State v. Thompson

• Decision Date: 24 September 1998
• Docket Number: No. 97-2744-CR,97-2744-CR
• Citation: 585 N.W.2d 905,222 Wis.2d 179
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Melvin THOMPSON, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 905

585 N.W.2d 905

222 Wis.2d 179

STATE of Wisconsin, Plaintiff-Respondent, v. Melvin THOMPSON, Defendant-Appellant. ^d

No. 97-2744-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 2, 1998.

Opinion Released Sept. 24, 1998.

Opinion Filed Sept. 24, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Philip J. Brehm of Janesville.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maureen McGlynn Flanagan, Assistant Attorney General with whom on the brief was James E. Doyle, Attorney General.

Before DYKMAN, P.J., and EICH and DEININGER, JJ.

DEININGER, Judge.

Melvin Thompson was convicted of possession of a controlled substance with intent to deliver near a park, and of obstructing an officer. Thompson appeals his convictions and the trial court's denial of his motion for a new trial. Thompson contends that police improperly obtained physical evidence during an illegal search in the emergency and operating rooms of a hospital where Thompson was treated for a drug overdose. On this basis, Thompson claims on appeal that his trial counsel was ineffective in failing to have the evidence suppressed. Because we conclude that the physical evidence was not gathered during an illegal search, and thus, that it was properly admitted, we affirm

Thompson's convictions and the order denying a new trial.

BACKGROUND

The facts relevant to Thompson's appeal are not disputed. Thompson was a passenger in a car stopped by Madison police for a routine traffic violation near a park. The police arrested the driver, and they delivered Thompson to an address on Magnolia Lane in Madison. About an hour later, police and fire rescue personnel responded to an emergency call on Magnolia Lane. A man, who turned out to be Thompson, was reported to be having seizures, apparently from a drug overdose.

A Madison police officer arrived at the scene shortly after the ambulance left with Thompson. The officer found out where Thompson had been taken and followed to the hospital. Hospital staff directed the officer to the emergency room where Thompson was receiving treatment. Thompson was unconscious, and still suffering from seizures. One of the fire rescue personnel who responded to the call told the officer that a bystander had said that Thompson had swallowed several bags of cocaine when the car in which he was a passenger was stopped by police. Most of Thompson's clothing had been removed and was on the floor, along with a pager and a $100 bill. The officer picked up Thompson's clothing, the pager and the $100 bill and gave them to a second officer who had come to the hospital.

On the basis of information provided by a police officer--that Thompson had likely ingested a substantial quantity of cocaine--the doctor treating Thompson determined that without surgery to remove the ingested drugs, Thompson risked death. The police did not suggest surgery to the doctor. A police detective directed one of the officers to remain at the hospital and to take custody of the cocaine when it was removed from Thompson. Hospital staff provided the officer with operating room clothing, and the officer entered the operating room and observed the surgery. The doctor removed three bags of cocaine from Thompson's small intestine. The remains of a fourth bag, which had apparently ruptured, were removed from Thompson's stomach via his mouth. The bags were placed in a container and given to the officer. Thompson was not arrested while he was in the hospital; he fled from the hospital after several days and was arrested sometime later.

Before trial, Thompson moved to suppress the evidence police had obtained at the hospital on the grounds that it was seized during a warrantless and unreasonable search, contrary to the United States and Wisconsin Constitutions. The trial court denied the motion, concluding that the recovery of the cocaine did not constitute a search under the Fourth Amendment because the doctor was not an agent of the state when he performed the surgery. A jury convicted Thompson of possession of a controlled substance with intent to deliver near a park, contrary to §§ 161.41(1m)(cm)1 and 161.49, STATS., 1993-94, ¹ and obstructing an officer, contrary to § 946.41(1), STATS. ² Thompson then moved for a new trial, asserting that his trial counsel was ineffective in failing to argue that the officer's presence in the emergency and operating rooms violated Thompson's right to confidentiality in his medical records under § 146.82, STATS., which constituted an alternate and allegedly meritorious basis for suppressing the evidence under the Fourth Amendment. The trial court denied the motion, concluding that § 146.82 was inapplicable because the officer did not gain access to medical records, and that because the officer was lawfully in the emergency and operating rooms, the officer could confiscate contraband within his plain view.

