BARLOW v. PEOPLE

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Court of Appeal, Fourth District, Division 1, California.

Brian BARLOW, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent; The PEOPLE, Real Party in Interest.

D005427.

Decided: April 13, 1987

Peter J. Hughes, San Diego, for petitioner. Mark R. Vermeulen and Leonard Graff, San Francisco, as amicus curiae on behalf of petitioner. Thomas F. Homann and Gregory Marshall, San Diego, as amicus curiae on behalf of petitioner. No appearance for respondent. Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman, Thomas F. McArdle and Sally J. Penso, Deputy Dist. Attys. for real party in interest.

These writ of mandate proceedings concern the testing by the People for AIDS 1 antibodies in the blood of a defendant charged with biting police officers and resisting arrest.   The People asked for and the municipal court issued a search warrant authorizing the drawing of the blood.   Later, the People moved for and the municipal court granted an order authorizing the tests to support charges the defendant bit the officers with intent to kill them and to inflict great bodily injury on them.   The superior court denied a writ to vacate the order.   We conclude the warrant issued without probable cause the tests would disclose evidence a crime was committed and grant the writ.

I

Brian Barlow was marching at the head of the San Francisco Gay Freedom Day Marching Band and Twirling Corps in a Gay Pride Parade in San Diego.   He became involved in a scuffle with police monitoring the event.   During the struggle, he bit one of the officers on the right shoulder puncturing the skin and leaving a drop of blood.   Barlow bit another officer on the right knuckle breaking the skin and drawing blood.

Barlow was arrested.   To treat his injuries sustained in the struggle, he was taken to the hospital.2  There, before any Miranda warnings had been given,3 an officer, concerned for his colleagues' well-being, asked Barlow if he was a homosexual and if he had AIDS.   Barlow replied that he was a homosexual and “You better take it that I do have AIDS for the officers' sake.”   Responsive to that statement, Barlow was taken to the central police station where, without a warrant and over his objection, blood samples for AIDS analysis were taken.

Barlow was charged with two counts of battery against a police officer (Pen.Code, § 243, subd. (c)) and one count of resisting arrest (Pen.Code, § 148).   At arraignment, the People sought and the municipal court issued a search warrant authorizing the taking but not the testing of a blood sample from Barlow.   The People then moved to test the warrant-approved blood sample for AIDS antibodies and to release the results to the prosecution, the victims and their physicians.   The court ordered the test but limited disclosure of the results to Barlow and counsel.

Barlow petitioned the superior court to set aside the lower court's decision.   Following denial, Barlow petitioned for mandate here.   We issued an alternative writ and after briefing and argument we grant the peremptory writ.

II

The affidavit to support issuance of the warrant states in pertinent part:

“At the hospital, BARLO [sic] was asked by Agent Arthur if he was a homosexual and if he had A.I.D.S.   BARLO [sic] told the officer that he was a homosexual and said, ‘You better take it that I've got A.I.D.S. for the officers' sake.’   Based on that statement by BARLO [sic], he was taken to the Central Station of the San Diego Police Department and a blood sample was drawn for later analysis for A.I.D.S.

“․

“The physical evidence requested by this search warrant is necessary to the prosecution of this case.   Coupled with the statements of BARLO [sic], the evidence could be used to show an intent to kill (those bitten) on the part of BARLO [sic] by passing the A.I.D.S. virus through the bite wound.   Also coupled with the statements, the evidence could be used to show an intent to inflict great bodily injury.   Thus, it is imperative that the People have this evidence and its analysis in order to charge the case at a proper level.

“I have probable cause to believe that BRIAN BARLO [sic] has A.I.D.S.   BARLO [sic] told Agent Arthur, ‘You better take it that I've got A.I.D.S.’   BARLO [sic] also admitted that he was a homosexual.   He was marching at the head of the San Francisco Gay Freedom Day Marching Band and Twirling Corps.   He lists a San Francisco address.   The totality of the circumstances surrounding BARLO [sic] and the incident justify the probable cause behind this belief.”

The affidavit then recites Health and Safety Code 4 section 199.20 and following sections which prohibit disclosure of results of blood tests to detect AIDS antibodies.   The affidavit recites that due process requires disclosure of Barlow's tests despite this disclosure prohibition.   Absent the tests, the affidavit says Barlow would escape a “prosecution at a proper level” and the victims of the bites would be denied “the information necessary for their physical and mental well-being.”

Barlow challenges the warrant, contending the Miranda violation requires excision from the affidavit on which the warrant issued of his statement the bitten officers should assume he has AIDS;  absent that statement, he says the affidavit is insufficient.

