may have please the court so my name is lee have bendix from the illinois attorney general's office on behalf of people in this case defendant moved to suppress the results of blood testing conducted at the hospital where he was treated for a severely broken foot following a motorcycle accident that occurred and for which he was charged for driving under the influence or dui now the lower courts agree that suppression should be granted in this case and actually the parties here agree on virtually all the applicable legal principles and governing facts the parties acknowledge that yes a blood test is a search within the meaning of the fourth amendment so that the warrant requirement generally applies and the parties acknowledge there was no warrant in this case but the parties also acknowledge that the fourth amendment only applies to state action for example actions by police officers and here the blood test was conducted by a private actor hospital employee so the core question here is whether there is a basis to conclude that this private actor was acting as a state agent when testing the blood now defendant cites only two undisputed facts in trying to cite the requisite state action he's citing the fact that number one at the crash scene an officer named officer thomas web participated in compelling him on to an ambulance and to be transported to the hospital for treatment and that number two the defendant objected to receiving medical treatment in other words defendant is essentially suggesting a but for type of argument he says in his view that but for these actions by officer webb he never would have received this medical treatment this blood test would never have occurred the problem with defendants proposal that is that it's inconsistent with binding precedent from both this court and the united states supreme court the u s supreme court case of coolidge versus new hampshire focus the emphasis on analysis and analyzing state action on looking at the totality of the circumstances to determine whether that private actor can be deemed an instrument of the state and this court provided even more guidance in the key case of people versus heflin there this court acknowledged that police participation alone isn't insufficient the courts need to analyze what is the nature of the police action was there coersion was there influence and encouragement for the private actor to make the decision to conduct the search and on the other side of the equation why did that private actor alternately decide to do that search or was it an independent decision on the private actors part now what both of these cases confirm is that the analysis focuses on the interaction between the police officer and the private actor who conducted the search and so what's notable about defendants argument is that it's entirely removed irrelevant to that analysis because remember defendant is not asserting that the blood test or was aware of any of the events that happened at the crash scene he is not alleging that during officer webb's brief time at the hospital that somehow officer webb encouraged the test to occur he's not alleging that somehow the blood test or would have known defendant charged with dui he is making absolutely no attempt to link any state actor with the blood tester and for this reason he has offered no evidence of state agency so ultimately then the lower courts erred in concluding that there was a stated it was any state agency and i would note that as a threshold issue in the opening brief the state noted that yes at a suppression proceeding it is defendant's burden to establish that suppression is justified and another way to consider how defendant's evidence was insufficient is to brick is to acknowledge the fact that you never even verify that a blood test occurred or identified who the blood test for w given that heflin focus is the focus focuses the analysis on why did the blood test or decide to make the search we don't even know who the blood tester is for sure much less have any testimony about that decision making process so actually this court could find the evidence of insufficient and reverse on that threshold basis alone but it would be still useful for this court to go on and address the fourth amendment question on the assumption that yes a blood test occurred and i'm the assumption that it was a private hospital employee who conducted the blood test since that issue is may very well amendment question but say that it is reversed and sent back in the envelope from the hospital is opened and it is finally verified through defendant providing that evidence that a blood test occurred then the fourth amendment question would still be raised after all the trial court made its in its an on the assumption that it occurred and so it could very well just make the same finding that it did once that evidence is provided so for the sake of judicial efficiency this court could go on and reach that question because again that the truck reached a and that fourth amendment question would provide needed guidance to the lower courts but either way your honor raises an important point here that not only was there the error ultimately by the lower courts in deciding that there was state action and that suppression was warranted but other air another area that occurred here by the trial court was its failure to provide or to apply the burden shifting framework that this court has held governs suppression proceedings and so not only yes is it defendant's burden to prove that suppression is warranted but also the way in which the suppression proceeding is supposed to occur is that the first step is that defendant must make a prima facia showing of a fourth amendment violation for the reasons i just discussed you did not make a prima facia showing because he provided absolutely no evidence connecting any state actor with the blood test or to show that that person that a state actor influence the decision to conduct the blood test and so on this basis this court could hold that given this lack of a prima facia showing the proper result would be a reversal and sue to send it back to the trial court with instructions that the suppression motion be denied but in the alternative if this court disagrees and concludes that a prima facia