State v. Ohlinger

• Decision Date: 12 March 2009
• Docket Number: No. 2008AP135-CR.,2008AP135-CR.
• Citation: 2009 WI App 44,767 N.W.2d 336
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John David OHLINGER, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

767 N.W.2d 336

2009 WI App 44

STATE of Wisconsin, Plaintiff-Respondent, v. John David OHLINGER, Defendant-Appellant.^†

No. 2008AP135-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs December 18, 2008.

Opinion Filed March 12, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Suzanne L. Hagopian, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HIGGINBOTHAM, P.J., VERGERONT and LUNDSTEN, JJ.

¶ 1 LUNDSTEN, J

Using the internet, John Ohlinger found what he thought was a mother willing to let him engage in sexual conduct with her twelve-year-old daughter. In fact, Ohlinger had found a law enforcement officer pretending to be a potential accomplice to crime. The internet communication eventually led to a telephone conversation between Ohlinger and two female police officers, one posing as the mother and the other posing as the daughter. The telephone conversation was intercepted and recorded by another officer without a warrant. During the conversation, Ohlinger talked about his intent to engage in sex with the daughter, and a meeting was discussed. Later, a final meeting plan was made, and Ohlinger kept the appointment—resulting in his arrest and charges of attempted first-degree sexual assault of a child and child enticement.

¶ 2 Ohlinger moved to suppress the warrantless recording of the telephone conversation, alleging that it was inadmissible under Wisconsin's Electronic Surveillance Control Law, WIS. STAT. §§ 968.27-.33 (2007-08).¹ The circuit court denied the suppression motion, and Ohlinger now challenges that ruling. Ohlinger's argument defies quick summarization. For now, it is sufficient to say that he contends that WIS. STAT. § 968.31(2)(b), commonly referred to as the one-party consent exception, does not apply when the intercepting person is a law enforcement officer and the party to the communication who consents to the intercept is also a law enforcement officer. We disagree and, therefore, affirm the circuit court.

Background

¶ 3 Ohlinger created a web page on the internet indicating an interest in sexual activities with young girls. A male agent with the Wisconsin Department of Justice located Ohlinger's web page and, posing as a mother with a twelve-year-old daughter, began an e-mail conversation with Ohlinger. The male agent later recruited two female police officers from a local police department to play the parts of the fictitious mother and daughter for a planned telephone conversation with Ohlinger. During the ensuing forty-five-minute telephone conversation, Ohlinger expressed his desire and intent to engage in sex acts with both the "mother" and the "daughter." The female officers agreed to meet Ohlinger for the purpose of engaging in the sexual conduct discussed. The Justice Department agent recorded this telephone conversation without obtaining a warrant.

¶ 4 After follow-up telephone conversations, the female officers and Ohlinger made a final plan to meet at a truck-stop. After Ohlinger arrived at the truck-stop and made contact with the officer posing as the mother, he was arrested. He was later charged with attempted first-degree sexual assault of a child and child enticement, both as a persistent child sex offender.

¶ 5 Ohlinger filed a suppression motion, arguing that the contents of the telephone conversation must be suppressed under certain provisions of Wisconsin's Electronic Surveillance Control Law.² The circuit court denied the suppression motion and a trial to the court was held. At trial, the recording of the telephone conversation was the prosecution's centerpiece. The circuit court convicted Ohlinger of both charges, and he now appeals the suppression ruling.

Discussion

¶ 6 We are asked to apply the one-party consent exception in Wisconsin's Electronic Surveillance Control Law to undisputed facts. That is a question of law that we decide without deference to the circuit court. State v. Wilke, 152 Wis.2d 243, 247, 448 N.W.2d 13 (Ct.App.1989). We give statutory language its common, ordinary, and accepted meaning, except that technical or specially defined words or phrases are given their technical or special definitional meaning. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We must construe a statute 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.

¶ 7 The Electronic Surveillance Control Law governs the lawfulness and uses of electronic intercepts of communications. Pertinent here, if a warrantless intercept complies with the one-party consent exception, WIS. STAT. § 968.31(2)(b), the contents of the intercept may be disclosed in a felony proceeding. WIS. STAT. § 968.29(3)(b). Thus, the parties agree that if Ohlinger's telephone conversation with the two female officers was lawfully intercepted under the one-party consent exception, then the circuit court properly denied Ohlinger's suppression motion.

