Legal Commentary

WI Court: Cops Illegally Taped Nursing Home Couple

By Jeralyn

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.

More....

"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.

Full post as published by TalkLeft on September 14, 2008 (boomark / email).