State v. Rewolinski

Decision Date20 December 1990
Docket NumberNo. 88-2312-CR,88-2312-CR
CourtWisconsin Supreme Court
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Robert Donald REWOLINSKI, Defendant-Appellant-Petitioner.

Page 401

464 N.W.2d 401
159 Wis.2d 1
STATE of Wisconsin, Plaintiff-Respondent,
Robert Donald REWOLINSKI, Defendant-Appellant-Petitioner.
No. 88-2312-CR.
Supreme Court of Wisconsin.
Argued Sept. 5, 1990.
Decided Dec. 20, 1990.

Page 402

[159 Wis.2d 6] Brady C. Williamson (argued), Jeffrey J. Kassel and LaFollette & Sinykin, on briefs, Madison, for defendant-appellant-petitioner.

Sally Wellman, Asst. Atty. Gen., Donald J. Hanaway, Atty. Gen., on briefs, for plaintiff-respondent.


The issues in this case are several:

(1) Does a criminal defendant bear the burden of establishing both that he manifested a subjective expectation[159 Wis.2d 7] of privacy that was allegedly invaded by government action and that that expectation was legitimate?

(2) Did the defendant have a legitimate expectation of privacy in the conversations or in the TDD 1 printout tape that recorded

Page 403

those conversations when his call to the victim, Catherine Teeters, and the victim's call to him occurred while he was in the dispatch area of the sheriff department's office, using the sheriff department's TDD, in the presence and line of vision of sheriff department personnel?

(3) Even if the defendant had a legitimate expectation of privacy, was the police conduct reasonable in light of the facts and circumstances of this case such that the police conduct did not violate defendant's constitutional rights?

(4) If the trial court committed an error in admitting evidence about certain statements defendant made to Catherine Teeters and statements she made to him, was that error harmless?

(5) Should the court remand the case for an evidentiary hearing?

We conclude that Robert Rewolinski did not have a reasonable expectation of privacy that was invaded by [159 Wis.2d 8] government action. Furthermore, we conclude that even if he had such an expectation of privacy, the police conduct was reasonable in light of the total facts and circumstances of this case, including the defendant's deafness, and therefore there was no constitutional violation. Even if there were a constitutional violation, it constituted harmless error. Finally, Rewolinski is deemed to have waived his rights under sec. 971.31, Stats. 2 No remand of the case for a hearing is necessary. Thus, we affirm the unpublished opinion of the court of appeals, 153 Wis.2d 773, 452 N.W.2d 585 (1989), which affirmed the Pierce county circuit court, Judge Robert W. Wing.

[159 Wis.2d 9] Robert Rewolinski killed Catherine Teeters on the evening of June 9, 1987, at their home near Prescott, in Pierce county. Both deaf and unable to speak, they had been living together for six years, raising their two children. Rewolinski admitted committing the acts that caused Teeters' death. The facts show that he strangled her after she told him that he was an "unfit father," that he would not be able to see their children in the future, and that he must move out of the house. The jury had to choose between first-degree murder and manslaughter and, after a six-day trial, found Rewolinski guilty of murder.

Teeters' body was found with her head submerged in a partially filled bathtub with a belt around her neck. Ligature strangulation was determined to be the cause of death. After the killing, Rewolinski summoned police personnel to the house. "I lost my mind," he stated, claiming he killed Teeters in the heat of passion after Teeters' remarks to him that evening, even though he had already known that Teeters was having an ongoing affair with another man.

Earlier on the day of the killing, Rewolinski had been arrested by a state patrol officer for operating a motor vehicle with a suspended operator's license. He was then taken to the Pierce county sheriff department's

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office. After being released, Rewolinski asked department personnel if he could use the TDD at the department office to make a telephone call in order to arrange for a ride. Department personnel agreed to his request to use the device, although they were not obligated to do so.

The sheriff department's TDD displayed transmissions in one-half inch tall format on a simultaneous electronic readout. The device also had a memory feature which recorded transmissions, although the record does not set forth the capabilities and operation of the memory[159 Wis.2d 10] feature. In addition, the device had the capacity to create a type-written printout of all transmissions it would send and receive. A person using the device could press a privacy button so that no printout of the conversation would be created. The record does not show whether the defendant knew of the existence of this button or of its purpose, although it does indicate that the privacy button was operational.