Barlow was in custody when questioned by the officer at the hospital concerning homosexuality and AIDS.   The People concede the officer did not give the Miranda warning contending the “public safety exception” validates the question and authorizes use of the statement under New York v. Quarles (1984) 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 and People v. Cole (1985) 165 Cal.App.3d 41, 52, 211 Cal.Rptr. 242.   In Quarles, officers captured and handcuffed a suspected rapist wearing an empty shoulder holster.   Responding to a question on the whereabouts of the gun, the suspect nodded towards some empty boxes and responded “the gun is over there.”   The Supreme Court held the need for answers to questions in situations posing a threat to the public safety outweighs the Fifth Amendment privilege against self-incrimination (New York v. Quarles, supra, 467 U.S. at pp. 656–657, 104 S.Ct. at pp. 2631–32).   In Cole, a kidnapper said to be armed with a knife was caught, laid prone, searched and responding to a question, told an officer he had “gotten rid” of the knife.   The question was proper and the statement was admissible as the circumstances presented “a genuine danger to the public safety.”  (People v. Cole, supra, 165 Cal.App.3d at p. 52, 211 Cal.Rptr. 242.)

We need not now determine whether a person suspected of harboring the AIDS virus who bites another poses such a threat to the public safety that his or her un-Mirandized statement may be considered in the issuance of a search warrant.   As we shall explain, with or without Barlow's statement, the warrant was issued without probable cause.

III

Tracking the Fourth Amendment to the United States Constitution, article I, section 13 of the California Constitution provides “a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”   (See Pen.Code, § 1525.)   The test of probable cause is whether “the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused.”  (People v. Stout (1967) 66 Cal.2d 184, 193, 57 Cal.Rptr. 152, 424 P.2d 704;  Theodor v. Superior Court (1972) 8 Cal.3d 77, 96, 104 Cal.Rptr. 226, 501 P.2d 234.)   In People v. Scott (1978) 21 Cal.3d 284, 145 Cal.Rptr. 876, 578 P.2d 123, the defendant charged with molesting his daughter said to have contracted a vaginal infection from him claimed a court ordered prostrate massage to determine presence of the infection in his semen violated his constitutional right to be protected from unreasonable searches.   Concluding the requirements for such a court ordered test equivalent to search warrant issuance standards, the court held “where a warrant authorizing a bodily intrusion is sought, the issuing authority after finding probable cause to believe the intrusion will reveal evidence of crime” (id. at p. 293, 145 Cal.Rptr. 876, 578 P.2d 123, italics added) must apply a balancing test to determine whether the character of the requested search is appropriate.   Here, the drawing of Barlow's blood authorized by the warrant is an intrusion into his body (Schmerber v. California (1966) 384 U.S. 757, 769–771, 86 S.Ct. 1826, 1835–1836, 16 L.Ed.2d 908) and the order approving the test is a consequence of the warrant's issuance.   As we conclude the warrant issued without probable cause that the drawing and testing of Barlow's blood will reveal evidence of crime, we do not reach Scott's balancing test.

IV

The search warrant affidavit avers the test results “could be used to show an intent to kill (those bitten) ․ by passing the A.I.D.S. virus through the bite wound.”   Coupled with Barlow's statement, the test results “could be used to show an intent to inflict great bodily injury.”   The affidavit goes on to say this evidence is needed “in order to charge the case at a proper level.”

The People ask for tests to prove Barlow intended to kill the officers when he bit them;  one on the shoulder, the other on the knuckle.  Penal Code section 20 provides in every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.

This intent to kill and the physical act of biting the officers must concur.   The biting must have been motivated by the intent.  (People v. Green (1980) 27 Cal.3d 1, 54, 164 Cal.Rptr. 1, 609 P.2d 468.)   The affidavit does not recite a killing or the infliction of great bodily injury.   The People do not contend the officers were killed by the bites or suffered great bodily injury.   The affidavit simply states the test results are “necessary to the prosecution of the case” and to charge the case “at a proper level.”

 The affidavit does not allege the commission of the crimes for which the results of the tests are sought.   At most, the affidavit depicts officer efforts to subdue and arrest Barlow, his resistance to those efforts and the bitten shoulder and knuckle.   The affidavit does not support a finding of probable cause to believe the taking of the blood and the test results will reveal evidence of an element of the asserted crime, i.e., Barlow's intent to kill the officers or to inflict great bodily injury upon them in the course of the assault.   The biting occurred June 7, 1986.   Pursuant to the warrant, blood was drawn from Barlow on July 11, 1986, some five weeks later.   It is Barlow's knowledge on June 7, 1986, that is relevant to his intent.   A test of his blood months after the event is clearly not evidence of his knowledge on June 7 and is thus irrelevant.

