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                              Appellate Court                              Date: 2016.01.25 14:51:03
                                                                           -06'00'




                  People v. Wuckert, 2015 IL App (2d) 150058



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption           KARL WUCKERT, Defendant-Appellee.



District & No.    Second District
                  Docket No. 2-15-0058



Filed             December 10, 2015



Decision Under    Appeal from the Circuit Court of Kane County, No. 13-DT-1045; the
Review            Hon. Robert J. Morrow, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Joseph A. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Appeal            Bauer and Victoria E. Jozef, both of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.

                  Michael J. Pelletier, Thomas A. Lilien, and Fletcher P. Hamill, all of
                  State Appellate Defender’s Office, of Elgin, for appellee.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Justices Hutchinson and Zenoff concurred in the judgment and
                  opinion.
                                             OPINION


¶1        Defendant, Karl Wuckert, was charged with driving under the influence of intoxicating
     compounds (DUI) (625 ILCS 5/11-501(a)(6) (West 2012)). He moved to suppress evidence
     that was allegedly the product of an illegal arrest. The trial court granted the motion but, on
     reconsideration, allowed the results of a urine test that hospital personnel administered to
     defendant shortly after his arrest. On defendant’s subsequent motion, the court ultimately
     suppressed the test results. The State appeals. We reverse and remand.
¶2        At the hearing on defendant’s motion to suppress, he testified as follows. On the evening
     of October 11, 2013, while driving his Ford Explorer at or near the 35-mile-per-hour speed
     limit on Sleepy Hollow Road, he swerved to avoid hitting a deer, then swerved again to avoid
     another deer. The Explorer hit a pole and spun around. The crash activated the vehicle’s
     airbags and knocked defendant unconscious. When he came to, a Sleepy Hollow police
     officer showed up, followed by a sheriff’s deputy. Defendant exited the vehicle and told them
     that he had swerved to avoid a deer, losing control of the vehicle. He said that he had used no
     alcohol or drugs and that none were in the vehicle. The Explorer’s center console held a
     “one-hitter box,” a device commonly used to smoke cannabis but also to smoke tobacco. The
     officers had defendant perform the walk-and-turn and one-legged-stand tests. They did not
     tell him that he was under arrest. An ambulance arrived; the driver asked to take him to the
     hospital as a precaution. Defendant consented.
¶3        Andrew Schwab, a Kane County sheriff’s deputy, testified as follows. On October 11,
     2013, at about 9:56 p.m., he was dispatched to the accident scene. Two Sleepy Hollow
     officers were there. Defendant’s vehicle was in the roadway, facing east in the southbound
     lane, heavily damaged. Schwab heard the ignition alarm “dinging,” so, for safety, he went to
     remove the key and shut off the ignition. As he approached the door, the window was open,
     and he smelled a faint odor of cannabis. As he shut off the ignition, he saw in plain view on
     the center console a “one-hitter box,” an item commonly used to smoke cannabis. The
     one-hitter box could have been purchased legally at a “head shop.” Schwab did not open it
     but later informed his supervisor, Deputy Justin Douglas, of its presence. Schwab did not
     find cannabis in the vehicle. He backed up slightly; defendant shut the door and told him to
     stay out of the vehicle. Defendant was not bleeding and did not appear seriously injured. His
     breath did not smell of alcohol or cannabis. His speech was clear, and he was cooperative.
¶4        Defendant rested. The State called Douglas, who testified as follows. When he arrived at
     the accident scene, he saw the Ford Explorer facing east in the southbound lane of Sleepy
     Hollow Road. Defendant was standing outside; his eyes were bloodshot and he looked
     slightly disoriented. Defendant said that he had been traveling west when a deer jumped out
     in front of him and he swerved to avoid it. Douglas found this statement odd, since Sleepy
     Hollow Road runs north-south. Defendant said that he had been going 30 miles per hour,
     which seemed inconsistent with the severe damage to the vehicle.
¶5        Douglas testified that defendant failed both the walk-and-turn test and the
     one-legged-stand test. At some point, Schwab told Douglas about the cannabis odor and the
     one-hitter box. Douglas placed defendant under arrest. An ambulance drove defendant to the
     hospital. Douglas drove by himself to the hospital. There, he spoke to a nurse with nobody
     else present. Over defendant’s objection on foundational and relevance grounds, Douglas

