[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 638

The appellant, Winfred Lynn Woods, was convicted of unlawful possession of a controlled substance, a violation of §13A-12-212, Ala. Code 1975. He was sentenced as a habitual felony offender to 15 years in the penitentiary.

Harry McGee, a deputy sheriff in the Lauderdale County Sheriffs Department, testified that at approximately 8:00 p.m. on March 28, 1994, he responded to a police dispatch requesting assistance at the appellant's residence. He was informed by the dispatcher that the appellant was comatose as the result of a possible drug overdose. Officer Lee Short and Investigator Junior Witt arrived at the appellant's house at approximately the same time as McGee. The appellant's girlfriend was also at the scene and his sister arrived soon after. McGee stated that he knew the appellant but McGee was not asked whether the appellant had a reputation for drug use. McGee stated that when he arrived the appellant was lying on the back porch and that the appellant appeared dead. The ambulance arrived and Phillip Richardson, a member of the ambulance crew, worked for 10 or 15 minutes reviving the appellant before taking him to the hospital. In the ambulance Richardson gave the appellant the drug called Narcan, which "totally reverses the effect of [a] narcotic" such as heroin. R. 100. In less than a minute after the drug was administered, the appellant woke up. Initially, the appellant was "combative," according to Richardson, a natural response for someone who regains consciousness while intubated. Upon awaking, the appellant told Richardson that he had not taken any medications; however, he confirmed that he had taken heroin. R. 101.

McGee remained at the appellant's house for a few minutes after the ambulance left. During that time, an anonymous telephone caller informed the appellant's sister that the appellant had taken heroin. She relayed this information to Investigator Witt who apparently relayed it to McGee. R. 44. McGee stated that he did not know if this information was accurate. The ambulance crew was informed of this information. McGee followed the ambulance to the hospital and went into the emergency room with the ambulance crew. Richardson told McGee that the appellant "admitted to him in the ambulance that he had taken heroin." R. 13-14.

The appellant was lying on his back in a bay room in the emergency room but he "had come around somewhat" and was able to respond to the doctors. R. 12, 14. However, McGee also stated that he could not say "that [the appellant] was alert," only that the appellant was conscious. R. 18. When asked why he did not ask the appellant to empty his pockets McGee stated that hospital personnel were "working on him" trying to start an IV, a cardiac monitor, and a blood pressure monitor. R. 16, 26. As hospital personnel began to remove the appellant's clothes, McGee asked Richardson whether Richardson "had searched through the patient's pockets, and [Richardson] said he had not." R. 18. McGee asked the hospital personnel at that time if the belongings in the appellant's pockets had been secured. R. 12. He was informed they had not. McGee stated that there was nothing about the appellant at this time that led him to believe the appellant ought to be placed under arrest and he did not he have any intentions of arresting the appellant. R. 15. However, McGee testified that at this time he "turned [the appellant] up enough where [he] could reach in [the appellant's back] pocket." He removed an envelope while the appellant was being *Page 639 "worked on" by nurses. R. 16, 19. McGee stated that, "the purpose of my searching him was to do an inventory of his belongings and to make sure that there were no weapons of any kind, and to give his personal belongings to his family." R. 16. Asked if it was the hospital's job to inventory the appellant's belongings (given that the appellant was not under arrest, was not suspected of wrongdoing, and was under the hospital's care), McGee answered, "possibly." R. 21, 22.

The envelope removed from the appellant's back pocket had been closed and folded several times, but it was not sealed. McGee testified that there was nothing about the envelope to indicate that it contained drugs but because he felt a bulge inside the envelope he opened it to see what was inside. R. 23. When asked why opening the envelope was part of his "physical inventory," McGee answered, "It just was. I felt that bulge in there, and I opened it to see what it was." R. 23. McGee stated that it was "professional curiosity" that prompted him to open the envelope. R. 23. McGee had not been told that the appellant was in possession of heroin. The appellant's sister and his girlfriend, with whom he lived, were at the emergency room and could have received the contents of his pockets from hospital personnel. An officer did turn over the contents of the appellant's pockets, except for the envelope, to the appellant's girlfriend while she was at the emergency room. The hospital allowed the appellant to go home approximately eight hours later, at about 4:30 a.m.

