WI Court: Cops Illegally Taped Nursing Home Couple

Congrats to TChris for his win in a Wisconsin Appeals Court this week. A sad case, but a good outcome.

Police who videotaped a man having sex with his comatose wife in her nursing home room violated his constitutional rights, an appeals court ruled Thursday.

David W. Johnson, 59, had an expectation to privacy when he visited his wife, a stroke victim, at Divine Savior Nursing Home in Portage, the District 4 Court of Appeals ruled. Therefore, police violated his Fourth Amendment rights against unreasonable searches when they installed a hidden video camera in the room, the court said.


"We are satisfied that Johnson's expectation of privacy while visiting his wife in her nursing home room is one that society would recognize as reasonable," the unanimous three-judge panel wrote.

TChris says:

Johnson's attorney, Christopher Kelly, said his client would visit his now 54-year-old wife every day, reading her the Bible and moving her arms and legs so her muscles wouldn't atrophy.

The woman's sister is upset that prosecutors brought charges against him, Kelly said. "She believes her sister's husband was merely expressing his love for his wife and was trying everything he could to bring her back to consciousness," Kelly said.

More from the Chicago Tribune:

Sauk County Circuit Judge Patrick Taggart, who heard the case out of Columbia County because of a request for a substitute judge, tossed out the videotape evidence last year, ruling it was an illegal search. Prosecutors appealed, arguing Johnson had a right to privacy when he visited his wife to care for her but not when he used the room for intercourse.

The appeals court affirmed Taggart's ruling. Johnson believed he could spend time alone with his wife in private, was lawfully on the premises and took precautions to seek privacy such as closing the door, the court said.

Prosecutors are considering an appeal to the WI Supreme Court. I think TChris will win there as well.

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  • Display: Sort:
    A question (none / 0) (#1)
    by lentinel on Sun Sep 14, 2008 at 08:47:13 PM EST
    I agree that the clandestine installation of video equipment in a person's room is an "illegal search".

    But I am wondering whether when a man has sexual intercourse with a woman who is comatose -unconscious - whether that doesn't constitute rape.

    Not a lawyer, but (5.00 / 1) (#2)
    by rdandrea on Sun Sep 14, 2008 at 08:51:26 PM EST
    that doesn't appear to be the question on which this case was decided.

    yes (5.00 / 1) (#5)
    by Jeralyn on Sun Sep 14, 2008 at 09:01:37 PM EST
    the issue is invasion of privacy and violation of the husband's constitutional rights.

    When evidence is obtained in violation of one's constitutional rights, it is the court's duty to suppress it and prevent it from being introduced in court.

    So, whether the husband's conduct was criminal isn't the point of the post. It's that the rule of law prevailed -- and to point out that TChris did a great job.


    Of course he did (none / 0) (#10)
    by rdandrea on Sun Sep 14, 2008 at 09:21:28 PM EST
    And congratulations to him.

    And thanks for defending the rights of all of us.


    It's not clear what their arrangement was.... (none / 0) (#9)
    by jerry on Sun Sep 14, 2008 at 09:16:43 PM EST
    This case was discussed by the fine legal minds of FARK: What's creepier than a guy having sex with his unconscious wife who's recovering from a stroke in a nursing home? Cops secretly videotaping him in the act where several "FARKettes" responded by saying things along the lines of: "My significant other is hereby allowed to continue doing me to whatever extent that is possible even in the event of my incapacitation. No reason we should BOTH be having a bad time."

    Since it was FARK, we also had comments like: "Banging a comatose person is the very definition of marriage" which I thought was remarkable in how non-sexist this seemingly terribly sexist joke is.

    It was a very crude thread, and some of you might find it horribly funny, but you probably shouldn't read it at work.


    Fark nails it again.... (none / 0) (#23)
    by kdog on Mon Sep 15, 2008 at 10:50:03 AM EST
    I agree, the only thing creepier than what this dude was doing is the state secretly videotaping it.

    I see no difference between your hospital room and your bedroom.


    yeah it kinda grosses me out (none / 0) (#3)
    by athyrio on Sun Sep 14, 2008 at 08:55:10 PM EST
    the fact that the woman was unconcience...yuck!!

