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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Robinson, 399
Supreme Judicial Court of Massachusetts,
Argued
Decided
Daniel J. O'Connell, III,
John A. Kiernan, Asst. Dist. Atty. (Robert N. Tochka,
Asst. Dist. Atty., with him), for Commonwealth.
Before HENNESSEY, C.J.,
and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.
LIACOS, Justice.
The
defendant was indicted in
The
defendant moved in March, 1985, to suppress nurser
no. 1 which Dr. Perlmutter had discovered, an empty nurser (nurser no. 2) which the
defendant subsequently turned over to the hospital's general counsel, and test
results derived from chemical analysis of the two nursers
and their contents. She has maintained
that the evidence was obtained pursuant to an unlawful warrantless
search and seizure.
After
hearing evidence for thirteen days between
[399
Dr. Perlmutter was informed and sought to discover the source
of the sodium. He tasted, then had
tested, a sample of the hospital formula which was designated for the child and
kept in a quart bottle in the ward kitchen refrigerator. (FN4)
The test showed excessive sodium in the formula. Dr. Perlmutter then
went to the child's room "to search for further diagnostic and medical
clues as to the source of the sodium and to determine whether other children at
the hospital were at risk." Inside
the cloth zippered bag, among the defendant's belongings, he found nurser no. 1, which was used to feed the child. (FN5)
The physician took some of its contents, returned the nurser to the bag, and then had the hospital's chemist test
the sample. (FN6) Test results showing a high concentration of
sodium were reported at approximately 2 P.M.
At
the hospital's request, Lawrence Curran, vice president and general counsel of
the private investigatory agency which provides the hospital's security
services, came to the hospital at approximately 6 P.M. on March 3, 1984. Responding to Mr. [399 Mass. 212]
Curran's call, Assistant District Attorney John Dawley
arrived at 8:25 P.M. Although Mr. Dawley met with Mr. Curran and several hospital
administrators, the judge found that "[n]o one asked [Mr. Dawley] to take any action.
He did not, at any time or in any way, direct the course of events that
evening or thereafter. His position at
this time is best described as an observer."
The
defendant consented to meet with Mr. Curran and the hospital's general counsel,
Ellen Weiss, at 10:15 that evening. She
was told that the purpose of the meeting was to gather further information on
the child's routine. Mr. Dawley was present.
When the defendant arrived, Mr. Curran introduced himself, Ms. Weiss,
and Mr. Dawley.
He expressed the hospital's concern for her situation and asked whether
she would speak to them "as part of a number of efforts being undertaken
to figure out what happened." The
defendant indicated that she was "very willing to cooperate to determine what
had happened." She was asked to
relate what had happened during the day with her child. Although present at Mr. Curran's invitation,
Mr. Dawley did not participate in any way. He took some notes. He did not ask the defendant any questions or
interact in any way with her.
During
this interview, the defendant indicated that her child drank the hospital's
formula and that she used plastic nursers which she
had brought to the hospital. When Mr.
Curran asked if the defendant had "any objection to giving the [nurser] to the hospital so [that it] could be
secured," she said, "[A]bsolutely
none." She indicated that she
would be happy to get it.
The
judge found that the defendant "voluntarily offered and agreed without any
objection at all to give the [nurser] to the
hospital." The judge also found
that the defendant voluntarily gave Ms. Weiss the two nursers
and that she knew by this time that her child's formula had been analyzed. The judge further found that the defendant
reasonably expected that the nursers' contents would
be analyzed. Mr. Dawley,
who was not present when the defendant handed over the nursers,
neither directed that they be obtained nor suggested what should be done with
them.
[399 Mass. 213] The defendant's child died on March 5, 1984. On March 16, 1984, the defendant was
interrogated at the Springfield police department. (FN7)
She was represented by counsel and received her Miranda warnings. Assistant
District Attorney John Kiernan asked the defendant if she had "any problem
with [his] keeping" the nursers. She said she did not. The judge found that her consent was
voluntary. The defendant reiterated
twice during the interview that "if anyone had asked her on March 3, 1984
for permission to look through her bags or other belongings she would have
volunteered to let them do so and would have opened them up and helped anyone
or let anyone look at everything."
On
March 16, 1984, Terence Law, chemistry supervisor at Children's Hospital,
conducted a simulation test at Mr. Kiernan's request to determine how sodium
behaves chemically in the kind of formula which the child had received in the
hospital. This test did not involve any
of the formula prepared for the defendant's child. On March 28, 1984, again at Mr. Kiernan's
direction, Law tested samples from the quart bottle and nurser
no. 1 for sodium concentration. The test
results, confirming that both samples contained tainted formula of a high
sodium level, were relayed to the office of the district attorney. On April 30, 1984, Law tested nurser no. 2 and its nipple for sodium. This testing also was done at Mr. Kiernan's
request. Some sodium was found. The test results were relayed to the office
of the district attorney.
