                                                                             Digitally signed by
                                                                             Reporter of Decisions
                          Illinois Official Reports                          Reason: I attest to the
                                                                             accuracy and
                                                                             integrity of this
                                                                             document
                                  Supreme Court                              Date: 2018.08.14
                                                                             14:29:05 -05'00'




                          People v. Brooks, 2017 IL 121413




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               MICHAEL BROOKS, Appellee.



Docket No.           121413



Filed                November 30, 2017



Decision Under       Appeal from the Appellate Court for the Fifth District; heard in that
Review               court on appeal from the Circuit Court of Effingham County, the Hon.
                     Stanley Brandmeyer, Judge, presiding.



Judgment             Appellate court judgment reversed.
                     Circuit court judgment reversed.
                     Cause remanded.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and Bryan M. Kibler,
Appeal               State’s Attorney, of Effingham (David L. Franklin, Solicitor General,
                     Michael M. Glick and Leah M. Bendik, Assistant Attorneys General,
                     of Chicago, and Patrick Delfino, David J. Robinson, and Jennifer
                     Camden, of State’s Attorneys Appellate Prosecutor’s Office, of
                     Mt. Vernon, of counsel), for the People.

                     H. Kent Heller and Bryant Hitchings, of Heller, Holmes & Associates
                     P.C., of Mattoon, for appellee.
     Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                              Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                              Garman, and Theis concurred in the judgment and opinion.



                                                OPINION

¶1         The defendant, Michael Brooks, was charged with driving under the influence following a
       single-vehicle motorcycle accident. He filed a motion to suppress the results of blood-alcohol
       testing on the ground that the blood draw performed at the hospital after his accident was a
       governmental search conducted in violation of the fourth amendment.
¶2         The circuit court granted defendant’s motion, and the appellate court affirmed (2016 IL
       App (5th) 150095-U). We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
       Mar. 15, 2016). For the reasons that follow, we reverse the judgments of the lower courts.

¶3                                             Background
¶4         Defendant was charged in the circuit court of Effingham County with driving under the
       influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2014)) following a single-vehicle
       motorcycle accident on August 14, 2014. On October 30, 2014, defendant filed a motion to
       suppress the results of a blood-alcohol analysis that was performed at St. Anthony’s Memorial
       Hospital (St. Anthony’s) on the night of the accident.
¶5         In his motion, defendant briefly alleged that, after the accident, police officers forcibly
       “placed him in an ambulance and sent him to the hospital,” even though he had refused medical
       treatment. Citing People v. Armer, 2014 IL App (5th) 130342, the motion asserted that a blood
       draw subsequently performed at the hospital was a governmental search conducted without a
       warrant, without his consent, and in the absence of exigent circumstances. Thus, according to
       the motion, the blood draw violated defendant’s fourth amendment right to be free from an
       unreasonable search. Defendant’s motion did not challenge the legality of the police officers’
       seizure of defendant when he was forced to go to the hospital. Rather, the motion contended
       only that the blood draw performed at the hospital was an unlawful search.
¶6         On December 9, 2014, while defendant’s motion was pending, the State issued a subpoena
       duces tecum to St. Anthony’s directing it to produce “[a]ll lab results (‘blood work’)”
       originating from defendant’s admission on or about August 14, 2014. The subpoena requested
       that the hospital produce the results of defendant’s blood work in a sealed, clearly marked
       envelope and send it to the Effingham County circuit clerk. A docket entry reflects the court
       received a sealed envelope from the hospital on December 12, 2014.
¶7         Three days later, an evidentiary hearing was held on defendant’s motion to suppress. At the
       start of the hearing, the circuit court noted it was in possession of an envelope from St.
       Anthony’s but that it had not been opened. Defendant’s counsel told the court he presumed the
       contents of the envelope were the subject matter of the motion to suppress. The State
       responded that it, too, presumed the envelope contained the results of medical blood work done
       on defendant when he went to the hospital. The parties, however, did not stipulate to the
       contents of the envelope, and the court did not open it. The hearing then began.


