People v. Perlos
| Decision Date | 18 July 1988 |
| Docket Number | 99855,99854,Docket Nos. 99852,99856,99853 |
| Citation | 428 N.W.2d 685,170 Mich.App. 75 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles A. PERLOS, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lynn BROWN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcy Beth MILLER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy F. BENTLEY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Benjamin SCHOMER, Defendant-Appellant. 170 Mich.App. 75, 428 N.W.2d 685, 57 U.S.L.W. 2211 |
| Court | Court of Appeal of Michigan — District of US |
[170 MICHAPP 79] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joe Filip, Pros. Atty., and Jerrold Schrotenboer, Chief Appellate Atty., for the people.
Jerome A. Susskind, Jackson, for defendants-appellants Perlos, Bentley, and Schomer.
John M. Sims, Albion, for defendant-appellant Brown.
John P. Kobrin, Jr., Jackson, for defendant-appellant Miller.
Before KELLY, P.J., and McDONALD and PAYANT, * JJ.
The defendants in these five cases were each charged with operating a motor vehicle while under the influence of intoxicating liquor, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. Each defendant moved in the district court to suppress the results of his or her blood alcohol test obtained by the prosecutor under M.C.L. Sec. 257.625a(9); M.S.A. Sec. 9.2325(1)(9). Four of the five motions were denied. One district judge granted the motion on the basis that the statute under which the test results were obtained was unconstitutional. The loser in each of the five cases appealed to circuit court, where the cases were consolidated. The circuit court ruled that the statute under which the blood test results were obtained was unconstitutional. We granted leave to appeal and we affirm the decision of the circuit court.
[170 MICHAPP 80] Each defendant in these five cases was involved in a motor vehicle accident and was taken to a hospital for treatment. While at the hospital, each defendant had a blood sample removed and tested for blood alcohol level. The defendants were conscious at the time their blood was removed. In each case, the blood alcohol content was in excess of .10 percent. None of the defendants was arrested prior to being subjected to his or her blood test. None of the defendants gave consent to turning over the blood test results to the prosecutor. After obtaining the results of the blood tests without the use of a search warrant, the prosecutor charged defendants with operating motor vehicles while under the influence of intoxicating liquor.
The prosecutor obtained the results of defendants' blood tests under the authority of Sec. 625a of the Michigan Vehicle Code, M.C.L. Sec. 257.1 et seq.; M.S.A. Sec. 9.1801 et seq. Subsection (9) of Sec. 625a provides as follows:
[170 MICHAPP 81] The circuit court ruled that subsection (9) of Sec. 625a violated the Fourth Amendment because it allowed a search and seizure without a warrant to be performed prior to arrest and without consent in the absence of any exigent circumstances. In addition, the circuit court ruled that subsection (9) denied equal protection to all motorists in an area affecting fundamental rights. The circuit court ordered that the evidence of the blood test results be suppressed.
The Fourth Amendment protection against unreasonable searches and seizures is a limitation on governmental action. Even an unreasonable search and seizure will not violate the Fourth Amendment if it is performed by a private individual who is not acting as an agent of the government or with the participation or knowledge of any governmental official. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). This Court has addressed the issue of governmental action in cases where a private citizen, acting with no knowledge on the part of the police, seizes evidence and then voluntarily turns the evidence over to police. People v. Langley, 63 Mich.App. 339, 234 N.W.2d 513 (1975); People v. DeLeon, 103 Mich.App. 225, 303 N.W.2d 447 (1981), lv. den. 412 Mich. 935 (1982). In each of those cases, the individual was clearly not acting as an agent of the government or with the participation or knowledge of any governmental official.
The people cite numerous cases in which it was held that there was no Fourth Amendment violation where a private citizen voluntarily turned [170 MICHAPP 82] evidence over to police. However, the present case is not analogous to the cases cited by the people. In the present case, the test results were turned over to the prosecutor under the authority of subsection (9) of Sec. 625a, which provides in part as follows:
Under this provision, the state need not request that a blood test be performed, but once it has been performed, the results must be turned over to the prosecutor on request.
If the police or the prosecutor had requested that hospital personnel draw blood from defendants, the prior request would clearly constitute state action. In most states, the implied consent laws specifically provide that chemical tests may only be performed at the request of a peace officer. 1 Those statutes insure that the protections of the Fourth Amendment will be triggered. In our view, there is very little distinction for Fourth Amendment purposes between a prior request that blood be withdrawn and tested and a statutory mandate that once blood is withdrawn and tested it must be turned over to the state.
Moreover, it is the involvement of the state rather than the purpose of the search that weighs [170 MICHAPP 83] most heavily toward a finding of state action. A private citizen acting with no state participation may seize evidence even when it is for the sole purpose of aiding a prosecution. In the present case, hospital personnel are statutorily required to turn over blood test results to the state for prosecution. In addition, hospital personnel are granted statutory immunity from civil and criminal liability. We believe there is sufficient governmental participation and authorization in the present case to constitute state action. Thus, the Fourth Amendment protections are triggered by a search and seizure conducted under the authority of subsection (9) of Sec. 625a.
The Fourth Amendment to the United States Constitution and the parallel provision in the Michigan Constitution, Const. 1963, art. 1, Sec. 11, protect against unreasonable searches and seizures. Both provisions have been interpreted to mean that a search and seizure without a warrant is per se unreasonable unless the search falls within an exception to the warrant requirement. People v. Reed, 393 Mich. 342, 224 N.W.2d 867 (1975), cert. den. 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696 (1975); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The six basic exceptions to the search warrant requirement are: (1) consent, (2) search incident to a lawful arrest, (3) probable cause to search plus exigent circumstances, (4) hot pursuit, (5) border search, and (6) stop and frisk. People v. Marshall, 69 Mich.App. 288, 293 n. 5, 244 N.W.2d 451 (1976), lv. den. 397 Mich. 851 (1976); People v. Castle, 126 Mich.App. [170 MICHAPP 84] 203, 337 N.W.2d 48 (1983), lv. den. 419 Mich. 876 (1984).
In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court said that blood tests "plainly constitute searches of 'persons,' and depend antecedently upon seizures of 'persons,' within the meaning of [the Fourth Amendment]." 384 U.S. at 767, 86 S.Ct. at 1834.
The defendants' blood tests in the present case constitute searches and seizures subject to Fourth Amendment protection. Since the test results were obtained without warrants, the searches and seizures must fall under one of the exceptions to the warrant requirement. Since none of the defendants was placed under arrest prior to being subjected to his or her blood test, the search and seizure cannot be justified as being incident to lawful arrests. The only other exceptions to the warrant requirement that could possibly apply in the present case are either consent or the existence of probable cause in conjunction with exigent circumstances.
We agree with the circuit court's reasoning that the searches and seizures without a warrant...
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People v. Perlos
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