Commonwealth v. Amy R. Wilson.

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

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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

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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

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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

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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).

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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.

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