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  • Jim Chapman

Seventh Circuit: Medical Staff Not Government Agents in Warrantless Search

Author: Jim Chapman


In the early morning hours on January 23, 2022, Defendant/Appellant Javares Hudson walked into the Carle BroMenn Medical Center in Normal, Illinois, and sought emergency treatment for a gunshot wound. While an officer investigating the shooting stood outside of Hudson’s hospital room, medical staff discovered that Hudson was concealing “something plastic” in his mouth. Medical staff spent nearly twenty (20) minutes admonishing Hudson to spit the item out of his mouth before he finally complied, which revealed a device used to convert a firearm into a fully automatic weapon. Hudson was subsequently indicted and moved to suppress the evidence of the device that was in his mouth, arguing that the medical staff acted as government agents in conducting a warrantless search in violation of his Fourth Amendment rights.


The United States District Court for the Central District of Illinois denied Hudson’s motion to suppress. Thereafter, Hudson pled guilty, but he reserved the right to appeal the denial of the motion to suppress to the United States Court of Appeals for the Seventh Circuit. United States v. Hudson, ___ F.4th ___, 2023 WL 7890040 (7th Cir. Nov. 16, 2023). The relevant facts on appeal are as follows.


After a shooting took place outside of a bar in Bloomington, Illinois, in the early morning of January 23, 2022, members of the Bloomington Police Department (“BPD”) responded and reported that a vehicle had left the scene with a shooting victim in the passenger seat. BPD Officer Benjamin Smith pursued the vehicle. Smith arrived at the parking lot of the Carle BroMenn Medical Center and observed Hudson exit the front passenger seat of the vehicle. In response to Smith’s directive to put his hands up, Hudson repeatedly announced that he had been shot in his buttocks. Smith briefly frisked Hudson and, then, escorted him into the emergency room.


Medical staff immediately brought Hudson to a treatment room. Smith followed and asked Hudson questions about the incident while medical staff began assessing Hudson’s wound. As more staff entered the room, Smith took a few steps away from Hudson. After Smith informed a doctor that Hudson was not in custody, the doctor asked Smith to leave stating, “I just don’t want PD around.” Smith responded that he was “not going to let [Hudson] out of his sight until we know who’s who in this scenario.” After a short pause, Smith added, “I won’t interfere. I will stay out of your way completely, sir. This is your show, I will work around you.” Accordingly, the doctor walked away and began assisting Hudson without further comment.


About a minute later, Smith left the room and stood quietly in the hallway directly outside of the treatment room’s open door. When the doctor exited Hudson’s room about six minutes later, Smith asked, “Can we avoid washing his hands for the time being so that we can do a gunshot residue kit?” The doctor stated that he would not wash Hudson’s hands because “that is not part of what [he] routinely do[es] for folks.” Smith stated that he would wait to conduct the residue kit until it was “convenient” for the doctor, and the doctor returned to Hudson’s room.


Sometime thereafter, BPD Officer Brandon Finke arrived and joined Smith in the hallway. While standing outside the room, the officers overheard medical staff stating that Hudson had something in his mouth. The officers also heard numerous staff members directing Hudson to spit the item out, but Hudson refused.


Overhearing the commotion, Smith asked a nearby nurse if Hudson had something in his mouth, and the nurse confirmed that Hudson had “something plastic” in his mouth. Smith then stepped inside the examination room and announced: “They’re trying not to kill you, okay? Just spit it out, okay? I’m not trying to charge you with drugs. Just spit it out.” Medical staff did not acknowledge Smith’s statement and continued admonishing Hudson to spit out the item. Presuming that Hudson was concealing drugs in his mouth, the doctor warned Hudson that the drugs could get him “real sick” and that they could also prevent or obstruct treatment if he needed to be intubated. Smith again remarked, “They aren’t going to treat ya, dude.” In response, the doctor immediately walked towards Smith and stated, “Please don’t, I don’t want to . . . .” The doctor then closed the curtain, blocking Smith’s view of Hudson and the treatment room. Thereafter, Smith returned to the hallway with Finke as medical staff continued their unsuccessful efforts to persuade Hudson to spit out the item.


Approximately ten minutes after first discovering the item in Hudson’s mouth, the doctor had the following conversation with Smith:

Doctor:   He’s got something in his mouth that he’s not getting out of his mouth, and I don’t want it to end up swallowed because it’s evidence, he’s going to end up sick.

Smith:     Absolutely. Absolutely. We’re not trying to charge him with anything.

Doctor: No, no, no. I told him everything on him, in him, is part of a crime scene,               which, ‘cause he was shot with a weapon. And he’s not cooperating at this                 point. So, if you have ways to convince him, I feel like I don’t know if he’s in custody or not, or who’s to say he’s not in custody currently?

Smith:     He’s detained, yeah.

Doctor:    Oh, he’s detained. Okay.

Smith:      He’s not free to leave.

Doctor:    Great.


