Denver police did not violate the constitutional prohibition on unreasonable searches and seizures by obtaining a bullet, without a warrant, that was removed from a man’s leg and later used as evidence against him, the Colorado-based federal appeals court ruled on Tuesday.

Law enforcement responded to an office building in the Cherry Creek neighborhood where they found Joseph Gaye shot in the leg. They grew suspicious at Gaye’s explanation that a masked man shot him and fled. Believing he actually shot himself, they secured a search warrant for his office and also obtained the bullet — without a warrant — after Denver Health employees removed it from Gaye.

The office search uncovered a gun and other incriminating evidence. The bullet from Gaye’s leg also matched the gun. Gaye was indicted for being a felon in possession of a firearm and a jury convicted him.

Gaye argued the bullet could not be used as evidence against him because police violated the Fourth Amendment by seizing the bullet from his body without a warrant. A trial judge acknowledged no prior case addressed Gaye’s situation, but concluded there was no violation because Gaye had no privacy interest in the bullet.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed.

“As far as anyone at the hospital knew, the bullet was evidence of a shooting, and Mr. Gaye had no claim to it,” wrote Judge Timothy M. Tymkovich in the March 11 opinion. “Mr. Gaye’s story to first responders that a masked intruder fired the bullet abandoned his own interest in the bullet, dooming his argument that a warrant was necessary to seize the bullet once it was removed.”

In November 2021, prior to Gaye’s trial, U.S. District Court Senior Judge William J. Martínez addressed the defense’s argument that police obtained a “metal object” from Gaye’s left thigh without a warrant, thereby violating the Fourth Amendment. Martínez noted there was no evidence Denver Health staff were acting at the direction of law enforcement in removing the bullet, but rather were trying to save Gaye’s life.

Ultimately, Martínez concluded Gaye had consented to the removal of the bullet by calling 911 for help. While Gaye had not explicitly authorized medical staff to transfer the bullet to police, he had not asked them to retain it, either.

“As such, it is a logical next step that hospital staff would provide that bullet to law enforcement, which would be critical evidence in building a future case against Gaye’s alleged assailant,” Martínez wrote.

On appeal to the 10th Circuit, the defense argued that seeking emergency medical care should not automatically mean the police have the right to obtain treatment-related evidence without a warrant.

“Why did Mr. Gaye have a property or a privacy interest in an instrument of the crime that was inflicted on him?” Tymkovich asked during oral arguments in November. “I just think it’s kind of an unusual argument that because I’ve been shot and the bullet is still in my body, that it’s mine and I have a privacy interest in it.”

“It is no different than the officer being in the operating room without a warrant, without consent and without reasonable suspicion,” responded public defender Jessica Stengel, “saying, ‘That might be related to some crime.'”

“So, after they took the bullet out, they should have asked him, ‘Can we give this to law enforcement?'” asked Judge Allison H. Eid.

Yes, responded Stengel, or police should have obtained a warrant.

Although the government argued that police did not need a warrant to seize the bullet after medical staff removed it, Eid appeared concerned about the direct path from a person calling 911 in a medical emergency to law enforcement’s confiscation of evidence from the operating room.

“When you report a crime that there was an assailant, you consent to having any evidence on your person turned over for investigative purposes?” she wondered.

“In order to investigate whether or not someone actually shot him, they need to investigate where that bullet came from. And that bullet is evidence of a crime,” replied Assistant U.S. Attorney Alexander Duncan.

Ultimately, the panel’s opinion stressed that police were authorized to obtain the bullet because Gaye’s story about the assailant gave it “incriminating value.” There is no broad authorization for law enforcement to perform warrantless seizures on anyone receiving emergency medical aid, Tymkovich wrote.

Instead, there were multiple justifications for police obtaining the bullet without a warrant: Gaye’s consent to have the bullet removed, his claim that the bullet came from an assailant and the fact that the bullet was in plain view once it was extracted.

“(A)ny one of these exceptions alone would be enough to validate the search. Together, they are overwhelming,” Tymkovich wrote. “True, he was never told that the bullet would be given to law enforcement investigators, but neither did he ever claim an ownership or privacy interest in the bullet.”

The case is United States v. Gaye.