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July 13, 1995


Appeal from the Circuit Court of the 9th Judicial Circuit, McDonough County, Illinois. No. 93-CF-103. Honorable Ronald C. Tenold, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable Michael P. Mccuskey, Justice, Honorable William E. Holdridge, Justice. Stouder, P. J., concurs. Holdridge, J., specially concurs with opinion.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

The defendant, Michael Maltbia, was arrested and transported to a hospital in Macomb for medical treatment. Hospital personnel discovered illegal drugs on the defendant's person while administering medical treatment to the defendant. No police officers were present during his medical examination.

The defendant was charged with unlawful possession of cannabis (720 ILCS 550/4(b) (West 1992)), unlawful possession of a controlled substance (720 ILCS 570/402(a) (West 1992)), and unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a) (West 1992)). The circuit court of McDonough County granted the defendant's motion in limine. The State appeals. We affirm.


At about midnight on December 19, 1993, Lieutenant Larry Carlson of the Macomb Police Department observed a car traveling in excess of the speed limit. Lt. Carlson pursued the car until it left the road and struck a tree. The defendant then exited the vehicle and fled on foot. Lt. Carlson and Officer Martin McClellan continued their chase on foot. Officer McClellan caught up with the defendant and ordered him to stop. After they restrained the defendant, the officers placed the defendant in handcuffs and told him that he was under arrest. The defendant lost consciousness before the officers could put him into a squad car.

As a result, the officers summoned an ambulance. Before the ambulance arrived, Officer McClellan conducted a general pat-down search of the defendant for weapons. During the search, the officer checked the defendant's pockets, legs and shoes. However, he did not pat down the defendant's groin or pelvic area. After completing the search, Officer McClellan concluded that the defendant had no weapons.

When the ambulance arrived, paramedic Steven Hilligoss asked the officers to remove the handcuffs so the emergency medical personnel could place the defendant onto a spine board. The officers complied and helped put the defendant into the ambulance. After consultation with emergency room physician Layne Lovell, the paramedics transported the defendant to McDonough District Hospital. Lt. Carlson then drove his squad car to the hospital.

When the defendant arrived at the hospital, he had regained consciousness but remained largely unresponsive. Dr. Lovell and nurse Joyce McCoy began administering medical treatment to the defendant. Shortly thereafter, Lt. Carlson arrived at the emergency room and again told the defendant that he was under arrest.

Lt. Carlson asked Dr. Lovell to draw a sample of the defendant's blood in order to ascertain his blood alcohol level. He also told Dr. Lovell that the defendant was under arrest and was not to be released until an officer returned to the hospital to escort the defendant to the police station. When Lt. Carlson received the defendant's blood sample, he left the hospital and proceeded to the Macomb police station. There were no police officers in the emergency room while the defendant received further medical attention.

Dr. Lovell and nurse McCoy continued to administer medical treatment to the defendant. A blood sample revealed no alcohol in the defendant's body. During the course of treatment, Dr. Lovell ordered paramedic Hilligoss and nurse McCoy to catheterize the defendant for the purpose of obtaining a urine sample. Dr. Lovell wanted to analyze the defendant's urine for the presence of drugs and to check the kidneys for blood, which might indicate internal injuries.

In order to insert the catheter, Hilligoss and McCoy had to remove the defendant's pants and underwear. When they removed the defendant's clothes, Hilligoss found a small blue cloth bag (the bag) inside the defendant's underwear. Located on the outside of the bag was the emblem for Crown Royal whiskey. Hilligoss opened the bag and saw what he believed to be marijuana. McCoy also believed the bag contained illicit drugs. McCoy and Hilligoss catheterized the defendant and obtained the urine sample. No police officers were present when the bag was discovered by the medical personnel.

Shortly after being catheterized, the defendant became combative. He attempted to get off the emergency room gurney and started screaming at the hospital personnel. The police were summoned to help subdue the defendant. Before the police arrived, the defendant was placed in hand and foot restraints.

After the defendant was restrained, McCoy and Hilligoss discussed whether to disclose the bag and its contents to the police. Dr. Lovell said the bag should be given to the police because he thought the defendant was under arrest.

Officer Robert Fitzgerald of the Macomb Police Department was the first to arrive at the hospital. Hilligoss showed the bag to Officer Fitzgerald. The officer found marijuana, cocaine, and small plastic bags inside the bag. Hilligoss told Officer Fitzgerald that they had found the ...

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