Rewolinski and Teeters had a TDD at their house that was similar in design and operation to the sheriff department's TDD. Like the sheriff department's TDD, the Rewolinski-Teeters' TDD emitted a simultaneous electronic readout of all transmissions. However, the record does not indicate whether the Rewolinski-Teeters' TDD was able to create a printout and, if so, whether there was a privacy button.

The sheriff department's TDD was located in the dispatch area of the office, an area of restricted access. In order for Rewolinski to use the device, department personnel had to unlock a door through which Rewolinski then passed in order to get to the device in the dispatch area. Once in that area, Rewolinski was in the presence and line of vision of department personnel who observed his behavior as he used the device.

Rewolinski used the device to call Teeters for a ride. A short time later, she called back to him at the department. During the two conversations, a printout was created because Rewolinski did not press the button that would have limited the machine to displaying the nonpermanent readout on the screen. After the second conversation had been completed, Rewolinski ripped the printout of the conversations from the TDD and started to exit the office with the printout bundled in his hand. The dispatcher, Deputy Sheriff Sandra Roed, told him to stop and surrender the printout to her. When he [159 Wis.2d 11] refused to surrender the printout, the dispatcher forced open Rewolinski's hand and removed it from his possession. She did not read the printout at the time because she was busy with her regular dispatch duties, but, set it aside for logging at a later time.

The contents of the printout refer to Rewolinski's previous physical assault on Teeters and her fear of him. The printout records her statement that "I am scared to death that you will make us die in [a] car accident." The printout also reflects the fact that she made Rewolinski promise before she would pick him up that he would not hurt her or the children. The trial court allowed the printout into evidence, and the prosecution offered limited testimony as to the contents of the printout. The printout tape itself was not presented to the jury at any time.

The defendant contends that he has been the subject of an illegal search and seizure under Article I, sec. 11 of the Wisconsin Constitution and the Fourth Amendment of the United States Constitution. He claims that the trial court erred by admitting the printout of his TDD communications with the victim and allowing testimony as to the contents of the printout. He claims that these communications are constitutionally protected from interception, arguing that he as a party to a conversation carried out via a TDD had the same reasonable expectation of privacy as would a telephone user relying on Katz v. United States, 389 U.S. 347, 362, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967). 3 He further claims the government

Page 405

conduct was unreasonable and harmful error for the trial [159 Wis.2d 12] judge to admit the printout evidence. Finally, the defendant asks for reversal or remand for a statutory hearing on the TDD evidence. 4

Whether police conduct constitutes an unreasonable search and seizure in violation of the state and federal constitutions 5 depends, in the first place, on whether the defendant had a legitimate, justifiable or reasonable expectation of privacy that was invaded by the government action. 6 See Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983); State v. Stevens, 123 Wis.2d 303, 316, 367 N.W.2d 788 cert. denied, 474 U.S. 852, 106 S.Ct. 151, 88 L.Ed.2d 125 (1985); State v. Fillyaw, 104 Wis.2d 700, 715, 312 N.W.2d 795 (1981), cert. denied 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982). It is worth emphasizing that the constitutionality or reasonableness of the government conduct does not come into question unless and until it is established that he had a legitimate expectation of privacy that was invaded by government conduct, i.e., [159 Wis.2d 13] that a search or seizure within the meaning of the fourth amendment even occurred.

Once it is established that the defendant was subject to a search or seizure, then the police conduct, to be constitutional, must have been reasonable. State v. Monahan, 76 Wis.2d 387, 395, 251 N.W.2d 421 (1977). " 'The fundamental rule applicable to searches and seizures is that warrantless searches are per se unreasonable under the Fourth Amendment except under certain well-defined circumstances,' " quoting State v. Bell, 62 Wis.2d 534, 540, 215 N.W.2d 535 (1974). Id. The ultimate standard under the fourth amendment is the reasonableness of the search or seizure in light of the facts and circumstances of the case. Bies v. State, 76 Wis.2d 457, 468, 251 N.W.2d 461 (1977); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973).


The determination of whether the defendant had a reasonable expectation of privacy depends on two separate questions. The first question is whether the individual...

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