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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
October 24, 1996
A party may file with the Supreme Court                                            This opinion is subject to further editing.
a petition to review an adverse decision                                           If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                         appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                Official Reports.
No.   96-1242-CR
STATE OF WISCONSIN                                                                 IN COURT OF APPEALS
                                                                                   DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
KEVIN W. COFFEY,
Defendant-Appellant.
APPEAL from a judgment of the circuit court for Dane County:
DANIEL R. MOESER, Judge.  Affirmed.
EICH, C.J.1  Kevin Coffey appeals from a judgment convicting him
of operating a motor vehicle while intoxicated.   He argues that his arrest was
unlawful because it was (1) the product of an "unlawful entry by police into his
hospital  room,"  and                                                              (2)  unsupported  by  probable  cause.    We  reject  the
arguments and affirm the judgment.
1  This appeal is decided by one judge pursuant to § 752.31(2)(c), STATS.




No.                                                                                       96-1242-CR
The facts are not in serious dispute.  Coffey was involved in a one-
car accident near Madison under circumstances indicating he lost control of his
car on a curve and ran off the road, striking a sign and the road embankment.
Coffey suffered facial injuries in the crash and, when questioned by a police
officer arriving at the scene, stated that he lost control of the car when he
swerved to avoid hitting a deer crossing the road.   The officer noticed Coffey's
breath had a "strong odor of intoxicants" and his speech was "slurred"—or, in
the officer's words, "drawn out, not ... clear ... [or] sharp."  At about that time, an
ambulance arrived and transported Coffey to a Madison hospital.
The officer went to the hospital and entered a "cubicle" in the
emergency room where Coffey was lying on a cot, being attended to by a nurse.
The officer continued his questioning and Coffey acknowledged that he had
been traveling at a speed in excess of sixty miles per hour on the curve, which
was marked with a twenty-five m.p.h. cautionary sign.2    Again the officer
noticed the odor of intoxicants about Coffey's person and his slurred speech.
When asked whether he had been drinking that evening, Coffey responded in
the affirmative, stating that he consumed "approximately three beers ... prior to
leaving [his sister's house] which was minutes before the accident."   Believing
he had cause to do so, the officer placed Coffey under arrest for operating under
the influence and gave him the information required under the implied-consent
law.   Coffey also signed a waiver of his Miranda rights and a medical release
form.
Coffey filed several suppression motions and in one he challenged
his arrest, arguing that he had an expectation of privacy in the emergency-room
cubicle, which the officer's presence had breached.   He also argued that the
officer did not have probable cause to arrest him.   The trial court denied the
motions and Coffey appeals.
I. Expectation of Privacy
2  Apparently  the  speed  limit  on  the  highway  was                                   45  m.p.h.,  and   25  was  the
"recommended" speed at the curve.
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No.                                                                                     96-1242-CR
The  Fourth  Amendment  right  to  be  free  from  unreasonable
searches and seizures turns, in the first instance, on whether the defendant had
a justifiable, reasonable or legitimate expectation of privacy in the area that was
the subject of the search and which the government action invaded.   State v.
Callaway, 106 Wis.2d 503, 520, 317 N.W.2d 428, 437, cert. denied, 459 U.S. 967
(1982); State v. Fillyaw, 104 Wis.2d 700, 714-15, 312 N.W.2d 795, 802-03 (1981),
cert. denied, 455 U.S. 1026 (1982).   It is a two-step inquiry, asking first, whether
the defendant, by his conduct, "has exhibited an actual subjective expectation of
privacy" and, if so, "whether that expectation is justifiable in that it is one which
society will recognize as reasonable."   State v. Stevens, 123 Wis.2d 303, 316, 367
N.W.2d 788, 795, cert. denied, 474 U.S. 852 (1985).
Analogizing from cases, such as Minnesota v. Olson, 495 U.S. 91
(1990), in which an overnight guest in another person's home was held to have a
reasonable  expectation  of  privacy  against  nonconsensual  police  intrusion,
Coffey argues that he had a similar expectation with respect to the emergency-
room cubicle.   He says he had a "personal stake" in, and an immediate concern
for, medical treatment while in the room, and, as a hospital patient, a per se
expectation of privacy "founded in the ethical canons upon which the practice of
medicine  is  regarded  as  a  profession"  that  he  will  not  expose  either  his
"anatomy" or "intimate information" to anyone other than medical personnel.
He also points to his testimony at the suppression hearing that he did not expect
a police officer to enter the cubicle.
He points to nothing in the record, however, from which we might
ascertain whether he had "by his conduct  ... exhibited an actual, subjective,
expectation of privacy" in the cubicle.  Stevens, 123 Wis.2d at 316, 367 N.W.2d at
795.    Indeed,  the  only  "conduct"  evident  from  the  record  consists  of  his
voluntary responses to the officer's questions and his voluntary signing of the
waiver and medical release forms.
