeal of the motion to suppress, Appellant has expanded on his written motion to suppress by now questioning the reasonableness of the search warrant and execution thereof, and alleging that the search warrant was too vague and therefore constituted a general warrant. We find however that the expanded matters were covered by Appellant during the hearing on the motion to suppress and therefore should be addressed by this Court.

Specifically, Appellant's Points of Error Nos. One and Two assert that the search warrant and execution were unreasonable and that the search warrant was too vague and therefore amounted to a general warrant.

In Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985), the Court discussing Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), and the Fourth Amendment, wherein it said that the amendment neither forbids nor permits all such intrusions; rather, the amendment's "proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." The Court went on to state the factors that should be considered in determining the reasonableness of a body search and seizure:

1. There must be a probable cause and a search warrant, absent exigent circumstances;

2. The extent to which the procedure may threaten the safety or health of the individual;

3. All reasonable medical precautions were taken and no unusual or untested procedures were employed;

4. The procedure was performed by a physician in a hospital according to accepted medical practices;

5. The search may be unjustifiable if it endangers the life or health of the suspect; and

6. The extent of the intrusion upon the individual's dignitary interests and personal privacy, and bodily integrity.

The case further stated that the above factors should be balanced against the community's interest in fairly and accurately determining guilt or innocence. The Fifth Circuit has held that administering emetics to cause vomiting in order to recover narcotics is not unreasonable search of the person. Lane v. United States, 321 F.2d 573 (5th Cir.1963).

The tubes that were used to administer the emetic were applied only because the Appellant refused to voluntarily swallow the substance. We therefore find that the body search of the Appellant was reasonable under the circumstances.

Appellant's assertion that the search warrant was not specific enough and therefore constituted a general warrant is also without merit. The warrant authorized a search into the body of defendant and also provided that it was to be conducted by and/or at the direction and supervision of a medical doctor licensed to practice medicine in the State of Texas. It further provided that the procedure was to be conducted according to accepted medical procedures. The property to be seized was described in the affidavit as "object or objects" thought to be heroin, placed in Appellant's mouth and swallowed. The warrant tracks the requirements as set forth in Article 18.04, Tex.Code Crim.Pro.Ann. (Vernon 1977), as to the contents of a warrant. Points of Error Nos. One and Two are overruled. We find no error in the trial court's overruling of Appellant's motion to suppress, and therefore affirm the judgment of conviction.