showing has been made on the evidence that was provided reversal is still required here because after all the trial court made the error of granting the suppression motion without ensuring that the state had the opportunity to present contrary evidence knowing that that prima facia showing had been made because under this bur shifting framework if defendant makes that prima facia showing the burden shifts to the state to rebut that prima facia showing and that opportunity did not happen here because number one the trial court did not make that clear to the state and number two there was the related error made by the trial court in deciding that the subpoena this unit envelope should not be opened so remember here the sequence of events is important the crash in question happened in august the motion to suppress was filed in october and in december the state asked the clerk to issue a subpoena duces tecum to the treating hospital see in the blood testing results of defendant on the night in question now that's important yes please that's cracks that you know is only by testing so it's actually appropriately tailored which is an important point because after all if this is this court should for the reasons i don't find in the brief holds that there there was statutory and presidential authority to support the state's ability to subpoena these records because under section eleven five zero one point four of the vehicle code just like justice burke pointed out nearly tailored there is an exception under the vehicle code that says blood testing results that were generated during the course of emergency medical treatment in a dui prosecution are not subject to the general medical record privileges that otherwise govern and the subpoena was appropriately tailored to match that provision and so if this court then were to rule that the subpoena was justified and that the trial court should have open that envelope now one of two things will happen if this court it remains in the trial court opens the envelope either number one the envelope will be opened and there will be a piece of paper that says we have no response of documents which will perhaps show there was never a blood test but the other possibility is if there are responsive documents to this appropriately tailored subpoena it would seem that the usual  that in camera view checks for when they're subpoenaed documents whether there's a privilege whether it's material whether it's relevant would all be it would not be a concern here and so those items should be turned over to the state so that if further proceedings are required once that envelope is opened the state will not be impeded from discovering who was the blood test or so that the state could call that person to testify because after all if that person gets on the stand and says i made this decision to test the blood for a purely medical reason no matter what the state action might have been previously that is the ultimate question and if there was this independent basis not related to a law enforcement purpose or why the private search occurred there is no state agency under heflin and coolidge so that the suppression motion should be denied now in the further alternative a third basis that this court could go forward in this case even if there's a fourth amendment violation under this fax under these facts there is not an appropriate basis for suppression to be the remedy the u s supreme court has said repeatedly that suppression is not an automatic consequence of a fourth amendment violation because anytime there suppression there is the societal cost of suppressing what is relevant and potentially incriminating evidence in a criminal prosecution so that must be balanced against whether there is appropriate deterrence benefits to be gained and there are no deterrents benefits in this case for two reasons number one even if in future cases the police was police officers are deterred from participating in compelling an injured dui suspect from getting medical treatment that he objects to everything else about the sequence of events can go forward from there purely with actions by private actors it could be the ambulance workers who alone compel that person to get needed emergency medical treatment and it could be the private actors at the hospital that go ahead and have the blood testing as part of the medical treatment and under the vehicle code that information would be discoverable and admissible upon the probate foundation laid at the trial so accordingly actually this shows that there is no fact for corroboration here it is wrong for defendant to assert that but for officer webb's conduct there would not have been a blood test after all we have examples like people versus yet that's a case where it was soley the steps of private actors who compelled a resisting do you i suspect he was injured to get medical treatment so in other words suppressing would not address the evil that the trial court was potentially concerned about worrying that there might be police officers who routinely routinely w go to vehicle crash sites where there was a dui suspect and forced that person to get medical treatment and step back and hope to get those blood testing results down the road suppressing would not deter that concern the second problem with the deterrence benefits here is this court should consider whether it truly wants to deter the actions of officer webb which i would assert were entirely appropriate yes we acknowledge there was a seizure here but what officer webb did was respond to what was a request from a private actor a medical person who made the judgment that even though he was not consenting that this person needed medical treatment and so officer webb to assist these private citizens it helped to facilitate his transport to the hospital that is not conduct that we should attempt to discourage so on any of these three routes reversals appropriate either number one defendant never made a prima facia showing of state action under the appropriate see agency analysis so that suppression should be denied or number two there needs to be further suppression proceedings where the state has the opportunity to present the testimony of the blood test or to ferret out the key question here about why the blood