State v. Gilpin, WD

• Decision Date: 07 July 1992
• Docket Number: No. WD,WD
• Citation: 836 S.W.2d 49
• Parties: STATE of Missouri, Respondent, v. Jerry GILPIN, Appellant. 44959.
• Court: Missouri Court of Appeals

Page 49

836 S.W.2d 49

STATE of Missouri, Respondent, v. Jerry GILPIN, Appellant.

No. WD 44959.

Missouri Court of Appeals,

Western District.

July 7, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 1, 1992.

Lawrence R. McClure, Marshall, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and KENNEDY and SMART, JJ.

SHANGLER, Presiding Judge.

The defendant Jerry Gilpin was found guilty by a jury of possession of a controlled substance and sentenced to seven years imprisonment and assessed a fine of $5,000. § 195.202, RSMo Cum.Supp.1990. The defendant contends that the conviction rests on illegal evidence admitted over objection and seeks a new trial. The sufficiency of the evidence for conviction, if validly before the jury, is not disputed.

On June 22, 1990, Patrolman George Workman of the Marshall Police Department was dispatched to the roadway area of Lakeview Trailer Court, and arrived there at about 1:15 a.m. There he discovered two men covered with blood and injured. The defendant Gilpin was bleeding from the face, lying in a pool of blood and moaning. Workman called for an ambulance after he determined that Gilpin was alive, but received no response to his questions. A small BB gun lay on the road some eight feet away. The other man, Michael Todd Sloan, came towards the officer and complained hysterically that he had been shot by a BB gun. Sloan raised his shirt to show Workman a small blister-like area on his chest. About then, Cpl. Johnson arrived on the scene and Sloan went with him to the police station.

The ambulance arrived with Hinnard and Blodgett, both attendants with the Saline County Ambulance District No. Three. Officer Workman held a flashlight while the ambulance attendants administered aid to Gilpin. Hinnard, a staff emergency medical technician, slit Gilpin's trousers and removed them to examine for any injury to his lower extremities. Ambulance attendant Blodgett removed some currency from a pocket and tried to hand it to Officer Workman, but he refused it. The officer explained that the money was to be kept with the person, "for the simple fact that this was dealing with [him] so far as [his] medical emergency." In the process of slitting the trousers, also, a bottle marked for vitamins was removed from Gilpin's pocket. Hinnard, the other ambulance attendant, opened the bottle "to determine if there was anything in there that we needed to be aware of that may alter the treatment that we performed on the patient." It is the usual practice of ambulance attendants to search the pockets of a prostrate patient for medications or anything else that might affect the treatment to be administered. Hinnard opened the vitamin bottle and saw little packages, folded up, and loose white powder in the bottom of the bottle. The attendant capped the bottle and handed it to Officer Workman with the comment, "Here's something you might want." The officer opened the bottle, looked inside, and saw four small packets and a white powdery substance around the edges of the container and along its bottom. He took the bottle to the police station, packaged it, and placed it in the evidence locker.

The ambulance removed defendant Gilpin from the scene. His trousers were left behind at the scene by emergency medical technician Hinnard because they seemed to be relevant to the apparent crime. Detective Juanita Walker arrived to secure the evidence and to process the crime area. She seized the defendant's trousers and returned them to the police station. There she followed standard department procedure and searched the trousers for anything of value. This is done to keep items secure until the owner can retrieve them. In the process, she discovered a small folded packet in the watch pocket of the trousers. It contained a white powdery substance.

The powdery substance in the four packets inside the vitamin bottle recovered from Gilpin's trousers was determined to be cocaine. The total weight of the substance found in Gilpin's possession was 2.83 grams. In defense, Gilpin testified that he did not know that the packets of cocaine were in his pockets. In rebuttal for the prosecution, Sloan testified that he did not plant the cocaine in Gilpin's pockets during the altercation with him.