The trial court denied the appellant's motion to suppress. The evidence presented at trial was not significantly different from that presented at the hearing on the motion to suppress. The heroin was admitted into evidence at trial over the appellant's objection. R. 115-16.

The hospital policy concerning inventorying patients belongings is not contained in the record. However, we do not see how the police acquired responsibility for the appellant's belongings. In South Dakota v. Opperman, 428 U.S. 364,96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court allowed such inventory searches where intended to (1) protect the owner's property while it was in police custody, (2) protect the police against claims or disputes over lost or stolen property, and (3) protect the police from potential danger. At the time of the alleged inventory the appellant was not in police custody. He was a patient in the hospital emergency room. Under the circumstances, we do not see on whose authority or for whose benefit McGee inventoried the contents of the appellant's pockets. The warrantless search of the appellant's pockets was not a valid inventory search.¹ Additionally McGee stated that his professional curiosity prompted his opening the envelope — an inventory of the appellant's pockets.

Also, at the time of the search the appellant's identity was known, he was accompanied by family, he was being cared for by emergency room personnel, and there was no suggestion that he was dangerous or armed; this is not an "instance in which the nature of a police officer's duty require[d] that he engage in [a] search for reasons other than obtaining evidence of criminal activity." Wagner v. Hedrick, 181 W. Va. 482,383 S.E.2d 286 (1989) (evidence of crime discovered during officer's good faith search of accident victim's pants for victim's identification was admissible).² Therefore, the warrantless search of the appellant must be justified *Page 640 under some exception to the warrant requirement.

"Warrantless searches and seizures are 'per se unreasonable.' . . . To validate the seizure of one's person or property by such means, the search and seizure must fall within one of the well-recognized exceptions, which are: (1) plain view; (2) voluntary, intelligent, and knowing consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency situations; (5) exigent circumstances coupled with probable cause; and (6) stop and frisk situations."

"Whether there is probable cause of merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). 'Probable cause exists where all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.' Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App. 1991)."

Exigent circumstances also existed; "[e]xigent circumstances exist whenever an object to be searched is mobile or moveable. . . ." Day v. State, 539 So.2d 410, 414 (Ala.Cr.App. 1988). The closed envelope that contained the heroin was movable. It could have been discovered at any time by hospital personnel and given to the appellant's sister or girlfriend, who could have then disposed of it. It appears from the record that the appellant was not in any condition to leave the hospital at the time of the search. However, his condition was apparently improving. The appellant might have disposed of the heroin, or he might have left the hospital. As persuasive authority we cite the case of People v. Torres, 144 Ill. App.3d 187, 98 Ill.Dec. 630, 494 N.E.2d 752 (4 Dist. 1986). In Torres the appellant was suspected of suffering from a drug overdose and was taken by ambulance to a hospital emergency room. Torres's physical condition was factually similar to the appellant's in the present case.⁴ The appellate court in Torres found that the trial court had correctly ruled that LSD discovered pursuant to a police search was proper because "the ease with which the defendant could have destroyed the evidence provided the necessary exigency." Torres 98 Ill.Dec. at 632, 494 N.E.2d at 754.

"[P]robable cause combined with the existence of exigent circumstances justifies a warrantless search." Wedgeworth v.State, 610 So.2d 1244, 1247 (Ala.Cr.App. 1992). Here, probable cause and exigent circumstances existed justifying an immediate warrantless search of the appellant. Because McGee was justified in searching the appellant he had no reason to delay the search absent a request from hospital personnel. We assume that had McGee's actions endangered the appellant or hampered the work of the care givers he would have been asked to stop. However, even that circumstance *Page 642 would not change the fact that an immediate search was justified.