On
the basis of the facts summarized above, the judge concluded that the two nursers, as well as the test results of March 16, March 28,
and April 30, 1984, would be admissible in evidence. The judge ruled that Dr. Perlmutter's
acts on March 3, 1984‑‑removing the nurser
from the defendant's bag, taking a sample of the formula, and returning the nurser to the bag‑‑were "entirely the acts
of a private party." Neither
directed nor encouraged by any governmental agency, his [399 Mass. 214] actions
"were done solely for medical and diagnostic reasons and in the
furtherance of the hospital's interest in caring for and protecting the
[defendant's] baby and its other patients." The judge further ruled that Mr. Curran and
Ms. Weiss "were each functioning as a private party when [the defendant]
gave the [nursers] to [Ms.] Weiss and not as agents
or instrumentalities of the police. No
police official instigated or participated in these actions.... Therefore, any actions concerning the bottles
do not trigger any Fourth Amendment or Article 14 protections, or require the
application of the exclusionary rule."
Thus,
the judge ruled that "[t]here was no state action involved in the
hospital's obtaining of the playtex
nurser bottles from [the defendant]," and that
the nursers were not subject to suppression. Further, the judge ruled that, even if State
action had been involved, the defendant retained no legitimate expectation of
privacy in the nursers because she voluntarily gave
them to the hospital staff.
Consequently, the subsequent transmittal of the nursers
by members of the hospital staff to the office of the district attorney did not
violate the defendant's right against unreasonable searches and seizures.
As to
the tests, the judge found that all three of the challenged tests, conducted at
Mr. Kiernan's direction or request, were the result of State action. Nevertheless, the judge found nothing in the
record to indicate that the defendant intended to limit her consent so as to
exclude chemical testing of the nursers or their
contents. The judge concluded that the
March 16, 1984, test "was merely a repeat" of the prior private test,
and that the defendant had consented, in any event. The judge ruled that the tests conducted on
March 28, 1984, were not a significant expansion of the hospital's testing on
March 3, 1984, and that, even if they were, they were done with the defendant's
consent. Finally, the April 30, 1984,
test on the second nurser was found to be admissible
because the defendant had consented voluntarily to giving it to members of the
hospital staff on March 3, 1984.
[1]
The evidence before the motion judge consisted primarily of oral testimony.
[399 Mass. 215]
"The determination of the weight and credibility of the testimony is the
function and responsibility of the judge who saw and heard the witnesses, and
not of this court. In such a situation,
where subsidiary findings of fact have been made by the trial judge, they will
be accepted by this court, and we do not substitute our judgment for [hers],
absent clear error. Commonwealth v. Murphy, 362 Mass. 542,
547, [289 N.E.2d 571] (1972). Commonwealth v. Harmond,
376 Mass. 557, 560‑561 [382 N.E.2d 203] (1978)" (and other cases
cited).
Commonwealth v. Moon, 380 Mass. 751,
756, 405 N.E.2d 947 (1980). The ultimate
legal conclusions to be drawn from the subsidiary findings of fact, however,
are matters for review by this court. Commonwealth v. Hosey,
368 Mass. 571, 574‑575 n. 1, 334 N.E.2d 44 (1975). In this case, we find no error requiring
reversal of the motion judge's order.
The
defendant argues that (1) Mr. Dawley's participation
in the decision to obtain the nursers from the
defendant and his presence at the interview with the defendant on March 3,
1984, constituted State action; (2) the
defendant's consent to the taking of the nursers was
not voluntary because she was unaware of the State's participation; (3) the subsequent testing was an
impermissible search because it constituted governmental expansion of the
hospital's tests of the nursers without the
defendant's consent; and (4) the
defendant's March 16, 1984, statement that she had "no problem" with
the assistant district attorney's "keeping" the nursers
did not retroactively authorize the Commonwealth's seizure and testing of the nursers.
[2]
Counsel for the defendant has conceded that no State action was involved prior
to the arrival of the assistant district attorney at the hospital at 8:25 P.M.
on March 3, 1984. The judge ruled correctly
that the testing done that afternoon at Dr. Perlmutter's
direction is admissible. "Evidence
discovered and seized by private parties is admissible without regard to the
methods used, unless State officials have instigated or participated in the
search." Commonwealth v. Leone, 386 Mass. 329,
333, 435 N.E.2d 1036 (1982). Commonwealth v. Richmond, 379 Mass. 557,
561‑562, 399 N.E.2d 1069 (1980).
