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You Hear The One About The Bleeding Guy in the Hospital Who Shot Himself?
February 25, 2016
A guy walks into an emergency room bleeding from a gunshot wound. He takes off his bloodied street clothes and puts on a hospital gown. The hospital puts his clothes in a see-through plastic bag. What does any of that have to do with the looming constitutional challenge by Apple Inc. against demands by the federal government to provide access to a password-protected iPhone? Maybe nothing -- but, then again, perhaps far more than you might think. The Law has an odd way of taking facts and asking "what if?" By the time judges have read the pleadings, read the briefs, conducted trials, and listened to appeals, the facts may become so twisted as to be virtually unrecognizable or irrelevant. Consider this recent New York State criminal case.
GSW in the ER
Our saga begins on a summer day on August 11, 2010, when Oscar Sanders walks into Jamaica Hospital. What had brought Mr. Sanders into the emergency room? Seems that he needed treatment for a gunshot wound.
Required Report to Police
Under New York State Penal Law, when a patient presents at a hospital with a gunshot wound, the hospital is required to report that circumstance to the police. ENTER STAGE RIGHT: The Police.
Shot In The Park
Upon meeting with gunshot-wound victim Sanders, he informs the police that he had been shot in a nearby park. At the time of this disclosure, Sanders was wearing hospital clothes - of course, for those of us who have ever worn hospital clothes, I'm not sure that those gowns with the string in the back that leave everything exposed for all to see are actually clothes, but, you know, let's just go with the clothes description for now, okay?
Clear Plastic Bag
After what appears to have been about an hour's conversation between Sanders and a police officer, the cop was directed to a clear plastic bag on the floor of a trauma room, which was nearby Sander's stretcher (which was in the hospital hallway). Okay, grab a hold of something because this is where we veer off from reality and commonsense and embark upon a wild ride through the Law. As set forth in The People of the State of New York, Respondent, v. Oscar Sanders, Appellant (Opinion, New York State Court of Appeals, No. 22, February 23, 2016):
[I]n the bag the officer observed the "jeans that [defendant] was wearing that night, boxers, and his sneakers," and there is no dispute that the officer seized that bag. Likewise, there is no dispute that, as he vouchered the clothing, the officer inspected each garment. Based at least in part on observations the officer made with respect to the condition of those items during the inventory process, authorities believed that defendant had accidentally shot himself with a gun he carried in his waistband.
Page 2 of the NYS Court of Appeals Opinion
Criminal Charges
As the criminal process is wont to do, Mr. Sanders became Defendant Sanders owing to his having been charged, among other things, under NYS Penal Law Section 265.03 and 265.02, respectively:
- criminal possession of a weapon in the second degree (a Class C Felony); and
- criminal possession of a weapon in the third degree ( a Class D Felony).
Pre-Trial Motion to Suppress
Before trial, Sander's lawyer moved to suppress the evidence of the clothes based upon her allegation that the clothing had been seized during an unlawful, warrantless seizure. In opposition to Sander's motion, the prosecutors argued that the clothing was in plain view and that the police were permitted to seize evidence under such conditions. In denying suppression, the New York State Supreme Court explained that:
"the clothing in [the] clear bag . . . potentially was evidence of a crime," and "there [was] no violation of any [F]ourth [A]mendment rights . . . when th[at] clothing was recovered to be examined to see if it had relevance to the investigation of a crime of someone being shot."
Page 3 of the NYS Court of Appeals Opinion
Jury Verdict
By way of quick recap, a guy walks into a hospital bleeding from what he says is a gunshot wound. Almost sounds like the beginning of a not-so funny story. The odd part of this case is that the gun that caused Sanders's wound was never found and never presented during the jury trial. Following trial, the jurors found Sanders guilty and they appear to have accepted the prosecution's assertion that Sanders was in criminal possession of a loaded firearm, and, perhaps, in part, reached that conclusion after seeing the clothing seized by the police at the hospital.
Appellate Division Appeal
Not content to accept the guilty verdict, Sander's appealed to the NYS Appellate Division, which affirmed the judgment and rejected his challenge to the lower court's suppression ruling. In offering its rationale, the Appellate Division explained that:
"[s]ince the defendant's clothing was lying on the floor of a hospital room in a clear plastic bag, the clothing was openly visible," and that "the police had probable cause to seize the . . . clothing as evidence of a crime of which they believed the defendant had been a victim" (id.) . . .
