Dealing with patients who were involved in a crime.

[Aidey]

I do know that anything in the PCR can be used against the person. We aren't LEO, and we aren't questioning them attempting to obtain information to use against them. The whole miranda rights thing doesn't apply to us. The information we are trying to obtain is relevant to their health. It just happens that sometimes those things over lap, and people also make incidental statements.

I've had PCRs subpoenaed before on "fishing expeditions" where there was nothing relevant in the PCR, but they wanted to look through it anyway. I've also had pCRs subpoenaed to back up or refute statements made later, such as how much alcohol had been consumed.

 

[FLEMTP]

I'm sorry, that doesn't work for me. LEOs, please correct me if I am wrong, but while that statement is true, is only applies only after the subject has been advised of their rights, or the cliche "Miranda Rights", and even then, only when the subject is detained, or is not free to leave on their own. Assuming they are A&O, they can leave our care... by signing a refusal... so the Miranda laws don't apply...

You're right.. they dont.. but as I said.. nothing stops the State Attorney from issuing a subpoena for our PCR.. and its ALL in there.. in black and white.

 

[FLEMTP]

So, basically, it's an end run around the law more than anything else. If they lack probable cause to detain and transport, then there's an interesting 4th amendment issue. I find it surprising that the legalities of forcing an invasive procedure (ok... it's a blood draw... but blood is not in plain sight. This is a search and seizure) have less restrictions than conducting a vehicle search.

Not really.. driving is a privilege not a right.. and when you sign your license/license application... you are acknowledging that by accepting your license you are consenting to blood or breath alcohol screening as a condition of being issued a license... so you already gave your consent to the blood draw... so there is no 4th amendment issue there..

Its no different if you give consent to let a LEO search your vehicle. You gave consent so there is no violation of your 4th amendment right.. and its the same either way if the LEO has probable cause or not. If you give consent, probable cause goes out the window. As a LEO I can ask you to consent to a search of your person or vehicle or home or whatever at any point in time. With that said, you can tell me to go pound sand. If I dont have probable cause after you tell me no, and I search anyway.. THEN i've violated your 4th amendment rights.

There are many times I might have probable cause to do a search.. but its so much easier from a legal standpoint to simply obtain consent.. written consent.. and yes, there are LEO's that will get a written consent form to CYA.

 

[JPINFV]

Ah, but you can't make consenting to a search of your vehicle a requirment of licensure.

 

[firetender]

Your patient the passenger in the at-fault car. You are transporting them before the police have been able to take a statement. Do you take that into consideration when dealing with the patient? For example, not letting them use their cell phone, or talk to other people on scene. Do you document any differently?

If you suspect that the patient you carry was involved in a criminal act -- whether of him/herself or by association -- then I'd suggest really making sure you document everything that was said and done. EVERYTHING. The fact that you're a medic does not make you immune from being called to the stand, whether it be for the prosecution or defense, or for the perpetrator or victim, or for a civil or criminal case.

Basically, you're not on the scene to judge, you're there to act as advocate for the patient, regardless. Part of your job includes documentation, and in suspect cases, the more thorough you are the better it is for everyone involved.

You cannot prevent patients from doing anything (like cell phone use) but for that I say why put yourself in the position of hearing them indict themselves? I'd ask them not to use it in the ambulance because if they do, you'll have to document. That's the truth, isn't it?

 

[FLEMTP]

Ah, but you can't make consenting to a search of your vehicle a requirment of licensure.

No, you're right.. you can't, because a vehicle is a private conveyance and subject to the same need for probable cause that you would need to search a house for example.

I was using a vehicle as an example for comparison. Some people wouldnt be able to understand the concept of consent in searches and seizure especially when it relates to things like blood and breath samples in relation to someone's driving privilege

 

[EMSLaw]

No, you're right.. you can't, because a vehicle is a private conveyance and subject to the same need for probable cause that you would need to search a house for example.

I was using a vehicle as an example for comparison. Some people wouldnt be able to understand the concept of consent in searches and seizure especially when it relates to things like blood and breath samples in relation to someone's driving privilege

It's a bit more nuanced than that. Automobiles are a special case. Under the automobile exception, in many states and the Federal system, if the police have probable cause to believe that there is contraband in the vehicle, they may search the vehicle without the need to obtain a warrant. You have a reduced expectation of privacy in your motor vehicle as compared to your home. The police cannot search your home without a warrant unless they fall within one of the several recognized exceptions to the warrant requirement.