    What was the husband chargd with? (none / 0) (#4)
    by hairspray on Sun Sep 14, 2008 at 08:59:23 PM EST

    The case is about privacy right? (none / 0) (#6)
    by MichaelGale on Sun Sep 14, 2008 at 09:02:15 PM EST
    I think the right to privacy goes out the window when you are having sex with a comatose woman. What about her right to privacy? She can't speak for it and two people are involved behind that closed door.

    This is a human boundary violation with her rights being subjected to his right to privacy to have intercourse with her when she does not know it is happening.


    Agreed. I know it's not what the case (5.00 / 1) (#7)
    by Cream City on Sun Sep 14, 2008 at 09:07:47 PM EST
    was about here -- but this ruling now negates the evidence for pursuing a charge of rape.  And can I say that I hope that he used protection?  Unless he knew for a fact that she was post-menopausal, and well past post -- as a woman her age then can get pregnant, and that would subject a woman in a coma to danger in either an abortion or a pregnancy and childbirth.  And even in the use of even the most reliable protection -- which could not be used in this case, of course -- a woman still can get pregnant.

    That's why consent is supposed to matter.  Jeesh.


    keep in mind (5.00 / 1) (#8)
    by Jeralyn on Sun Sep 14, 2008 at 09:16:26 PM EST
    you are on a criminal defense site. The mission of this site is to preserve and promote understanding of constitutional rights, particularly those of people accused of crime.

    If victims' rights are your concern, you won't like much of what you read here.  I'm not trying to foster a debate on these issues.

    It doesn't matter for the purposes of this post whether the illegal taping showed the husband stealing from his wife's wallet or having sex with her. His conduct is not the issue. How the cops obtained the evidence is the point.


    Agreed. (none / 0) (#12)
    by Thanin on Sun Sep 14, 2008 at 09:32:29 PM EST
    And congrats TChris

    I know this is O/T,but if you start an open thread (none / 0) (#13)
    by steviez314 on Sun Sep 14, 2008 at 09:33:17 PM EST
    the world financial system is taking a major crapper tonight.

    sure, I'll do it now (none / 0) (#17)
    by Jeralyn on Sun Sep 14, 2008 at 10:20:21 PM EST
    Sorry, I've been reading the threads and comments since I was gone this weekend and haven't seen the news. Give me 5 minutes.

    Good news (none / 0) (#14)
    by mmc9431 on Sun Sep 14, 2008 at 09:53:52 PM EST
    With all the intrusions in our lives by the government, I have to cheer when I read that sometimes we can still win.

    WOW!! (none / 0) (#15)
    by befuddledvoter on Sun Sep 14, 2008 at 10:01:06 PM EST
    Ver nice appellate advocacy, nice appellate call and nice court.  What surprises me is that there was a search warrant involved.  So, an independent and impartial magistrate previously ruled that there was probable cause that a crime was being committed. Without the warrant, I could easily see the court ruling as it did.  With the warrant, I could see many courts denying the motion to surpress.  

    Whatever happened to prosecutorial (none / 0) (#18)
    by Exeter on Sun Sep 14, 2008 at 11:58:37 PM EST

    Search warrant (none / 0) (#19)
    by Carolyn in Baltimore on Mon Sep 15, 2008 at 05:46:31 AM EST
    Since there was enough evidence and a search warrant to install the video equipment -  I don't quite get it. If a search warrant allows a wiretap of a suspected criminal, the evidence collected can be used in court, even though said criminal had an expectation to privacy on their phone.

    The search warrant (none / 0) (#21)
    by TChris on Mon Sep 15, 2008 at 10:02:00 AM EST
    wasn't valid.  That's why the state fell back on the argument that no warrant was needed.

    What (none / 0) (#22)
    by Raging Red on Mon Sep 15, 2008 at 10:45:06 AM EST
    made the search warrant invalid?  I thought that as long as police were reasonably relying upon a facially valid search warrant the exclusionary rule doesn't apply.

    Congratulations, Chris n/t (none / 0) (#20)
    by Coral on Mon Sep 15, 2008 at 06:50:54 AM EST

    "husband's privacy rights??? (none / 0) (#24)
    by diogenes on Mon Sep 15, 2008 at 11:59:51 AM EST
    As a resident of a nursing facility the wife has certain privacy rights including the right to safe health care and protection from intruders.  The husband has NO privacy rights as a visitor to a nursing home.  If you all want to say that this woman's privacy rights were violated by having a warrantless video camera but not by being raped, then I guess you win.