State v. Cherry

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NOT DESIGNATED FOR PUBLICATION

No. 115,238

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEO V. CHERRY,
Appellant.

MEMORANDUM OPINION


Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed April 21, 2017. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, and Daniel D. Gilligan, assistant district attorney,
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and BRUNS, JJ.

Per Curiam: Nurses discovered crack cocaine in Leo V. Cherry's clothing while
they were treating him in the emergency department of Hutchinson Regional Medical
Center (HRMC). They promptly reported their discovery to law enforcement. The State
later charged Cherry with possession of cocaine, a severity level 5 drug felony. Cherry
filed a motion to suppress all evidence, arguing the nurses were state actors and they had
conducted an illegal search. The district court denied the motion. A jury convicted
Cherry, and the district court sentenced him to mandatory drug treatment. Cherry appeals,
arguing the district court erred in denying his motion to suppress. We affirm.

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On June 20, 2104, Cherry arrived at the emergency department at HRMC by
ambulance. Cynthia Devena, a nurse, helped Cherry change into a gown. While Devena
did not feel for any items in Cherry's clothing, she did notice cash in several articles of
his clothing. HRMC protocol requires staff to inventory a patients' valuable items upon
admission. Devena notified a hospital security officer, and together they inventoried the
cash and placed it in an envelope. The envelope came with a detachable receipt that
patients can later use to retrieve their items. After inventorying the cash and placing it in
the envelope, the security officer took the envelope to the hospital's safe and someone
placed the receipt on a table in Cherry's room. Someone then placed Cherry's clothing on
a chair in his room.

After a few hours, a physician decided to transfer Cherry to the Intensive Care
Unit (ICU) for further care. Stephanie Degroot, a nurse's aide, began preparing to move
Cherry to the ICU by gathering up all his belongings. She saw the receipt for his
inventoried cash lying on the table. She told Cherry she was going to place the receipt in
the pocket of his pants, and Cherry said, "Okay." While inserting the receipt into the
pants pocket, Degroot noticed a jewelry box. She told Cherry she had found the box and
asked if there were any more valuables they needed to lock up. According to Degroot,
Cherry said not to worry about it and just leave it alone.

Devena was in the hallway outside Cherry's room, and Degroot called for her to
come in. Degroot told Devena there was a jewelry box in Cherry's pants pocket and she
did not know if it was something that should be added to Cherry's valuables list. Degroot
gave the box to Devena. Cherry became very upset and told them to stay out of it and it
was none of their business. Devena believed there was jewelry inside the box that she
would need to inventory, so she opened the box. Inside, she found what she believed to
be cocaine. Devena told the charge nurse, and the charge nurse told her to notify law
enforcement. Devena placed the box in her pocket and called law enforcement.

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Before law enforcement arrived, Markus Dawes, a security officer for HRMC,
reported to Cherry's room in the emergency department. A nurse handed him a bag with
the jewelry box inside. Dawes took several photographs of the box per hospital security
protocol and filed a report about the incident. Dawes did not provide the photographs to
law enforcement or the district attorney's office, but he could not say if anyone else from
the hospital had done so.

Officer Adam Weishaar of the Hutchinson Police Department arrived at HRMC
and spoke with Devena, who gave the jewelry box to Weishaar. He opened the box and
saw a white substance he believed to be crack cocaine. Weishaar spoke with Degroot and
Dawes.

By the time Weishaar arrived at HMRC, Cherry was in the ICU. Weishaar went to
Cherry's room in the ICU, but decided not to question him at that time because he did not
appear to be "in the right state of mind." He did not search Cherry's clothing. Weishaar
took the jewelry box and the suspected crack cocaine to the station and placed them into
evidence. KBI testing later verified that the substance inside the box contained cocaine.

The State charged Cherry with possession of cocaine, a severity level 5 drug
felony. Before trial, Cherry filed a motion to suppress all physical evidence. He argued
the jewelry box was obtained as the result of an unconstitutional search and seizure.
Specifically, he argued, "the actions of the hospital nurses taking [his] clothing and
belongings against his will, and without his consent, and searching his items essentially
resulted in a government agent search."

