State v. Younker
| Decision Date | 28 August 2020 |
| Docket Number | No. 121,554,121,554 |
| Citation | 469 P.3d 687 (Table) |
| Parties | STATE of Kansas, Appellee, v. Pamela A. YOUNKER, Appellant. |
| Court | Kansas Court of Appeals |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Atcheson, P.J., Bruns and Powell, JJ.
After a bench trial on stipulated facts, the district court convicted Pamela A. Younker of one count of possession of methamphetamine, one count of possession of drug paraphernalia, and one count of possession of marijuana. Younker now appeals, alleging the district court committed three errors by (1) refusing to suppress the drug evidence, (2) quashing her subpoena compelling a police detective's testimony, and (3) not informing her of her right to a jury trial on the record before accepting her jury trial waiver. Because the district court failed to conduct a colloquy with Younker on the record informing her of her right to a jury trial before accepting her jury trial waiver, we must reverse her convictions and remand for a new trial. We affirm the district court in all other respects.
On March 23, 2018, Younker was admitted to Hutchinson Regional Medical Center (HRMC) due to her hyperglycemia—a condition causing high blood sugar. HRMC is a private hospital, but some of its patients do receive Medicare or Medicaid.
After a brief stop in the emergency room, Younker was transferred to the ICU, where Anna Nininger, an HRMC nurse, attended to Younker. When Younker was admitted to the ICU, she kept her purse with her on her bed. Nininger asked to inventory Younker's purse in accordance with HRMC's policy requiring hospital staff to inventory each patient's belongings when admitted to the ICU. Younker allowed her to do so, and Nininger did not contact law enforcement before inventorying the purse. Nininger testified she was looking for valuables for safekeeping. Inside Younker's purse, Nininger found a black eyeglasses case, and inside the case was a plastic bag containing a white crystal substance that Nininger believed was drug paraphernalia. Nininger locked the purse in the nurse's station and called HRMC security.
Zachary Kelly, an HRMC security guard, responded to Nininger's request. Kelly was trained as a security guard by HRMC's head of security, a former police officer. Several other security guards were current or former law enforcement officers working a separate job at HRMC, but none were involved in this case, and Kelly himself was not law enforcement.
After Nininger handed him the purse, Kelly asked Younker if the purse belonged to her, and Younker confirmed that it did. Kelly searched her purse and found what appeared to be an illegal crystalized substance, marijuana, and two pipes with burn marks. Kelly then called the Hutchinson Police Department.
At the suppression hearing, Kelly testified that HRMC had a policy to inventory patients' belongings when they are admitted. Nurses contacted him if they found suspected illegal substances because HRMC had a policy not to store illegal drugs. HRMC would contact the police if any illegal drugs were recovered. Kelly testified that the security guards at HRMC did not normally work with the Hutchinson Police Department unless they were needed to handle a criminal issue. Kelly knew of no Hutchinson Police Department policy requiring HRMC to notify law enforcement if illegal drugs were found. In his two-and-a-half or three years working at HRMC, Kelly believed he turned over drugs to law enforcement two or three times. This was the first time in her seven years Nininger saw law enforcement seize drugs at HRMC.
Officer Desarae Hogan of the Hutchinson Police Department responded to Kelly's call. Kelly turned over the eyeglasses case with the drugs and drug paraphernalia to Hogan. Hogan testified the Hutchinson Police Department does not provide security to HRMC.
Younker was charged with possession of methamphetamine, possession of drug paraphernalia, and possession of marijuana. Younker filed a motion to suppress the evidence seized from her purse, arguing HRMC, Nininger, and Kelly were state actors subject to the Fourth Amendment to the United States Constitution. Younker also subpoenaed Detective Daniel Styles as a witness for the suppression hearing. The district court quashed the subpoena at the State's request, finding Styles' testimony irrelevant because he was not involved in the case. After taking evidence at a suppression hearing, the district court denied Younker's motion to suppress.