test occurred or number three even if there is a fourth amendment violation suppression isn't an appropriate remedy so under any of these three grounds we would ask that the  if you could warning here please the court counsel it's important to note in this case that the trial court did make fun of the who made a finding that the defendant had met their burden of proof that page twenty of our brief  your name i'm sorry my name is kent heller the trial court said that it strains credulity to believe that this police officer didn't take this kind for the purpose of securing the blood test that was  how they were supposed to proceed to hear that isn't the trial court's responsibility the trial court doesn't have to tell the state's attorney how to conduct the hearing the hearing was held the judge gave the defendants or the state a chance to present evidence they elected not to and now they want to have a second bite at the apple and we simply don't conduct things that way in fact they filed a motion to reconsider and they argued the case on a second occasion before the court and they still they didn't either ask for the right to reopen the evidence there was never a request to reopen the evidence they didn't make any argument that somehow they'd been misled about the nature of the silicon they didn't complain about the trial court's finding at all and so it seems uncut touristic of the procedure to come to this court and say well we want to go back to the trial court reopen the hearing and do what we should have done the first time that would really create an interesting situation where we would never get to the end of any kind of hearing that would always be let's open it back up so that we can do what we should have done the first time i think it probably is for a number of reasons number one that the state suggests that judicial economy would would compel that they wouldn't have subpoenaed the record if there wasn't one i suggest that councils write that if if the court says well we need o p m bloke we'll be right back here with exactly the same issues and the same circumstances  if there's not we we have all had an exercise in in jurisprudence but we won't have accomplished anything i think we have to assume that there is and that it is appropriate for the court felt they were wars by police or not same way i got officer webb to testify they could have issued a subpoena to the hospital personnel and had them there at the hearing on the suppression that's what would have or should have happened if they wanted to make that record in the trial court but they didn't what the trial court was presented counsel suggests that there were only two facts that the state actor was involved you have a gentleman coming in on a gurney saying that he doesn't want treatment he's handcuffed to the and he's accompanied by a policeman we've all seen the jury instruction on circumstantial evidence i think there is only one conclusion to draw from those facts and that is he's there because the police brought him in counsel suggested that the police officer was doing this at the behest of some private actor but that's not supported by the record mr brooks was in a friend's vehicle the policeman came to the vehicle he was the first one there he extract it to him from the vehicle physically miss and that minute after hearing that he was not free to leave he had arrested him at the scene prior to anybody asking for any kind of medical attention it was officer webb who directed that he go to the hospital even though he said he didn't want to and it wasn't emergency that there's a suggested in the state's brief that his leg was set that evening that's not supported by the record he was referring to an orthopod to take care of that at a later time so this is not a refused treatment from the hospital absolutely various he refused the splint when he be fused he refused to go to the hospital he told them not to touch him that he did not that he was going to go to his own doctor he told them he did not want any of the the blood testing done but he talks about he knew the off story that he testified well he says under the circumstances it's absolutely clear to me that he was taken to hospital because he knew he wasn't going to give a breath for a blood test and he offered wanted evidence but the court found after hearing that the witness see the witnesses that that is in fact what happened it reminds me a little bit of the seventh circuit opinion lopez versus the underwater or judge evander water took a former candidate who was property at gun point to the aurora police station and used the court room on the second floor charge the guy with criminal trespass had a trial the middle of the night sentenced him to prison and had the money sway to do you see before the sun came up and after that was all straightened out lopez sued judge fandor water claimed judicial munity in the seventh circuit said you're absolutely right doesn't matter it wasn't his court room it doesn't matter that it wasn't court hours it doesn't matter that the procedure was totally wrong he's immune from all seventh circuit said but making the the charge is the job of the state's attorney not the judge and that is the direct and proximate result or cause of mr lopez's injury this case goes that the hospital personnel drew because he was in an accident because he was accompanied by a police officer because he was handcuffed to the gurney and the problem with allowing that is it's just one loophole around the supreme court's requirement that we use a warrant before we have a blood draw if in fact under these circumstances the state doesn't need a warrant to do a blood draw then what you do it every case you don't take the fellow to the station and ask him to do a breath test and having refuses his right under the statute to handcuff him to a gurney you send him through the front door of the hospital you just step back and then the hospital personnel do what they have to do or do what they will yes we do the record says that he was put in a gurney and that may ambulance one about a block and it stopped for a stop sign and he attempted he actually got out of the ambulance and at that point officer web not necessarily i don't think you have to go that far but this case is a lot