United States of America v. Javares L. Hudson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1108
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JAVARES L. H UDSON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 22-cr-10006 — James E. Shadid, Judge.
____________________
A RGUED SEPTEMBER 26, 2023 — DECIDED NOVEMBER 16, 2023
____________________
Before WOOD, SCUDDER , and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Early in the morning on January 23,
2022, Javares Hudson walked into the Carle BroMenn Medical
Center seeking emergency treatment for a gunshot wound.
While an officer investigating the shooting stood outside
Hudson’s hospital room, medical staff discovered Hudson
was concealing “something plastic” in his mouth. Medical
staff spent nearly twenty minutes admonishing Hudson to
spit out the item before he finally complied, revealing a device

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2 No. 23-1108
used to convert a firearm into a fully automatic weapon. Hud-
son was subsequently indicted and moved to suppress the de-
vice, arguing that the medical staff acted as government
agents in conducting a warrantless search. The district court
denied the motion. Hudson pleaded guilty but reserved the
right to appeal the denial of the motion to suppress. We now
affirm.
I. Background
A. Factual History
A shooting took place outside a bar in Bloomington, Illi-
nois in the early morning of January 23, 2022. Members of the
Bloomington Police Department responding to the shooting
reported that a vehicle left the scene with a shooting victim in
the passenger seat. Bloomington Police Officer Benjamin
Smith pursued the vehicle. Smith’s body-worn camera rec-
orded the ensuing events.
Smith arrived at the parking lot of the Carle BroMenn
Medical Center and observed Javares 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 them, asking questions about the inci-
dent as 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

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No. 23-1108 3
who’s who in this scenario.” After a short pause, he added, “I
won’t interfere. I will stay out of your way completely, sir.
This is your show, I will work around you.” The doctor
walked away and began assisting Hudson without further
comment.
About a minute later Smith left the room, standing quietly
in the hallway directly outside of the 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.
Officer Brandon Finke then arrived and joined Smith in the
hallway. Shortly thereafter, the officers overheard medical
staff stating that Hudson had something in his mouth. Nu-
merous staff members directed Hudson to spit out the item,
but Hudson refused.
Overhearing the commotion, Smith asked a nearby nurse
if Hudson had something in his mouth, and the nurse con-
firmed that he had “something plastic” in his mouth. Smith
then stepped inside the examination room, announcing:
“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 him that the drugs could get him “real sick” and that
they could also prevent or obstruct treatment if he needed to

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4 No. 23-1108
be intubated. Smith then piped up again, remarking, “They
aren’t going to treat ya, dude.” In response, the doctor imme-
diately walked towards Smith shaking his hands and stating,
“Please don’t, I don’t want to ….” The doctor then closed the
curtain, blocking Smith’s view of Hudson and the treatment
room.
Smith returned to the hallway with Finke as medical staff
continued their unsuccessful efforts to persuade Hudson to
spit out the item. One medical staff member told Hudson that
his throat could be occluded by the object if a breathing tube
became necessary. Another stated, “They’re not going to let
you leave…. The cops are here and they’re not gonna let you
out of here without that out of your mouth.”
Approximately ten minutes after first discovering the item
in Hudson’s mouth, the exasperated doctor again approached
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.

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No. 23-1108 5
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 com-
mands 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 im-
plored Hudson to spit out the item, noting that Hudson was
detained.
Finally, after nearly twenty minutes of coaxing, admonish-
ing, and commanding, Hudson spit out the object. The object
was not drugs, but rather a device used to convert a Glock
firearm into an automatic weapon.
When the doctor exited Hudson’s room once more, Smith
asked if he could speak with Hudson and conduct the gun-
shot residue kit. The doctor stated 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