But see District Attorney for the
Plymouth Dist. v. [399 Mass. 216] Coffey, 386 Mass. 218, 226, 229,
434 N.E.2d 1276 (1982) (Liacos, J., concurring)
(private action does not fall within the exclusionary rule so long as it is
limited to private purpose); Commonwealth v. Leone supra, 386 Mass. at
334, 435 N.E.2d 1036 (same).
[3][4] The parties disagree as to whether
State action arose on the evening of March 3, 1984, when the assistant district
attorney arrived at the hospital. While
the judge found that there was no State action involved when the members of the
hospital staff subsequently obtained the nursers from
the defendant, the defendant takes strong exception to the judge's rulings
sustaining the prosecution's objections to questions which she maintains were
properly exploring the State action issue.
In effect, the defendant maintains that the judge precluded her counsel
from eliciting the information necessary to the court's determination whether
the government participated in, directed, or encouraged the acquisition of the nursers. We have
reviewed the entire transcript and agree that the judge prevented the defendant
from developing this theory. (FN8) The motion judge's refusal to allow counsel
to present testimony necessary to resolve complex pretrial issues was error. As the United States Supreme Court has
stated, "the question whether particular conduct is 'private,' on the one
hand, or 'state action,' on the other, frequently admits of no easy
answer." Jackson v. Metropolitan Edison Co., 419
U.S. 345, 349‑350, 95 S.Ct. 449, 452‑453,
42 L.Ed.2d 477 (1974). "The true
nature of the State's involvement may not be immediately obvious, and detailed
inquiry may be required in order to determine whether the test [of State
action] is met" (citation omitted). Id. at 351, 95 S.Ct.
at 453.
The
error of the judge's rulings on this issue is not ground for reversal,
however. Even if we assume that there
had been State action commencing after Mr. Dawley's
arrival in the evening of March 3, 1984, this fact would not affect the result [399 Mass. 217] we reach because we conclude that the issue of the defendant's
consent was explored fully and that the judge's findings on that issue were not
in error. The record amply supports the
judge's findings that the defendant consented to giving the nursers
to Ms. Weiss on March 3, 1984, and assented, on March 16, 1984, to the
assistant district attorney's request to keep the nursers. (FN9)
"When the Commonwealth relies on
consent as the basis for a warrantless search, it
must demonstrate 'consent unfettered by coercion, express or implied, ...
[which is] something more than mere "acquiescence to a claim of lawful
authority" [citation omitted].' Commonwealth v. Walker, 370 Mass. 548,
555 [350 N.E.2d 678], cert. denied, 429 U.S. 943 [97 S.Ct.
363, 50 L.Ed.2d 314] (1976). See Bumper v. North Carolina, 391 U.S. 543,
548‑549 [88 S.Ct. 1788, 1791‑1792, 20
L.Ed.2d 797] (1968); Commonwealth v. Antobenedetto,
366 Mass. 51, 57 [315 N.E.2d 530] (1974).
Voluntariness of consent 'is a question of
fact to be determined in the circumstances of each case....'
Commonwealth v. Aguiar, 370 Mass. 490, 496
[350 N.E.2d 436] (1976). The neglect or
failure of the police to explain the right of the defendant to refuse to
consent to a search is a factor suggesting coercion, but it is not conclusive.
Commonwealth v. Walker, supra. Schneckloth v. Bustamonte,
412 U.S. 218, 248‑249 [93 S.Ct. 2041, 2058‑2059,
36 L.Ed.2d 854] (1973). This is true
even when a suspect is in custody when asked for permission to search.
Commonwealth v. LaBriola, 370
Mass. 366, 367 [348 N.Ed.2d 758] (1976). United States v. Watson, 423 U.S. 411,
424‑425 [96 S.Ct. 820, 828‑829, 46
L.Ed.2d 598] (1976)."
Commonwealth
v. Harmond, 376 Mass. 557, 561, 382 N.E.2d 203
(1978).
[5] The defendant claims that "her
consent to give the hospital the [nursers], not knowing
of the State's involvement in the [399
Mass. 218] decision to obtain such [nursers], was not 'voluntary' as a matter of
law." There is conflicting
evidence whether the defendant knew that Mr. Dawley
was an assistant district attorney when she met with him, Mr. Curran, and Ms.
Weiss on the evening of March 3, 1984.
"In reviewing record on this issue, '[w]e accept, as we must, the
trial judge's resolution of conflicting testimony....' Commonwealth v. Mahnke, 368 Mass. 662, 666‑667 [335 N.E.2d 660]
(1975), cert. denied, 425 U.S. 959 [96 S.Ct. 1740, 48
L.Ed.2d 204] (1976)." Commonwealth v. Cruz, 373 Mass. 676, 682
n. 2, 369 N.E.2d 996 (1977).