farther than that it was an illegal arrest it was an illegal detention the officer calls for the ambulance if this isn't a case like where the ambulance personnel restrained the individual and it's not a case like where the ambulance personnel says hey we've got a problem we need help this is a case where the officer himself the state after a rain transfer and mandates that the defendant go to the hospital that's a different when when you send him to where you know they're going to dry ice blood you don't have to stand there and insert the needle would be almost criminal unless he was certified as check a shoe to drop blood someone else is going to put the needle in but but the officer set the whole thing in motion he was the one that decided to get the defendant to the hospital against his rights he had every right to say i don't want treatment maybe he thought it would he couldn't afford it he didn't want to go to the hospital and incur an emergency room built maybe he was a christian scientist and didn't believe in medical treatment and yet the officer is sending him there and forcing him to get this medical treatment maybe he concluded it would be a waste of time because he was going to have to go see it an orthopod anyway but the policeman helped him transport him and that's he put him back in and he said yes yes yes yes i don't believe that i don't believe the record supports that i believe that the testimony was that officer web think so i think you have a finding that if there's a blood test it should be suppressed that's that's what the judge is really was he didn't say there is a blood test in the sample of he says if there was it subject  presentation of evidence the plaintiff or the defendant rather where the wrong had too many times the defendant because then it is evidence on this motion to suppress and rested and the state was given an opportunity they just didn't do it in the trial court they didn't request it even on the motion to reconsider they until they got to focus they never said oh wait a minute judge here we should have had another shot at the apple and we didn't get it i mean that's not that's not the court's fault that's not the defendant's fault if the state had wanted to present that evidence they certainly could of they should of if they thought it would would make a difference in this case but they didn't the record is devoid of that information i don't think the judge thought it mattered i think he believed based upon the evidence which he heard and the fifth district agreed that if there was a blood test in there and it wouldn't matter what it said because in his opinion it was secured in violation of the defendant's fourth amendment rights so it really isn't an issue as to whether there's a blood test in there or not except that if there wasn't it would make this whole case moot and then you know we jump through a lot of hoops i think everybody assumes that there is a blood test in there and you but there's no reason to reverse the court the trial court if he's right about the fourth amendment violation and the test it just doesn't matter whether there's a test in there or not if if there is it should be suppressed fine if there isn't and it should be suppressed leap than i p i three point zero four in the civil sense says that if you see a man come in the building carrying an umbrella and it's wet you can presume that it's raining outside or you have a policeman that made an illegal arrest he brought the suspect into the into the hospital handcuffed to agree accompany him into the hospital it's not a big stretch to assume that and against his will the officer is telling the doctors to treat this guy  the defendant saying i don't want treatment the officer saying no you've got to you've got to look at and it was never a big stretch to believe that the police officer was responsible and participating in the system on him getting care that just isn't a very big leap at all any so i don't agree with that at all assume that there's a car accident and and the defendant is hurt badly he is bleeding profusely he needs treatment and he offered stays with him and goes in in the end he doesn't refuse i'm unless it's life threatening doesn't he have a right to refuse treatment and if he does shouldn't the doctors honor that and wouldn't say honor it unless the policeman was insisting that the treatment go forward it's that insistence by the officer you have to take care of this man we don't care what he says we don't care that he's asserting his rights you treat him so i mean you're saying that the hospital hel got that that fact is contained in the state's brief that they they cling in their brief that he was there for twelve hours not that he well you were right in the entire twelve hour we all agreed that he refused treatment i mean i know the entire twelve nobody ever did your twelve hour correct no one has ever argued nor has anyone testified that it any time he consented to any treatment just seem kind of i believe the hospital well that certainly is interesting you i'd like to begin by correcting some statements about the record number one the twelve hours in the hospital that came from defendant's own testimony that he remained at twelve hours and what we do know from the record is that officer webb was at the hospital only to ask him if he would consent to blood or blood test breath testing it was refused he was notified him that his license would be summary summarily suspended he was given the citation for dui and officer webb left and let's also remember again this accident occurred in august the misimpression motion was filed in october they subpoena wasn't issued until december there is no basis to infer that officer webb was scheming behind the scenes thinking well as soon as i leave i can call tomorrow and get these blood tests apparently the state and the police did not know that the blood tests even maybe happened until the suppression motion was filed also at page eighty three of the record that is where officer web testified as justice for identified that it was an ambulance worker who asked for officer webb's assistance in escorting him to the hospital it was not officer webb's decision and it pages ninety two and ninety six of the record that is where officer web testified