                                                   -2-
¶8         Defendant called police officer Thomas Webb from the Effingham police department.
       Webb testified that, on August 14, 2014, at approximately 11:54 p.m., he was dispatched to the
       scene of a single-vehicle motorcycle accident. When he arrived, Webb observed a motorcycle
       on a bush in the front yard of a house. He also saw an open-top Jeep across the street,
       approximately 100 feet from the motorcycle, where three other Effingham police officers were
       gathered. Webb walked across the street to the Jeep, which did not belong to defendant, and
       observed defendant sitting in the passenger seat with the door closed. Although none of the
       officers had seen defendant operating a motor vehicle, two witnesses who were present
       informed Webb defendant had been driving the motorcycle.
¶9         Webb spoke to defendant and, while doing so, noticed defendant’s speech was slurred, his
       eyes were red, and he had an odor of alcohol emitting from his mouth when he spoke or yelled
       at the police. According to Webb, defendant appeared agitated by the presence of law
       enforcement. Webb believed defendant’s leg was broken because his foot was “almost upside
       down.” Webb admitted he had little medical training and defendant was not bleeding, but he
       believed the injury was serious. When Webb asked defendant if he wanted to go to the hospital,
       defendant refused. Webb was concerned about defendant’s safety, as he appeared to not be
       thinking rationally because he was screaming and swearing at the police.
¶ 10       Emergency medical services (EMS) personnel who were present at the scene told Webb
       defendant needed to go to the hospital and requested Webb’s assistance in getting him there.
       Although defendant continued to decline medical services, Webb ordered defendant out of the
       Jeep. Defendant refused. Thereafter, Webb and another officer physically removed defendant
       from the Jeep, placed him on a gurney, and assisted EMS personnel in putting the gurney into
       the ambulance.
¶ 11       Webb reiterated that it was EMS personnel who wanted defendant to get medical treatment
       and that he did not direct anyone to treat defendant. When asked why defendant was removed
       from the Jeep and forced to go to the hospital, Webb testified: “I briefly spoke with EMS and
       asked them if he was going to be transported to the hospital by them. Whenever a subject is
       intoxicated and a serious injury pursues, a lot of times or all the time in that case, ambulance
       services request or order basically that we assist them in removing a subject or putting them on
       the cot and transporting them to the hospital to make sure they get the medical attention that
       they need.” Webb was not in the ambulance when EMS personnel began transporting
       defendant to the hospital.
¶ 12       Webb testified that the ambulance stopped after traveling one or two blocks because
       defendant was trying to get out. EMS personnel again asked the police to help in transporting
       defendant. Webb stated that he was concerned at this time for the safety of EMS personnel,
       defendant, and himself. Webb placed defendant on the gurney, handcuffed him, and rode in the
       ambulance the rest of the way to the hospital. Webb then assisted EMS personnel in taking
       defendant into the emergency room.
¶ 13       At the hospital, Webb read the statutory “Warning to Motorists” to defendant and asked
       him to consent to blood or breath testing. Defendant refused. At that point, Webb issued
       defendant a citation for DUI. Webb stated he did not take a sample of defendant’s blood nor
       did he direct anyone at the hospital to do so. While Webb observed nurses working on
       defendant, he never spoke to them or any doctor. Webb stated he had no further contact with



                                                  -3-
       the hospital after he left and did not know whether defendant ever gave consent for a blood
       draw.
¶ 14       Defendant then testified. Defendant briefly stated that, at the hospital, he never consented
       to have his blood drawn. Every time he was asked to have his blood drawn, he refused. Medical
       staff set his leg, which was broken. Altogether, defendant stated he spent approximately 12
       hours at the hospital.
¶ 15       Defendant rested, and the State called no witnesses. After hearing arguments, the circuit
       court took the matter under advisement and retained the sealed envelope from St. Anthony’s.
       Approximately one month later, the circuit court issued an order granting defendant’s motion
       to suppress. Citing Armer, 2014 IL App (5th) 130342, the court concluded that a blood draw
       performed on defendant at St. Anthony’s was a governmental search that had been conducted
       without his consent and that “the State failed to prove exigent circumstances were present to
       obtain a blood draw from Defendant absent a warrant.”
¶ 16       Thereafter, the State filed a motion to reconsider. During a hearing on the motion, the State
       maintained that defendant had failed to prove that his blood had, in fact, been drawn at the
       hospital, as there was no evidence introduced at the hearing on the motion to suppress which
       established that fact. In addition, the State asserted that, even assuming defendant’s blood was
       drawn, there was no fourth amendment violation because any blood draw performed at the
       hospital was a private search, not a governmental one, and thus there was no state action.
¶ 17       The circuit court rejected the State’s arguments. The court stated that under the
       circumstances, there was “some apparent agency” between the hospital and Webb and
       concluded that “the argument that somehow the State wasn’t responsible for the blood draw
       appears to me to be a form over substance argument.” Therefore, the court declined to modify
       its original order. The State filed a certificate of impairment and appealed (Ill. S. Ct. R.
       604(a)(1) (eff. Dec. 11, 2014)). The appellate court affirmed. 2016 IL App (5th) 150095-U.
¶ 18       The appellate court first rejected the State’s argument that defendant had failed to prove
       any blood draw was actually performed. The court explained that defendant filed a motion to
       suppress and “both parties proceeded to argue the merits of the underlying motion, with the
       understanding a blood draw had been performed on the defendant.” Id. ¶ 17.
¶ 19       The appellate court then addressed the State’s argument that the blood draw was a private
       search and not the result of state action. Id. ¶¶ 21-22. The court emphasized that, despite
       defendant’s refusal of medical treatment, Webb physically removed defendant from the Jeep,
       forcibly placed him on a gurney and into the ambulance, handcuffed him, rode to the hospital,
       and then assisted EMS personnel in delivering defendant to the emergency room. Id. ¶ 21.
       According to the appellate court, this was “ample evidence” that demonstrated “that the State
       participated in forcing defendant to receive medical treatment.” Id. The appellate court also
       noted that there were no exigent circumstances present. Id. ¶ 24. From this, the court concluded
       that “the warrantless blood draw violated defendant’s fourth amendment right to be free from
       an unreasonable search.” Id. ¶ 25. This appeal followed.

