*1 permissible within pipe uncovered The corncob search. no search, alone afforded protective but area of lawful alleged The contraband. nonprotective search for for a basis to Officer pipe was unknown marijuana in the corncob residue arrest— probable cause to time, have he did not at so Pelton narcotics violation. for a fact, and, did not arrest —defendant made marijuana as result the search does not traffic violation a minor arrest for the course of constitutionally impermissible either the seizure of validate the marijuana was com- marijuana. Suppression pipe or the record, suppression of the corncob pelled and, least at on pipe proper. was likewise attorneys, attorneys’ payable fees, to his
Defendant is allowed printing and disbursements amount $750 632.13(8). defendant’s brief. Minn. St.
Affirmed.
STATE v. JERRY LEE STAAT. (2d)
192N. W. 192. 12, 1971
November No. Wahl, Defender, E. Jones, Rosalie C. Paul State Public Defender, appellant. State Public Assistant County Scott, Spannaus, Attorney General, George M. Warren *2 Roston, Henry McCarr, Jr., David Attorney, and W. and G. County Attorneys, respondent. Assistant Rogosheske, Knutson, Murphy, J., Otis, Heard before C. and Rolloff, and JJ.
Rogosheske, Justice. appeals judgment
Defendant a conviction from of unlawful possession 618.01, of narcotics in violation of Minn. St. §§ 618.02, dispositive and The 618.21. issue raised is whether the ruling physician-patient, privilege court erred the by 595.02(4) created did not bar admission into evi- dence of two bottles of narcotic discovered on defendant’s person brought hospital when he was to the in an unconscious ruling and critical hold condition. We was not and erroneous affirm defendant’s conviction. morning
On Hennepin County June General Hospital responded anonymous ambulance crew an call and lying found the city defendant Minneapolis unconscious park. Alerted driver, ambulance (a Thomas Dr. Coulon physician) resident hospital orderly and a present were emergency defendant, room when critically still unconscious and ill, brought Simultaneously in on a stretcher. with the resi- dent’s efforts condition, to “evaluate” defendant’s removed and searched defendant’s pants. and shirt Substantial procedure evidence indicates that this type in this of case is hos- pital prepare routine to an unconscious for the doctor’s preliminary examination, identity, discover the inventory personal to make an belongings. of his However, there conflicting evidence in the record physician, that the resident examining defendant, while directed to “[f]ind something.” orderly’s produced search a wallet and identifi- containing bottles change, small and two cards, loose some
cation opium of which are dihydrocodeinone, both sulphate codeine Upon drugs. as narcotic our statutes under classified derivatives needle doctor’s observation and the the bottles immediately had the arm, Dr. Coulon defendant’s marks on recovery room on postanesthesia move defendant Erik Dr. Carl- hospital treatment floor fourth duty, advised of Dr. Coulon son, whom intern then on orderly delivered the two bottles. findings whom and to hospital, shortly appeared at Minneapolis police officer A whereby hospi- arrangement through having been alerted patient suspected of department police when tal notifies talking taking After is admitted. an overdose of doctors; observing driver, orderly, the ambulance obtaining treatment; pos- undergoing as he was placed Carlson, officer Dr. session of the two bottles from department be in- police would that the a hold on defendant so *3 hospital. ready He to be released from formed when he was evening. following custody police was released to complaint Charging possession of A defendant with unlawful day. the next narcotics and warrant was issued was filed Subsequent preliminary hearing prior bindover to and but containing trial, suppress to moved to the two bottles drugs. upon and Based of the ambulance driver state, orderly, the trial court was submitted suppression. jury-waived physicians denied At a testi- both state, fied for the the bottles of into and court admitted Following trial, guilty evidence. found as defendant was charged imprisonment and indeterminate sentenced to for an years. appeals term of not to his con- exceed Defendant from grounds viction on the that the two bottles of narcotic physician-patient privilege should have been ruled within the inadmissible, and therefore and that the evidence is insufficient support his conviction. law, At physi common confidential communications between generally, patient, like confidential communications eian and changed privileged. legally This rule has been stat were not many states, beginning ute in with New York in 1828. N. Y. 3, 595.02(4)1 Rev. Part c. Tit. 73. Minn. Stat. § part: provides in not, surgeon,
“A or shall licensed or dentist without any patient, his consent of be allowed to disclose information any opinion acquired attending the or based thereon which he patient professional capacity necessary in a and which was capacity.” enable him to act in that theory underlying privilege this is that a fear unwarranted, embarrassing,
of an detrimental disclosure given pa- court of his doctor information would deter the disclosing freely symptoms tient “from his to the detriment of Snyker 405, 408, his Snyker, health.” 245 Minn. 72 N. 2dW. Fontana, State 277 Minn. 2dW. Snyker In recognized we noted that it then was theory highly speculative privilege often criti- Ackermann, In cized. Nelson v. 83 N. 2d 500 W. (1957), exhaustively considered, was and it was probably observed it is the most abused in the field See, also, Wigmore, evidence. (McNaughton 2380a; McCormick, Evidence, Despite persistent judicial evidentiary academic and criticism of this impediment truth, to the ascertainment of it is nevertheless duty our reasonably necessary to enforce it to the full extent longstanding legislative attainment policy for which created, namely, it provide safeguarding a shield for promoting confidential communications between attending physician. *4 1 physician-patient initially enacted the Terri- was in tory (Terr.) 1851, 95, provi- of Minnesota in 1851. Rev. Stat. c. 53. That § by 1905, 1919, 513, 1; 1967, 4660; sion has been amended R. L. L. § c. L. § 640, 1.§ c.