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       testified that the nurse told him that defendant’s urine specimen had been taken to the lab.
       Defendant renewed his objection to further testimony about Douglas’s conversation with the
       nurse; this time, the court sustained the objection.
¶6          After hearing arguments, the trial judge granted defendant’s motion, explaining that the
       police had lacked probable cause to arrest defendant for DUI or possessing drug
       paraphernalia.
¶7          The State moved to reconsider. In addition to arguing that the arrest had been valid, the
       State contended that the court should not suppress the results of the urine test. (The State
       proffered that the test disclosed the presence of cannabis in defendant’s system.) The State
       reasoned that there was no causal connection between the arrest and the urine test, because
       defendant had voluntarily gone to the hospital even before he knew that he was under arrest.
       Defendant argued that the urine test had resulted from the illegal arrest; had there been no
       arrest, there would have been no test. The State replied that defendant had agreed to go to the
       hospital as a precaution and would have done so regardless of whether the police ever
       arrested him. Further, the test was taken solely for medical reasons, not because the police
       requested it.
¶8          The trial court denied the motion to reconsider, except that it modified its ruling to allow
       the results of the urine test if the State could supply the proper foundation. The judge
       explained that, if hospital personnel had tested defendant without police prompting or any
       intent to use the results for law enforcement purposes, then the evidence was not the product
       of the illegal arrest.
¶9          Defendant moved to reconsider and clarify the judge’s ruling. His motion alleged: that
       the emergency room nurse had told him that he had to provide a urine sample in order to be
       treated; that she had assured him that the sample would be used solely for medical purposes
       and that the results would not be provided to the police; and that, relying on these
       representations, he had provided a urine sample that was later tested at the hospital lab.
¶ 10        Defendant’s motion argued that, because the test was not conducted properly and there
       was no proper chain of custody, the results should not be admitted. Further, he argued,
       because he was assured that the test was strictly for medical purposes, the results should be
       barred at trial. Defendant contended that independent testing was the only way to protect his
       due process rights.
¶ 11        Defendant’s motion attached a copy of a hospital record summarizing the test results. It
       states: “Specimen analysis was performed without chain of custody handling. These results
       should be used for medical purposes only and not for any legal purposes.” Defendant
       requested that the trial court reconsider its ruling conditionally allowing the introduction of
       the test results.
¶ 12        The court held a hearing on defendant’s motion. 1 The prosecutor argued that the
       foundational requirements for admitting the results were governed by section 11-501.4 of the
       Illinois Vehicle Code (625 ILCS 5/11-501.4 (West 2012)) and that the cautionary language in
       the hospital document went to the weight to be given the results, not their admissibility.
       Further, the prosecutor noted, defendant had voluntarily gone to the hospital, when he did not
           1
            The record contains a notice of defendant’s motion to reconsider and clarify the judge’s ruling, but
       the record does not include the motion. The order setting the hearing indicated that the case was
       continued for the motion to reconsider and clarify.

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       believe that he was under arrest, and Douglas had testified that he had no role in procuring
       the test. Defendant responded that, although the hospital personnel had not acted as agents of
       the police, the police had obtained the results by “dishonest” means, as the hospital had
       assured him that the test was solely for medical purposes. Also, he contended, the
       deficiencies in the chain of custody and the cautionary language in the summary went to the
       results’ admissibility, not merely their weight.
¶ 13       The trial judge noted that the summary stated that the results should not be used for law
       enforcement purposes. The prosecutor responded that section 11-501.4 trumped the hospital
       policy by specifically allowing the admission of the results of chemical tests of blood or
       urine if the tests were performed in the regular course of providing emergency medical
       treatment and the other foundational requirements are met (see 625 ILCS 5/11-501.4(a)
       (West 2012)).
¶ 14       Defendant argued that the statute allowed the admission only of prearrest test results and
       that the results here were obtained after defendant was arrested. He argued second that the
       use of postarrest test results would violate medical privacy laws, and third that the results
       were inadmissible because there was no chain of custody. The prosecutor responded that (1)
       the statute does not distinguish between prearrest and postarrest testing; (2) it specifically
       states that “[t]he confidentiality provisions of law pertaining to medical records and medical
       treatment shall not be applicable with regard to chemical tests performed upon an
       individual’s blood or urine under the provisions of this Section” (625 ILCS 5/11-501.4(b)
       (West 2012)); and (3) any problems with the chain of custody went to the evidence’s weight,
       not its admissibility.
¶ 15       The judge stated as follows. The nurse who performed the test was not a state actor.
       However, because she assured defendant that the test was solely for medical purposes, he had
       provided the sample “without a fair statement of what the effect of giving it [was].” When
       the sample was taken, defendant had been “technically in the custody of the police,” so the
       testing violated his “rights.” The court granted defendant’s motion and barred the State from
       using the test results at trial. The State appealed (see Ill. S. Ct. R. 604(a)(1) (eff. Dec. 11,
       2014)).
¶ 16       On appeal, the State contends that the trial court erred in suppressing the results of the
       urine test. The State argues that section 11-501.4 makes no distinction between prearrest and
       postarrest testing but allows the admission of the results of any test if the foundational
       requirements are met. The State requests that we reverse the trial court’s suppression of the
       test results and remand the cause so that the State can establish the proper foundation.
¶ 17       In response, defendant concedes that section 11-501.4 does not distinguish between
       prearrest testing and postarrest testing and that the order cannot be affirmed on statutory
       grounds. Defendant, however, contends that the suppression of the urine test results was
       proper on fourth amendment grounds, because the test was the product of the illegal arrest. In
       reply, the State argues that it proved that the test was not the product of the arrest or any
       other State action: the trial judge found that the hospital personnel who tested defendant did
       not act as agents of the police, and defendant admitted that he went to the hospital voluntarily
       as a precaution.
¶ 18       At the outset of our analysis, we note that the trial court’s reasoning is not altogether
       clear. We cannot say whether, in suppressing the results of the urine test, the court relied
       solely on the statute, solely on fourth amendment considerations, or on both. However, this