Additionally,  as  the  State  points  out,  the  defendant's  own
expectations  do  not  govern  the  issue  for,  to  be  protected,  they  must  be
objectively reasonable or "legitimate"; they must be expectations which society
is prepared to recognize as reasonable or justifiable under the circumstances.
Smith v. Maryland, 442 U.S. 736, 740 (1979).   And one of the considerations
figuring  in  the  answer  to  the  question  is  whether  the  defendant  "took
precautions customarily taken by those seeking privacy."   Fillyaw, 104 Wis.2d
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No.                                                                                      96-1242-CR
at                                                                                       712  n.6,  312  N.W.2d  at  801.    Again,  as  the  State  points  out,  one  who
"`"knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection."'"   Florida v. Riley, 488 U.S. 445, 449
(1989) (quoted sources omitted).   Coffey made no attempt to secure his privacy
in the cubicle.   He did not ask that the door be closed or that the officer leave,
and he went on to freely discuss the case with the officer.
Nor are we persuaded by Coffey's argument that the fact that the
room was in a medical facility to which he had been taken for treatment gives
rise to a per se expectation of privacy.   Relying on the Hippocratic Oath and
cases  and  statutes  discussing  the  physician-patient  privilege  and  the
confidential nature of health-care records, he contends that "the expectation of
privacy  and  confidentiality  in  medical  treatment                                    ...  is  a  universal  social
understanding."
There is, however, no suggestion in the record—or in the parties'
briefs—that  the  officer  had  access  to  or  received  any  medically  related
information as a result of his presence in the cubicle.   Coffey complains only
that the officer, while in the room, asked him questions about the evening's
occurrences—all of which he answered freely.  In Muskego v. Godec, 167 Wis.2d
536, 482 N.W.2d 79 (1992), another driving-while-intoxicated case, the supreme
court rejected a Fourth Amendment challenge to the obtaining and use by
police of results of blood tests hospital personnel administered for diagnostic
reasons.                                                                                 The  defendant  in  Godec  argued  that  the  various  medical
confidentiality and privilege rules covering medical treatment and information
prohibit the release of test results without his consent.    The supreme court
disagreed,  holding  that  the  implied-consent  law  and  § 905.04(4)(f),  STATS.,
which  states  that  no  privilege  attaches  to  "the  results  of  or  circumstances
surrounding  any  chemical  tests  for  intoxication                                     .[,]"  override  any  such
considerations and therefore the test results were admissible in Godec's drunk-
driving trial.   Id. at 546, 482 N.W.2d at 83.   We do not see Coffey's medical-
privilege arguments as compelling the result he seeks.
II.  Probable Cause
Coffey argues that all that may be gleaned from the record in this
case is that he had been drinking and had been in an accident, and that evidence
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No.                                                                                     96-1242-CR
is inadequate to establish probable cause to arrest.   He maintains that, because
the officer's entry into the emergency-room cubicle constituted an improper
search (or seizure, or both), nothing of what was said there may be considered
in  the  probable-cause  equation.     We  have,  of  course,  found  no  Fourth
Amendment violation in the officer's conduct.
We said State v. Pozo, 198 Wis.2d 706, 712, 544 N.W.2d 228, 231
(Ct. App. 1995):
Probable cause ... is neither a technical nor a legalistic
concept;  rather,  it  is  a  "flexible,  common-sense
measure of the plausibility of particular conclusions
about human behavior"...—conclusions that need not
be unequivocally correct or even more likely correct
than  not.     It  is  enough  if  they  are  sufficiently
probable    that    reasonable    people—not    legal
technicians—would be justified in acting on them in
the practical affairs of everyday life.
(Citations and quoted sources omitted.)
Thus, the concept of probable cause requires only that the "officer
have facts and circumstances within his or her knowledge sufficient to warrant
a reasonable person to conclude" that the defendant has violated the law.   State
v.  Richardson,                                                                         156  Wis.2d   128,   148,   456  N.W.2d   830,   838   (1990).   The
information available to the officer must be such as would lead a reasonable
police officer to believe that "`guilt is more than a possibility.'"   Id. (quoted
source omitted).
Here, the officer had observed the accident scene and ascertained
that  Coffey  lost  control  of  his  vehicle  while  going  sixty-one  or  sixty-two
m.p.h.in  a  forty-five  m.p.h.  zone—in  particular,  on  a  curve  with  a  posted
recommended speed of twenty-five.   He noted that Coffey had a strong odor of
intoxicants on his person and his speech was slurred.   That evidence, coupled
with Coffey's acknowledgement that he had just consumed three beers, is, in
our opinion, sufficient to establish probable cause under the standards just
discussed.
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No.                                                                   96-1242-CR
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
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