State v. Melvin Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998)
For Thompson: Phillip J. Brehm
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.
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.
We recognize that historical notions of privacy generally accord patients a significant measure of privacy in their medical treatment. Sections 146.82 and 905.04, Stats., are certainly embodiments of these historical notions of privacy. Hospital treatment areas are not public thoroughfares to which all manner of persons have unfettered access. We conclude, however, that historical notions of privacy are not offended when a police officer, in responding to an emergency call and with the acquiescence of hospital staff, enters the treatment area of an emergency room. Nor are historical notions of privacy offended when an officer observes a surgical procedure with the permission of the operating surgeon, given a patient’s traditional surrender to his or her physician of the right to determine who may and may not be present during medical procedures. If medical personnel violated confidentiality laws or ethical obligations by permitting the officer to be present, Thompson may be entitled to redress in another forum. We conclude, however, that the sixth and final factor does not weigh in favor of a conclusion that society would recognize as reasonable Thompson’s asserted expectation of privacy in the emergency and operating rooms.
The court suggests a possible limitation to the holding, fn. 8:
Thompson’s arguments on appeal challenge only the officer’s presence in the treatment areas of the hospital. He does not claim that the officer improperly rifled his belongings or searched closed containers within the emergency room. The record does not indicate whether the pager and $100 bill were plainly visible or were concealed within Thompson’s clothing when these items were seized by the officer in the emergency room. We do not address, therefore, whether Thompson had a reasonable expectation of privacy in items which may have been concealed in the clothing removed from him in the emergency room by medical personnel.
See, however, State v. Cromb, OR App No. A130120, 6/11/08 (collecting cases on general proposition of no expectation of privacy in ER room).