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Reasonable Suspicion to Stop – Basis – Privileged Information – Public Safety Exception to Psychotherapist-Patient Privilege

State v. Curtis M. Agacki, 226 Wis.2d 349, 595 N.W.2d 31 (Ct. App. 1999)
For Agacki: John M. Carroll.

Issue: “(W)hether whether the psychotherapist-patient privilege can prevent a police officer, at a suppression motion hearing, from testifying about a psychotherapist’s account of a patient’s disclosure, which provided the basis for the officer’s probable cause to search the patient.”

Holding: Because the statements involved the patient’s threat of imminent harm to another, they fall under the “dangerous patient exception” recognized by Schuster v. Altenberg, 144 Wis.2d 223, 424 N.W.2d 159 (1988), and were therefore not privileged.

…Thus, if “there is reasonable cause for the psychotherapist to believe that (1) the patient is dangerous and (2) disclosure of the communication is necessary to prevent any harm,”Menendez, 834 P.2d at 794, a psychotherapist has a duty to warn and, of course, police have a duty to take appropriate action. It would be absurd, then, to impose a testimonial privilege to prevent courts from considering the very communication leading to the responsible and lawful conduct of the psychotherapist and the police officer.

The holding seems much broader than necessary, in that it appears to allow evidentiary use of any “dangerous patient exception” statements without qualification. But the facts should be kept closely in mind: Agacki was making an imminent threat; he was armed; he was in a public place (a tavern). The concurrence (Judge Fine) thus astutely cautions that evidentiary use should be limited to expressions of intended future harm, as opposed to “events antedating the confidential communication and described in that communication.” But even that limitation may not be narrow enough: Schuster is a tort case and simply does not deal with testimonial privilege. Although Agacki appears to have squarely rejected that distinction, it is one that commands very strong support and may be worth revisiting. See, e.g., U.S. v. Chase, 340 F.3d 978 (9th Cir. 2003 en banc) (declining to recognize federal dangerous-patient exception to testimonial privilege: “The Tarasoff duty, by definition, lifts the blanket of confidentiality covering psychotherapist-patient communications under state law. Ordinarily, however, the Tarasoff duty does not abrogate the testimonial privilege in state courts.”) Consider, in this regard, the idea that the Schuster exception is supposed to be relatively narrow: “Release of information is limited to people who need it: those who face the threat of harm. The information released is limited to that necessary to effectuate the purpose. Schuster is irrelevant to creation of a public safety exception that would allow release of confidential records when an individual is no longer a threat.” Billy Jo W. v. Metro, 182 Wis.2d 616, 640-41 514 N.W.2d 707 (1994). And this is exactly where the concurrence’s rubber doesn’t quite meet the road: by the time the officer testifies in court, the threat will relate to a past threat, not intended future harm. The policy behind the exception — warning a third-party of possible harm — has already been effectuated. Agacki conflates abrogation of confidentiality with abrogation of privilege.

Turning to another point: the information was testified to by a police officer, but the privilege runs only to the psychotherapist; does this make a difference? The court of appeals suggests that it might, but goes to the merits so as to provide guidance as to the contours of the privilege. 226 Wis. 2d at 355-56 n. 7. It is nonetheless clear that “the rules of privilege apply to proceedings before a magistrate to obtain a search warrant.” Muetze v. State, 73 Wis.2d 117, 126, 243 N.W.2d 393 (1976). It shouldn’t matter that the medium for the disclosure to the court is a cop to whom the psychotherapist blabbed rather than the psychotherapist him or herself.

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