State v. Duchow, No. 2005AP2175-CR (Wis. App. 4/3/2007)
| Decision Date | 03 April 2007 |
| Docket Number | No. 2005AP2175-CR.,2005AP2175-CR. |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Brian Harold Duchow, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and an order of the circuit court for Milwaukee County: MICHAEL B. BRENNAN, Judge. Reversed and cause remanded.
Before Wedemeyer, P.J., Curley and Kessler, JJ.
¶ 1
Brian Duchow appeals from the trial court's order refusing to suppress an electronic recording of Duchow's statements to, and the sounds of his actions toward, Jacob M., a minor, which were recorded surreptitiously on a voice-activated recorder placed in Jacob's backpack by his parents. The statements occurred on a closed school bus when no persons other than Duchow and Jacob were present. The parents turned the recording over to the Milwaukee Police Department which ultimately charged Duchow with felony child abuse causing bodily harm. The trial court denied Duchow's motion to suppress the contents of the recording and evidence derived therefrom. Duchow pled guilty to the felony charge, maintaining his right to appeal the denial of the suppression motion under WIS. STAT. § 971.31(10) (2003-04).1 We conclude that the statements were an oral communication under WIS. STAT. § 968.31(2)(c), and also that under WIS. STAT. § 968.27(12), that the parents in this case vicariously consented on behalf of their child to the electronic interception. However, because the resulting one-party consent recording was not obtained in cooperation with a law enforcement investigation, which would have brought the interception under color of law, we must reverse.
¶ 2 Jacob M., born November 10, 1993, is a child with Down Syndrome, is diagnosed with Attention Deficit Hyperactivity Disorder, and is considered a child with special needs. Jacob rode to and from school on a small school bus which seats approximately six to eight children. Duchow, at all times material to this case, was the driver of that bus. Jacob was always the first child picked up for the bus ride to school. Before this incident, Duchow filed written complaints with the school complaining of Jacob spitting at him. Jacob's parents were concerned about relatively recent negative changes in Jacob's behavior,2 which did not occur until Jacob began riding with Duchow. Jacob's parents feared that he was being verbally and physically abused by Duchow. Jacob's parents did not contact law enforcement about their concerns, but instead, on April 29, 2003, put a voice-activated recording device in Jacob's backpack before he got on the school bus. Apparently after listening to the recording themselves, Jacob's parents contacted the police about the contents of the tape recording. Milwaukee Police Officer Steven Wells listened to the recording in the presence of Jacob and his parents.
¶ 3 After listening to the recording, Officer Wells interviewed Duchow. The police never conducted an electronic interception independently, or with the cooperation of Jacob's parents. Sometime after interviewing Duchow, Officer Wells referred the matter to the Milwaukee County District Attorney, who charged Duchow with intentionally causing bodily harm to a child and with disorderly conduct in violation of WIS. STAT. §§ 948.03(2)(b) and 947.01. The contents of the tape recording are described in detail in the complaint. The trial court denied Duchow's motion to suppress the recording. Thereafter, Duchow pled guilty to the felony charge, and the disorderly conduct charge was dismissed. This appeal followed.3
¶ 4 The issue before us is whether, under Wis. Stat. §§ 968.27-.37, the Wisconsin Electronic Surveillance Control Law (WESCL), the recording, and the information from the recording, is admissible as evidence against Duchow.
¶ 5 We review questions of statutory interpretation de novo. State v. Stenklyft, 2005 WI 71, ¶7, 281 Wis. 2d 484, 697 N.W.2d 769. Statutory interpretation begins with the statute's text; we give the text its common, ordinary, and accepted meaning, except that we give technical or specially defined words their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶46. In construing a statute, we give deference to the policy choices made by the legislature in enacting the law. Id., ¶44. We also consider the scope, context and structure of the statute itself. Id., ¶¶46, 48. "`If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.'" Id., ¶46 (citation and internal quotations omitted).
¶ 6 Before 1970, with three very narrow exceptions,4 two Wisconsin statutes made electronic interceptions completely inadmissible in the courts of this state. The first, WIS. STAT. § 885.36 (1967), stated:
Wire tapping. Evidence obtained directly or indirectly as a result of the interception of a communication, by telephone or telegraph, shall be totally inadmissible in the courts of this state.
The second, WIS. STAT. § 885.365 (1967), stated:
Recorded telephone conversation. (1) Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state.
The pre-1970 statutes established that no communication interceptions were permitted, except the limited class specifically authorized in § 885.365(2) (1967). There were no methods to obtain court authorization for interceptions, and no permission for one-party consent recordings, whether obtained "under color of law" or otherwise.
¶ 7 In 1970, the blanket prohibition was significantly modified and specific interceptions and limited disclosures of those interceptions and derivative evidence were permitted. The WESCL was adopted as WIS. STAT. §§ 968.27 through 968.33 (1969). See 1969 Wis. Act 427. Act 427 took effect in 1970. It contained a comprehensive statutory system for permitting court-authorized electronic surveillance, allowing such surveillance to be shared among law enforcement, allowing such surveillance to be used in court, making "not unlawful" certain interceptions that were not court-authorized, but providing no permission to use the unauthorized interceptions in court. In addition, violation of the WESCL, both as to interception not authorized by a court and as to disclosures not specifically allowed by statute, became a felony. The original WESCL contained the following provisions material to this case:
Definitions.
....
(2) "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying the expectation.
....5
WISCONSIN STAT. § 968.27 (1969).
Authorization for disclosure and use of intercepted wire or oral communications. (1) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.34 or 18 USC 119, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer only to the extent ... disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.34 or 18 USC 119, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents only to the extent such use is appropriate to the proper performance of his official duties.
(3) Any person who has received, by any means authorized by ss. 968.28 to 968.34 or 18 USC 119 or by a like statute of any other state, any information concerning a wire or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 to 968.34, may disclose the contents of that communication or such derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.
....6
WISCONSIN STAT. § 968.29 (1969).
Interception and disclosure of wire or oral communications prohibited. (1) Except as otherwise specifically provided in ss. 968.28 to 968.30, whoever commits any of the acts enumerated in this section may be fined not more than $10,000 or imprisoned not more than 5 years or both:
(a) Intentionally intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept, any wire or oral communication;
(b) Intentionally uses, attempts to use or procures any other person to use or attempt to use any electronic ... device to intercept any oral communication;
(c) Discloses ... to any other person the contents of any ... oral communication, knowing ... that the information was obtained through the interception of ... oral communication in violation of this section...;
(d) Uses ... the contents of any ... oral communication, knowing ... that the information was obtained through the interception of ... oral communication in violation of this section...; or
(e) Intentionally discloses the contents of any oral ... communication obtained by authority of ss. 968.28, 968.29 and 968.30, except as therein provided.
....7
(2) It is not unlawful under ss. 968.28 to 968.34:
(a) For an ... employe ... of any...
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