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6 No. 23-1108
member responded, “We just really thought it was drugs, so
we wanted him to spit it out.”
B. Procedural History
Under federal law, the Glock component that Hudson had
in his mouth constitutes a “machinegun” because it is used to
convert a Glock firearm into a fully automatic weapon. Hud-
son was therefore indicted on February 15, 2022, on one count
of possessing a machinegun in violation of 18 U.S.C. §§ 922(o),
924(a)(2).
Hudson moved to suppress the Glock component, argu-
ing that medical staff acted as government agents when they
directed him to spit it out, thereby conducting a warrantless
search in violation of the Fourth Amendment. After a hearing,
the district court held that medical staff did not act as govern-
ment agents. The 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 court alternatively held that even if medical staff had
acted as government agents, the emergency-aid exception to
the warrant requirement applied. The court therefore found
that suppression was not warranted and denied Hudson’s
motion.
On September 8, 2022, Hudson entered a conditional
guilty plea to the count charged in the indictment, reserving
his right to appeal the denial of the motion to suppress. The
district court accepted Hudson’s plea and sentenced him to
33 months of imprisonment. The court entered judgment on
January 13, 2023, and Hudson timely appealed.

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No. 23-1108 7
II. Discussion
Hudson’s only argument on appeal is that the district
court erred in denying his motion to suppress the Glock com-
ponent. The thrust of his argument is that medical staff acted
as government agents when they ordered him to spit out the
component, and thus their actions amounted to a warrantless
search in violation of the Fourth Amendment.
A. Standard of Review
We review a district court’s decision on a motion to sup-
press under a mixed standard of review. United States v.
Gholston, 1 F.4th 492, 496 (7th Cir. 2021). We review the district
court’s legal conclusions and conclusions on mixed questions
of law and fact de novo. United States v. Bebris, 4 F.4th 551, 560
(7th Cir. 2021). The district court’s factual findings are re-
viewed for clear error. Id. “A factual finding is clearly errone-
ous only if, after considering all the evidence, we cannot avoid
or ignore a ‘definite and firm conviction that a mistake has
been made.’” United States v. Edgeworth, 889 F.3d 350, 353 (7th
Cir. 2018) (quoting United States v. Jackson, 598 F.3d 340, 344
(7th Cir. 2010)).
B. The Fourth Amendment
The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. The 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. United States v.
Ginglen, 467 F.3d 1071, 1074 (7th Cir. 2006); Bebris, 4 F.4th at
560. But the government may not “simply enlist ‘private’

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8 No. 23-1108
individuals to do its bidding in an attempt to avoid its Fourth
Amendment obligations.” Bebris, 4 F.4th at 560; accord United
States v. Feffer, 831 F.2d 734, 737 (7th Cir. 1987) (“The govern-
ment may not do, through a private individual, that which it
is otherwise forbidden to do.”). Fourth Amendment protec-
tions 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. United States v.
Crowley, 285 F.3d 553, 558 (7th Cir. 2002) (citing United States
v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997)).
The defendant bears the burden of proving that a private
individual acted as an instrument or agent of the government
in conducting a search. Shahid, 117 F.3d at 325. “To meet this
burden, ‘a defendant must prove some exercise of govern-
mental power over the private entity, such that the private en-
tity may be said to have acted on behalf of the government
rather than for its own, private purposes.’” Bebris, 4 F.4th at
560 (quoting United States v. Koenig, 856 F.2d 843, 849 (7th Cir.
1988)).
There is “no rigid formula” for making such a determina-
tion. Id. at 561. Rather, a court should conduct the analysis “on
a case-by-case basis in light of all the circumstances.” Crowley,
285 F.3d at 558. We have nevertheless identified “two critical
factors” to assist courts in the analysis: 1) “whether the gov-
ernment 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.” Bebris, 4 F.4th at 560–61. “Other useful criteria are
whether the private actor acted at the request of the govern-
ment and whether the government offered the private actor a
reward.” Ginglen, 467 F.3d at 1074 (quoting Shahid, 117 F.3d at