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       deficiency is not crucial: we review the court’s judgment, not its reasoning, and we may
       affirm on any basis called for by the record. See People v. Cleveland, 342 Ill. App. 3d 912,
       915 (2003); People v. Mauricio, 249 Ill. App. 3d 904, 910 (1993). Thus, we examine both the
       statutory and constitutional bases for the order. We conclude that neither is sufficient.
¶ 19       First, we agree with the parties that section 11-501.4 does not support the suppression of
       the test results. Section 11-501.4 reads (as pertinent here):
                    “(a) Notwithstanding any other provision of law, the results of blood or urine tests
                performed for the purpose of determining the content of alcohol, other drug or drugs,
                or intoxicating compound or compounds, or any combination thereof, of an
                individual’s blood or urine conducted upon persons receiving medical treatment in a
                hospital emergency room are admissible in evidence as a business record exception to
                the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code
                or a similar provision of a local ordinance ***.” 625 ILCS 5/11-501.4(a) (West
                2012).
¶ 20       This language makes no distinction between prearrest testing and postarrest testing.
       Instead, it makes test results such as those at issue here admissible, with a proper foundation,
       regardless of the timing of the test. When a statute is unambiguous, we must apply it as
       written and may not read in exceptions, conditions, or limitations that the legislature did not
       express. People v. Woodard, 175 Ill. 2d 435, 443 (1997). Therefore, that defendant was tested
       after he was arrested2 has no bearing on whether section 11-501.4 barred the test results. It
       did not.
¶ 21       We turn to the constitutional issue. The State contends that, although defendant was
       arrested illegally, the test results were not tainted by the arrest, as they were the product of
       actions by hospital employees not acting at the instigation or prompting of the police.
       Defendant responds that, because the test resulted from the arrest, the results must be
       suppressed as the fruit of the illegality. For the following reasons, we agree with the State.
¶ 22       Because the pertinent facts are essentially undisputed, the constitutional issue is a
       question of law, and our review is de novo. See People v. Close, 238 Ill. 2d 497, 504 (2010).
       The facts are as follows. After Douglas placed him under arrest, defendant voluntarily agreed
       to ride the ambulance to the hospital for testing. Douglas followed in his squad car. At the
       hospital, hospital personnel tested defendant’s urine. The hospital issued a document
       informing defendant that the test was performed for strictly medical purposes and should not
       be used for law enforcement. However, section 11-501.4-1 required the hospital to disclose
       the results to law enforcement personnel upon request. 625 ILCS 5/11-501.4-1 (West 2012).
       Douglas spoke to the nurse who performed the test and received notice of the test results, but
       there was no evidence that he suggested the test.
¶ 23       The trial court found that the nurse who decided upon and performed the urine test was
       not acting as an agent of the police. This conclusion was correct; indeed, defendant does not
       contend otherwise on appeal. Defendant went to the hospital voluntarily and, even if he
       consented to the urine test under the misimpression that the results could not be used against
       him in court, his mistaken understanding of the law was not the product of police deception
       or subterfuge. The court was perturbed that defendant consented to the test under a

           2
            The trial judge found that Douglas arrested defendant at the accident scene, before defendant went
       to the hospital. A contrary finding would not have changed our analysis.

