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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. Storella, 6 Mass.App.Ct.
310 (1978)
Appeals Court of Massachusetts,Middlesex.
Argued
Decided
Ira M. Lisook,
Roberta T. Brown, Legal Assistant to the Dist.
Atty.,
Before HALE, C. J., and GRANT and ARMSTRONG, JJ.
ARMSTRONG, Justice.
On
The
hospital notified the
Dr. Dragone, a surgical resident who undertook care of the
defendant, advised him that the bullet was not an immediate danger to his health but that it should be removed
and could lead to serious complications if it were not. The defendant postponed surgery for two days
and then left the hospital on May 5. He
telephoned Captain DeSantis on May 7, and informed DeSantis that he had decided not to have the bullet
removed.
Meanwhile,
the May 4 edition of the Lawrence Eagle Tribune had carried a story about the
defendant's admission to the hospital and the amorous explanation he had given
for the gunshot wound. The story was
seen by Sergeant Willcox of the
On May 7,
and again on May 14, the defendant appeared at the hospital to have his wound
examined (he was being treated with antibiotics) and was advised again, on each
occasion, to have the operation performed.
On the latter date, Dr. Dragone told the
defendant that the police would get the bullet eventually, apparently
explaining to the defendant what the judge found to be the normal hospital
procedure, to turn bullets over to police for ballistics examination after they
were removed surgically. On May 14, the
defendant signed a consent form for an operation, and the operation was
scheduled to be performed May 17.
That
morning Captain DeSantis, who had been notified by
either Dr. Dragone or by a Dr. McCarthy, a staff
surgeon, in turn notified Sergeant Willcox of the
Malden police. Willcox
received two calls: the first, at 9:00 A.M., indicating that the operation
would take place at 1:30 P.M., and the second, about an hour after the first,
indicating that the time of the operation was to be advanced to 11:00 A.M. Willcox called one Windisch, a State ballistician, and both went to the
hospital, joining Captain DeSantis. None had obtained a search warrant.
DeSantis was given permission, either by Dr. McCarthy or by
a head nurse, to be present in the operating room when the operation took place. DeSantis dressed
for surgery, entering the operating room, according to the defendant's
allegations (the judge's findings are silent on the subject), after the
defendant was anesthetized and without any prior knowledge by the defendant
that he was to be there. The operation
began at 11:29 A.M. At 11:46 A.M. Dr. Dragone removed the bullet, washed it, and handed it to DeSantis. The latter
gave it directly to Windisch, the ballistics expert,
who was waiting outside the operating room.
By 2:30 P.M. Windisch reported to Willcox that he had identified the bullet as having come
from the gun used by the proprietor of the liquor store on the evening of April
29.
Through
the use of the bullet and the ballistics report, the Commonwealth secured the
indictment and conviction of the defendant for robbery while masked and armed
with a dangerous weapon. The sole
questions presented in this appeal are whether the judge who denied the
defendant's pre‑trial motion to suppress that evidence erred in so doing
and whether he erred in denying the defendant's motion (also pre‑trial)
to reopen and reconsider his earlier action on the basis of "newly
available" testimony.
[1] One of
the factual conclusions on which the judge predicated his denial of the motion
to suppress was that the doctor who removed the bullet and turned it over to
the police was not acting as an agent of the police but merely as a private
citizen cooperating with the police by turning evidence of crime over to them. It has long been settled that the Fourth
Amendment to the United States Constitution applies only to searches and
seizures taken by or at the direction of the State; and, consequently, evidence
obtained illegally by private parties and turned over to the police is not
obtained in violation of the Fourth Amendment.
Burdeau v. McDowell, 256 U.S. 465, 475,
41 S.Ct. 574, 65 L.Ed. 1048
(1921). ([FN1]) The judge's finding
concerning lack of agency is therefore dispositive of
the case, assuming that it was warranted by the evidence and involved no
misapplication of constitutional principles.
