Gilbert v. Leach

• Decision Date: 23 July 1975
• Docket Number: Docket No. 22026
• Parties: Thomas M. GILBERT, Administrator of the Estate of Frank R. Gilbert, Deceased, Plaintiff-Appellant, v. Kenneth G. LEACH and Russell L. Leach, Defendants-Appellees. 62 Mich.App. 722, 233 N.W.2d 840
• Court: Court of Appeal of Michigan — District of US

Page 840

233 N.W.2d 840

Thomas M. GILBERT, Administrator of the Estate of Frank R.

Gilbert, Deceased, Plaintiff-Appellant, v. Kenneth G. LEACH and Russell L. Leach,

Defendants-Appellees.

Docket No. 22026.

62 Mich.App. 722, 233 N.W.2d 840

Court of Appeals of Michigan.

July 23, 1975.

Released for Publication Oct. 22, 1975.

[62 MICHAPP 723] Peter P. Patrick, Cheboygan, for plaintiff-appellant.

J. Michael Fordney, Saginaw, for defendants-appellees.

Before BASHARA, P.J., and J. H. GILLIS and CAVANAGH, JJ.

CAVANAGH, Judge.

Plaintiff appeals by leave granted from the trial court's interlocutory order preventing the introduction into evidence of the results of a blood sample analysis.

Plaintiff, as the administrator of the estate of Frank R. Gilbert, instituted this action claiming that defendant operated in a grossly negligent fashion the automobile in which the defendant [62 MICHAPP 724] Kenneth Leach and Gilbert were riding, and that this negligence resulted in the collision which caused Gilbert's death. Prior to trial, the complaint was amended to allege that Kenneth Leach was intoxicated at the time of the accident.

During the trial, the defendants moved for a protective order to prevent the admission into evidence of a blood alcohol test performed on Kenneth Leach in the hospital shortly after the accident. Outside of the presence of the jury, the trial court heard testimony by Kenneth Leach and, from the plaintiff, received depositions of several medical personnel. The trial court ruled that the plaintiff had failed to show that Kenneth Leach had consented to taking of a blood sample and that, therefore, the search was unlawful and the analysis had to be excluded. The court, in determining of a consent had been proven, concluded that plaintiff had failed to meet the legal test requiring a showing of an 'intentional relinquishment or abandonment of a known right or privilege'. The court then granted plaintiff's motion for a continuance to enable him to bring this interlocutory appeal.

This case presents the interesting question of whether it was proper to grant a protective order in order to prevent disclosure, in a civil case, of the test results of a blood alcohol sample taken, while a defendant was conscious, and analyzed by the Michigan State Crime Laboratory.

The resolution of this issue depends primarily upon the application to these facts of the rule of Lebel v. Swincicki, 354 Mich. 427, 93 N.W.2d 281 (1958). In Lebel, a blood sample was taken from an unconscious victim of an automobile collision by hospital medical personnel. The procedure was not [62 MICHAPP 725] part of his therapeutic treatment, and the sample was delivered to the Michigan State Police. Under these circumstances, the Michigan Supreme Court concluded that the blood sample was taken in violation of the defendant's right to the security of his person under the Michigan Constitution. The fact that the testimony was to be admitted in a civil suit did not change the conclusion that the evidence should have been excluded.

The Court in Lebel considered the United States Supreme Court case of Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), which held that to admit such evidence in a state court did not violate due process. Although in a Federal court, the Fourth Amendment would prohibit the admission of a blood sample in these circumstances, the case of Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), prevented the amendment's application as a limitation in state courts. Lebel, however, concluded that Const.1908, art. 2, § 10, which reads substantially the same as the Fourth Amendment, was violated by the blood sample procedure. ¹

Lebel v. Swincicki resolves a number of the sub-issues inherent in this appeal. First, the case establishes the proposition that evidence obtained by an unlawful search is not admissible in civil cases in this jurisdiction. ² See also McNitt v. Citco Drilling Co., 60 Mich.App. 81, 230 N.W.2d 318 (1975), [62 MICHAPP 726] and Kassner v. Fremont Mutual Insurance Co., 47 Mich.App. 264, 266, 209 N.W.2d 490 (1973). ³

Second, the taking of a blood sample by hospital personnel at the request of the police and the furnishing of this sample to police does constitute a search and seizure which is subject to the constitutional requirement of reasonableness. The exclusionary rule operates to prevent the admission of evidence unlawfully obtained by or at the behest of government officials. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). Cf. People v. Morgan, 24 Mich.App. 660, 180 N.W.2d 842 (1970). A request by police officers that a blood sample be taken so that the State Crime Laboratory could analyze it for alcohol content does constitute a sufficient connection with the government to constitute state action. Lebel and a recent case with almost identical facts, McNitt v. Citco Drilling Co., supra, support this conclusion. ⁴

Subsequent to the opinion in Lebel, the United States Supreme Court handed down Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), which upheld the admissibility of the results of a blood sample analysis conducted after the defendant had been arrested for driving under [62 MICHAPP 727] the influence of intoxicating liquor. Schmerber does not detract from the Michigan Supreme Court's decision in Lebel. First, Lebel was grounded upon the state constitutional prohibition of unreasonable searches and seizures. ⁵ Second, the Court in Schmerber emphasized that the Fourth Amendment applies to constrain the intrusion into the body by means of a blood sample if this intrusion was not legally justified or if it was conducted in an improper manner. 384 U.S. 757, 768, 86 S.Ct. 1826, 16 L.Ed.2d 908. In Schmerber, unlike the circumstances of Lebel or the present case, the search was justified as incident to a lawful arrest and within a recognized exception to the warrant requirement.

The most difficult question posed for this Court is whether the defendant Kenneth Leach gave a valid consent to taking of the blood sample. Lebel and McNitt offer little assistance on this problem since in those cases the persons from whom the blood was extracted were both unconscious at the time. The trial court in the present case resolved the issue, after a motion for a protective order had been made, by hearing testimony on the issue outside of the jury's presence. It concluded that there has been no showing of an intentional relinquishment of a known right or privilege.

We conclude that the trial court properly examined the evidence relating to consent outside of the presence of the jury. The validity of a consent to search, it is true, is a question of fact to be determined from all of the evidence and reasonable inferences. People v. Chism, 390 Mich. 104, 123, 211 N.W.2d 193 (1973). This factual question, however, must be resolved by the trial judge exercising his discretion and is to be overturned by an appellate[62 MICHAPP 728] court only if clearly erroneous. 390 Mich. 104, 123, 211 N.W.2d 193. In criminal prosecutions, the validity of a consent to search is determined by the trial court after an evidentiary hearing is held on a motion to suppress evidence. See People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975), and People v. Chism, supra.

Although this is a civil case, we think the determination of the legality of the search, after a motion for a protective order, is better left in the province of the trial court and not the jury. To allow the jury to have complete knowledge of the damaging evidence sought to be excluded and then to ask them not to consider this evidence if it was illegally obtained effectively denies the defendant the benefit of his protective order. Such mental gymnastics should not be required of the jury--in a civil or criminal case. See McCormick, Evidence (2d ed.), § 53, p. 121. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Although the trial court properly considered the consent issue outside of the presence of the jury, it did not apply the correct standard to determine the validity of the consent. This is, perhaps, understandable considering the recent developments in this area. The 'intentional relinquishment' standard was first enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Recently, however, the United States Supreme Court has rejected this standard in the context of determining whether a valid consent to search exists. The Court in Schneckloth v. Bustamonte, 412 U.S. 218, 245, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), ruled...