TX11: No SW needed to search vomit after consensual drug overdose treatment

During a traffic stop, defendant had a lump in his cheek and he was acting suspicious. The officer asked him what was in his mouth, and he said he had an abscess. He tried to show the officer, but the officer could see a plastic baggie in his mouth. When the officer asked him to produce it, he swallowed it. In custody, he started showing symptoms of an overdose (“Sergeant Tullos observed that Appellant had ‘bec[o]me extremely ashy, sweating profusely, … began to tremble, and his eyes appeared fearful.’ His heart rate fluctuated between 150 to 160 beats per minute.”), and he asked for treatment. Police took him to the hospital, and he was given charcoal to vomit. He puked several times into buckets, and a nurse took it to a separate room to find the cause. Because defendant consented to the medical procedures, his argument a warrant was required was moot. [In addition, exigent circumstances would also apply.] In addition, no warrant was required to search the expelled vomit and fecal matter. Thomas v. State, 2015 Tex. App. LEXIS 12186 (Tex. App. – Eastland Nov. 30, 2015):

Appellant also relies on the court’s decision in Comeaux to support his contention that he had a reasonable expectation of privacy in the expelled fluids. We find that Appellant’s case is distinguishable from the facts in Comeaux. See State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991) (plurality op.). In Comeaux, the Court of Criminal Appeals held that the defendant had a “subjective” expectation of privacy that a blood sample given to physicians after an accident would not be used for a purpose other than that for which it was given. Id. at 51. The Comeaux court noted that, “in this age of blood testing for everything from HIV infection to drug use, that a person does not assume that, by giving a sample of blood for private testing, that blood sample could then be submitted to the State, or to any other person or entity, for a purpose other than that for which it was given.” Id. at 52. But in Appellant’s case, he produced his fluids as a part of an overall treatment regimen to prevent the absorption of cocaine by his body. The fluids were a consequence or by-product of this treatment. Appellant did not entrust his fluids to doctors but, instead, relied on the doctors to medically treat him in a way to rapidly remove the drugs from his body and save his life. Under such circumstances, Appellant did not submit the fluids for an exceedingly narrow purpose as in Comeaux. However, while we hold that, in the specific facts of this case, Appellant did not sufficiently demonstrate a subjective expectation of privacy in his expelled vomit and fecal matter, we do not entirely foreclose the possibility that a future set of facts might support such an expectation. We overrule Appellant’s first issue.