People v. Dolan

• Decision Date: 28 July 1978
• Citation: 95 Misc.2d 470,408 N.Y.S.2d 249
• Parties: The PEOPLE of the State of New York v. John DOLAN, Defendant.
• Court: New York Supreme Court

Page 249

408 N.Y.S.2d 249

95 Misc.2d 470

The PEOPLE of the State of New York v. John DOLAN, Defendant.

Supreme Court, Trial Term, Bronx County, Part XVIII.

July 28, 1978.

Mario Merola by Alan D. Marrus, New York City, for People.

Dudley Gaffin, New York City, for defendant.

DONALD J. SULLIVAN, Justice.

Defendant moves to suppress the results of a chemical blood test. Defendant was originally indicted for the crimes of manslaughter in the second degree and operating a motor vehicle under the influence of alcohol. By virtue of a superseding indictment, defendant was charged with the crimes of manslaughter in the second degree, criminally negligent homicide, operating a motor vehicle under the influence of alcohol and reckless driving.

The motion is denied and the court makes the following findings of fact and conclusions of law. At the "Mapp" hearing, the testimony disclosed that on January 26, 1977 at about 12:00 midnight the defendant was involved in a two car collision in Bronx County resulting in the death of four individuals. Police officer Peter Soldano responded to the scene and after having smelled the odor of liquor on defendant's breath and observing three full and three empty beer cans in the interior of defendant's car, placed defendant under arrest at about 12:10 a. m. Defendant was then taken by ambulance to Jacobi Hospital arriving at about 12:40 a. m. The hospital personnel, in the performance of its routine medical procedures, without request or order of the law enforcement authorities, extracted blood specimens from the defendant. Thereafter, at approximately 1:45 a. m., police officer Joseph Pontonio arrived at the hospital to perform the chemical tests for intoxication. After advising defendant of his rights required by § 1194 of the Vehicle and Traffic Law, defendant was requested to submit to a blood test. The defendant refused and police officer Pontonio complied with this direction. At or about 5:30 a. m., police officer Pontonio in full uniform, pursuant to direction of his superior officer went to the sixth floor hospital laboratory and requested the defendant's blood samples. The hospital personnel handed over three vials of blood labeled with defendant's name (People's Exhibit 1) to police officer Pontonio. The blood samples were thereafter analyzed by a police laboratory, the results of which are the subject of this motion to suppress.

The principal issue, inter alia, is whether the warrantless police seizure of the three vials of defendant's blood violated defendant's right to be free of an unreasonable search and seizure guaranteed by the Federal and State Constitutions (U.S.Const.Admt. IV; State Constitution, Art. I, § 12).

At the outset, basic to the law in this area, is the general interdiction that absent a warrant, a search and seizure is per se unconstitutional (Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564). Requiring a warrant based on probable cause to be secured from a neutral magistrate was designed to remove untrammeled discretion in the searcher and to "protect the right of privacy . . . the 'core' of the Fourth Amendment" (People v. Nieves, 36 N.Y.2d 396, 401, 369 N.Y.S.2d 50, 57, 330 N.E.2d 26, 33; see, also, Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782; Marron v. U. S., 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231). Reinforcing this Federal Fourth Amendment protection is the formulated rule precluding the admission of evidence derived from an " unreasonable search and seizure" in state courts by operation of the Fourteenth due process amendment (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). But, the constitution does not forbid all searches and seizures without a warrant, only unreasonable ones (People v. Singleteary, 35 N.Y.2d 528, 531, 364 N.Y.S.2d 435, 324 N.E.2d 103; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478; Harris v. U. S., 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399). Reasonableness depends upon all the facts and circumstances of each case (People v. Kreichman, 37 N.Y.2d 693, 376 N.Y.S.2d 497, 339 N.E.2d 182; Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 37 L.Ed.2d 706; Go-Bart v. U. S., 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; People v. DeVito, 77 Misc.2d 463, 353 N.Y.S.2d 990). The applicable test in the determination of a reasonable intrusion is to balance the need to search for evidence of criminal activity in the public interest against the individual's invasion of privacy (People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607; Camara v. Municipal Ct., 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930; People v. Velez, 88 Misc.2d 378, 388 N.Y.S.2d 519). It is well settled that a search and seizure in the absence of a warrant is constitutionally reasonable if made in a few specific, well-delineated, exceptional circumstances (Katz v. U. S., 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Coolidge v. New Hampshire, supra, p. 481, 369 N.Y.S.2d 50, 330 N.E.2d 26).