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No. 23-1108 9
325). The district court found that each of these factors
pointed to the nonexistence of any agency relationship. We
agree.
Hudson zeroes in on the “acquiesced” language of the first
factor, arguing that Smith clearly knew of and acquiesced in
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.
Knowledge and inaction alone, however, are insufficient
to establish an agency relationship. See Crowley, 285 F.3d at
559 (“The mere fact that the police witness a private party’s
search does not transform the private party into a governmen-
tal agent.”); Koenig, 856 F.2d at 850 (“Mere knowledge of an-
other’s independent action, does not produce vicarious re-
sponsibility absent some manifestation of consent and the
ability to control.”). Rather, there must be both “government[]
knowledge of the action (or of the policy or practice of per-
forming such actions), combined with ‘some exercise of gov-
ernmental power over the private entity,’ i.e., ‘some manifes-
tation of consent and the ability to control.’” Shahid, 117 F.3d
at 326 (quoting Koenig, 856 F.2d at 849, 850); see also United
States v. Day, 591 F.3d 679, 685 (4th Cir. 2010) (“[T]here must
be some evidence of Government participation in or affirma-
tive encouragement of the private search before a court will
hold it unconstitutional. Passive acceptance by the Govern-
ment is not enough.” (quotation omitted)).
Emphasizing the few short interactions between Smith
and medical staff, Hudson insists that Smith did exercise such
control here by encouraging the search and inducing medical
staff to act. He points to a few isolated instances in which
Smith was involved in the nearly twenty-minute event,

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10 No. 23-1108
including that the doctor asked Smith for help in convincing
Hudson to spit out the item, that medical staff mentioned the
presence of police in attempting to convince Hudson, and that
Smith made his presence known to staff and even, on
occasion, directed Hudson himself to spit out the then-
unidentified item. But, as the district court correctly observed,
we cannot view these facts in isolation. See Shahid, 117 F.3d at
325 (instructing that review of whether an agency relationship
exists should be “on a case-by-case basis and in light of all of
the circumstances”). While we agree that Smith had some
degree of interaction with medical staff, the district court did
not clearly err in discounting this interaction and finding,
based on all the circumstances presented here, that Smith did
not attempt to induce medical staff to act or otherwise
manifest any ability to control medical staff’s actions. See
Bebris, 4 F.4th at 561 (reviewing the district court’s factual
findings on the issue of whether the government induced a
private party to engage in a search for clear error).
Hudson, for example, pulls out of context that, after an ex-
tended period of attempting to convince Hudson to spit out
the object, the doctor asked Smith if he had any ideas on how
to convince Hudson. The doctor also asked Smith if Hudson
was detained, and when Smith responded that he was, the
doctor leveraged that information in his attempts to convince
Hudson to spit out the item. But in the same conversation,
Smith disclaimed any interest in charging Hudson for drugs.
Viewed in context, Smith’s statement that Hudson was de-
tained does not clearly evince an intent to induce action, as
Hudson contends; Smith was simply answering the doctor’s
questions and did not direct the doctor to act in any particular
way. Indeed, it would be difficult to find that Smith intended
to induce the doctor or medical staff to obtain the suspected

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No. 23-1108 11
drugs from Hudson’s mouth where Smith affirmatively dis-
claimed any evidentiary interest in them. Absent any mani-
festation of consent and the ability to control, these facts do
not transform medical staff’s actions into a government
search. Cf. United States v. Chukwubike, 956 F.2d 209, 212 (9th
Cir. 1992) (holding that medical staff did not act as govern-
ment agents where they acted on their own initiative to
“search” the defendant but received some assistance from law
enforcement officers in executing the search).
Hudson’s reliance on other small interactions between
Smith and medical staff are likewise undermined by the rest
of the record. As the district court found, medical staff were
uninterested in Smith’s presence and even asked Smith to
leave Hudson’s room, so Smith stood outside the room for
most of the events in question. When Smith attempted to in-
terject in the attempts to get Hudson to spit out the item, med-
ical staff ignored his first interjection, and the doctor shut the
curtain in response to his second. Smith repeatedly assured
medical staff he would stay out of the way, and his only re-
quest to the doctor during the entirety of the encounter was
that Hudson’s hands not be washed. And, even then, rather
than simply complying, the doctor stated that washing hands
was not something he normally did in treating patients with
gunshot wounds. From all this, the district court could cer-
tainly conclude that Smith did not exercise any control over
the search and medical staff were, in fact, calling all the shots.
See United States v. Leffall, 82 F.3d 343, 348 (10th Cir. 1996) (ob-
serving that the court has never found agency where “govern-
ment participation was as minimal” as an officer briefly in-
specting the exterior of a package and then watching a private
individual open the box and inspect its contents).