Page 4 of the NYS Court of Appeals Opinion
Court of Appeals
Having lost at trial and at the first level of appeals, Sander's took his case to the NYS Court of Appeals. As the Court of Appeals framed the appellate issue:
The primary issue on this appeal is whether defendant's constitutional right to be free from unreasonable searches and seizures was violated when police took defendant's clothing, which had been placed in a clear hospital bag, without either a warrant or his consent . . .
Pages 1 - 2 of the NYS Court of Appeals Opinion
Fourth Amendment
In considering Sanders's appeal, the Court of Appeals started from the point of departure that warrantless searches and seizures are unreasonable under the Fourth Amendment of the United States Constitution; however, that unreasonable can be tipped into reasonable provided that certain judicially recognized exceptions exist.
Fourth Amendment to the United States Constitution:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Plain View Exception
In cases where prosecutors argue that a warrantless search/seizure should be deemed as reasonable, it is on the prosecutors to overcome the burden of the constitutional presumption of "unreasonableness." What did the prosecutors present to the courts as their "exception" to the requirement for a warrant? In Sanders, they cited to the so-called "plain view" exception:
Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent" (Diaz, 81 NY2d at 110; see People v Brown, 96 NY2d 80, 89 [2001]).
Pages 4 - 5 of the NYS Court of Appeals Opinion
January 2016 Oral Argument
During oral argument on January 5, 2016, before the NYS Court of Appeals, Rahshanda Sibley, Esq. appeared for Defendant Carr and William Branigan, Assistant District Attorney/Queens County appeared for the People of New York.
Sibley argued that as a hospital patient being treated in an emergency room, Carr had a:
[r]easonable expectation of privacy in the clothing that was being stored by the hospital for safekeeping on his behalf. Because appellant had a privacy interest in his clothing, the full protections of the Fourth Amendment apply to that clothing, which meant that in order for the police to search the clothing, they needed to have consent, a warrant - - -
In response to questions from the Court as to whether Carr's privacy expectation had been diminished by the fact that his bloodied clothing was in a clear plastic bag about 15 feet from the defendant, Sibley argued that the:
[p]lastic bag wasn't outside in the open, so what the record shows is that appellant had been gowned because he had these injuries and was being actively treated in the emergency room. The clothing had been put into a hospital bag and placed on a shelf underneath a gurney, and so there's no indication from the record that the clothing was out in the open or was somehow available to the public.
During an exchange with the bench as to why the police officer opened the hospital bag to examine the contents, the fact was established that Carr told the officer that he had been shot in Liberty Park:
Following Sibley's appellate presentation, ADA Branigan justified the police officer's search as soundly based upon the "plain view" doctrine and explained that:JUDGE STEIN: And he was called there to investigate this shooting, correct?MS. SIBLEY: Correct.JUDGE STEIN: And so wouldn't it make sense that he - - - I mean, why would he go in the bag if he wasn't looking for some evidence with regard to the shooting?MS. SIBLEY: Well, abso - - - absolutely not, because he did not interview my client extensively. He did not see any wounds, so he didn't know where my client was shot. He didn't - - -JUDGE STEIN: Well, he said he was shot in the leg; didn't - - - didn't he?MS. SIBLEY: No.JUDGE STEIN: No, he just said he was shot?MS. SIBLEY: No, just that he was shot, and so the officer did not know where my client had been shot. He didn't know what items of clothing were in the bag, so he didn't even know if boxer shorts would be in the bag. I mean my client could have very well been wearing his underwear under the hospital gown. And so there was no reason for the officer to believeJUDGE STEIN: So - - -MS. SIBLEY: - - - that anything in the bag would be incriminating.
