State ex rel. Arnold v. County Court of Rock County

• Decision Date: 07 June 1971
• Docket Number: No. S,S
• Citation: 51 Wis.2d 434,187 N.W.2d 354
• Parties: STATE ex rel. George ARNOLD, Relator-Appellant, v. COUNTY COURT OF ROCK COUNTY, Hon. Edwin C. Dahlberg, County Judge, presiding, Respondent. tate 191.
• Court: Wisconsin Supreme Court

Page 354

187 N.W.2d 354

51 Wis.2d 434

STATE ex rel. George ARNOLD, Relator-Appellant, v. COUNTY COURT OF ROCK COUNTY, Hon. Edwin C. Dahlberg, County

Judge, presiding, Respondent.

No. State 191.

Supreme Court of Wisconsin.

June 7, 1971.

This is an original action commenced with the permission of this court upon the petition of George Arnold to restrain the county court of Rock county from receiving into evidence certain tape-recorded conversations to which he was a party. An alternative writ of prohibition was entered February 5, 1971. The respondent has moved to deny the petition and to quash the alternative writ.

On August 31, 1970, Arnold was arrested and charged with accepting a bribe contrary to sec. 946.10(2), Stats., and with misconduct in public office contrary to sec. 946.12(2), Stats. His pretrial motion to suppress four tape recordings was denied. He was arraigned on December 23, 1970, and entered a plea of not guilty. The trial of his case entitled State of Wisconsin v. George Arnold, in branch three of the Rock county court, was set for February 2, 1971. A continuance was denied, and this action commenced.

Garrigan, Keithley, O'Neal, Dobson, Elliott & DeLong, John E. Borgerding, Beloit, for relator-appellant.

Robert W. Warren, Atty. Gen., Peter A. Peshek, Asst. Atty. Gen., Madison, John E. Sheehan, Dist. Atty., of Rock County, Janesville, for respondent.

HALLOWS, Chief Justice.

Arnold, the secretary and executive director of the Beloit Housing Authority, had conversations on August 28, 29, and 30, 1970, with Robert Lockhart who was a Beloit construction contractor and who had been the accepted bidder for 75 low-cost-housing units to be constructed in Beloit. Three conversations occurred in Lockhart's office and a fourth conversation was held by telephone with Lockhart at his home. Lieutenant Richard Toler of the Rock county sheriff's department had microphones concealed under Lockhart's desk and wired to a recording mechanism which Toler surreptitiously monitored and operated to preserve the oral conversations. The telephone conversation was intercepted and recorded by Toler. Lockhart gave his written consent for these electronic interceptions, but Arnold had no knowledge of them and did not consent thereto.

At the outset the state raises the question of whether the writ of prohibition is a proper remedy conceding this court has expanded the traditional role of the writ of prohibition of keeping inferior courts from acting beyond their jurisdiction when no adequate remedy by appeal or otherwise existed. See State ex rel. Reynolds v. County Court (1960), 11 Wis.2d 560, 105 N.W.2d 876; State ex rel. Jefferson v. Roraff (1969), 44 Wis.2d 250, 170 N.W.2d 691. Nonjurisdictional error is now recognized as a proper ground for the issuance of the writ when the appeal comes too late for effective redress or is inadequate, when there is a need for such intervention to avoid great hardship or the complete denial of the rights of a litigant, or when there is presented a question of great and immediate public concern. Drugsvold v. Small Claims Court (1961), 13 Wis.2d 228, 108 N.W.2d 648; State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609, 143 N.W.2d 437; see also State ex rel. Sucher v. County Court, etc. (1962), 16 Wis.2d 565, 115 N.W.2d 611; State ex rel. Schulter v. Roraff (1968), 39 Wis.2d 342, 159 N.W.2d 25.

The question of the propriety of the use of the writ was decided when this court took original jurisdiction on the ground the question involved the constitutionality of a new statute relating to the state's regulation of electronic surveillance and was of sufficient compelling interest to the public to warrant this court's immediate consideration. Although this case comes to us in the context of the admissibility of evidence, the statewide importance of an immediate determination of the underlying question makes State ex rel. Cortez v. Board of Fire & Police Commissioners (1970), 49 Wis.2d 130, 141, 181 N.W.2d 378, and State ex rel. Cullen v. Ceci (1970), 45 Wis.2d 432, 173 N.W.2d 175, inapplicable.