The conclusion is inescapable.   The sought-for test results will not disclose evidence of a crime alleged to have been committed by Barlow or of an intent by Barlow to commit a crime.5  Arguably, the tests may show the presence of AIDS antibodies in his blood at the time the blood was drawn.   That fact is irrelevant to the biting and the resistance to the arrest.   The affidavit does not support a finding of probable cause of the commission by Barlow of the crimes sought to be charged by the People, i.e., murder and assault with intention to commit great bodily harm.   This conclusion, of course, does not bar the People from charging and trying to prove the commission by Barlow of these offenses.

Here, blood was drawn from the victims at the time of the incident and presumably tested.   While the record is not conclusive, we infer the victims' blood was drawn before they knew about Barlow's un-Mirandized statement expressing concern for their well-being.   The record includes expert medical testimony to the effect periodic testing during the months following a possible infection monitors the appearance of the antibodies.   Experts say the absence of AIDS antibodies in the blood nine months after the date of possible contagion demonstrates the virus was not transmitted.   The People may charge murder or its attempt and infliction of great bodily harm without reference to Barlow, his blood and results of tests of that blood.   In People v. Johnson (1986) 181 Cal.App.3d 1137, 225 Cal.Rptr. 251, the court held that a finding of great bodily injury may be based on the transmission of the herpes simplex II virus.   However, the victim in Johnson actually contracted herpes, the symptoms manifesting themselves in five days after the rape.   Proof of the charges or failure of proof are evidentiary concerns should the People proceed.

V

 Additionally, the search warrant was invalid because the taking of the blood could not disclose evidence of crime as disclosure of results of tests of blood for AIDS antibodies is flatly prohibited by law.

Chapter 1.11 of the Health and Safety Code became effective on April 4, 1985.   Section 199.22 provides:

“No person shall test a person's blood for evidence of antibodies to the probable causative agent of AIDS without the written consent of the subject of the test, and the person giving the test shall have a written statement signed by the subject confirming that he or she obtained the consent from the subject.” 6

The written consent and the confirmatory statement do not constitute a consent to disclosure of the results.

“To protect the privacy of individuals who are the subject of blood testing for antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS) the following shall apply:

“․ [N]o person shall be compelled in any state, county, city, or other local civil, criminal, administrative, legislative, or other proceedings to identify or provide identifying characteristics which would identify any individual who is the subject of a blood test to detect antibodies to the probable causative agent of AIDS.”  (§ 199.20.)

Absent a written authorization, the negligent disclosure in a manner which identifies the tested person carries not more than a $1,000 civil penalty, the wilfull disclosure incurs a penalty between $1,000 and $5,000 and the wilfull or negligent disclosure resulting in economic, bodily or psychological harm to the tested person is a misdemeanor punishable by one year or a $10,000 fine or both.  (§ 199.21, subds. (a), (b), & (c).)

These provisions, in their entirety, prohibit the testing of Barlow's blood without his written consent;  in the event his blood is tested, no person may be compelled to identify him;  the negligent or wilfull disclosure of Barlow's identity which results in economic, bodily or psychological harm to him is a misdemeanor;  thus, to compel disclosure violates the law and deliberate, i.e., wilfull, disclosure is a crime.   It necessarily follows the warrant issued without probable cause as the test results, the reason for the taking of the blood, are not disclosable without Barlow's written consent and authorization.

Responding, the People point to the Acquired Immune Deficiency Syndrome Research Confidentiality Act added by Statutes 1985, chapter 1519, section 1, page 612, concerning confidentiality of records maintained in AIDS research.   The People contend section 199.33 authorizing disclosure of such research records to medical personnel to meet a bona fide medical emergency of a research subject or to a state agency investigating AIDS morbidity and mortality authorizes issuance of the warrant.   To state the proposition is to answer it.   This is not that case.   The People do not seek research records for section 199.33 purposes.

Undaunted, the People cite section 199.35 7 as authorizing the test because issuance of the warrant constitutes a court finding the test will disclose evidence of substantial value in connection with a criminal charge and there is no practical way of obtaining the evidence.

Again, the proposition answers itself.   Barlow is not a research subject.   He is a defendant charged with assault on police officers and resisting arrest.   The warrant does not seek a confidential research record.   The test results flowing from the warrant may constitute a record but not a confidential research record defined as any data leading to the identification of a person subject to AIDS research which is acquired by a person conducting AIDS research.  (See § 199.40.)   Finally, evidence of transmission of the virus, if transmitted at all, will be found in the blood of the victims.   A practical way to obtain that evidence is to secure the consent of the officers to a test of their blood.