The doctor then returned to Hudson’s room. A few minutes later, medical staffs’ voices became more forceful. Their commands grew into a chorus: “Spit it out, those drugs are going to go in you!,” “Stop chewing on it,” and “Nobody cares about a little drugs, spit it out before you get yourself hurt.” After the chorus faded without success, the doctor again implored Hudson to spit out the item, noting that Hudson was detained.


Finally, after nearly twenty (20) minutes, Hudson spit out the object. However, the object was not drugs; rather, it was a device used to convert a Glock firearm into an automatic weapon.


After the doctor exited Hudson’s room, Smith asked if he could speak with Hudson and conduct the gunshot residue kit. The doctor responded that he wanted to conduct x-rays of Hudson first because it was the “medically right thing to do.” Smith again stated, “No problem, sir, we’ll work around you.” While Hudson was x-rayed, a staff member asked Smith whether Hudson would be charged for possessing the Glock component. Smith responded, “You guys have acted as an agent for us, so I don’t know that I can charge him with it.” Smith explained that police officers cannot ask private actors to do things that they cannot do themselves, but then noted: “This is a little bit different, because you guys have every right to ask him to do that.” Surprised by Smith’s comments, a staff member responded, “We just really thought it was drugs, so we wanted him to spit it out.”


Under federal law, the Glock component that Hudson had in his mouth constituted a “machinegun” because it is used to convert a Glock firearm into a fully automatic weapon. As a result, Hudson was charged with possessing a machine gun. Hudson moved to suppress the Glock component, arguing that medical staff had acted as government agents when they directed him to spit it out, thereby conducting a warrantless search in violation of the Fourth Amendment and thereby warranting suppression.


The District Court held an evidentiary hearing on Hudson’s motion to suppress and, thereafter, found that medical staff did not act as government agents. Specifically, the District Court found that medical staff acted with the purpose of providing medical treatment to Hudson and that Smith neither induced nor encouraged medical staff to act. The District Court alternatively held that, even if medical staff had acted as government agents, the emergency-aid exception to the warrant requirement applied. Based upon the District Court’s ruling, Hudson entered a conditional guilty plea to the charge but reserved his right to appeal the denial of his motion to suppress.


On appeal, Hudson argued that the District Court erred in refusing to suppress the evidence of the Glock conversion device because, contrary to the District Court’s conclusion, the medical staff had acted as government agents when they ordered him to spit out the component. Thus, Hudson argued that their actions amounted to a warrantless search in violation of his Fourth Amendment rights, and the District Court should have granted his suppression motion.


The Seventh Circuit began its consideration of Hudson’s argument on appeal by noting that the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Fourth Amendment protects citizens against unreasonable searches and seizures by the government; it does not apply to searches or seizures conducted by private individuals, no matter how unreasonable. That being said, the government may not simply enlist private individuals to do its bidding in an attempt to avoid its Fourth Amendment obligations. The Fourth Amendment’s protections, therefore, apply to a search or seizure conducted by an ostensibly private individual when the individual acts as an instrument or agent of the government.


The Seventh Circuit continued its analysis by noting that a criminal defendant bears the burden of proving that a private individual acted as an instrument or agent of the government in conducting a search. To meet this burden, a defendant must prove some exercise of governmental power over the private entity such that the private entity may be said to have acted on behalf of the government rather than for its own, private purposes. Courts make this decision on a on a case-by-case basis in light of all of the circumstances, but two factors are critical: (1) whether the government knew of and acquiesced in the intrusive conduct and (2) whether the private party’s conduct was done with the purpose of assisting law enforcement or to further its own ends.


In this case, the District Court found that the relevant factors pointed to the non-existence of any agency relationship between the police officers and the medical staff, and the Seventh Circuit agreed. In reaching this conclusion, the Seventh Circuit rejected Hudson’s argument that Smith clearly knew of and acquiesced in the medical staff’s search because Smith maintained a constant presence both inside and outside his hospital room and stood idly by while staff directed Hudson to spit out the item. The Seventh Circuit explained that knowledge and inaction alone are insufficient to establish an agency relationship; instead, there must be both government knowledge of the action (or of the policy or practice of performing such actions) combined with some exercise of governmental power over the private entity, i.e., some manifestation of consent and the ability to control. The Seventh Circuit held that Hudson had failed to show any such manifestation and that, taken as a whole, the facts supported a finding that the medical staff acted with the purpose of providing medical treatment to Hudson and not with the purpose of assisting law enforcement.


Accordingly, the Seventh Circuit held that the District Court did not clearly err in finding that Smith did not induce medical staff to act and that medical staff acted with the primary purpose of providing medical care. Viewed together, the facts in this case led the Seventh Circuit to conclude that medical staff did not act as government agents in directing Hudson to spit out the item. Because Hudson had failed to sustain his burden of proving the existence of an agency relationship, the Seventh Circuit found that the Fourth Amendment did not apply to the medical staff’s actions and that the District Court properly denied Hudson’s motion to suppress.

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