¶ 8 The one-party consent exception reads as follows:

(2) It is not unlawful ...:

. . . .

(b) 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.

WIS. STAT. § 968.31(2)(b). This exception contains two requirements, one applicable to the person who intercepts a communication and a second applicable to one of the persons who is a party to the communication.

¶ 9 We will refer to the first requirement as the intercepting-person requirement. The intercepting person must be "a person acting under color of law," and the dispute in this case centers on whether a law enforcement officer may ever be a person fitting this "color of law" requirement.

¶ 10 We will refer to the second requirement as the consenting-person requirement. Under this requirement, one of the persons who is a party to the communication must either be the person who intercepts the communication or be a person who gives prior consent to the interception. Although there is no technical "consent" requirement if the second requirement is met because the intercepting person is also a party to the communication, this situation involves implicit consent, hence the shorthand reference to this statute as the one-party consent exception.

¶ 11 Ohlinger's general argument is that the one-party consent exception does not apply where, as here, the intercepting person is a law enforcement officer and the party to the communication who consents to the intercept is also a law enforcement officer. He seems to say that at least one of these parties must be a private citizen. When Ohlinger gets more specific, however, his argument is different—he asserts that the intercepting person may never be a police officer because the phrase "person acting under color of law" does not include law enforcement officers. Ohlinger's general and more specific arguments are inconsistent.

¶ 12 Ohlinger acknowledges, indeed embraces, the proposition that an intercepting person "acting under color of law" may be a law enforcement officer if the consenting person is a private citizen. Indeed, he cites to case law where the intercepting person is a law enforcement officer acting with a cooperating private citizen who gives consent to the intercept.³ He does this to support his argument that the statute is intended to cover law enforcement officers conducting intercepts, but only when the consenting party is a cooperating citizen. This contention is incompatible with Ohlinger's assertion that the intercepting person may never be a law enforcement officer because the statutory phrase "a person acting under color of law" is properly interpreted as excluding law enforcement.

¶ 13 Ohlinger makes no attempt to reconcile this inconsistency. This omission alone is sufficient reason to reject both his general and more specific arguments. Nonetheless, after providing some additional context, we will respond to Ohlinger's contention that the phrase "person acting under color of law" does not include persons who are law enforcement officers.

¶ 14 The phrase "a person acting under color of law" in WIS. STAT. § 968.31(2)(b) is patterned, along with much of the Electronic Surveillance Control Law, after the federal wiretapping law. See State v. Gilmore, 201 Wis.2d 820, 825, 549 N.W.2d 401 (1996). When interpreting the Electronic Surveillance Control Law, we benefit from federal decisions considering counterpart provisions. Id.; see also State v. House, 2007 WI 79, ¶ 14, 302 Wis.2d 1, 734 N.W.2d 140. As the State points out, federal cases discussing federal law recognize that law enforcement officers may be "person[s] acting under color of law" for purposes of the federal wiretapping statute. See, e.g., United States v. Passarella, 788 F.2d 377, 379 (6th Cir.1986); United States v. Nelligan, 573 F.2d 251, 254 (5th Cir.1978); United States v. Rich, 518 F.2d 980, 985 (8th Cir.1975); United States v. Upton, 502 F.Supp. 1193, 1196 (D.N.H.1980).

¶ 15 Moreover, we agree with the State that the legislative history of Wisconsin's one-party consent exception supports the inclusion of law enforcement officers. See State v. Milwaukee County, 2006 WI App 229, ¶ 28, 297 Wis.2d 339, 724 N.W.2d 916 (the legislative history of an unambiguous statute may be used "to show how that history supports [the] interpretation of a statute otherwise clear on its face"). Part of the history of WIS. STAT. § 968.31(2)(b) is an analysis by Attorney General Robert W. Warren, an analysis that we have recognized sheds light on the legislature's intent. See State v. Gil, 208...