It is contended that the admission into evidence of recorded conversations obtained by electronic surveillance with the consent of only one party violates the Fourth and Fourteenth Amendments of the United States Constitution. Arnold argues the use of electronic devices to intercept his conversation is a search within the meaning of the fourth amendment, Berger v. New York (1967), 388 U.S. 41, 51, 87 S.Ct. 1873, 18 L.Ed.2d 1040, and being a search he is entitled to the constitutional protections applicable to search warrants. See Katz v. United States (1967), 389 U.S. 347, 354, 88 S.Ct. 507, 19 L.Ed.2d 576. Arnold relied in his brief on United States v. White (7th Cir. 1969), 405 F.2d 838. But prior to oral argument on this appeal, the 7th Circuit's decision, which had been appealed to the United States Supreme Court, was reversed in United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453.

In White, four justices held that electronic eavesdropping was permissible under the fourth amendment on the ground no constitutional right was involved because a defendant has no 'justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.' 401 U.S. 749, 91 S.Ct. 1125, 28 L.Ed.2d 453. And, since a party to the conversation may disclose it, it may be intercepted by electronic eavesdropping. Although prior to this decision it was thought that Katz v. United States, supra, decided that electronic eavesdropping was not permissible under the fourth amendment, these four members of the Supreme Court stated they saw no such indication in Katz as applied to one party's consensual interceptions or to disturb the result reached in the On Lee Case. ¹ A fifth member of the court concurred in the judgment for the reasons set forth in his dissent in Katz. Four members of the Supreme Court dissented on various grounds. While this case is not satisfactory because of the diversity in its opinions, the disagreement on what the court's prior decisions meant, and plurality holding, nevertheless, it controls, for the time being at least, the issue of constitutionality raised in this case.

However, we think Arnold's conversations were privileged in character by statute and their admission in evidence by means of tape recordings would be in violation of the Wisconsin Electronics Surveillance Control Law, sec. 968.27 through sec. 968.33, Stats. This law, which was created by ch. 427, Laws of 1969, replaced Wisconsin's Wiretapping Law, sec. 885.36, Stats, prohibiting the admission into evidence of tape-recorded interceptions of telephonic conversations. The Electronics Surveillance Control Law expressly prohibits electronic interceptions of both wire and oral communications with some exceptions. In defining 'oral communication,' sec. 968.27(2), Stats., states that term means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation. The privileged character of wire and oral communications is also recognized in sec. 968.29(4), Stats.

While such expectation of privacy may not have a constitutional basis under White, that is immaterial since this recognition of confidentiality is important in the process of discovering the legislative intent in an area of eavesdropping which was condemned by the common law. In considering a statute, the court must seek the legislative intent as disclosed from the language of the statute in relation to its scope, history, context, subject matter, and object intended to be remedied or accomplished. Scanlon v. City of Menasha (1962), 16 Wis.2d 437, 114 N.W.2d 791.

The American people are rightly jealous of their freedom of privacy and from 'bugging' by the police. While the demands of our complex society require improved methods of crime detection, they do not require that a citizen's right of privacy must be indiscriminately invaded by electronic surveillance or may be invaded with the consent of only one party to a wire or oral conversation having a privileged character.

The basic authorization for an electronic eavesdropping is restricted in sec. 968.28, Stats., which requires a law enforcement officer to apply to a circuit court for an order authorizing or approving the interception of a wire or oral communication. Such authorization is permitted only when the intervention may provide evidence or if a prior restricted authorization has produced evidence of the commission of certain offenses. These crimes are restricted to murder, kidnapping, commercial bribery, extortion, and dealing with narcotics or dangerous drugs or conspiracy involving such offenses.

The use and disclosure of authorized intercepted wire and oral communications is dealt with in sec. 928.29, Stats. In subsections (1) and (2), law-enforcement use of such material is restricted to use in the exercise of the proper performance of professional duties in the investigative process; and by subsection (3), disclosure is only permitted by a person who has received such information by authorized means and which was intercepted in accordance with the state act. The results of such interceptions may be disclosed only while giving testimony under oath or affirmance in a court proceeding or before a magistrate or a grand jury. No other privileged wire or oral communication, although intercepted in accordance with or in violation of state law or federal law relating to electronic surveillance, loses its privileged character.

There is an exception to this rule of privileged communications in subsection (5) which provides that when an authorizedcourt interception discloses material relating to an offense other than that specified in the order authorizing the interception, such information may be used...