¶ 20                                              Analysis
¶ 21       At issue before us is the correctness of the circuit court’s order granting defendant’s motion
       to suppress. In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a
       two-part standard of review. People v. Cosby, 231 Ill. 2d 262, 270-71 (2008). Under this

                                                   -4-
       standard, a circuit court’s factual findings are reversed only if they are against the manifest
       weight of the evidence, while the court’s ultimate legal ruling as to whether suppression is
       warranted is reviewed de novo. Id. at 271.
¶ 22       When a defendant files a motion to suppress evidence, he bears the burden of proof at a
       hearing on that motion. People v. Gipson, 203 Ill. 2d 298, 306 (2003); 725 ILCS 5/114-12(b)
       (West 2016) (“The judge shall receive evidence on any issue of fact necessary to determine the
       motion and the burden of proving that the search and seizure were unlawful shall be on the
       defendant.”). A defendant must make a prima facie case that the evidence was obtained by an
       illegal search or seizure. Gipson, 203 Ill. 2d at 306-07. A prima facie showing means that the
       defendant has the primary responsibility for establishing the factual and legal bases for the
       motion to suppress. People v. Berg, 67 Ill. 2d 65, 68 (1977). Where the basis for the motion is
       an allegedly illegal search, the defendant must establish both that there was a search and that it
       was illegal. Id. If a defendant makes a prima facie case, the burden shifts to the State to present
       evidence to counter the defendant’s prima facie case. Gipson, 203 Ill. 2d at 307. However, the
       ultimate burden of proof remains with the defendant. Id.
¶ 23       The sole allegation raised in defendant’s motion to suppress is that his fourth amendment
       right to be free from an unreasonable search was violated by a blood draw conducted at St.
       Anthony’s. The State contends on appeal that the circuit court erred in holding that defendant
       established a prima facie case that any blood draw conducted at the hospital was an illegal
       search. We agree with the State.
¶ 24       To make a prima facie case for suppression, defendant had to establish two things: first,
       that a search occurred in the form of a blood draw and, second, that the draw violated the fourth
       amendment. Defendant failed to establish either of these propositions.
¶ 25       Defendant presented no evidence that his blood was actually drawn at the hospital.
       Although this was a matter within his personal knowledge, defendant never testified that he
       was subjected to a blood draw. Instead, he stated only that he refused to consent to having his
       blood drawn. Officer Webb testified that he went with defendant to the hospital and observed
       nurses working on him but stated he had no knowledge of whether a blood draw took place and
       no knowledge as to whether defendant ever consented to have his blood drawn. In addition,
       defendant did not call any witnesses from the hospital to testify that a blood draw was
       performed. Further, while an envelope was sent to the circuit court from St. Anthony’s, the
       parties did not stipulate to its contents, and it was never opened. Thus, no evidence was
       presented at the suppression hearing that a blood draw was actually performed at the hospital.
¶ 26       We cannot agree with the appellate court that, because defendant filed a motion to suppress
       evidence and the parties proceeded to argue the motion as if a blood draw was performed,
       defendant, in fact, established that a search took place. The mere filing of a motion is not proof
       that a search occurred. Defendant bore the burden at the suppression hearing of showing his
       blood was drawn but failed to offer any evidence to establish that fact. Accordingly, we
       conclude defendant failed to establish the first element of his prima facie case.
¶ 27       Moreover, even assuming a blood draw took place, defendant failed to establish any fourth
       amendment violation. The fourth amendment to the United States Constitution (U.S. Const.,
       amend. IV) protects the “right of the people to be secure *** against unreasonable searches and
       seizures.” There is no dispute that a blood draw is a search within the meaning of the fourth
       amendment. See, e.g., Schmerber v. California, 384 U.S. 757, 769-70 (1966); Missouri v.


