An appeals court ruled that police violated a Wisconsin man's right to privacy when they videotaped him having sex with his comatose wife in her nursing home room. The District 4 Court of Appeals in Wisconsin ruled that David W. Johnson had an expectation of privacy when he visited his wife at Divine Savior Nursing Home in Portage.
The unanimous three-judge panel agreed that Johnson's Fourth Amendment rights against unreasonable searches were violated when police officers installed a hidden video camera in the room. "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," wrote the panel.
Because of this ruling, prosecutors cannot introduce the tapes as evidence against Johnson. Johnson was charged with felony
sexual assault for having intercourse with his wife without her consent. However, Johnson's attorney, Christopher Kelly, believes the prosecution will be forced to drop the charges without the evidence on the tapes.
This isn't the first time a court has tossed out the tapes as evidence. A Columbia County Circuit Judge also threw out the tapes as evidence after ruling they stemmed from an illegal search. Johnson filed his appeal when the prosecutors handling the case appealed the circuit court judge's decision, citing that Johnson had a right to privacy when he visited his wife to care for her, but not when he used the room for what they argued to be illegal intercourse.
Police began their investigation after staff members at the nursing home tipped them off, suspecting Johnson was putting his wife in danger by having sex with her. After obtaining a search warrant to videotape the room, police installed a camera which ran for three weeks. Johnson, who is free on bail, was charged with sexual assault because of the evidence on the tapes.
According to Department of Justice spokesman Bill Cosh, prosecutors are debating whether to bring the case before the Supreme Court for review.
Johnson's wife, who was admitted to the nursing home after suffering from a stroke, still remains in a coma at the nursing home.
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