State v. Wooten

196 S.E.2d 603 (1973) 18 N.C. App. 269

STATE of North Carolina
v.
Lois Jean WOOTEN.

No. 738SC62.

Court of Appeals of North Carolina.

May 23, 1973. Certiorari Denied and July 12, 1973.

Atty. Gen. Robert Morgan by William F. O'Connell, Asst. Atty. Gen., for the State.

George F. Taylor, Goldsboro, for defendant appellant.

Certiorari Denied and Appeal Dismissed July 12, 1973.

BRITT, Judge.

Defendant assigns as error the admission of testimony by the nurse and treating physician, particularly their testimony with respect to the matchbox and its contents. She contends that the evidence was inadmissible (1) by virtue of G.S. § 8-53 and (2) for the reason that it resulted from an illegal search and seizure.

We consider first the evidence provided by the treating physician in the light of G.S. § 8-53 which provides:

"No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the court, either at the trial or prior thereto, may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice."

The trial court ruled that "in the interest of justice that Doctor Nation be required to answer" the questions with regard to defendant whom he saw and treated on 28 October 1971 in the emergency room of the Wayne Memorial Hospital. We hold that the ruling of the trial court substantially complies with the proviso of the statute, rendering the evidence provided by the physician admissible as far as G.S. § 8-53 is concerned.

As to the evidence provided by the nurse, it has been held that G.S. § 8-53 applies to nurses when they are assisting or acting under the direction of a physician or surgeon, if the physician or surgeon at the time is subject to the statute. Sims v. Insurance Company, 257 N.C. 32, 125 S.E.2d 326 (1962); State v. Bryant, 5 N.C.App. 21, 167 S.E.2d 841 (1969). The record reveals no finding by the trial court that the evidence provided by the nurse was necessary to a proper administration of justice. Assuming, arguendo, that the court erred in admitting the nurse's evidence without the finding set out in the proviso to the statute, we hold that the error was not prejudicial since the physician provided substantially the same evidence.

Next, we consider the question whether the evidence provided by the treating physician and the nurse resulted from an illegal search and seizure and was, therefore, inadmissible.

It is well settled, in both state and federal courts, that evidence obtained by unreasonable search and seizure is inadmissible. State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970). But, what is a search that comes within this principle of law? In State v. Reams, supra, the court, quoting from C.J.S. said:

"The term ``search', as applied to searches and seizures, is an examination of a man's house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he is charged. As used in this connection the term implies some exploratory investigation, or an invasion, and quest, a looking for or seeking out. * * *"

In Duffield v. Peyton, 209 Va. 178, 162 S.E.2d 915, the Supreme Court of Appeals of Virginia said: "``* * * A search ordinarily implies, a quest by an officer of the law, a prying into hidden places for that which is concealed.' State v. Coolidge, 106 N.H. 186, 191, 208 A.2d 322, 326." In State v. Colson, 274 N.C. 295, 306, 163 S.E.2d 376, 384 (1968), the court said: "Evidence is not rendered incompetent under [G.S. § 15-27] unless it was obtained (1) in the course of a search, (2) under conditions requiring a search warrant, and (3) without a legal search warrant."

We hold that in the case at bar there was no "search" of defendant within the purview of G.S. § 15-27 and Constitutional provisions forbidding unreasonable searches. Defendant was not undressed by, or at the direction of, a police officer. The purpose in undressing defendant was not to discover contraband or other illicit property or to obtain evidence to be used against her in the prosecution of a criminal action. On the contrary, she was undressed in order that a physician might determine the cause of her unconsciousness and after determining the cause, administer treatment that would save her life. Finding heroin on her person was incidental to the examination.

We have carefully considered all assignments of error brought forward and argued in defendant's brief but finding them without merit, they are all overruled.

No error.

MORRIS and PARKER, JJ., concur.