At the hearing on the motion to suppress, Devena testified she had no contact with
law enforcement before finding the jewelry box. When asked whether her role as a nurse
required her to work closely with law enforcement, Devena responded that law
enforcement occasionally came in the hospital and questioned people after car accidents
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or they brought in people with injuries or people who need medical clearances. When
asked if local law enforcement had a policy that the HRMC must notify it when illegal
drugs were found on the premises, Devena said she did not know if law enforcement had
such a policy, but HRMC had a policy against storing illegal substances. She also stated
HRMC was a private, not a state, entity.

Weishaar testified that HRMC has its own security staff and the Hutchinson Police
Department does not provide any security for the hospital outside of normal patrol. He
said he did not perform a search of Cherry's items and only opened Cherry's wallet in
order to get his identification card. In his personal opinion, the HRMC staff and law
enforcement were not involved in a joint venture in order to confiscate illegal drugs. As
far as he was concerned, the only reason HRMC staff went through a patient's belongings
was to inventory valuables, so the hospital would not be liable if they were later lost.

Defense counsel argued:

"Simply there's a practice that the nursing employees at the hospital look through the
clothing. If they discover illegal contraband, it is the common practice to call law
enforcement. Mr. Cherry would submit that due to that practice that would imply that the
hospital staff is acting as an agent of law enforcement and the purpose of that is to try to
confiscate contraband, illegal items, controlled substance to get them off the street; in
essence to assist law enforcement in their efforts and, therefore, are acting as agents of
law enforcement."

The district court denied Cherry's motion to suppress. The court found HRMC
staff searched Cherry's belongings per medical center policy and not at the request of or
as an agent of law enforcement. Moreover, law enforcement did not exceed the scope of
the prior search.

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The jury convicted Cherry. The district court sentenced him to 18 months'
probation in mandatory drug treatment, with an underlying prison sentence of 15 months.
Cherry appeals.

On appeal, Cherry argues the district court erred in denying his motion to suppress
because Devena and Degroot were state actors. His main argument is Devena and
Degroot worked for a hospital that served the public health, thus, they were government
employees. And because they were government employees performing the duties of their
job when they discovered the cocaine, their actions were subject to the Fourth
Amendment to the United States Constitution. The State argues Devena and Degroot
were private actors and the Fourth Amendment is inapplicable to their search.

Review of a district court's decision on a motion to suppress applies a bifurcated
standard. The appellate court reviews the district court's factual findings to determine
whether they are supported by substantial competent evidence. The ultimate legal
conclusion is reviewed using a de novo standard. In reviewing the factual findings, the
appellate court does not usually reweigh the evidence or assess the credibility of
witnesses. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016) (reviewing scope
of search warrant); State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014)
(determining if emergency aid exception applied to search of apartment); State v. Gibson,
299 Kan. 207, 215-16, 322 P.3d 389 (2014) (motion to suppress inculpatory statements).
When the material facts to a trial court's decision on a motion to suppress evidence are
not in dispute, the question of whether to suppress is a question of law over which an
appellate court has unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754
(2014).

The Fourth Amendment protects against unreasonable searches and seizures, and
warrantless searches are per se unreasonable. The Kansas Constitution Bill of Rights, §15
provides similar protections. The prohibitions of the Fourth Amendment are only
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applicable to state actors. They do not apply to "'a search or seizure, even an
unreasonable one, effected by a private individual 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, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984);
see also State v. Brittingham, 296 Kan. 597, Syl. ¶ 2, 294 P.3d 263 (2013) (holding the
Fourth Amendment and § 15 do not apply to searches and seizures conducted by private
persons). Thus, in order for Cherry to succeed on his claim, Devena and Degroot must be
found to have been state actors.

As the State notes in its brief, the district court found Devena and Degroot were
not agents of law enforcement, and substantial competent evidence supports this finding.
Devena testified HRMC was a private hospital and she did not have any contact with law
enforcement prior to discovering the cocaine. She also testified the hospital had a policy
of inventorying patients' valuables and that was why she opened the jewelry box. There
was no evidence to suggest HRMC coordinated with law enforcement to discover illegal
substances.