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12 No. 23-1108
Turning to the second factor, Hudson also asserts that the
district court erred in finding that medical staff acted with the
purpose of providing medical care to Hudson and not to as-
sist law enforcement. We disagree.
As an initial matter, we emphasize that a private
individual’s independent intent to assist law enforcement
alone cannot “transform a private action into a public action.”
Shahid, 117 F.3d at 326; see also United States v. Aldridge, 642
F.3d 537, 541 (7th Cir. 2011) (stating that “[b]oth sides must
agree” to the formation of an agency relationship, and
“something more than approval” is necessary); Koenig, 856
F.2d at 849 (noting that the two critical factors “are not
independently sufficient to convert a private search into a
governmental search”). There also must be some
governmental “manifestation of consent and the ability to
control.” Shahid, 117 F.3d at 326. Because we agree with the
district court that Hudson failed to show any such
manifestation here, it is of no moment whether medical staff’s
purpose—even if “sole or paramount”—was to assist law
enforcement. See id.
Even if there had been some manifestation of consent and
control here, we see no clear error in the district court’s find-
ing that medical staff did not act with a purpose of assisting
law enforcement. Ginglen, 467 F.3d at 1074 (reviewing for
clear error the district court’s findings that private individuals
did not act with a purpose to assist law enforcement). As the
district court found, medical staff repeatedly expressed con-
cerns for Hudson’s safety when directing him to spit out the
item and emphasized the health risks posed by the item if it
stayed in his mouth. They also directed Hudson to spit out
the item before Smith even knew that Hudson had anything

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No. 23-1108 13
in his mouth. And, when Smith stated to medical staff that
they had acted as his agents, they expressed surprise because
they simply wanted Hudson to spit out the suspected drugs.
Taken as a whole, these facts supported a finding that medical
staff acted with the purpose of providing medical treatment.
Hudson contends that other evidence in the record belies
any such finding. Specifically, he argues that medical staff
could not have acted with a medical purpose because it was
not medically necessary for him to spit out the item to obtain
treatment for his “flesh wound.” He further argues that, once
he refused the “medical treatment”—i.e., spitting out the sus-
pected drugs—medical staff’s purpose in directing him to spit
them out became purely to collect evidence because he had
invoked his right to refuse medical treatment, thereby reliev-
ing staff of their obligation to provide such treatment.
Hudson misunderstands the relevant inquiry. It is not
whether medical staff were correct about the medical neces-
sity of their conduct, but simply whether they acted pursuant
to a legitimate independent medical purpose as opposed to a
desire to assist law enforcement. See United States v. McAllis-
ter, 18 F.3d 1412, 1418 (7th Cir. 1994).1 Thus, even if it was not
1 The extent to which a private individual’s actions are actually war-
ranted under the circumstances may be relevant in determining whether
the private individual had a legitimate independent purpose in conducting
a search. See, e.g., United States v. Booker, 728 F.3d 535, 545 (6th Cir. 2013)
(finding that a doctor did not act with a legitimate medical purpose when
the doctor proceeded to conduct a potentially unnecessary medical proce-
dure that would ensure the retrieval of suspected contraband without first
offering less intrusive alternatives). But this is simply a factor in answering
the relevant question of what the individual’s subjective purpose was in

