S.D.Ga.: Def shooting victim’s clothes could be seized from ER floor as plain view or because of exigency

Defendant arrived at a hospital ER after he was shot. His clothing was cut off him and on the floor, and the officer’s seizure was valid because it was in plain view and had clear evidentiary value from blood and bullet holes. It was also alternatively valid as an emergency seizure. United States v. Pugh, 2017 U.S. Dist. LEXIS 203387 (S.D. Ga. Oct. 19, 2017), adopted, 2017 U.S. Dist. LEXIS 202529 (S.D. Ga. Dec. 8, 2017):

Here, it is undisputed that Officer Selva was lawfully in the emergency room responding to Pugh, a potential suspect or victim, with a gunshot wound to the chest. And his bloody clothing had clear evidentiary value to the investigation of the reported gun battle mere minutes before Pugh careened into the emergency room parking lot. Pugh’s clothing was properly seized pursuant to the plain view doctrine; his consent was not needed. See, e.g., United States v. Franklin, 64 F. Supp. 2d 435 (E.D. Pa. 1999) (declining to suppress clothing evidence where the officer collected the cut-up, bloody clothing from the hospital floor and placed defendant under arrest) and United States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009) (declining to suppress clothing evidence where officers secured defendant’s pants and boxer shorts in a bag after they were removed by hospital personnel, even after it was temporarily stored in a shelf behind the hospital bed), cited in United States v. Howard, 2011 U.S. Dist. LEXIS 41196, 2011 WL 1457179 at *3 (N.D. Ga. Feb. 9, 2011) (declining to suppress bloody clothing collected from the hospital emergency room floor by officers responding to defendant’s shooting); see also Texas v. Brown, 460 U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (explaining that “an unduly high degree of certainty as to the incriminatory character of evidence” is not necessary to the application of the “plain view” doctrine); id. at 741-41 (rather, the plain view doctrine requires only that the officers have probable cause to believe that the object they are viewing is contraband or evidence of a crime); 3 Wayne R. Lafave, Search & Seizure § 6.7(a), 481 & n. 7 (5th ed. 2017).2

2. Even if not in plain view, Pugh’s clothing was permissibly collected under the exigent circumstances exception. “Exigent circumstances arise when authorities have reason to believe that evidence is in danger of being destroyed or removed.” United States v. Mikell, 102 F.3d 470, 475 (11th Cir. 1996). “The test of whether exigent circumstances exist is an objective one. The appropriate inquiry is whether the facts would lead a reasonable and experienced police officer to believe that evidence might be destroyed or removed before a warrant could be secured.” Id. Here, the clothing could have been destroyed or removed from the emergency room before a warrant could be secured or the chain of custody broken, and whatever evidentiary value they had lost to investigating officers. Howard, 2011 U.S. Dist. LEXIS 41196, 2011 WL 1457179 at *5. Exigent circumstances — the need to preserve evidence at risk of loss — allowed Officer Selva to seize Pugh’s bloody clothing.

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