State v. Gilmore
| Decision Date | 12 June 1996 |
| Docket Number | No. 94-0123-CR,94-0123-CR |
| Citation | 201 Wis.2d 820,549 N.W.2d 401 |
| Parties | STATE of Wisconsin, Plaintiff-Appellant, v. Kevin GILMORE, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner there were briefs by Robert R. Henak and Shellow, Shellow & Glynn, S.C., Milwaukee and oral argument by Robert R. Henak.
For the plaintiff-appellant the cause was argued by Donald V. Latorraca, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
This is a review of a published decision of the court of appeals, State v. Gilmore, 193 Wis.2d 403, 535 N.W.2d 21 (Ct.App.1995), reversing an order of the circuit court for Milwaukee County, John A. Franke, Judge. A criminal complaint had been filed against Kevin Gilmore (the defendant) and others charging them with conspiracy to deliver cocaine. The circuit court granted the defendant's motion to strike references in the criminal complaint to communications intercepted by wiretap and then dismissed the redacted complaint for failure to state probable cause. The court of appeals reversed, holding that Wis.Stat. § 968.29 (1993-94) 1 does not preclude a prosecutor from including electronically intercepted communications in a criminal complaint and more specifically that Wis.Stat. § 968.29(2) grants a prosecutor the authority to use the contents of intercepted communications in a criminal complaint. We affirm the decision of the court of appeals reinstating the criminal complaint and remanding it without redactions to the circuit court, but our rationale for this result differs from that of the court of appeals.
The chief issue presented for our review is one of statutory interpretation. We must determine whether the inclusion of intercepted communications in a criminal complaint constitutes an unauthorized disclosure under the Wisconsin Electronic Surveillance Control Law (WESCL), Wis.Stat. §§ 968.27-968.37.
We hold that while WESCL does not authorize the State's unilateral public disclosure of intercepted communications in a criminal complaint, the State may incorporate intercepted communications in a complaint if the State files the complaint under seal with the circuit court. The State did not file the complaint in this case under seal, and accordingly we conclude that it has violated WESCL.
Because we so hold, we must also address the question of the appropriate sanction for such a violation. The defendant contends that the illegally intercepted communications should be stricken from the State's complaint. We conclude, however, that under the circumstances of this case WESCL does not authorize suppression of the contents of a legally intercepted communication. The statute reserves the remedy of suppression for illegally intercepted communications. At this stage of the proceedings no argument has been made that the State's interception of the communications at issue was illegal. We therefore remand the cause to the circuit court with instructions to reinstate the original complaint under seal and for further proceedings consistent with this opinion.
For purposes of this review, the facts are not in dispute. Pursuant to a court-authorized wiretap, the Milwaukee police intercepted communications in the summer of 1991 allegedly connecting the defendant to drug transactions. At this stage of the proceedings the defendant does not contend that the interception was illegal. Indeed the parties agree that for the purposes of this review the interception is to be treated as lawful.
A criminal complaint charging the defendant and several others with conspiracy to deliver cocaine was filed on September 29, 1992. The complaint contained numerous references to the intercepted communications, including 27 pages of verbatim transcripts of those communications.
The defendant moved to strike the contents of the intercepted communications from the complaint and to dismiss the redacted complaint for failing to state probable cause. The circuit court concluded that the State's inclusion of the intercepted communications in its criminal complaint was not authorized under Wis.Stat. § 968.29, which establishes the conditions under which intercepted communications may be disclosed and used. Having redacted the intercepted communications from the State's complaint, the circuit court then concluded that the complaint failed to state probable cause and dismissed the complaint.
The court of appeals reversed, concluding that "under the unambiguous language of Wis.Stat. § 968.29(2), a prosecutor is permitted to include intercepted communications in a criminal complaint." Gilmore, 193 Wis.2d at 407, 535 N.W.2d 21. The court of appeals reinstated the State's original complaint. Id at 411, 535 N.W.2d 21. The defendant then sought review by this court.
We turn first to the question of whether WESCL permits the State to disclose the contents of lawfully intercepted communications in a criminal complaint. Statutory interpretation is an issue of law which we review de novo, benefitting from the analyses of the circuit court and the court of appeals. Wisconsin Patients Comp. Fund v. Wisconsin Health Care Liab. Ins. Plan, 547 N.W.2d 578, 583-84 ; Waste Mgmt. v. Kenosha County Rev. Bd., 184 Wis.2d 541, 554, 516 N.W.2d 695 (1994).
WESCL was patterned after Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and thus our interpretation of WESCL benefits from the legislative history of Title III as well as from federal decisions that have considered Title III. Arnold v. County Court of Rock County, 51 Wis.2d 434, 443, 187 N.W.2d 354 (1971). 2 Title III provides the minimum standard against which an interception must be judged. Both the State and the defendant have treated the state and federal standards as though they were identical. See 18 U.S.C. § 2515; United States v. Marion, 535 F.2d 697, 701 (2d Cir.1976).
Wisconsin Stat. § 968.29 states the conditions under which disclosure is authorized. 3 Wisconsin Stat. § 969.29(1) authorizes investigative or law enforcement officers to "disclose the contents" of legally intercepted communications to other investigative or law enforcement officers "only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." Wisconsin Stat. § 968.29(1) states:
Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
Wisconsin Stat. § 968.29(2) authorizes investigative or law enforcement officers to "use the contents" of legally intercepted communications "only to the extent the use is appropriate to the proper performance of the officer's official duties." Wisconsin Stat. § 968.29(2) states:
Any investigative or law enforcement officer who, by any means authorized by ss. 968.29 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer's official duties.
Wis.Stat. § 969.29(3)(a) authorizes any person to "disclose the contents" of legally intercepted communications "only while giving testimony under oath or affirmation" in proceedings set forth in the statute. Wisconsin Stat. § 968.29(3)(a) states:
Any person who has received, by any means authorized by ss. 968.29 to 968.37 or 18 USC 2510 to 2520 or by a like statute of any other state, any information concerning a wire, electronic or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 to 968.37, may disclose the contents of that communication or that 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.
The State contends that the plain language of Wis.Stat. § 968.29(2) authorizes the inclusion of legally intercepted communications in the criminal complaint filed in this case. Under Wisconsin law, reasons the State, a prosecutor has a duty to file a criminal complaint detailing "the essential facts constituting the offense charged." Wis.Stat. §§ 968.01(2) and 968.02(1). The State argues that the use of legally intercepted communications in a complaint is therefore authorized under Wis.Stat. § 968.29(2) because it falls within the ambit of those uses "appropriate to the proper performance" of a prosecutor's duties.
The defendant, on the other hand, urges this court to interpret § 968.29 as did the circuit court and hold that the State's unilateral public disclosure of intercepted communications in the complaint was not authorized. He argues, following the reasoning of the circuit court, that the State's reading of Wis.Stat. § 968.29(2) is erroneous because it contravenes the language of Wis.Stat. § 968.29 by rendering Wis.Stat. § 968.29(1) superfluous. If, as the State suggests, the meaning of "use" in Wis.Stat. § 968.29(2) is broad enough to include disclosures made in the course of filing a legal document such as a criminal complaint, the defendant argues that it is also broad enough to include those disclosures to other officers authorized under Wis.Stat. § 968.29(1). And if, the defendant continues, disclosures of legally intercepted communications authorized under Wis.Stat. § 969.29(1) are a mere...
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