[2] On the
first score, the evidence adduced at the hearing on the motion to suppress
fully supported the finding. In
particular, there was ample evidence that the operation was necessitated by
good medical practice, was advised as necessary (though not on an emergency
basis) from the outset, was performed for medical reasons only and only
incidentally resulted in the recovery of evidence for police use. There was no evidence suggesting that the
police played a role in the decision whether to operate. They merely asked to be advised when an
operation was to be performed, if the defendant and the doctors made the
decision to take that route. The
doctors' acts in keeping the police notified and in turning the bullet over to
them were not the result of official pressure or duress. They were merely praiseworthy acts of citizen
cooperation. "(I)t is no part of
the policy underlying the Fourth and Fourteenth Amendments to discourage
citizens from aiding to the utmost of their ability in the apprehension of
criminals." Coolidge v. New
Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29
L.Ed.2d 564 (1971).
[6 Mass.App.Ct.
314] The defendant cites several
cases in which unlawful searches by private individuals have been held to
constitute State action because of a degree of involvement, sometimes slight,
by police: State v. Becich, 13 Or.App.
415, 509 P.2d 1232 (1973); Williams v. State, 501 P.2d 841 (Okl.Crim.1972);
Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr.
575, 447 P.2d 967 (1968); and, in a different (but arguably related) context,
United States v. Price, 383 U.S. 787, 794, 86 S.Ct.
1152, 16 L.Ed.2d 267 (1966). See also Byars v. United States, 273 U.S. 28, 33, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Lustig v. United States, 338 U.S. 74, 78‑79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949);
People v. Tarantino, 45 Cal.2d 590, 595, 290 P.2d 505 (1955). A crucial element in all those cases was a
finding that police participated in or directed the challenged search or
seizure. In this case, by contrast, the
spent bullet came into the hands of the doctors with no element of
participation by or direction from the police.
A second crucial distinction between the cases relied on by the
defendant and this one is that in those cases the purpose of the challenged
search was investigatory. The purpose of
the operation in this case, by contrast, was medical; the fact that the doctors
knew that the police wanted the bullet was not the reason the operation took
place. ([FN2]) More in point, therefore,
are cases such as Commonwealth v. Tanchyn, 200 Pa.Super. 148, 150‑154, 188 A.2d 824, cert. denied,
375 U.S. 866, 84 S.Ct. 138, 11 L.Ed.2d 92 (1963), and
Commonwealth v. Gordon, 431 Pa. 512, 517, 246 A.2d 325 (1968), cert. denied,
394 U.S. 937, 89 S.Ct. 1215, 22 L.Ed.2d 469 (1969),
in each of which the police were permitted to use evidence derived from a blood
sample given them by hospital authorities, the said sample being part of a
larger sample extracted from the defendant
[6 Mass.App.Ct. 315] earlier for purely medical purposes and with no police
involvement; and Webb v. State, 467 S.W.2d 449, 450‑451
(Tex.Crim.App.1971), a case, like this, where doctors operated for purely
medical reasons to remove a bullet and then turned it over to the police. ([FN3]) In all these cases the evidence was
held to have been obtained without violation of the Fourth Amendment because
the doctors did not act as agents of the State in acquiring or "seizing"
the evidence.
[3][4] The
defendant suggests that the doctors' actions were State actions because G.L. c. 112, s 12A, required that they notify the police
forthwith that they were treating a bullet wound. ([FN4]) But the notification required by s
12A was not the "search" and "seizure" complained of; the
statute imposes no duty on the doctor beyond notification. Even if the statute went further and
mandated, for example, that the hospital retain the bullet, when extracted, for
use as evidence, it would not follow that the doctor's removal of the bullet
and transmission of it to the police would be deemed State action. The point is governed in principle by United
States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48
L.Ed.2d 71 (1976), which held that no Fourth Amendment rights of depositors are
infringed by statutes requiring banks to keep copies of all checks, deposit
slips, and statements and to turn them over to the State for use as evidence in
criminal proceedings. "The
depositor takes the risk, in revealing his affairs to another, that the
information will be conveyed by that person to the Government." Id. at 443, 96 S.Ct.
at 1624. The defendant in the case
before us knew the risk. He had been
told, specifically, that the bullet, if removed, would be turned over to the
police. These considerations [6 Mass.App.Ct.
