HON. JOHN J. DIMOTTO
With the disclosures by Edward Snowden regarding activities of the NSA, people are much more attuned today about their personal privacy and their right, under the Fourth Amendment, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In this blog entry, I want to look at Wisconsin's Electronics Surveillance Control Law (WESCL) and One Party Consent.
968.27 - 968.37
WESCL was created by ch. 427, Laws of 1969. It replaced Wisconsin's Wiretapping Law, sec. 885.36. This WESCL prohibited the admission into evidence of tape-recorded interceptions of telephonic conversations. In essence, while "interception" via one party consent may be lawful and used by law enforcement in the proper performance of official duties, "admission" into evidence is not, absent interception by authorized means in accordance with the state act. State ex rel Arnold v. County Court, 51 Wis.2d 434 (1971). The WESCL has undergone revision multiple times since 1969 and has been construed by case law over the years.
Currently, one party consent is addressed in 968.29(3)(b), 968.31(2)(b) and (c) which read:
968.29(3)(b): Any person who has received, in the manner described under 968.31(2)(b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding ... in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording
968.31(2)(b): It is not unlawful under 968.28 - 968.37: for a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
968.31(2)(c): It is not unlawful under 968.28 - 968.37 for a person not acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.
Under 968.27(12), an oral communication "means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. Oral communication does not include any electronic communication.
In State v. Waste Management of Wisconsin Inc., 81 Wis.2d 555 (1978), The Court held that:
1) Evidence obtained by the State by means of illegal electronic surveillance violates the 4th Amendment and must be suppressed.
2) One party consent tapes are not searches within the 4th Amendment.
3) Taping conversations for one's own protection is legitimate.
4) One party consent tapes are lawful but not authorized under the WESCL and therefore the tapes cannot be used as evidence in the case in chief.
5) Though the tapes may not be admissible, a witness's testimony regarding the conversation is admissible. State v. Smith, 72 Wis.2d 711 (1976).
NB. This case was subsequently overruled by revisions to WESCL.
In State v. Gil, 208 Wis.2d 531 (Ct. App. 1997), the Court held that:
1) Where one party consent was being used in accordance with the WESCL re: offenses delineated in the law, that where during the surveillance law enforcement inadvertently heard information regarding crimes not covered by WESCL, this "plain hearing" allows admission of the surveillance statements.
2) Plain hearing is an outgrowth of plain view.
3) Inadvertence or fortuity is a key factor which the court must resolve before employing the "plain hearing" exception to the WESCL.
In State v. Curtis, 218 Wis.2d 550 (Ct. App. 1998), The Court held that:
1) While the law in Wisconsin used to be that one party consent tapes were legal only for investigative purposes and not admissible as evidence, they are admissible in drug prosecutions like this case.
2) Subsequent amendments have further broadened this authorization to all felonies. 1993 Wis. Act 98 and 1995 Wis. Act 30.
In State v. Riley, 287 Wis.2d 244 (Ct. App. 2005) the Court held that:
1) The State could use a defendant's outgoing jail calls where the inmate is given meaningful notice that such calls are subject to recording because under these circumstances the defendant's decision to engage in conversations over these phones constituted implied consent.
2) Interception of such jail calls is lawful and results of interception are admissible in evidence so long as they are authenticated in accordance with 968.29(3)(b).
3) Jail inmates have no expectation of privacy in calls to non attorneys placed on jail phones. Their right to privacy is outweighed by the institution's need for safety and security.
In State v. Christensen, 304 Wis.2d 147 (Ct. App. 2007), the Court held that:
1) Recording jail calls did not violate WESCL because the defendant was warned about recording and monitoring and implicitly consented by continuing to converse.
2) A person acting under color of law can intercept calls where prior consent is given to the interception.
3) The fact that all calls are recorded, including calls to attorneys, does not require suppression of calls with non attorneys.
4) The general rule of suppression: items seized within the search warrant scope need not be suppressed simply because items outside the scope of warrant were also seized. State v. Petrone, 161 Wis.2d 530 (1991).
In State v. House, 302 Wis.2d 1 (2007), the Court held that:
1) It is error for a trial court to authorize a wiretap for offenses not enumerated in the wiretap statute - 968.28,
2) However, suppression not warranted where the wiretap did also include enumerated offenses; there was probable cause for enumerated offenses; charges only brought for enumerated offenses.
In State v. Duchow, 310 Wis.2d 1 (2008):
In this case, the defendant was charged with Child Abuse. A tape recorder had been secreted in the child's backpack by parents. The trial court found that the taped statements were not "oral communications" within the WESCL and admitted them. The Court of Appeals reversed holding they were lawfully intercepted but not under color of law. Here, the Supreme Court held that:
1) Under WESCL, an "oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. Oral communication does not include any electronic communication,
2) Reasonable expectation of privacy is incorporated into the statute.
3) Reasonable expectation of noninterception is not the standard.
4) Here, the factors do not support that the defendant's subjective expectation of privacy is objectively reasonable. Individuals do not retain an expectation of privacy in threats to harm the person to whom the threat is made.
In State v. Sveum, 319 Wis.2d 498 (Ct. App. 2009), the Court held that GPS is not an electronic communication. It is a tracking device which is excluded from WESCL.
In State v. Ohlinger, 317 Wis.2d 445 (Ct. App. 2009), the Court held that:
1) One party consent exception to WESCL [968.31(2)(b)] applies when the intercepting person is a police officer and the party to the communication who consents to the intercept is also a police officer.
2) WESCL governs the lawfulness and use of electronic intercepts of communications.
3) Under one party consent, contents of interception may be disclosed in a felony proceeding.
4) One party consent requires that the intercepting person must be acting under color of law. A police officer can be that person.
5) Intercepting person and consenting person can both be police officers.
6) Consent of one person provides a basis for not imposing the warrant requirement.
In State v. Turner, 356 Wis.2d 759 (Ct. App. 2014), the Court held that:
1) The ability of a minor to give one party consent to interception of conversations is a question of voluntariness.
2) In considering the voluntariness of a minor to give one party consent, the court should consider the totality of the circumstances including but not limited to age, intelligence, knowledge and maturity.
3) A minor's consent must be the product of an essentially free and unconstrained choice.
4) It is not unlawful for a person "acting under color of law" to intercept a wire, electronic or oral communication where the person is a part to the communication and one of the parties to the communication has given prior consent.
5) Though a 15 year old cannot consent to sexual acts, a 15 year old can give one party consent to interception.
WESCL puts limitations on electronic surveillance. However, when there is compliance with the law -- including one party consent -- such surveillance can be both lawful and admissible in a court of law.