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COURT OF
APPEALS DECISION DATED AND
RELEASED October
24, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1242-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN
W. COFFEY,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
EICH,
C.J.[1] Kevin Coffey appeals from a judgment
convicting him of operating a motor vehicle while intoxicated. He argues that his arrest was unlawful
because it was (1) the product of an "unlawful entry by police into his
hospital room," and (2) unsupported by probable cause. We reject the arguments and affirm the
judgment.
The
facts are not in serious dispute.
Coffey was involved in a one-car accident near Madison under
circumstances indicating he lost control of his car on a curve and ran off the
road, striking a sign and the road embankment.
Coffey suffered facial injuries in the crash and, when questioned by a
police officer arriving at the scene, stated that he lost control of the car
when he swerved to avoid hitting a deer crossing the road. The officer noticed Coffey's breath had a
"strong odor of intoxicants" and his speech was
"slurred"—or, in the officer's words, "drawn out, not ... clear
... [or] sharp." At about that
time, an ambulance arrived and transported Coffey to a Madison hospital.
The
officer went to the hospital and entered a "cubicle" in the emergency
room where Coffey was lying on a cot, being attended to by a nurse. The officer continued his questioning and
Coffey acknowledged that he had been traveling at a speed in excess of sixty
miles per hour on the curve, which was marked with a twenty-five m.p.h.
cautionary sign.[2] Again the officer noticed the odor of
intoxicants about Coffey's person and his slurred speech. When asked whether he had been drinking that
evening, Coffey responded in the affirmative, stating that he consumed
"approximately three beers ... prior to leaving [his sister's house] which
was minutes before the accident." Believing
he had cause to do so, the officer placed Coffey under arrest for operating
under the influence and gave him the information required under the
implied-consent law. Coffey also signed
a waiver of his Miranda rights and a medical release form.
Coffey
filed several suppression motions and in one he challenged his arrest, arguing
that he had an expectation of privacy in the emergency-room cubicle, which the
officer's presence had breached. He
also argued that the officer did not have probable cause to arrest him. The trial court denied the motions and
Coffey appeals.
I.
Expectation of Privacy
The
Fourth Amendment right to be free from unreasonable searches and seizures
turns, in the first instance, on whether the defendant had a justifiable,
reasonable or legitimate expectation of privacy in the area that was the
subject of the search and which the government action invaded. State v. Callaway, 106 Wis.2d
503, 520, 317 N.W.2d 428, 437, cert. denied, 459 U.S. 967 (1982); State
v. Fillyaw, 104 Wis.2d 700, 714-15, 312 N.W.2d 795, 802-03 (1981), cert.
denied, 455 U.S. 1026 (1982). It is
a two-step inquiry, asking first, whether the defendant, by his conduct,
"has exhibited an actual subjective expectation of privacy" and, if
so, "whether that expectation is justifiable in that it is one which society
will recognize as reasonable." State
v. Stevens, 123 Wis.2d 303, 316, 367 N.W.2d 788, 795, cert. denied,
474 U.S. 852 (1985).
Analogizing
from cases, such as Minnesota v. Olson, 495 U.S. 91 (1990), in
which an overnight guest in another person's home was held to have a reasonable
expectation of privacy against nonconsensual police intrusion, Coffey argues
that he had a similar expectation with respect to the emergency-room
cubicle. He says he had a "personal
stake" in, and an immediate concern for, medical treatment while in the
room, and, as a hospital patient, a per se expectation of privacy "founded
in the ethical canons upon which the practice of medicine is regarded as a
profession" that he will not expose either his "anatomy" or
"intimate information" to anyone other than medical personnel. He also points to his testimony at the
suppression hearing that he did not expect a police officer to enter the
cubicle.
He
points to nothing in the record, however, from which we might ascertain whether
he had "by his conduct ... exhibited an actual, subjective, expectation of
privacy" in the cubicle. Stevens,
123 Wis.2d at 316, 367 N.W.2d at 795.
Indeed, the only "conduct" evident from the record consists of
his voluntary responses to the officer's questions and his voluntary signing of
the waiver and medical release forms.
