STATE v. BLACKMORE (2025)

MEMORANDUM DECISION

Case Summary

[1] In April of 2023, Brittany Blackmore was driving in Clark County when she was involved in a traffic accident and taken to University of Louisville Hospital (“the Hospital”) in Kentucky, where her blood was drawn. In Cause Number 10C03-2304-MC-718 (“Cause No. 718”), the State petitioned for the issuance of a subpoena duces tecum to the Hospital for production of the blood samples and test results. The trial court granted the subpoena, the samples and test results were produced, and the State charged Blackmore with Class A misdemeanor operating a vehicle while intoxicated, Class A misdemeanor operating a vehicle with an alcohol-concentration equivalent of 0.15 or greater, and Class C misdemeanor operating a vehicle while intoxicated. Blackmore moved to suppress the evidence relating to her blood draw, and, following a hearing, the trial court granted her motion. The State contends that the trial court erred in granting Blackmore's motion to suppress. Because we agree, we reverse and remand.

Facts and Procedural History

[2] On April 15, 2023, Blackmore was driving on Interstate 265 in Clark County when she struck a sign, went airborne over the edge of a 150-foot embankment, struck the ground, rolled several times, and came to rest upside down underneath an overpass. Indiana State Police Trooper B. Davis responded to a dispatch and found Blackmore conscious but dazed. Emergency medical services arrived and “immediately began to provide emergency medical care” to Blackmore, who was transported to the Hospital in Kentucky. Appellant's App. Vol. II p. 24. After Trooper Davis had completed his investigation at the scene, he went to the Hospital and took Blackmore's statement. At some point, the Hospital drew Blackmore's blood.

[3] On April 17, 2023, the State petitioned in Cause No. 718 to have a subpoena duces tecum issued to the Hospital for Blackmore's blood and the results of tests run on it. On May 1, 2023, the trial court granted the State's request and issued a subpoena duces tecum to the Hospital for the “blood serum tube collected from Brittany Blackmore [․] resulting from treatment on or around 04/15/2023.” Appellant's App. Vol. II p. 27. On May 27, 2023, the Hospital's laboratory responded to the subpoena, providing three vials of Blackmore's blood and the results of the analysis of Blackmore's blood. The Hospital's analysis revealed a blood alcohol concentration of 0.183 g/100 mL.

[4] On May 21, 2023, the State charged Blackmore with Class A misdemeanor operating a vehicle while intoxicated, Class A misdemeanor operating a vehicle with an alcohol–concentration equivalent of 0.15 or greater, and Class C misdemeanor operating a vehicle while intoxicated. On April 11, and May 13, 2024, Blackmore moved to suppress the evidence of the blood draw and analysis of that blood pursuant to the Fourth Amendment to the United States Constitution and Article 1, Section 11, of the Indiana Constitution. Blackmore alleged that the blood had been seized and tested without a warrant and that no recognized exception to the warrant requirement applied. The State responded that because the blood had been drawn “during the course of medical treatment” by the Hospital, i.e., a non-State actor, the Fourth Amendment and Section 11 simply do not apply. The trial court held a hearing on Blackmore's motion to suppress on September 13, 2024, and granted it on September 18, 2024, indicating only that the State had not reached its burden.

Discussion and Decision

[5] The State contends that the trial court erred in suppressing evidence related to the blood drawn at the Hospital, specifically that neither the Fourth Amendment nor Section 11 requires suppression because neither applies to evidence that was not obtained by the State or a State agent. Blackmore contends that (1) the State waived the argument that the Hospital was not acting as an agent of the State when it drew Blackmore's blood, (2) the State's argument relies on materials improperly before this court, and (3) the trial court correctly suppressed the evidence because it was obtained without a search warrant and the State failed to show that any exception to the warrant requirement applies.

I. Whether the State Waived Its Argument

[6] Blackmore contends that the State is making its argument regarding the merits of the trial court's grant of her motion to suppress for the first time on appeal. “Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal.” State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022), trans. denied. The State's argument on appeal is that the taking of Blackmore's blood did not implicate the Fourth Amendment or Section 11 because the Hospital drew her blood of its own volition. This is consistent with its argument below that “[t]he Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution prevents unreasonable searches, however the Defendant's blood was drawn during the course of medical treatment, and therefore neither are implicated because the blood draw was not a search.” Appellant's App. Vol. II p. 111. This argument, which contains the clear implication that the relevant constitutional provisions do not apply because the Hospital drew Blackmore's blood on its own without State direction, is more than sufficient to allow the State to present its argument on appeal.

II. Whether the State's Appendix Contains Improper Material

[7] Blackmore also contends that the State has included inappropriate materials in its Appellant's Appendix, namely parts of the record for Cause No. 718. Blackmore's argument (which has also been made in a motion filed in this court to strike portions of the Appellant's Appendix) is, essentially, that the trial court was allowed to take judicial notice only of the existence of those court records but not their contents. We are not persuaded.

[8] Blackmore's argument is based on Indiana Rule of Evidence 201(a)(1)(C), which provides that the trial court may judicially notice “the existence of [․] records of a court of this state[,]” which, she argues, limits notice of records to the fact of their existence. This argument, however, ignores Evidence Rule 201(b)(5), which provides that courts “may judicially notice a law, which includes [․] records of a court of this state[.]” Moreover, to the extent that the appendix might erroneously contain material, the notice of which could have been limited to its existence, Blackmore invited that error by failing to make a targeted notice request below. Blackmore was the party that requested that notice be taken of Cause No. 718, and when she asked the trial court “to take judicial notice of 10C03-2304-MC-718[,]” she did so without requesting that notice be limited to the existence of those records. We reject Blackmore's contention that the State included inappropriate items in its Appellant's Appendix.¹

III. Whether the Trial Court Erred in Granting Blackmore's Motion to Suppress

[9] For its part, the State contends that the trial court erred in granting Blackmore's motion to suppress.

