United States v. Hudson, 2023 WL 7890040 (7th Cir. 2023)
Someone shot Javares Hudson in the buttocks at a bar. Officers responding to the shooting saw a car speed away as they arrived at the bar. An officer pursued the car, which pulled up to a hospital emergency room. When Hudson got out of the passenger seat, the officer told him to raise his hands. The officer frisked Hudson and escorted him into the emergency room.
Medical staff immediately brought Hudson to a treatment room; the officer followed. When a doctor told the officer, “I just don’t want PD around,” the officer responded he was “not going to let Hudson out of his sight until we know who’s who in this scenario. I won’t interfere. I will stay out of your way completely, sir. This is your show, I will work around you.” The doctor didn’t respond and walked away.
The officer left the room and stood outside the open door. A few minutes later, he heard medical staff directing Hudson to spit out an item in his mouth. The officer stepped into the room and told Hudson, “They’re trying not to kill you, okay? Just spit it out, okay? I’m not trying to charge you with drugs. Just spit it out.” Medical staff continued telling Hudson to spit out the item. Presuming Hudson was concealing drugs in his mouth, the doctor warned him the drugs could get him “real sick,” and that they could also prevent or obstruct treatment if he needed to be intubated.
A hospital staff member told Hudson his throat could be blocked by the object if a breathing tube became necessary. Another staff member told him, “They’re not going to let you leave. The cops are here and they’re not gonna let you out of here without that out of your mouth.” After a few more minutes, the frustrated doctor asked the officer to try to convince Hudson to spit out the object. Medical staff members got louder, telling Hudson: “Spit it out, those drugs are going to go in you,” “Stop chewing on it,” and “Nobody cares about a little drugs, spit it out before you get yourself hurt.”
Hudson bore the burden of proving that medical staff acted as instruments or agents of the government in conducting a search.
Finally, after nearly 20 minutes of coaxing, admonishing and commanding, Hudson spit out the object. He hadn’t been hiding drugs, but rather a device used to convert a Glock firearm into an automatic weapon. Eventually, Hudson was indicted on one count of possessing a machine gun in violation of 18 U.S.C. §§ 922(o), 924(a)(2).
Hudson lost his motion to suppress the machine gun part and appealed. He claimed the medical staff acted as agents for the police when they ordered him to spit out the object, making their actions tantamount to a warrantless search in violation of the Fourth Amendment.
The appellate court began its analysis by noting Hudson bore the burden of proving that medical staff acted as instruments or agents of the government in conducting a search. Hudson was obligated to “prove some exercise of governmental power over the private entity, such that the private entity may be said to have acted on behalf of the government rather than for its own, private purposes.” The court outlined “two critical factors” in the analysis: first, “whether the government knew of and acquiesced in the intrusive conduct,” and second, “whether the private party’s conduct was done with the purpose of assisting law enforcement or to further its own ends.”
The court stated that knowledge of the private party’s action and inaction by the government actor alone is insufficient to establish the necessary agency relationship: “The mere fact that the police witness a private party’s search does not transform the private party into a governmental agent.” Hudson failed to show the officer’s participation in or affirmative encouragement of the medical staff’s urging to spit out the gun part (the “private search”). The officer answered the staff’s questions but did not direct the medical staff to act in any particular way. The facts showed the medical staff acted with the purpose of providing medical treatment, not assisting the police. Both the officer and the medical staff apparently assumed Hudson was concealing drugs and were expressly concerned that swallowing drugs could cause him to overdose and/or block a tube necessary for treatment. Thus, the trial court properly denied his motion to suppress the evidence. Hudson can chew on that while serving just under three years in federal prison.