Thompson appeals his conviction for the controlled substance offense and the denial of his motion for a new trial.

ANALYSIS

Thompson contends on appeal, as in his motion for a new trial, that the officer's collection of physical evidence at the hospital was an unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution and Article I, § 11 of the Wisconsin Constitution, ³ and that the evidence should have been suppressed. Thompson does not dispute the trial court's determination that the surgery itself was not an unlawful search. Thompson argues only that the officer's presence in the emergency room and the operating room constituted an unlawful search because the officer's presence in these areas violated Thompson's statutory right to confidentiality in his medical records under § 146.82, STATS. Thompson also cites § 905.04, STATS., which establishes the physician-patient evidentiary privilege, to support his contention that he had the authority to exclude the officer from the treatment areas of the hospital. We conclude that §§ 146.82 and 905.04, STATS., do not, in themselves, prohibit the officer from being present in the treatment areas of the hospital, and that the officer's presence did not constitute a search within the meaning of the Fourth Amendment.

A search occurs when the police infringe on an expectation of privacy that society considers reasonable. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); State v. Edgeberg, 188 Wis.2d 339, 345, 524 N.W.2d 911, 914 (Ct.App.1994). Only if we first conclude that the officer's conduct infringed on Thompson's legitimate expectation of privacy, and thus constituted a search, will we then inquire whether the officer's conduct was proper under the Fourth Amendment. See State v. Rewolinski, 159 Wis.2d 1, 12-13, 464 N.W.2d 401, 405 (1990). Whether the officer's actions constituted an unreasonable search is a question of law which we review de novo. See Edgeberg, 188 Wis.2d at 344-45, 524 N.W.2d at 914. However, we review the trial court's findings of historical fact only for clear error. See State v. Kennedy, 193 Wis.2d 578, 583, 535 N.W.2d 43, 45 (Ct.App.1995).

The threshold question in this appeal, then, is whether Thompson may claim a reasonable expectation of privacy in the areas of the hospital in which the officer collected the evidence. The burden is on Thompson, as the one claiming Fourth Amendment protection, to show that the search was illegal and that he had a reasonable expectation of privacy in the premises or property. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rewolinski, 159 Wis.2d at 13-16, 464 N.W.2d at 405-07.

No published Wisconsin case has specifically addressed whether one has a reasonable expectation of privacy in a hospital emergency room or operating room. Accordingly, we analyze the question under the general approach for determining whether a person has a reasonable expectation of privacy in an area where evidence is gathered. See State v. Dixon, 177 Wis.2d 461, 468, 501 N.W.2d 442, 445 (1993). Whether a person has a reasonable expectation of privacy depends on (1) whether the individual has exhibited an actual, subjective expectation of privacy in the area inspected and in the item seized, and (2) whether society is willing to recognize such an expectation of privacy as reasonable. See id.

Any analysis of the subjective first prong of the test is hampered by the fact that Thompson did not, and could not, exhibit a subjective expectation of privacy because he was unconscious during the entire time the officer was at the hospital. Accordingly, we focus first on the objective second prong of the test: whether society would recognize as reasonable an expectation of privacy in the areas of the hospital in which the officer collected the evidence.

The Wisconsin Supreme Court has identified several factors relevant to a determination of whether society would recognize an expectation of privacy as reasonable. These include: (1) whether one has a property interest in the premises; (2) whether one was legitimately on the premises; (3) whether one has complete dominion and control Thompson contends that the application of the Dixon factors to the present facts demonstrates that he had a reasonable expectation of privacy in the areas of the hospital in which the evidence was collected. ⁴ We conclude, however, that Thompson had no reasonable expectation of privacy in the emergency room or the operating room, and thus the officer's actions did not constitute a search under the Fourth Amendment.

and the right to exclude others; (4) whether one took precautions those seeking privacy take; (5) whether one put the property to some private use; and (6) whether the privacy claim is consistent with historical notions of privacy. See Dixon, 177 Wis.2d at 469, 501 N.W.2d at 446 (citing State v. Fillyaw, 104 Wis.2d 700, 711-12 n. 6, 312 N.W.2d 795, 801 (1981)); see also Rakas...