Cherry argues that Devena and Degroot were state actors. Relying on State v.
Smith, 243 Kan. 715, 763 P.2d 632 (1988), He contends private individuals are state
actors for the purpose of the Fourth Amendment if they are government employees and
they conducted the challenged search or seizure as part of the duties of their employment.
In Smith, an employee of the State Department of Wildlife and Parks was collecting trash,
one of the responsibilities of his job, when he heard a strange noise coming from a trailer.
The employee entered the trailer attempting to locate the source of the noise and
discovered drugs and drug paraphernalia. Our Supreme Court held that the Parks
Department employee was not a state actor because he was acting outside the duties and
objectives of his employment when he entered the trailer. 243 Kan. at 722.

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Cherry asserts that Devena and Degroot were government employees, fulfilling
the first prong of the test in Smith. However, unlike the employee in Smith, however,
Devena and Degroot do not work for a government agency or even a state hospital.
Devena testified at the hearing on the motion to suppress that HRMC was a private entity.

Cherry provides two alternate arguments for why Devena and Degroot were
government employees. First, he asserts Devena and Degroot would be government
employees "if the hospital receives government support." Cherry does not provide any
authority to support this argument. Additionally, he does not cite to any information in
the record establishing how much, if any, support HRMC received from the government.
In fact, he does not even affirmatively state the hospital did receive government support.

Next, Cherry argues Devena and Degroot were government employees because
they work for a "public emergency health center." According to Cherry, individuals often
do not get to choose which emergency room ambulances take them to, thus, emergency
rooms serve the public health. Because Devena and Degroot work at an institution that
serves the public health, he reasons, they are government employees.

Again, Cherry does not provide any authority for this argument. See Murray, 302
Kan. at 486. His argument is reminiscent of the public function doctrine. Under this
doctrine, courts may consider a private entity to be a state actor if it exercises a power
traditionally and exclusively reserved to the government. Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 352, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974). Even under this doctrine
though, Cherry's argument would still fail. He has not argued, let alone demonstrated,
that providing emergency health services is traditionally an exclusive state function.
Moreover, the United States Supreme Court has already rejected the notion that all
businesses "'affected with the public interest'" are state actors. Jackson, 419 U.S. at 353.

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Finally, Cherry argues HRMC cooperates with law enforcement rendering Devena
and Degroot state actors. To support this argument, Cherry notes HRMC regularly calls
police when drugs are found. Simply calling police to report a crime does not make one a
state actor. See Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 29 L. Ed.
2d 564 (1971) ("[T]here is nothing constitutionally suspect in the existence, without more
. . . of . . . active cooperation with the police . . .[and] it is no part of the policy underlying
the Fourth and Fourteenth Amendments to discourage citizens from aiding . . . in the
apprehension of criminals.").

In order to determine if a private individual is a state actor by cooperating with
law enforcement, courts have applied a two prong test: "(1) whether the government
knew of and acquiesced in the intrusive conduct, and (2) whether the party performing
the search intended to assist law enforcement efforts or to further his or her own ends."
Brittingham, 296 Kan. 597, Syl. ¶ 3; see United States v. Benoit, 713 F.3d 1, 9 (10th Cir.
2013). Based on the record in this case, neither prong is fulfilled. Devena and Degroot
both testified they discovered the jewelry box and the crack cocaine as part of hospital
procedure to inventory a patient's valuables. Devena stated she did not have any contact
with law enforcement prior to discovering the crack cocaine and she only interacted with
law enforcement through her job on occasion. Nothing in the record indicates the
Hutchinson Police Department knew of and acquiesced to Devena's and Degroot's actions
or that the nurses intended to aid law enforcement by searching for illegal substances.

Cherry's argument that Devena and Degroot were state actors is without merit.
Because the nurses were not state actors, the provisions of the Fourth Amendment are not
applicable to their actions. Accordingly, we affirm.

Affirmed.