The defendant Gilpin moved the court to suppress as the product of unlawful search and seizure the items taken from his person as well as the testimony of the police officers and the public ambulance district employees. The motion asserted that the vitamin bottle taken and inspected by the ambulance attendants without a warrant, or his consent, or probable cause, or incident to lawful arrest, or exigent cause, was an unreasonable search and seizure. The motion asserted also that the later search of Gilpin's trousers and seizure of the packet were unreasonable for the same reasons. The trial court denied the motion and received the evidence. On this proof, the jury convicted Gilpin of possession of cocaine, a class C felony.

I. The Search and Seizure of the Vitamin Bottle

A. The Ambulance Attendants

Gilpin argues that the first episode, the "removal" of the vitamin bottle from his trousers and then the inspection of its contents without a warrant was per se unreasonable. The admission of that evidence and the tainted testimony it yielded, therefore, was error and requires a new trial.

The principals acknowledge that the warrant requirement applies only to governmental actors. The protections of the Fourth Amendment are without application to a search or seizure, even an unreasonable one, conducted by a private person not then acting as an agent of government. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). Gilpin argues from the premise that the ambulance attendants were state actors at the time the vitamin bottle was removed from his trousers and then inspected to discover the contraband content. He cites the testimony of Officer Workman that the ambulance responded to his call after he had come upon Gilpin alive, but only semiconscious, and in need of assistance. Therefore, the medical attention given to Gilpin [the argument goes], was "at the direction and control of Officer Workman," and the search by the attendants, even if "private individuals," was done at the urging or initiation of government and so was not a private search by employees of the ambulance district, but an action of the Marshall Police Department. Gilpin concludes, accordingly, that the full constitutional strictures against unreasonable searches and seizures govern the conduct of the ambulance attendants.

The prosecution argues, rather, that Officer Workman neither directed nor supervised the actions of attendants Hinnard and Blodgett, either in the performance of their medical duties or in their capture and inspection of the vitamin bottle. Thus, they were not agents of government for purposes of the Fourth Amendment, and the constitutional search and seizure analysis does not apply. The prosecution comes to this premise by the testimony of attendants Hinnard and Blodgett themselves, and by reference to § 190.005 et seq., RSMo Supp.1991. Those statutes enact "The Ambulance District Law" and enable voters in territories within the state to organize an ambulance district. An organized ambulance district becomes a body corporate and political subdivision of the state with the power to collect taxes and exercise governmental powers. §§ 190.005, 190.010, 190.060. Among them is the power to employ persons for professional services necessary or desirable for the accomplishment of the objects of the district. § 190.060.1(6).

Whether a private person shall be deemed an agent of government for purposes of the Fourth Amendment must depend upon the degree of participation by that sovereign authority in the activity of the private person. That is an inquiry that can be resolved only in the light of the circumstances. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 1411, 103 L.Ed.2d 639 (1989). The sweep of that principle does not depend upon whether the governmental activity is civil or criminal. It has been applied to railroad employees, school officials, building inspectors, OSHA inspectors and firemen, among others. ¹ It applies to protect the interests of an individual in privacy and security against arbitrary invasions by governmental officials, whatever the occasion. New Jersey v. T.L.O., 469 U.S. at 335, 105 S.Ct. at 739. It applied to protect Gilpin from any unreasonable incursion into his possessory interest in the vitamin bottle and privacy interest in its contents by the ambulance attendants, then acting out the governmental purpose of an ambulance district under §§ 190.005 to 190.085 to render emergency medical services.

The question the evidence presents, therefore, is whether the caption of the vitamin bottle by the ambulance attendants and their inspection of its contents without a warrant compromised his right to be free of unreasonable search and seizure under the Fourth Amendment. It is the guiding principle that, subject only to a few specifically established and carefully defined exceptions, searches conducted outside the judicial process without prior judicial approval, are per se unreasonable under the Fourth Amendment. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978). It is the purpose of the Fourth Amendment to protect two types of expectations from unwarranted governmental intrusion. One involves searches and the other seizures. "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. at 113, 104 S.Ct....