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14 No. 23-1108
medically necessary for Hudson to spit out the item, or if such
a “treatment” was unwarranted in light of Hudson’s invoca-
tion of his right to refuse medical treatment, that would not
somehow nullify their subjective purpose to render medical
treatment. Cf. Chukwubike, 956 F.2d at 212 (“Under normal cir-
cumstances, of course, [medical staff] should have had their
patient’s consent. But their judgment remained a medical one.
It was not nullified by [the defendant’s] refusal to give per-
mission.”); see also Koenig, 856 F.2d at 850 (“[O]nce the court is
satisfied that a private entity has conducted a search for its
own, private reasons and not as an instrument or agent of the
government, the specific reason for the search no longer mat-
ters.”).
In any event, we are unpersuaded that it was medically
unnecessary for Hudson to spit out the item: medical staff op-
erated under the assumption that he had drugs in his mouth,
and repeatedly indicated that the suspected drugs could
cause him to overdose if the container they were in ruptured.
Although this assumption was ultimately mistaken, it does
not undermine the fact that staff viewed it medically neces-
sary for Hudson to spit out the item to prevent a second med-
ical emergency from eclipsing the first. They also expressed
concern that the item could cause Hudson to choke or occlude
his throat if he needed to be intubated, further indicating that
their concerns were not merely speculative, but were related
to their treatment of his “flesh wound.”
Hudson again lifts isolated statements out of context in an
attempt to argue that staff intended to collect evidence rather
executing the search, not a basis in and of itself to deem an individual’s
purpose illegitimate.

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No. 23-1108 15
than provide medical assistance. He points to the fact that the
doctor mentioned that the item was “evidence” when asking
Smith for help in getting Hudson to spit out the item. When
viewed in context, however, the doctor’s statement is much
more innocuous. In the same sentence, the doctor expressed
his concern that Hudson would swallow it and “end up sick.”
The district court’s conclusion that this ambiguous statement
“at best” could be construed as a request for help in accom-
plishing medical staff’s medical purpose, and that the refer-
ence to “evidence” and a “crime scene” was because Hudson
had been shot, was not clearly erroneous. Cf. Shahid, 117 F.3d
at 326 (noting that a private party is not transformed into a
government agent when they have both an intent to assist law
enforcement and a “legitimate independent motivation for
engaging in the challenged conduct” (quotation omitted)).
In sum, we conclude 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, these factors lead
us to conclude medical staff did not act as government agents
in directing Hudson to spit out the item.
That Smith afterwards indicated to medical staff that he
believed they acted as his agents does not alter our conclusion
here. Smith’s after-the-fact, subjective speculation as to the ex-
istence of an agency relationship—a legal conclusion—does
not override the effect of the underlying facts in this case. See
United States v. Martin, 195 F.3d 961, 963 (7th Cir. 1999) (noting
that “the ultimate question whether a private person is actu-
ally a government agent” is “a question that requires the ap-
plication of a legal concept (agency) to facts”). And those

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16 No. 23-1108
facts, when looked at objectively and in their totality, do not
support the existence of an agency relationship.2
III. Conclusion
Hudson has failed to sustain his burden of proving the ex-
istence of an agency relationship. Accordingly, the Fourth
Amendment does not apply to the medical staff’s actions, and
the district court properly denied Hudson’s motion to sup-
press on that basis.3
* * *
The judgment of the district court is
AFFIRMED.
2 This is not to say that a government actor’s subjective belief as to
whether an agency relationship exists would never be relevant to the anal-
ysis. As this court has stated, “[b]oth sides must agree … to the creation of
the agency relationship.” Aldridge, 642 F.3d at 541. One party’s subjective
belief as to the existence of an agency relationship may therefore have
some value in determining whether such a relationship did, in fact, exist.
3 Because we hold that no agency relationship existed and therefore
the Fourth Amendment does not apply to the alleged search, we do not
reach the government’s alternative arguments regarding the exceptions to
the Fourth Amendment’s warrant requirement.

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