The parties prepared and submitted agreed-upon facts in a signed stipulation of facts which included Younker's waiver of her jury trial right. The case proceeded to a bench trial, and the district court found Younker guilty of all three counts. Younker was sentenced to a controlling term of 15 months' imprisonment and placed on probation for 12 months.
Younker timely appeals.
Younker first argues the district court erred at the suppression hearing by ruling HRMC and its employees were private actors rather than agents of the State. Younker asserts HRMC became an agent of the government because it had a policy of searching anyone's belongings and turning over any found illegal contraband to law enforcement. She also argues HRMC was a government agent because it received state benefits in the form of Medicare and Medicaid payments for its patients. Younker further argues Kelly became an agent of the government because his primary instructor during his training was a former police officer and other former or current police officers worked at HRMC as security staff. Younker additionally claims Kelly acted as an agent of the government because he intended to assist law enforcement when he searched Younker's purse. Because HRMC and Kelly became state actors, Younker argues they were subject to the Fourth Amendment's prohibition against unreasonable searches and seizures and the evidence should be suppressed.
The State responds that HRMC and Kelly are private entities and not subject to the Fourth Amendment's restrictions. The State points to State v. Cherry , No. 115,238, 2017 WL 1426002 (Kan. App. 2017) (unpublished opinion), a case involving this identical issue and HRMC, to support its argument.
We review a district court's decision on a motion to suppress using a bifurcated standard. The district court's findings of facts are reviewed to determine if they are supported by substantial competent evidence without any reweighing of that evidence. The district court's legal conclusions are reviewed de novo. State v. Garza , 295 Kan. 326, 330-31, 286 P.3d 554 (2012). When the facts are undisputed, our review is de novo. State v. Oram , 46 Kan. App. 2d 899, 904, 266 P.3d 1227 (2011).
Generally, a search conducted by a private actor not acting as an agent of the government is not subject to the Fourth Amendment's protections against unreasonable searches. State v. Smith , 243 Kan. 715, 717-18, 763 P.2d 632 (1988). Whether those searches are "accidental or deliberate, ... reasonable or unreasonable, [does not matter] because of their private character." United States v. Jacobsen , 466 U.S. 109, 115, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). But, of course, "searches by agents of the State are subject to constitutional restrictions." Smith , 243 Kan. at 718.
The Fourth Amendment does not apply exclusively to the acts of law enforcement officers, and searches by private actors can fall under the Fourth Amendment if the private citizen has become an instrument or agent of the government. See State v. Brittingham , 296 Kan. 597, 602-03, 294 P.3d 263 (2013). To determine if a private citizen has become an instrument or agent of the government requires a two part inquiry: "(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his or her own ends." 296 Kan. 597, Syl. ¶ 3.
Younker cannot satisfy either prong of the private actor test. First, there is no evidence the Hutchinson Police Department knew of, or acquiesced to, HRMC's policy of searching an ICU patient's belongings for inventory. Nininger testified at the suppression hearing that HRMC was a private entity. Neither Nininger nor Kelly knew if the police department was aware of the inventory policy. Both testified Younker's bag was searched under HRMC's policy, not at the police department's direction. Second, the purpose of HRMC's policy was not to help the Hutchinson Police Department with investigating crimes but to ensure a patient's valuables were cataloged and protected while the patient was in the ICU. While the policy did require HRMC employees to turn over illegal drugs to the police, this was because HRMC did not store illegal drugs. Kelly testified that in his two-and-a-half or three years working at HRMC, he personally turned over drugs to law enforcement only two or three times. Nininger testified this was the first time she saw the police called for items found in an inventory search. The evidence in the record shows the infrequency of interaction between HRMC employees and law enforcement.
The unpublished Cherry case is instructive here. Cherry involved the same hospital and the same claim that HRMC and its employees were state actors. In preparation for Cherry's transfer to the ICU, a nurse's aide saw an inventory receipt lying on the table and put it in Cherry's pants pocket. When doing so, the nurse's aide noticed a jewelry box. Cherry told her not to worry about the box and to leave it alone. The nurse's aide called in a nurse and showed her the jewelry box. The nurse believed there was jewelry inside the box and opened it to inventory the...
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