Commonwealth v. Amy R. Wilson. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-56
COMMONWEALTH
vs.
AMY R. WILSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Amy R. Wilson, appeals from her conviction
in District Court of operating a motor vehicle while under the
influence of alcohol (OUI), second offense, in violation of
G. L. c. 90, § 24 (1) (a) (1). Her only claim on appeal is that
it was error to deny her motion to suppress the results of a
blood alcohol test conducted by hospital staff after she was
brought to the hospital by public safety personnel without her
consent. Because we agree with the motion judge that the blood
draw was not the result of State action, we affirm.
Background. On September 7, 2019, Duxbury police
discovered the defendant at the scene of a car accident.
Despite her insistence that she was unhurt, the defendant had
blood on her shirt and around her mouth, so the officers
requested that the fire department come to the scene to attend
to her injuries. Officers also noticed that she appeared to be
drunk, and she admitted that she had consumed several beers
earlier that night.
The defendant was taken to the hospital, where a physician
noted she was "clinically intoxicated." Her blood was therefore
drawn in order to check her ethanol level and "determine how
long [the medical staff] need[ed] to observe the patient and
reassess for any injuries from the accident." The medical
record showing the result reads "ethanol result for medical
purposes only."
The defendant was charged with three counts related to the
car accident, but only the OUI count is at issue here. Before
trial, she twice moved to suppress the results of the blood
alcohol test and submitted a total of three affidavits. The
first motion argued that the Commonwealth could not demonstrate
the medical purpose of the test -- as required to admit hospital
records in evidence under G. L. c. 233, § 79 -- without live
testimony from the nurse who drew the blood, who had since
passed away. See generally Commonwealth v. Sheldon, 423 Mass.
373, 376-377 (1996). The judge denied the motion, finding that
the blood draw was "solely for medical purposes" and that this
was evident from the face of the record itself.
In the defendant's motion for reconsideration, she claimed
that the test results must be suppressed because without the
2
nurse's testimony, the Commonwealth could not show that she
freely consented to the blood draw, as the defendant asserted
the Fourth Amendment requires in these circumstances. See
generally Commonwealth v. Dennis, 96 Mass. App. Ct. 528, 537
(2019). In short, the accompanying affidavits claimed that the
defendant did not want to be checked out by medical staff, but
that she went to the hospital anyway because she believed that
she would be arrested if she refused. She further stated,
without elaboration, "I believe the Duxbury police spoke to
medical staff while I was being treated and/or prior to any
treatment." The judge denied the motion for reconsideration on
the ground that the blood draw was not the product of State
action. The judge found "no evidence . . . that the blood drawn
at the hospital was taken at the direction of the police." The
results of the blood test were admitted as evidence at the jury
trial, and the defendant was found guilty. Thereafter, the
defendant waived a jury on the subsequent offender portion of
the complaint and the judge found her guilty.
Discussion. When reviewing a ruling on a motion to
suppress, we accept the judge's subsidiary findings of fact
absent clear error, but we review the motion judge's ultimate
findings and conclusions of law de novo. See Commonwealth v.
Scott, 440 Mass. 642, 646 (2004). On appeal, the defendant
argues that the judge erred in denying the motion for
3
reconsideration because the blood draw was the result of an
illegal seizure by the police, making the results of the blood
alcohol test inadmissible as "fruit of the poisonous tree." See
generally Wong Sun v. United States, 371 U.S. 471, 488 (1963).
We are not persuaded.
First, the defendant has not established that any illegal
seizure occurred. At oral argument the defendant conceded, and
we agree, that the police had probable cause to arrest her for
operating under the influence. The defendant cites no authority
suggesting that, in such circumstances, the police may not also
take her to the hospital for a medical evaluation of her
apparent injuries.
Second, and in any event, the exclusionary rule does not
exclude evidence merely because it would not have been obtained
"but for" assertedly unlawful police action. See Commonwealth
v. Fredericq, 482 Mass. 70, 78 (2019). Instead, the question is
whether the blood draw was obtained by exploitation of a
potentially unlawful seizure, "or instead by means sufficiently
distinguishable to be purged of the primary taint." Id.,quoting Commonwealth v. Damiano, 444 Mass. 444, 453 (2005). See
Wong Sun, 371 U.S. at 488 (same); Garcia-Aguilar v. Lynch, 806
F.3d 671, 675 (1st Cir. 2015) (same). Here, we think that the
independent decision of the medical staff to take the blood draw
for their own purposes, even if a but-for result of the actions
4
of the police, is a means sufficiently distinguishable from any
potential unlawful seizure, because the medical staff were
private parties, not acting as agents of the State for Fourth
Amendment purposes.
"The Fourth Amendment, and the accompanying rule of
exclusion, apply only to government action. 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 (1982). Whether evidence was seized as a result of
State action depends on whether the police induced or directed
the private party to provide the evidence and whether the
private party acted with the intent to discover evidence on
behalf of the police. See Commonwealth v. Richmond, 379 Mass.
557, 561 (1980). See also Commonwealth v. Storella, 6 Mass.
App. Ct. 310, 315 (1978) (exclusionary rule does not apply where
private party "did not act as agents of the State in acquiring
or 'seizing' the evidence"). "In cases involving the
performance by physicians or other medical personnel of medical
tests or procedures for medical purposes, this court has
consistently declined to find State action . . . [e]ven when the
police are present and may seek to use the medical evidence in a
5
subsequent prosecution." Commonwealth v. Arruda, 73 Mass. App.
Ct. 901, 904 (2008).1
Here, the judge found that the medical staff at the
hospital drew the defendant's blood for medical purposes without
any direction from police. Even assuming that the judge was
required to credit the affidavits presented by the defendant, as
she contends, they were not adequate to show that the police
asked or encouraged the medical staff to draw blood, or that the
medical staff acted for any investigatory purpose. In short,
they do not establish that the judge's findings were clearly
erroneous.
Nor was the affidavits' content, even if credited, enough
to render the judge's decision not to hold an evidentiary
hearing an abuse of discretion. The defendant's belief that the
Duxbury police "spoke to medical staff while [she] was being
1 We recognize that the exclusionary rule may still apply to
evidence obtained by a private party when police intentionally
violate a suspect's Fourth or Fifth Amendment rights in order to
prompt or facilitate the private party's actions. See
Commonwealth v. Lahti, 398 Mass. 829, 832-833, 836-837 (1986),
cert. denied, 481 U.S. 1017 (1987) (where police unlawfully
questioned defendant for purpose of learning additional victims'
identities, those victims' testimony was fruit of poisonous
tree). Here, however, the defendant has not shown that the
police conduct in ensuring that she obtained a medical
evaluation was a violation of her Fourth Amendment rights, let
alone an intentional and purposeful one. Cf. Damiano, 444 Mass.
at 455 (in determining whether evidence obtained by means
sufficiently distinguishable from underlying illegal seizure,
one relevant factor is "purpose and flagrancy" of police
misconduct).
6
treated" was not an adequate showing of police instigation of or
participation in the blood draw to require a hearing to further
explore that issue, particularly where the claim was made for
the first time in a motion for reconsideration.
In sum, because the blood draw was not the product of State
action, the judge properly denied the motion to suppress the
test results, as well as the motion for reconsideration.
Judgment affirmed.
By the Court (Sullivan,
Sacks & Ditkoff, JJ.2),
Clerk
Entered: April 21, 2023.
2 The panelists are listed in order of seniority.
7