State v. Maloney, s. 90-0602-C
| Decision Date | 28 February 1991 |
| Docket Number | Nos. 90-0602-C,90-0603-CR,s. 90-0602-C |
| Citation | 161 Wis.2d 127,467 N.W.2d 215 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. John MALONEY, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
Steven P. Anderson, of Thorp, on brief, and on the reply brief of James C. Ritland, Black River Falls, for defendant-appellant.
Donald J. Hanaway, Atty. Gen., with William L. Gansner, Asst. Atty. Gen., for the plaintiff-respondent.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
John Maloney appeals from two judgments convicting him of delivering a controlled substance, sec. 161.41, Stats., 1987. The trial court denied his motion to suppress the contents of his telephone conversation with a police informant. He then pleaded guilty. The informant, acting in a law enforcement capacity, had recorded the conversation without obtaining authorization under the Electronic Surveillance Control Law, secs. 968.27 through 968.37, Stats. ("surveillance law"). The issue is whether the informant could testify to his recollection of the conversation without using the recording. We hold that he could, and affirm.
The issue requires the application of the surveillance law to undisputed facts. The application of a statute to a particular set of facts is a question of law. Kania v. Airborne Freight Corp., 99 Wis.2d 746, 758, 300 N.W.2d 63, 68 (1981). We decide a question of law without deference to the trial court. Ball v. District No. 4, Area Bd. of Vocational, Technical & Adult Educ., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
Maloney argues that the trial court erred when it ruled that the recording was not an "intercept" within the meaning of the surveillance law. He argues that the trial court should have applied the statutory definition of the term "intercept" provided in sec. 968.27(9), Stats., rather than a dictionary definition. Section 968.27(9) provides:
"Intercept" means the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.
We agree that the trial court should have applied the statutory definition. Nonetheless, we conclude that the informant did not "intercept" the telephone conversation within the meaning of that definition. Maloney argues that an "intercept" occurred when the conversation between the informant and Maloney was acquired through the use of a tape recorder. While that is true, the informant also acquired the conversation in his mind simply by being a party to it, regardless of the use of the tape recorder.
In other words, two acquisitions occurred simultaneously. The first acquisition occurred as the tape recorder recorded the conversation. The second occurred in the informant's mind as he conversed with Maloney. The state concedes that the first acquisition was an unauthorized intercept and that the trial court properly suppressed the evidence of the recording. The second acquisition, however, was not an intercept, since the informant acquired it by ear. State v. Smith, 72 Wis.2d 711, 714, 242 N.W.2d 184, 186 (1976), held that testimony regarding an oral conversation, intercepted without authorization, is admissible if the testimony is independent from the interception. Although Smith involved a face-to-face communication, as opposed to a wire communication, its rationale is applicable here. In Smith, the defendant made an illegal proposition to an undercover officer who posed as a plumber. The officer wore a device which transmitted his conversation with the defendant to fellow officers and to a recording device. The court said:
Assuming arguendo that the use of the device here constituted a constitutional or statutory violation which would demand suppression of the direct fruits of its use, i.e., the tape of the conversation and the testimony of the eavesdropping officers, it can hardly be said that the testimony of the plumber was a fruit of the illegal device. Although he did enable the transport of the device, his testimony is independent of its use and would be the same even if the device were not present or had mechanically failed. Such testimony is not a product of the assumed constitutionally infirm action, see: People v. Beavers (1975), 393 Mich. 554, 227 N.W.2d 511, and is untainted by the officer's acquiescence in other activity. The independent origin allows admission. Nardone v. United States (1939), 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307.
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