[O]ne is the - - - the probable cause that there was a crime that was committed, which was the shooting of the defendant, and secondly that the - - - the evidence of the shooting was in a clear bag on the floor. So in - - - in this case, we're relying solely on plain view, not that there was consent. The defendant could have - - -JUDGE PIGOTT: Doesn't plain view imply that you have - - - it has - - - the - - - the fruits of a crime or the crime res has to be in plain view,not simply, you know, you say well, this apartment is in plain view, I can search it, or his clothing is in plain view, I can search it? In other words, it has to be the - - - you know, what you're looking for has to be in plain view, right?MR. BRANIGAN: The standard is whether it's - - - it's useful as evidence of the crime. And - --JUDGE FAHEY: I thought it was whether or not the instrumentalities of the crime, I thought. That was - - - that was it, and so is clothing an instrumentality of the crime?MS. SIBLEY: Well, it's - - - it's instrumentality of the crime or useful as - - - as evidence of - - - of the crime, Your Honor. So the -
At some point, the Court and ADA Branigan engaged in an interesting exchange as to what prompted the police officer to open the bag containing Carr's bloodied clothing:
JUDGE ABDUS-SALAAM: All he could see, though, counsel - - - what - - - what if all he could see is what I think the record suggests, is that there are clothes in the bag? He has to go inside of the bag to find out that the underwear have bullet holes but not the jeans.MR. BRANIGAN: Your Honor, ultimately - - -ultimately the - - - the clothes had to be analyzed for - - - for the ballistics evidence, but he knows the clothing - - - as a trained officer, he knows that the clothing is always going to be evidence of - - - of the shooting. He knows - - -JUDGE RIVERA: But isn't that, then, the problem? He only knows that - - - following off on what Judge Abdus-Salaam is saying - - - he only knows that because he knows there's a shooting, shot in the leg, right, supposedly. I understand your - - - the adversary disagrees, but let's just stay with this for one moment. He knows there's a shooting, he knows that he's shot in the leg, ah, so those clothes must have holes, they must have something of value, but he really doesn't know anything about that, or the officer wouldn't know anything about that until you go through a forensic analysis of this evidence. So he learns nothing - - - what I'm saying is he learns nothing from the observation, right? He only thinks there's something valuable because he knows about the shooting, he knows of the shooting in the leg, the clothes must have been affected in this shooting, but he doesn't know anything from seeing the bag, correct? He's got to go looking for something.MR. BRANIGAN: Yes, Your Honor, he has to examine the clothing to - - - to know exactly what kind of ballistics evidence they'll yield, but it's the clothes themselves that are evidence in this crime, so the standard is - - -JUDGE RIVERA: All right, so if the hospital used opaque bags and the officer knows the clothes are in there, your position is that's not plain view, the officer's going to have to ask, and if denied access, would then have to try and get a warrant; am I correct in understanding your argument?MR. BRANIGAN: That's correct, Your Honor.
NYS Court of Appeals Decides
Okay folks, place your bets. How do you think the NYS Court of Appeals ruled? Did it affirm the prior rulings to sustain the introduction of the clothing? Did the state's highest court reverse the rulings? All hands off the table. And the answer is (Ed: Footnotes omitted]:
Against this backdrop we conclude that the hearing court erred in denying defendant's motion to suppress the clothes seized by police. There was evidence adduced at the suppression hearing that the officer who seized the clothes knew defendant to have been shot, and that defendant awaited treatment at the hospital while dressed in clothes different from those he wore at the time of the shooting. More important, however, is what the evidence presented at the suppression hearing does not establish. That evidence does not show that, before the seizure, the testifying officer knew that entry and exit wounds were located on an area of defendant's body that would have been covered by the clothes defendant wore at the time of the shooting. Similarly, the record of that proceeding contains no other indicium that could have given rise to a reasonable belief that the shooting had affected defendant's clothes. To that end, there is no record support for the lower courts' conclusion that the investigating officer had probable cause to believe that defendant's clothes were the instrumentality of a crime (see generally People v Cook, 85 NY2d 928, 931 [1995]; cf. generally People v Salvodon, 127 AD3d 1239, 1240-1241 [2d Dept 2015]).
Pages 4 - 5 of the NYS Court of Appeals Opinion
Reversed, Vacated, and Remanded
In light of the findings by the Court of Appeals, that last rung on the state's judicial ladder concluded that the seizure of Sanders's clothes in the hospital by the police was illegal and the clothing should not have been admitted as evidence at trial. Consequently, the Appellate Division was reversed; Sanders's motion to suppress the clothing granted; the judgment vacated; and the case remitted back to the Supreme Court.
Bill Singer's Comment
Hey, I don't make up this stuff. I just report it. If you are in a froth (pro or con) as to the facts and outcome in the Carr case, just imagine how you're going to feel about the looming constitutional challenge by Apple against being forced by the federal government to provide access to a password-protected iPhone!