Upon a review of the entire record, the court finds that the blood samples (People's 1 in evidence) were extracted by hospital personnel with the expressed or implied consent of the defendant and without any reservation or right or interest to said blood. Further, that any refusal to submit to a blood test occurred after the consensual extraction of blood by the hospital personnel and said refusal cannot be retroactively applied to the original procedure. Accordingly, the court finds that the defendant had no interest in the blood samples which were now in the possession of Jacobi Hospital. Therefore, the court concludes that the defendant has no standing to challenge the admissibility of the derivative chemical blood test evidence (see, Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697). Even if the court was to find that the defendant had some interest in the blood, the motion to suppress would nevertheless be denied in that the court would find that the well settled exception to a warrantless search and seizure has been established according to the consensual search theory.

The precise question as to who owns the blood upon extraction from an individual raises a novel point without apparent judicial precedent. Extensive research and review of the law in this area including study of the excellent, comprehensive briefs submitted by counsel for both parties has not elicited a definitive rule. The court is persuaded, nevertheless, based on its assessment of the case and statutory law and the facts in this case, assuming that defendant had an interest in the blood specimen in the vial containers, it was the joint, mutual property of defendant and the hospital (see, for example, Schloendorff v. New York Hospital, 211 N.Y. 125, 105 N.E. 92 and Public Health Law, § 17, § 570, § 571 et seq; see, also, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Gotkin v. Miller, D.C., 379 F.Supp. 859, affd. (2nd Cir) 514 F.2d 125; and Mental Hygiene Law, § 15.13, now § 33.13). The hospital's consent to the warrantless search and seizure would therefore not be a bar to the admission of the featured evidence. Such finding is consistent with the rule that a third party's voluntary consent is binding on an absent, nonconsenting defendant, where joint occupants share common authority over the premises or property (U. S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242; People v. Wood, 31 N.Y.2d 975, 341 N.Y.S.2d 310, 293 N.E.2d 559). It logically follows that any one of two or more persons having a mutual interest in the property may consent to or refuse to permit the warrantless search and seizure. It is bottomed on the compelling principle that one who gives up sole and exclusive possession, control or ownership of property has, in effect, removed the constitutional talisman protecting his reasonable right of privacy (see, for example, Katz v. U. S., supra). Comparison with a bailor-bailee relationship is appropriate. The nature of the bailment in this case is one where the bailor-defendant, for all intents and purposes, surrendered the blood to the hospital for tests without any thought of ever recovering the blood for his own use or purpose. Clearly, defendant did not have sole or exclusive interest in the blood. In this analysis, we can see that the hospital's mutual interest in the property enabled it to authorize a valid consent search. The freedom from an unreasonable search and seizure guaranteed under the Fourth Amendment is a personal right, privilege and immunity. It does not protect an absent defendant from a search and seizure directed against a consenting third party notwithstanding evidence incriminating defendant is uncovered thereby (U. S. v. Eldridge (4th Cir.) 302 F.2d 463; U. S. v. Birrell, (2d Cir.) 470 F.2d 113). A somewhat analagous case, the State of Washington Court of Appeals in State v. Smith, 12 Wash.App. 720, 531 P.2d 843, held that a hospital had at least joint control over a hospital patient's clothes which the patient turned over to the hospital representative and then allowed them to be placed outside his room in a public area. The patient's conduct constituted a relinquishment of exclusive control and thus enabling the hospital to validly consent to a search of said clothes.

The court further notes that the Jacobi Hospital's (a municipal hospital) consent is not a question of agency (Roberts v. U. S., (8th Cir.) 332 F.2d 892) but an act performed in its own capacity. The record is clear that the hospital employee was not connected with the police, nor was he a security-type municipal employee, nor was he acting under the domination or control of the police (People v. Horman, 22 N.Y.2d 378, 292 N.Y.S.2d 874, 239 N.E.2d 625; People v....