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May 4, 1978


Middlesex. Indictment found and returned in the Superior Court on July 3, 1974. Pretrial motions were heard by Taveira, J., and the case was heard by Griffin, J.

Hale, C.j., Grant, & Armstrong, JJ.


Search and Seizure. Constitutional Law, Search and seizure, Evidence obtained by private party.

The opinion of the court was delivered by: Armstrong

Surgical removal of a bullet from a defendant's body, after notification of police by the doctor pursuant to G. L. c. 112, § 12A, and the doctor's turning the bullet over to police who used it as evidence in a subsequent prosecution of the defendant for robbery did not constitute a search and seizure within the scope of the Fourth Amendment to the United States Constitution, where the doctor was not acting as the agent of the police but rather as a private citizen cooperating with them and where the operation was performed solely for medical reasons and only incidentally resulted in the recovery of evidence for police use. [312-316]

On May 2, 1974, the defendant, giving a false name and address, walked into the emergency room of the Bon Secours Hospital in Methuen with a bullet wound. The bullet had entered through his neck and had lodged itself behind his left ear, near the mastoid process. The defendant was not in acute distress, though he had some pain.

The hospital notified the Methuen police department, as required by G. L. c. 112, § 12A, and Captain DeSantis went to the hospital on May 3 to question the defendant. The latter gave his correct name and a false address different from the one given earlier. He said that he had been involved with a married woman and had been beaten and shot by her irate husband on April 29, but he refused to divulge their names. He said he had given a false name because he was married and did not want his own wife to learn about the affair which had led to his being shot.

Dr. Dragone, a surgical resident who undertook care of the defendant, advised him that the bullet was not an immediate danger to his health but that it should be removed and could lead to serious complications if it were not. The defendant postponed surgery for two days and then left the hospital on May 5. He telephoned Captain DeSantis on May 7, and informed DeSantis that he had decided not to have the bullet removed.

Meanwhile, the May 4 edition of the Lawrence Eagle Tribune had carried a story about the defendant's admission to the hospital and the amorous explanation he had given for the gunshot wound. The story was seen by Sergeant Willcox of the Malden police, who had been investigating an armed robbery of a Malden liquor store on the evening of April 29. One of the three robbers had been shot by the proprietor during their getaway. Sergeant Willcox contacted Captain DeSantis and the hospital and arrangements were made for him to be notified if the defendant showed up again at the hospital.

On May 7, and again on May 14, the defendant appeared at the hospital to have his wound examined (he was being treated with antibiotics) and was advised again, on each occasion, to have the operation performed. On the latter date, Dr. Dragone told the defendant that the police would get the bullet eventually, apparently explaining to the defendant what the Judge found to be the normal hospital procedure, to turn bullets over to police for ballistics examination after they were removed surgically. On May 14, the defendant signed a consent form for an operation, and the operation was scheduled to be performed May 17.

That morning Captain DeSantis, who had been notified by either Dr. Dragone or by a Dr. McCarthy, a staff surgeon, in turn notified Sergeant Willcox of the Malden police. Willcox received two calls: the first, at 9:00 A.M., indicating that the operation would take place at 1:30 P.M., and the second, about an hour after the first, indicating that the time of the operation was to be advanced to 11:00 A.M. Willcox called one Windisch, a State ballistician, and both went to the hospital, joining Captain DeSantis. None had obtained a search warrant.

DeSantis was given permission, either by Dr. McCarthy or by a head nurse, to be present in the operating room when the operation took place. DeSantis dressed for surgery, entering the operating room, according to the defendant's allegations (the Judge's findings are silent on the subject), after the defendant was anesthetized and without any prior knowledge by the defendant that he was to be there. The operation began at 11:29 A.M. At 11:46 A.M. Dr. Dragone removed the bullet, washed it, and handed it to DeSantis. The latter gave it directly to Windisch, the ballistics expert, who was waiting outside the operating room. By 2:30 P.M. Windisch reported to Willcox that he had identified the bullet as having come from the gun used by the proprietor of the liquor store on the evening of April 29.

Through the use of the bullet and the ballistics report, the Commonwealth secured the indictment and conviction of the defendant for robbery while masked and armed with a dangerous weapon. The sole questions presented in this appeal are whether the Judge who denied the defendant's pretrial motion to suppress that evidence erred in so doing and whether he erred in denying the defendant's motion (also pretrial) to reopen and reconsider his earlier action on the basis of "newly available" testimony.

One of the factual Conclusions on which the Judge predicated his denial of the motion to suppress was that the doctor who removed the bullet and turned it over to the police was not acting as an agent of the police but merely as a private citizen cooperating with the police by turning evidence of crime over to them. It has long been settled that the Fourth Amendment to the United States Constitution applies only to searches and seizures taken by or at the direction of the State; and, consequently, evidence obtained illegally by private parties and turned over to the police is not obtained in violation of the Fourth Amendment. Burdeau v. McDowell, 256 U.S. 465, 475 (1921). *fn1 The Judge's ...

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