316] indicate that the judge was
probably correct in his further conclusions that, even if the doctors had been
acting as agents of the police, the evidence was admissible because (1) the
defendant had no reasonable expectation of privacy in the context of the
operating room (see Venner v. State, 279 Md. 47, 367
A.2d 949 (1977)), and (2) the defendant had, in effect, consented to the
removal of the bullet and its transmission to the police (compare Lewis v.
United States, 385 U.S. 206, 211‑212, 87 S.Ct.
424, 17 L.Ed.2d 312 (1966); Hoffa v. United States, 385 U.S. 293, 300‑303,
87 S.Ct. 408, 17 L.Ed.2d 374 (1966)). But as we have concluded that the judge did
not err in finding that the doctors were acting as private citizens merely and
not as agents for the police in retrieving the bullet, it is unnecessary for us
to consider the judge's alternate bases for his denial of the defendant's
motion to suppress.
[5] The
defendant, relying on Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974), contends that the judge erred by
refusing to rule that the Commonwealth had the burden of proving a
justification for the warrantless search for and
seizure of the bullet. The difficulty
with the contention is that the defendant failed to sustain his preliminary
burden of showing that the police executed a search or seizure. On the judge's findings, the "search and
seizure", which in this context can only mean the surgical removal of the
bullet, was not done by or for the police, and its transmission thereafter to
the police was not a "seizure".
"If a transfer is voluntary, then it is not a seizure and the
fourth amendment's reasonableness standard is simply inapplicable." United States v. Sherwin, 539 F.2d 1, 8 (9th
Cir. 1976).
[6] After
the adverse ruling on the motion to suppress, the defendant filed a motion
asking for a rehearing in order that the testimony of Dr. McCarthy might be
considered. The motion for rehearing was
supported by an affidavit of defendant's counsel which was uninformative as to
the content of Dr. McCarthy's expected testimony. At the hearing on the motion the defendant's counsel indicated that he hoped to show by Dr.
McCarthy's testimony that [6 Mass.App.Ct. 317]
he had been in charge or control of the operating room and had not given his
consent to the presence of Captain DeSantis therein
at the time of the operation. Such a
showing would have done more to undercut the defendant's agency theory than to
support the defendant's contention that the evidence was obtained by illegal
police methods, as it is clear that the presence of DeSantis
within the operating room, rather than in the corridor outside, was an
immaterial factor in the police's obtaining the bullet. It lay well within the judge's discretion to
deny the motion.
Judgment
affirmed.
(FN1.) The trend of decision has been
otherwise with respect to the use of confessions coerced by private
persons. See Commonwealth v. Mahnke, 368 Mass. 662, 680‑681, 335 N.E.2d 660 (1975)
(Mass.Adv.Sh.
(1975) 2897, 2919‑2920, cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).
(FN2.)
More distinguishable still is the line of cases involving operations proposed
or conducted over the defendant's objections and for the purpose of obtaining
evidence, such as Rochin v. California, 342 U.S. 165,
72 S.Ct. 205, 96 L.Ed. 183
(1952); Schmerber v. California, 384 U.S. 757 (1966);
Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972), cert. denied, 410 U.S.
975, 93 S.Ct. 1454, 35 L.Ed.2d 709 (1973); Allison v.
State, 129 Ga.App. 364, 199 S.E.2d 587 (1973), cert.
denied, 414 U.S. 1145, 94 S.Ct. 899, 39 L.Ed.2d 101
(1974); Adams v. State, 260 Ind. 663, 299 N.E.2d 834 (1973), cert. denied, 415
U.S. 935, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974);
People v. Smith, 80 Misc.2d 210, 362 N.Y.S.2d 909 (1974); Bowden v. State, 256
Ark. 820, 510 S.W.2d 879 (1974); United States v. Crowder, 177 U.S.App.D.C. 165, 543 F.2d 312, 313‑317 (1976), cert.
denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779
(1977).
(FN3.)
See also Green v. State, 257 Ind. 244, 253, 274 N.E.2d 267 (1971), a bullet
removal case close on its facts to the present case; but the defendant in that
case waived the Fourth Amendment point by failing to argue it.
(FN4.)
The point is mentioned but hardly argued.
Indeed, the thrust of the defendant's argument is to the contrary: that
the fact that the doctors went beyond the one‑time notification
requirement of the statute evidences the existence of an agency relationship.