Because the search was justified, opening the envelope was justified. "If probable cause justifies the search . . . it justifies the search of every part of the [person and] . . . contents that may conceal the object of the search." State v.Betterton, 527 So.2d 743, 746 (Ala.Cr.App. 1986), aff'd.527 So.2d 747 (Ala. 1988). Based on the above, we find no error with the ruling of the trial court admitting the heroin into evidence.

AFFIRMED; REMANDED FOR PROPER SENTENCING.^*

All the Judges concur except TAYLOR, P.J., who dissents with opinion.

I dissent from the majority's holding in this case that the search of the appellant as he was unconscious and being treated in the hospital was lawful because the search was accompanied by probable cause and exigent circumstances. I do not agree.

The facts reflect that Officer McGee was called to the appellant's residence because of a possible drug overdose. When he arrived the appellant was comatose. An anonymous telephone call was received while McGee was still at the appellant's residence indicating that the appellant had ingested heroin. McGee accompanied the appellant to the hospital. The appellant was lying on his back, semiconscious, in the hospital emergency room while hospital personnel were "working on him," when Officer McGee turned the appellant over enough to get to his back pocket and remove an envelope. The envelope, which Officer McGee opened, contained a controlled substance.

The Fourth Amendment to the United States Constitution protects every citizen against "unreasonable" search and seizures. The Fourth Amendment states:

"The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

If this was not an "unreasonable" search and seizure, I do not know what is.

All warrantless searches are per se unreasonable under the Constitution unless they fall within one of the well-established exceptions to this constitutional prohibition. The exceptions include plain view, consent, incident to lawful arrest, hot pursuit or emergency situations, probable cause accompanied by exigent circumstances, and a stop and frisk situation. See Ex parte Tucker, 667 So.2d 1339 (Ala. 1995). "Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception." Tucker, 667 So.2d at 1343.

There were absolutely no exigent circumstances present in this case. As the Alabama Supreme Court stated in Ex parteRieber, 663 So.2d 999 (Ala. 1995), quoting United States v.Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987), cert. denied,481 U.S. 1072, 107 S.Ct. 2468, 95 L.Ed.2d 877 (1987): *Page 643

" 'Factors which indicate exigent circumstances include: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) probable cause to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that delay could cause the escape of the suspect or the destruction of essential evidence, or jeopardize the safety of officers or the public. See Dorman v. United States, 140 U.S.App. D.C. 313, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc); United States v. Campbell, 581 F.2d 22, 25-27 (2d Cir. 1978); United States v. Newbern, 731 F.2d 744, 748-49 (11th Cir. 1984); United States v. Roper, 681 F.2d 1354, 1357 n. 1 (11th Cir. 1982) (dictum), cert. denied sub nom. Newton v. United States, 459 U.S. 1207, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983).' "

Well recognized exigent circumstances include the immediate safety of the public, see Landreth v. State, 600 So.2d 440 (Ala.Cr.App. 1992), and the possibility that evidence will be destroyed, see Bates v. State, 600 So.2d 411 (Ala.Cr.App. 1992).

Neither one of these situations was present in the instant case. Here, the appellant was lying on his back, semiconscious, in the hospital emergency room while hospital personnel were "working on him." There was absolutely no question that the safety of the public was at issue or that the evidence would be immediately destroyed. Neither were any of the other circumstances discussed in Rieber present here.

McGee could have held the appellant's clothes and obtained a search warrant, if he had reason to believe that the appellant was in possession of a controlled substance. However, Officer McGee had no warrant nor did he have probable cause to open the closed envelope in the appellant's pocket. Officer McGee stated that he had never been told that the appellant was in possession of any controlled substance. Nor had he been told by hospital personnel that the appellant was in fact suffering from a drug overdose. Furthermore, Officer McGee testified that he opened the envelope because of "professional curiosity" not because he suspected that it contained a controlled substance. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130,124 L.Ed.2d 334 (1993). There were no probable cause or exigent circumstances here.

If an unlawful search and seizure may be carried out and upheld by an officer's saying that the search was not a search because he was exercising his "professional curiosity," then the portion of the United States Constitution quoted above has been abrogated. For this reason, I must dissent.