The People then suggest the Legislature did not intend to shield those who harbor the AIDS virus from criminal liability for intentionally exposing another to the virus for the purpose of infliction of great bodily harm or to cause such person to die of a disease made rampant by suppression of the bodily immune system.   To do this, the People ask we read into the statutes an exception to safeguard public health and safety.   While we have difficulty perceiving episodes such as this as constituting a threat to public health and safety, the comprehensive statutory scheme 8 set out in the Health and Safety Code adopted in recent years by the Legislature to deal with AIDS does not include provisions characterizing AIDS victims as threats to the public health and safety.   While some cultures require a leper to ring a bell to warn the passerby, our Legislature has not so stigmatized the victims of AIDS.   Our skies are not black with smoke from cities burned to prevent the spread of plague.

Let a peremptory writ issue directing the superior court to vacate its order granting the testing of petitioner's blood for AIDS antibodies and to enter a new and different order denying same.   Barlow's blood sample is to be returned to him.   The alternative writ is discharged.

FOOTNOTES

1.   The acquired immune deficiency syndrome (AIDS) caused by the virus human T-cell lymphotropic virus, type III (HTLV–3).  (Health and Saf.Code, § 199.46, subd. (a).)

2.   The officers were treated at another hospital and blood samples taken from them for AIDS analysis.   The results, if any, of that analysis do not appear in the record.

3.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

FN4. All statutory references are to the Health and Safety Code unless otherwise specified..  FN4. All statutory references are to the Health and Safety Code unless otherwise specified.

5.   The People suggest that since Barlow is a member of a San Francisco homosexual marching band there is a 50 percent likelihood he is infected with AIDS.   Section 3353 states that any person with a “contagious, infectious, or communicable disease who wilfully exposes himself” is guilty of a misdemeanor.   Thus, say the People, “petitioner's blood, without reference to the victims' blood results, could provide evidence of a crime.”   However, AIDS is not on the list of diseases proscribed by this statute.  (See § 3123, original italics and 17 Cal.Admin.Code, §§ 2550–2602.)

6.   The statute goes on to set out exceptions.   No written consent is needed where testing is done at an alternative site as established under section 1631.   These are sites set up to provide free AIDS antibody testing for whomever requests it and consent to test the blood presumably is implied from the person's request for the test.   The second exception concerns section 1603.1, subdivision (a)(2) exempting inventories of blood and blood components collected before June 3, 1985, from AIDS testing before use in transfusions.   Neither exception applies here.

7.   Section 199.35 provides:“(a) No confidential research record may be compelled to be produced in any state, county, city or other proceeding in order to initiate or substantiate any criminal charge or charges against a research subject, or to conduct an investigation of a research subject, unless a court finds there is reasonable likelihood that the records in question will disclose material information or evidence of substantial value in connection with the criminal charge or charges or investigation, and there is no other practicable way of obtaining the information or evidence.“In addition, no confidential research record shall be disclosed, discoverable, or compelled to be produced in order to initiate or substantiate any criminal charge or charges against a research subject until after a showing of good cause.   In assessing good cause, the court shall weigh the public interest and need for disclosure against the injury to the research subject and the harm to the research being undertaken.   Upon the granting of an order to produce, the court, in determining the extent to which disclosure of all or any part of a confidential research record is necessary, shall impose appropriate safeguards against unauthorized disclosure, which shall include, but not necessarily be limited to, the individuals or bodies which may have access to the data, the purposes for which the date shall be used, prohibitions on further disclosure and protection of the identities of other research subjects.“(b) No confidential research record may be compelled to be produced in any state, county, city or other civil proceeding, except as expressly provided in this chapter.”

8.   Sections 199.20–199.60, chapter 1.11, Mandated Blood Testing and Confidentiality to Protect Public Health, added by Statutes 1985, chapter 22, section 1, page 24, urgency bill effective April 4, 1985;  chapter 1.12, Acquired Immune Deficiency Syndrome Research Confidentiality Act, added by Statutes 1985;  chapter 1519, section 1, page 612;  chapter 1.13, Acquired Immune Deficiency Syndrome Public Health Records Confidentiality Act, added by Statutes 1986, chapter 1216, section 2;  chapter 1.14, Acquired Immune Deficiency Syndrome (AIDS):  Immunization, added by Statutes 1986, chapter 1463, section 1, urgency bill effective September 30, 1986;  chapter 1.15, Acquired Immune Deficiency Syndrome (AIDS) Vaccine Research and Development Grant Program, added by Statutes 1986, chapter 1462, section 1.

BUTLER, Associate Justice.

LEWIS, J., concurs. WIENER, Acting P.J., concurs in the result.