Furthermore, "[t]he defendant's claim that [her] apparent consent
was involuntary should be carefully scrutinized to avoid giving [her] an unfair
advantage. See United States v. DiPrima, 472 F.2d 550,
551 (1st Cir.1973)." Commonwealth v. Harmond,
supra, 376 Mass. at 562, 382 N.E.2d 203.
The judge found that the defendant acted voluntarily at all times. Whether the defendant knew Mr. Dawley to be an assistant district attorney at the time
does not appear material, in light of the defendant's continued, voluntary
cooperation with the police as exemplified by her statement on March 16, 1984,
at an interrogation where she had received Miranda warnings and was represented
by counsel. (FN10) We note also that, even if the defendant had
not consented to the tests on March 16, March 28, and April 30, 1984, they were
found by the judge on ample evidence to be cumulative of the private,
uncontested testing conducted at Dr. Perlmutter's
request on March 3, 1984. (FN11)
The resolution of the defendant's
arguments regarding State action and the voluntariness
of her consent make it unnecessary [399
Mass. 219] to address her two other
claims on appeal. The judge's order
denying the defendant's motion to suppress is affirmed.
So
ordered.
(FN1.) There is no explanation in the record
to indicate the reasons for the length of time between the conclusion of the
hearings on January 16, 1986, and the date of the judge's written findings and
rulings.
(FN2.) Pursuant to G.L.
c. 211, § 3 (1984 ed.), the complaint presented to the single justice also
sought leave to appeal from the motion judge's denial of a motion to exclude
other evidence. The matter subsequently
was bifurcated for hearing before the full court. The interlocutory appeal on the motion to
exclude was decided in Robinson v.
Commonwealth, 399 Mass. 131, 503 N.E.2d 31 (1987).
(FN3.) It was the practice at Children's
Hospital to allow parents to sleep in their children's rooms. The defendant's personal belongings were in
the room which her child shared with three other children. Included in those belongings was the cloth
bag in which Dr. Perlmutter found nurser
no. 1.
(FN4.) The defendant does not contest the
validity of Dr. Perlmutter's action in taking the
quart bottle from the refrigerator, or in asking for a sodium analysis of its
contents.
(FN5.) During prior hospitalizations, the
child had experienced difficulty using the nursers
provided by the hospital. Consequently,
the defendant brought the child's preferred nurser to
the hospital. All staff members who fed
the child freely used the nurser.
(FN6.) The defendant had not given permission
for Dr. Perlmutter's actions, nor did she have
knowledge of such actions at the time.
(FN7.) The judge found that this was the first
interrogation of the defendant, although she had been interviewed in connection
with her child's condition on three prior occasions.
(FN8.) We note, in this context, that the
judge allowed counsel for the hospital to participate fully in the suppression
hearing. Although no prejudice to the
defendant is shown in the circumstances of this case, we frown on the practice
of allowing a private party to participate fully in a suppression hearing. The role of private counsel is best limited
to advising witnesses whom they represent as to any purported privilege of the
witness.
(FN9.)
The United States Supreme Court stated in
Schneckloth v. Bustamonte,
412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d
854 (1973): "[T]he question whether
a consent to a search was in fact 'voluntary' or was the product of duress or
coercion, express or implied, is a question of fact to be determined from the
totality of all the circumstances."
See also Commonwealth v. Cantalupo, 380 Mass. 173, 177, 402 N.E.2d 1040 (1980);
Commonwealth v. Harmond, 376 Mass. 557,
561, 382 N.E.2d 203 (1978); Commonwealth v. Aguiar,
370 Mass. 490, 496, 350 N.E.2d 436 (1976).
(FN10.) As this court stated in Commonwealth v. Aguiar,
370 Mass. 490, 496, 350 N.E.2d 436 (1976), "[E]ven
if a search and seizure is involved here, consent vitiating the need for a
search warrant may be found in cooperative conduct. Commonwealth v. Causey, 356
Mass. 125, 130 [248 N.E.2d 249] (1969)" (and other cases cited).
(FN11.) Compare United States v. Jacobsen, 466 U.S. 109, 104 S.Ct.
1652, 80 L.Ed.2d 85 (1984) (warrantless governmental
chemical tests of contraband privately seized not a violation of the Fourth
Amendment), with State v. Von Bulow, 475 A.2d 995 (R.I.1984) (warrantless
governmental testing of items privately seized violates both Fourth Amendment
and art. 1, § 6, of Rhode Island Constitution).
Neither case involved a consensual surrender by the defendant of the
objects tested. The facts in the case at
bar make this line of cases inapposite.