that it was the ambulance worker who initially requested that this person needs medical treatment and asked for officer webb's assistance so in both instances all of the conduct that officer webb did here was at the specific request of the private actors also my opponent said that he was illegally arrested in the legally detained there's no basis for that in this record there was a seizure yes but there was ample probable cause here for a dui offense both documented in the police officer's report and his testimony of what he observed what he smelled and the fact that an accident occurred and by the way defendant apparently never legally challenged the propriety of the seizure he never challenge the medical judgment by the ambulance worker that he required treatment despite his objection i also want to point to you have flu and again this is that is the key case here because again this agency decision turns on the interaction between the police and the decision to make the blood test it's not whether the police participated at some point that night it has to be police coercion in the decision to conduct a blood test and there are certainly several reasons one can expect that the blood test would have happened for medical reasons a doctor orders it there's a policy about trauma victims there's a policy about people who are intoxicated that the medical personnel need to understand why or what was in the system before what it was in his system before treating him now heflin the facts are very important to actually keep in mind here heflin was a case in which the defendant was charged with murder of of a man and the theory of the case was that the defendant was having an affair with the victim wife so the police sought to substantiate this affair and went to the defendant's brother and said do you know of any letters between the defendant and this woman the victim's wife the defendant's brother had been charged with storing defend its possession so he had access to them the brother said let me check and the police followed up and called a second time and said could you please send these letters soon and the brother said sure and sent dozens of letters to the police that later turned out to be incriminating so i point that out because it illustrates that even sometimes with the police ask for a step by a private actor there still is no fourth amendment problem the key is did the private actor still make a voluntary independent decision to take the step in question here we have no basis to infer that the blood tests or was even aware of officer webb's conduct at the entirely different location of the of the accident site or even in the ambulance and so there's no basis to infer that was anything but a medical decision here so this is not even a close case i would also like to emphasize to get back to that burden shifting alternative argument now defendant says that the motion to suppress the excuse me the motion to reconsider should raise this point but remember the first point that was made in the motion to reconsider was challenging the trial court's decision not to open the subpoenaed envelope and the motion identified we can identify who the blood tester is if we don't access these materials that is in effect the same argument that saying we could not go forward and offer this contrary evidence under the rulings that the trial court had made here that is in effect what my burden shifting argument is is that one way or the other the blood testers testimony is the key of this it's the gap in the record and so our first argument is that should have been a part of defendant's case and that is why a prima facia showing was not made but in the alternative even if what he did offer was a prima facia showing the state should have that opportunity to present that key evidence and because that trial court had made that related ruling preventing the opening of the envelope the state was prevented from being able to provide that testimony one last point i want to point well actually t quick points now defendant is raising some points about a person's constitutional right to object to medical treatment he's raising this point about yes there was a seizure we acknowledge those points but are simply saying that they're relevant to the specific analysis here because halfling only he finds state agency if the police coerce the decision for the search to occur certainly defendant could have challenge the propriety of the seizure certainly a defendant could raised medical battery suit and civil in a civil case saying the ambulance worker should not have treated me he could have raised a challenge against the hospital but that is not what we have here here we are only evaluating a fourth amendment challenge to the blood test and finally i would point to this court's people vs junk case that cited in our opening brief that's relevant to just make the point that this court has acknowledged that in the context of this vehicle code exception that says in do you i prosecutions blood testing results are not subject to the normal privileges and this court explained that that's logical when a person gets a license a driver's license in the state of illinois one of the things that you're sort of agreeing to somewhat contractually is acknowledging that if you're injured and if there's these blood tests and if the blood test was done in the normal course of medical treatment that yes it's going to be admissible and you're dui prosecution so it's not really fair for defend say this is the state this is the police manipulating the system no these were private actors and officer webb acting pursuant to more of a community caretaking function of making sure than an obviously injured person who was intoxicated opinion with critical facts of this record well i would say that the reason this court should go on to reach the fourth amendment question here is simply because again imagine in this case if this court reverses on that threshold matter it will go back in the trial judge will make exactly the same ruling that ok now we do know there's a blood test and i'm making this a fourth amendment finding it because it's likely to occur on remand that is the exception that means that this court should reach the issue now and so then if there are no furthe