398 determine must requires, we statute
Accordingly, as the
(1) that
establishes
case
particular
in a
the evidence
whether
existed;
“informa
(2) that the
relationship
physician-patient
a
contemplated
type
by
of the
was
acquired
tion”
by
acquired
statute;
(3)
information was
that such
(4)
attending
patient;
information
physician in
capacity.
professional
necessary
to act in
to enable him
legislature
Assuming,
parties,
intended no
do the
proceedings
criminal
in the stat
distinction between civil and
application,2
upon
rests
ute’s
court has
that the
this
held
burden
2
originally enacted,
only
privilege applied
As
to civil cases. Both
parties
applies
statutory privilege
understandably
now
assume that the
physician’s
to criminal
held
inadmis-
cases since we have
directly
ascertain,
although,
without
sible in such
far as we can
cases
so
considering
proceedings
application
criminal
whether
statute to
Fontana,
286,
legislature.
Minn.
152
was intended
v.
277
State
Boerner,
(1967);
N.
While do intimate that language statute, our reference to both civil view broad proceedings provision relating competency and criminal in (Minn. preceding exception 595.02), medical-privilege witnesses exceptions respect requirement of a to the with (§ seq.) physician reporting gunshot 626.52 et and child-abuse wounds jurisdic (§ 626.554, 6), numerous it be that in cases subd. should noted statutory language specifically to civil tions the limits the (West proceedings. 1966); Hawaii Calif. Evidence Code Ann. § (1969 (1968); Code, Pocket § § Idaho 9-203 Cumulative Stat. 621-20 (1969) (applies Supp.); actions and Stat. Ann. civil § Kansas 60-427 Codes, prosecutions misdemeanors); 93-701-4 § Mont. Rev. 1964); (1969); (Repl. Pa. Purdon’s Stat. § Vol. Ore. Rev. Stat. 44.040 (1968); (Perm, ed.); § tit. R. Laws Ann. tit. Ann. P. § (1953); Comp. § Code Ann. 78-24-8 S. D. Laws Ann. 19-2-3 Utah (1971 Supp.). 43h(4), Code, Alaska Rules Civil Rule Va. 8-289.1 juris- may Procedure, similarly privilege. noted that It limits the
399
necessary
to establish
the facts
the claimant
all
Anderson,
469,
2d
to invoke
State v.
247 Minn.
78 N. W.
320
it.
City Ry.
(1956). See,
15,
v. St. Paul
241
62
Brown
Co.
(1954);
688,
Wigmore,
2d
44
2d
8
Evidence
N. W.
A. L. R.
535
(McNaughton
1961)
Thus,
prevent
Rev.
of
2381.
disclosure
§
physician’s
pos-
observations of the
of defendant’s
case,
persuade
session
the evidence must
of
(1)
trial
physician-patient
court
find
a
confidential
rela-
tionship
hospital physicians
existed between defendant and the
persons
and other
participating in defendant’s examination and
treatment,
(2) during
they acquired
“information” of the
type
contemplated
statute,
(3)
attending him,
while
(4) which
necessary
diagnosis
for medical
and treatment.
Whether such foundational
ques-
facts have been
established
a
tion
of fact to be determined
the trial court. State Ander-
dictions which extend the
proceedings,
to criminal
it is often
stated
apply
that the statute will not
where its effect would
tobe
bar
evidence in
of
furtherance
crime or
where
consultation of
purpose
aiding
was for the
of
in the commission or con
See,
cealment of
g.,
a crime.
e.
Benzick,
52, 194
Sticha v.
156 Minn.
N. W.
(1923);
752
Banks,
McKenzie
496,
(1905);
N. W.
103
497
Pier
People,
(1880);
son v.
People
79 Y.
Lay,
424
App.
372,
254
Div.
5
(1938),
N. Y.
affirmed,
S. 2d
737,
325
(1939);
279 N. Y.
18 N. E.
686
Boehme,
State v.