                                                    -5-
       McNeely, 569 U.S. 141, 148 (2013). A search conducted without a warrant is considered per se
       unreasonable under the fourth amendment unless it falls within one of a limited number of
       exceptions to the warrant requirement. People v. Pitman, 211 Ill. 2d 502, 513 (2004). No
       warrant was issued in this case, and the State does not contend that any exception to the
       warrant requirement is applicable.
¶ 28        However, the constitutional prohibition “against unreasonable searches and seizures does
       not apply to searches or seizures conducted by private individuals.” People v. Heflin, 71 Ill. 2d
       525, 539 (1978) (citing Burdeau v. McDowell, 256 U.S. 465 (1921)). Where a person performs
       a search independently of the police, the search is considered a private one, and because state
       action is not present, the fourth amendment is not implicated. See generally 1 Wayne R.
       LaFave, LaFave Search and Seizure § 1.8, at 356-57 (5th ed. 2012).
¶ 29        Defendant’s argument in this case rests on the presumption that any blood draw conducted
       at the hospital was a governmental search, not a private one.
                    “The relevant factors involved in determining whether or not a particular search
               should be attributed to the government have been frequently discussed by the Supreme
               Court of the United States. [Citation]. Where a search is conducted by a private
               individual, the search will be subject to constitutional guarantees when the individual
               conducting the search can be regarded as acting as an agent or instrument of the State
               ‘in light of all the circumstances of the case.’ (Coolidge v. New Hampshire (1971), 403
               U.S. 443, 487 ***). Participation by the police in and of itself, then, does not
               automatically invoke the application of the guarantees against unreasonable
               government intrusions safeguarded by the fourth and fourteenth amendments.” Heflin,
               71 Ill. 2d at 539-40.
¶ 30        Thus, to establish a fourth amendment violation in this case, defendant had to demonstrate,
       “in light of all the circumstances,” that the private individual who conducted the alleged blood
       draw acted as an agent or instrumentality of the State when doing so. Defendant did not meet
       this standard.
¶ 31        Officer Webb testified he never asked anyone to draw blood. In fact, Webb stated he never
       spoke to any nurse or doctor and had no knowledge about the treatment defendant received.
       Thus, there was no evidence that Webb, or any other police officer, sought or encouraged a
       blood draw or was even aware that one had been done. Cf. Armer, 2014 IL App (5th) 130342
       (state action was present where a police officer requested that hospital staff draw the
       defendant’s blood with a DUI kit). Further, and equally as important, defendant did not call
       any witnesses from the hospital to testify. Thus, there was no evidence that any individual who
       may have drawn defendant’s blood did so while acting at the behest, or under the influence, of
       the police.
¶ 32        The appellate court below stressed the fact that defendant was physically forced to go the
       hospital and reasoned that, because defendant was compelled to go to the hospital, then any
       hospital employee who drew defendant’s blood necessarily did so under the guise of state
       action. This analysis is misplaced.
¶ 33        There is no question police forcibly seized defendant and helped transport him to the
       hospital. But defendant has never challenged the legality of the seizure. His challenge is only to
       the legality of a search, i.e., the blood draw that allegedly took place at St. Anthony’s. And, on



                                                   -6-
       this record, there is no evidence that a blood draw even took place, let alone that a hospital
       employee was acting as an instrumentality or agent of police when it was performed.
¶ 34       Defendant also emphasizes that he had a right to refuse medical treatment and that he never
       consented to any blood draw. Therefore, defendant reasons, any hospital personnel who drew
       his blood acted illegally, and any blood draw was necessarily unlawful under the fourth
       amendment. This argument is without merit. The private search doctrine applies “ ‘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.’ ”
       (Emphasis added.) United States v. Jacobsen, 466 U.S. 109, 113 (1984) (quoting Walter v.
       United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting, joined by Powell and
       Rehnquist, JJ.)); see also, e.g., United States v. Malbrough, 922 F.2d 458, 462-63 (8th Cir.
       1990) (upholding a search by a private citizen who trespassed on another person’s property and
       viewed marijuana).
¶ 35       Based on the foregoing, we conclude that, even assuming blood was drawn from defendant
       at St. Anthony’s, it was a private search that did not implicate the fourth amendment.
       Accordingly, for this additional reason, the circuit court erred in granting defendant’s motion
       to dismiss.
¶ 36       Finally, we note that at the conclusion of the hearing held on the State’s motion to
       reconsider the circuit court’s suppression order, the circuit court briefly stated that it believed
       the State should not have been able to issue a subpoena duces tecum to St. Anthony’s. The
       court evidently concluded that, because any blood draw was the result of state action, the
       subpoena was improper. However, as we have explained, on this record, defendant failed to
       establish that any blood draw was conducted under the guise of state action.

¶ 37                                            Conclusion
¶ 38        For the foregoing reasons, we hold the circuit court erred in granting defendant’s motion to
       suppress. Accordingly, we reverse the judgments of the circuit and appellate courts. The cause
       is remanded to the circuit court for further proceedings consistent with this opinion.

¶ 39      Appellate court judgment reversed.
¶ 40      Circuit court judgment reversed.
¶ 41      Cause remanded.




                                                    -7-