When the State appeals from a negative judgment, it bears the burden to “show that the trial court's ruling on the suppression motion was contrary to law.” State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008). We evaluate the trial court's findings of fact deferentially, neither reweighing the evidence nor reassessing the credibility of the witnesses. Id. We will affirm if we find within the record “substantial evidence of probative value” to support the judgment. State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006). But we review the trial court's conclusions of law [․] de novo. Sellmer v. State, 842 N.E.2d 358, 361 (Ind. 2006).

State v. Keck, 4 N.E.3d 1180, 1183 (Ind. 2014).

[10] “The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ ” Maryland v. King, 569 U.S. 435, 446 (2013). “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.” Skinner v. Ry. Lab. Executives’ Ass'n, 489 U.S. 602, 613–14 (1989). Section 11 provides protection in terms effectively identical to those in the Fourth Amendment and is part of Indiana's Bill of Rights, which “was written to protect the liberty of Hoosiers from the reaches of their state government.” Zoeller v. Sweeney, 19 N.E.3d 749, 753 (Ind. 2014) (emphasis omitted).

[11] Another thing both provisions have in common is that neither applies to the actions of private parties who are not acting as state agents. See, e.g., U.S. v. Jacobsen, 466 U.S. 109, 113–14 (1984) (stating that the Fourth Amendment is “wholly inapplicable ‘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 government official’ ”) (citation omitted), and U.S. v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988) (“It is axiomatic that the Fourth Amendment does not apply to private entities.”); see also Zupp v. State, 258 Ind. 625, 628, 283 N.E.2d 540, 542 (1972) (holding that Section 11 does not apply to “unauthorized acts of private individuals”).

[12] The basis for the trial court's ruling was, presumably, a finding that the Hospital had been acting as an agent of the State in taking her blood without a warrant. Blackmore seems to concede that the Hospital is an institution that is not affiliated with law enforcement or staffed by State actors (she does not argue otherwise), so the only real conflict between the parties is regarding the question of whether Blackmore had the burden to show the Hospital was a State agent or whether the State had the burden to show that it was not.

[13] While it is generally true that, “[i]f a search is conducted without a warrant, the State bears the burden to show that one of the well-delineated exceptions to the warrant requirement applies[,]” State v. Baker, 246 N.E.3d 1236, 1243 (Ind. Ct. App. 2024), the central question here is whether the constitutional provisions even apply. As the State points out, there is authority squarely placing the burden on the defendant to establish the existence of agency, not on the State to establish the absence of one. See, e.g., U.S. v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (“The defendant bears the burden of proving agency, based on all the circumstances.”) (citing U.S. v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997) (“The defendant bears the burden of proving that the private party was acting as an instrument or agent of the government.”); and Koenig, 856 F.2d at 847 (“Koenig concedes that she bore at least the burden of establishing a prima facie case that the search was instigated by a governmental agent rather than a private entity.”); cf., Hutchinson v. State, 477 N.E.2d 850, 853 (Ind. 1985) (rejecting challenge to the admission of evidence under Fourth Amendment and Section 11 because the defendant had produced no evidence that the private citizen who had provided incriminating evidence “had been solicited to act as an agent for the police”). Blackmore does not draw our attention to any authority that the government has the burden to prove that an agency did not exist in such cases, and we have uncovered none.

[14] Consequently, to meet her burden to show that the Hospital employees’ actions were governed by the Fourth Amendment and Section 11, Blackmore was required to “prove some exercise of governmental power over the private entity, such that the private entity may be said to have acted on behalf of the government rather than for its own, private purposes.” Koenig, 856 F.2d at 849; see also Zupp, 283 N.E.2d at 542. This determination is made on a case-by-case basis, though two critical factors include (1) whether the government knew of and acquiesced in the conduct and (2) whether the private party's conduct was done with the purpose of assisting law enforcement or to further his own ends. Koenig, 856 F.2d at 847 (citing U.S. v. Feffer, 831 F.2d 734, 739–40 (7th Cir. 1987)).

[15] It was Blackmore's burden to produce evidence that the taking of her blood by the Hospital was done by a State agent, and she produced none to this effect. In fact, Blackmore produced no evidence of any sort at the suppression hearing. “Both sides must agree ․ to the creation of the agency relationship,” and Blackmore did not present any evidence that the Hospital had agreed to be an agent for the State. Aldridge, 642 F.3d at 541. It is possible, of course, that the State knew (or strongly suspected) that Blackmore's blood would be drawn at the hospital, but there is no evidence whatsoever that Trooper Davis or any other State entity communicated a request for the blood to be drawn to any hospital staff. Blackmore's suggestions that the Hospital had no legitimate reason to draw her blood and that it is just as likely as not that Trooper Davis did, in fact, request the blood draw, are just that: suggestions based on pure speculation without basis in the record. As mentioned, it was Blackmore's burden to establish that the Hospital was acting as an agent of the State, a burden she did not carry.

[16] We reverse the judgment of the trial court and remand for further proceedings.

FOOTNOTES

1.   In an order issued contemporaneously with this memorandum decision, we deny Blackmore's motion to strike portions of the State's Appellant's Appendix.

Bradford, Judge.

Pyle, J., and Kenworthy, J., concur.