Also, if the police arrest you in a motor vehicle, the vehicle will be subject to search incident to the lawful arrest. While New Jersey has limited this particular bit of search incident to arrest, other states and the Federal system have not, and will allow a search of the entire passenger compartment as "within reach" at the time of the driver or passenger's arrest.

Sorry, where were we going with this?

 

[EMSLaw]

I do know that anything in the PCR can be used against the person. We aren't LEO, and we aren't questioning them attempting to obtain information to use against them. The whole miranda rights thing doesn't apply to us. The information we are trying to obtain is relevant to their health. It just happens that sometimes those things over lap, and people also make incidental statements.

I've had PCRs subpoenaed before on "fishing expeditions" where there was nothing relevant in the PCR, but they wanted to look through it anyway. I've also had pCRs subpoenaed to back up or refute statements made later, such as how much alcohol had been consumed.

That's correct. Unless you are acting as an agent of the police, Miranda would not apply. Also, Miranda only applies to custodial interrogations, so unless you happen to be one of the few police-based EMS systems out there, there are probably no issues.

Anyway, as a health-care provider, and not an LEO, I would say get the information you need. The only "sanction" for violating Miranda is the suppression of the statements (and any evidence that might be gained as a result) when and if the case comes to trial. It's not something I'd be worried about.

 

[JPINFV]

Sorry, where were we going with this?

Whether 4th amendment prohibition of unreasonable search and seizure applies to blood and if 4th amendment protection can be required to be waived as a condition of a driver license.

 

[JPINFV]

While New Jersey has limited this particular bit of search incident to arrest, other states and the Federal system have not, and will allow a search of the entire passenger compartment as "within reach" at the time of the driver or passenger's arrest.

A terry search of a vehicle is a little bit more than "well he's been arrested" and would be hard to justify on the grounds of an arrest if it was arrest and released on scene. Of course if a suspect is arrested and released, then there's always an inventory search anyways.

 

[EMSLaw]

A terry search of a vehicle is a little bit more than "well he's been arrested" and would be hard to justify on the grounds of an arrest if it was arrest and released on scene. Of course if a suspect is arrested and released, then there's always an inventory search anyways.

They're two different things. The police are entitled to search the person of anyone who has been lawfully arrested, as established in Chimel v. California. This was extended to motor vehicles (by the Supreme Court - it was in many places before that) in Arizona v. Gant in 2009.

In a Terry stop (from Terry v. Ohio), or a stop and frisk, the subject is NOT under arrest. A Terry stop is based on reasonable suspicion that the subject may be armed, and is therefore a danger to officer safety. Contraband identifiable by plain feel (or plain sight) during the Terry stop may be seized, but it is much more limited than a search incident to lawful arrest or any other type of true "search" based on probable cause.

 

[JPINFV]

Learn something new every day. Although, to clarify, doesn't a person have to be a suspect in a crime to fall under Terry? For example, if open carry is legal than the presence of a firearm isn't justification in itself (since no crime is being committed) for a Terry search?

 

[EMSLaw]

Learn something new every day. Although, to clarify, doesn't a person have to be a suspect in a crime to fall under Terry? For example, if open carry is legal than the presence of a firearm isn't justification in itself (since no crime is being committed) for a Terry search?

The officer has to have a reasonable and articulable suspicion that the subject has committed, is committing, or is about to commit a crime. What does that mean? Well, it's less than probable cause, but more than a hunch. So, if you're peering into cars on a dark street at 2 am (which were the facts of Terry, as I recall), the police are reasonable in believing that you are up to something.

If open carry is legal, the mere fact that the police see you carrying a weapon would not justify a Terry stop. It's depends on the totality of the circumstances. However, if the police had reasonable suspicion, they would likely also be reasonable in confiscating the weapon, at least until their detention of the subject was concluded.

 

[EMSLaw]

Whether 4th amendment prohibition of unreasonable search and seizure applies to blood and if 4th amendment protection can be required to be waived as a condition of a driver license.

Not an easy question, and it will depend on state law. Generally, the police will be able to take and use a blood sample. Some courts justify it as a search incident to arrest, under a 1966 Supreme Court case called Schmerber v. California. Others base the decision on state implied consent laws (for DUI convictions) with variations on whether the sample can be taken over the suspect's objections. Some courts have based their decisions on exigent circumstances, because the BAC can change in the time it takes to obtain a warrant, and a sample has to be drawn before the "evidence" leaves the body.