(1967),
71 Wash. 2d
son, supra; Commentaries conflicting, trial that where It follows is reasonable evidence if there must be sustained court’s support it. bearing on the establishment Viewing the evidence ruling favorably to sustain most foundational facts orderly’s disregarding conduct must, court, as we that a confidential *6 no doubt present, can be serious the there and relationship developed defendant between physician-patient surely required physicians were hospital physicians since the the unconsciousness diagnosis Defendant’s give and treatment. relationship, of Palmer v. Order against not militate does Travelers, N. 245 W. United Commercial applies recently the that (1932), and held we have relationships. “private” physician-patient “public” as as well supra. Fontana, that the contents of the believe also State v. We knowledge gained by physi- scope the of bottles falls the within language encompasses physical cians, since the statute’s broad any knowl- and other as as verbal communications articles well edge, marks on defendant’s as the there were needle such fact through arms, his observation Dr. Coulon obtained Travelers, United Commercial examination. Palmer Order of supra. dispute Indeed, the existence of both the state does not compels undisputed since evidence foundational facts the findings. such however, fact, con- question is whether the two of critical orderly acquired by
tainers the in routine search of were by preliminary the course defendant or Dr. Coulon in examination and condition within the evaluation of the only contemplation of can the case if the statute. The latter compels the evidence as matter of the that the law agent acting searching or servant was privi- physician. physician-patient held the have We by lege implication are “extends to nurses or attendants who employees physician acting examin- or under the direction of Mockridge, 242 Minn. treating patient.” ing Ostrowski or justify Thus, applica- (1954). 2d 65 N. W. persuaded that the privilege, trial court had to be tion of “as an aid to were obtained bottles of diagnosis only purposes attending him, physician 469, 477, Anderson, 78 W. or treatment.” State v. privilege is privileges, (1956). As with other per- essentially designed compulsory disclosure to forbid does not It therefore the confidence was extended. son to whom gained or exempt person conversation a third who overheard the knowledge patient, information, of the with or without physi- person agent testifying is an unless the third from (Mc- 104; Wigmore, McCormick, Evidence, cian. Minneapolis, 2381, citing Naughton Leonczak Ry. St. & M. Co. 161 Minn. N. W. P. S. S. concerning testimony may be noted that
It Dr. Coulon’s merely of the of the two bottles was corroborative orderly’s alone, accepted, testimony, if since possession. The would have element of established essential agent pertinent acting evidence as an to whether the summary A the order- far from clear. fair *7 ly’s testimony routinely the conducts a search to effect that he patient identity an of unconscious and to dis- to determine his orderly anything might physician cover the be of aid to the assisting. However, taking testify, he I his shirt did “As was off, were, something, the doctor told me—his ‘Find exact words John,’ proceeded declaring I patient,” so search in to the explanation further that he have done without such would so conversation, instructions. Dr. this Coulon could not recall although his is not inconsistent with that of order- ly, agrees orderly’s assigned require he also that the duties him routinely disrobe unconscious and to search him. responsibility It was trial court’s to determine whether the employee hospital drugs as an of discovered the while acting agent physician performing of or while his ordi-
402
say that
employee.
hospital
We
as a
nary functions
agency.
law, required
The
find
was,
as a
matter
court
give
not
rise
physician gives instructions does
mere fact
the so-
relationship
application of
or the
to a master-servant
especially
instruc-
such
principle,
where
called borrowed-servant
employee. See,
hospital
assigned
duplicate the
duties
tions
App.
ing with of the extending requisite to fact essential as the absence one Ry. City Co. Paul privilege a claimant is Brown v. St. to fatal. (McNaughton supra; Wigmore, evidentiary support in this summary, adequate In we find failed the evidence for the trial court’s conclusion record suppression all require to establish essential facts to all drugs. testimony relating narcotic to the bottles of confiscated justifiably decid- have are that the trial court could We mindful drugs. ed otherwise and barred admission of history margin statute and Our reference in the to the of our application jurisdictions, as well in of similar statutes other privilege, not to be persistent is as to criticism of the medical not believe taken as an indication that we do involving prosecu- justifiably proceedings criminal invoked in prob- emphasize drug Rather, tion for abuse. it intended confronting applying enacted when statutes lem the courts in quite certain- this was potential application cases such as their statute ly unanticipated our and to seek to demonstrate found facts urgent the trial court need of revision. Had case, criticism justified invoking in this only and not the statute justifiably at be directed result could Surely the disputed fact. judge’s of a at factual a trial statute, such as time is here when reconsideration reporting of treatment legislation requiring the given when enacted, would cases was gunshot and of child-abuse wounds public policies need balancing competing of two result —the drug to seek addiction encourage with afflicted defendants com- physician will be fear that attention without medical need incriminating court, evidence pelled to disclose use not be able to trafficking in will ensure that those of a crime commission to conceal shield administration objectives thereby proper defeat justice. *9 argument the evi- oral on contention defendant’s
findWe without merit. conviction to be to sustain is insufficient dence Affirmed.
Otis, (dissenting). Justice searches accept that when an
I the notion attending physician, presence person of a something,” who directs the to “[f]ind objective doctor, acting independently the immediate if patient un- drug, any, has rendered is to discover what if conscious.
BEVERLY GEORGE F. WOS v. W. WOS. (2d)
191 N.W. 829. 12, 1971
November No.
William, Lindquist, appellant. A.