                                                      -5-
       misimpression created by the hospital personnel. But that circumstance, however
       unfortunate, was not a legally sound basis to suppress the test results.
¶ 24       In People v. Poncar, 323 Ill. App. 3d 702 (2001), the police stopped the defendant for a
       traffic offense and then arrested him for DUI and transported him to the police station. There,
       the defendant was injured while struggling with officers, and he was taken, without his
       consent, to the hospital. In the emergency room, hospital personnel tested his blood for
       evidence of possible intoxication, then treated his injuries. Id. at 704. Later, the State charged
       the defendant with aggravated DUI, and he moved to suppress the results of the blood test.
       The trial court granted the motion. Id. at 705.
¶ 25       This court reversed. We held first that the test results were admissible under section
       11-501.4 as long as the State could lay the proper foundation. Id. at 706. We then held that
       the fourth amendment did not bar the admission of the test results. Although the trial court
       had reasoned that excluding test results in a situation such as the one in Poncar could
       discourage police misconduct that causes injury to people in custody (id.), we explained that,
       under People v. Yant, 210 Ill. App. 3d 961, 965 (1991), the test results would be admissible
       unless the test was the result of “police subterfuge.” Poncar, 323 Ill. App. 3d at 707.
¶ 26       In Yant, the defendant was in an automobile accident and was taken, in restraints, to the
       hospital. Without his consent, the physician on duty ordered a blood test on the defendant,
       who was uncooperative and still in restraints. After the defendant was charged with DUI, he
       moved to suppress the test results. The trial court granted the motion. Yant, 210 Ill. App. 3d
       at 962-63.
¶ 27       This court reversed. After disposing of any statutory grounds for the suppression order,
       we explained that in general, under Schmerber v. California, 384 U.S. 757 (1966), the taking
       of a blood sample under reasonable medical circumstances does not violate the fourth
       amendment. Yant, 210 Ill. App. 3d at 965 (citing U.S. Const., amend. IV). In Yant, the
       defendant’s injuries justified taking him to the hospital, and the continuing physical restraint
       was appropriate. Further, we noted, there was “no indication in the record that either the
       emergency restraints or the physician’s blood test order here was a subterfuge procured by
       the police or any form of State action.” Id.
¶ 28       Poncar and Yant implicitly rely on a principle that case law elsewhere has made explicit:
       that the fourth amendment is not triggered by the actions of private parties unless they act as
       agents of the State. Therefore, because the test results here were procured by a nurse who
       was not acting as a State agent (as defendant conceded in the trial court), neither the test nor
       the hospital’s disclosure of the results to the police, as the statute required, violated
       defendant’s rights.
¶ 29       The fourth amendment does not apply to a search or seizure, however unreasonable,
       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 (1984). As defendant has conceded that the nurse did not act as an agent of the
       government when she performed the urine test, his argument that the test was the product of
       the illegal arrest is legally irrelevant: the State did not need to prove that the test results were
       not the fruit of the illegal arrest. The State has this burden “only *** where the evidence
       sought to be suppressed was actually obtained as a result of some illegal government
       activity.” People v. Lovejoy, 235 Ill. 2d 97, 130 (2009). Here, the condition was not met: the
       evidence that defendant sought to suppress was the result of private agents’ acts.

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¶ 30       Although the foregoing principles dispose of this case, we also note that foreign authority
       overwhelmingly holds that the fourth amendment is not implicated when medical personnel
       perform chemical tests on alleged DUI offenders and, per statutory requirements, divulge the
       results to the police or prosecutors. E.g., People v. Perlos, 462 N.W.2d 310, 316-18 (Mich.
       1990) (testing did not implicate fourth amendment; disclosure of results to police did not
       implicate fourth amendment, as statutory requirement dispelled any reasonable expectation
       of privacy in results); see also State v. Hardy, 963 S.W.2d 516, 525-27 (Tex. Crim. App.
       1997) (accord); State v. Jenkins, 259 N.W.2d 109, 111-13 (Wis. 1977) (accord).
¶ 31       We hold that the trial court erred in suppressing the results of the urine test that hospital
       personnel performed on defendant. Therefore, we reverse the trial court’s suppression of this
       evidence, and we remand the cause so that the court may decide whether the State can satisfy
       the statutory requirements for the admission of the test results.
¶ 32       The order of the circuit court of Kane County is reversed, and the cause is remanded.

¶ 33      Reversed and remanded.




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