Additionally,
as the State points out, the defendant's own expectations do not govern the
issue for, to be protected, they must be objectively reasonable or
"legitimate"; they must be expectations which society is prepared to
recognize as reasonable or justifiable under the circumstances. Smith v. Maryland, 442 U.S.
736, 740 (1979). And one of the
considerations figuring in the answer to the question is whether the defendant
"took precautions customarily taken by those seeking privacy." Fillyaw, 104 Wis.2d at 712
n.6, 312 N.W.2d at 801. Again, as the
State points out, one who "`"knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth Amendment protection."'" Florida v. Riley, 488 U.S.
445, 449 (1989) (quoted sources omitted).
Coffey made no attempt to secure his privacy in the cubicle. He did not ask that the door be closed or
that the officer leave, and he went on to freely discuss the case with the
officer.
Nor
are we persuaded by Coffey's argument that the fact that the room was in a
medical facility to which he had been taken for treatment gives rise to a per
se expectation of privacy. Relying on
the Hippocratic Oath and cases and statutes discussing the physician-patient
privilege and the confidential nature of health-care records, he contends that
"the expectation of privacy and confidentiality in medical treatment ...
is a universal social understanding."
There
is, however, no suggestion in the record—or in the parties' briefs—that the
officer had access to or received any medically related information as a result
of his presence in the cubicle. Coffey
complains only that the officer, while in the room, asked him questions about
the evening's occurrences—all of which he answered freely. In Muskego v. Godec, 167
Wis.2d 536, 482 N.W.2d 79 (1992), another driving-while-intoxicated case, the
supreme court rejected a Fourth Amendment challenge to the obtaining and use by
police of results of blood tests hospital personnel administered for diagnostic
reasons. The defendant in Godec
argued that the various medical confidentiality and privilege rules covering
medical treatment and information prohibit the release of test results without
his consent. The supreme court
disagreed, holding that the implied-consent law and § 905.04(4)(f), Stats., which states that no privilege
attaches to "the results of or circumstances surrounding any chemical
tests for intoxication ....[,]" override any such considerations and
therefore the test results were admissible in Godec's drunk-driving trial. Id. at 546, 482 N.W.2d at
83. We do not see Coffey's
medical-privilege arguments as compelling the result he seeks.
II. Probable Cause
Coffey
argues that all that may be gleaned from the record in this case is that he had
been drinking and had been in an accident, and that evidence is inadequate to
establish probable cause to arrest. He
maintains that, because the officer's entry into the emergency-room cubicle constituted
an improper search (or seizure, or both), nothing of what was said there may be
considered in the probable-cause equation.
We have, of course, found no Fourth Amendment violation in the officer's
conduct.
We
said State v. Pozo, 198 Wis.2d 706, 712, 544 N.W.2d 228, 231 (Ct.
App. 1995):
Probable cause ...
is neither a technical nor a legalistic concept; rather, it is a
"flexible, common-sense measure of the plausibility of particular
conclusions about human behavior"...—conclusions that need not be
unequivocally correct or even more likely correct than not. It is enough if they are sufficiently
probable that reasonable people—not legal technicians—would be justified in
acting on them in the practical affairs of everyday life.
(Citations and quoted sources omitted.)
Thus,
the concept of probable cause requires only that the "officer have facts
and circumstances within his or her knowledge sufficient to warrant a
reasonable person to conclude" that the defendant has violated the law. State v. Richardson, 156
Wis.2d 128, 148, 456 N.W.2d 830, 838 (1990).
The information available to the officer must be such as would lead a
reasonable police officer to believe that "`guilt is more than a
possibility.'" Id.
(quoted source omitted).
Here,
the officer had observed the accident scene and ascertained that Coffey lost
control of his vehicle while going sixty-one or sixty-two m.p.h.in a forty-five
m.p.h. zone—in particular, on a curve with a posted recommended speed of
twenty-five. He noted that Coffey had a
strong odor of intoxicants on his person and his speech was slurred. That evidence, coupled with Coffey's
acknowledgement that he had just consumed three beers, is, in our opinion,
sufficient to establish probable cause under the standards just discussed.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.