State v. Riley

• Decision Date: 10 August 2005
• Docket Number: No. 2004AP2321-CR.,2004AP2321-CR.
• Citation: 2005 WI App 203,704 N.W.2d 635,287 Wis.2d 244
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Deonte D. RILEY, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

287 Wis.2d 244

2005 WI App 203

704 N.W.2d 635

STATE of Wisconsin, Plaintiff-Appellant, v. Deonte D. RILEY, Defendant-Respondent.¹

No. 2004AP2321-CR.

Court of Appeals of Wisconsin.

Oral argument June 10, 2005.

Decided August 10, 2005.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Alan Lee, assistant attorney general, and Peggy A. Lautenschlager, attorney general. There was oral argument by Alan Lee.

On behalf of the defendant-respondent, the cause was submitted on the brief of and there was oral argument by William E. Schmaal, assistant state public defender, Madison.

Before Anderson, P.J., Brown and Nettesheim, JJ.

¶ 1. ANDERSON, P.J.

The issue presented in this case is whether the circuit court properly granted Deonte D. Riley's motion to suppress electronic surveillance evidence consisting of recordings of the outgoing telephone calls Riley placed from the Fond du Lac County jail. The Wisconsin Electronic Surveillance Control Law (WESCL), WIS. STAT. §§ 968.27-968.37 (2003-04),² expressly prohibits interceptions of both wire and oral communications absent a court order authorizing or approving such interceptions, with some exceptions. The State asserts that the monitoring and recording of Riley's jailhouse calls fell under the WESCL's exception for one-party consent surveillance and the recordings are admissible. We hold that because Riley received meaningful notice that his outgoing calls over the jail's telephones were subject to being recorded, his decision to engage in conversations over those phones constituted implied consent to that recording. The interceptions of his telephone calls were lawful and the results of the interceptions are admissible in evidence so long as they are authenticated in accordance with § 968.29(3)(b). We reverse the order of the circuit court granting Riley's motion to suppress.

Facts

¶ 2. In the early morning hours of March 25, 2004, a deputy with the Fond du Lac County Sheriff's Department pulled Riley over for speeding. When Riley rolled down his window, the deputy detected the odor of burnt marijuana emanating from the vehicle. The deputy and several back-up officers from the city of Fond du Lac searched Riley's vehicle and found marijuana. The deputy issued Riley a warning for speeding, but arrested him on a probation hold and took him to the Fond du Lac County jail.

¶ 3. Later that day, police received a report that someone was seen attempting to break into Riley's car, which had been left on the side of the highway when he was arrested. The Fond du Lac County Sheriff's Office responded and arrested Jason Seppel. Seppel informed police that he had received a call from "two girls" telling him that the police had "missed the drugs in the car and they told me to get the drugs out of the trunk." The police searched Riley's car after obtaining a search warrant and discovered more marijuana and cocaine.

¶ 4. The police later obtained recordings of telephone calls Riley had placed from the Fond du Lac County jail. Riley states in his response brief that the conversations "arguably tend to show that Riley had sought to have a friend move his automobile before the drugs were discovered by the police, but that the efforts proved unsuccessful."

¶ 5. Riley filed a motion to suppress the recordings, arguing that they were obtained in violation of the WESCL. At a hearing on that motion, the parties stipulated that the factual record for the decision would consist of two documents. The first is a transcript of the recording a person hears from the jail when placing an outgoing collect call:

THIS IS SBC PUBLIC COMMUNICATIONS WITH A COLLECT CALL FROM THE FOND DU LAC COUNTY JAIL FROM [CALLER'S NAME]. THIS CALL MAY BE RECORDED. FOR A RATE QUOTE DIAL "7." IF YOU WILL PAY FOR THE CALL DIAL "0." THANK YOU FOR USING SBC PUBLIC COMMUNICATIONS. SUPSECTED ILLEGAL CALLS MAY BE TERMINATED. TO PERMANENTLY BLOCK CALLS FROM THIS NUMBER, DIAL STAR "3."

The second is a Department of Justice investigative report that contains a transcript of some of Riley's jailhouse phone conversations. Following the hearing, the circuit court granted Riley's motion to suppress evidence. The State now appeals.

Standard of Review

¶ 6. When we review a motion to suppress evidence, we will uphold the circuit court's findings of fact unless they are clearly erroneous. See WIS. STAT. § 805.17(2); State v. Eckert, 203 Wis. 2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996). Whether the WESCL authorizes the interception and admission into evidence of Riley's jailhouse calls involves the application of a statute to a particular set of facts. As such, it is a question we answer without deference to the circuit court's reasoning. See City of Brookfield v. Collar, 148 Wis. 2d 839, 841, 436 N.W.2d 911 (Ct. App. 1989).

Discussion

¶ 7. The State argues that we must reverse the circuit court's order granting Riley's motion to suppress evidence derived from the monitoring and recording of his jailhouse calls because the WESCL's one-party consent exception applies.³ Pursuant to WIS. STAT. § 968.31(2)(b), an individual acting under the color of law may lawfully intercept oral and wire communications where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception. Pursuant to WIS. STAT. § 968.29(3)(b), these lawful interceptions are then admissible in court proceedings in which a person is accused of a felony, provided the party who consented to the interception is available to testify at the proceeding or another witness is available to authenticate the recording.

¶ 8. The parties' dispute in this case concerns the scope of the consent exception. The State maintains that the SBC recording provided Riley with meaningful notice that his outgoing calls from the jail's telephones may be recorded. Therefore, the State concludes, when Riley continued with his calls after hearing the SBC announcement, he impliedly consented to their interception. Because he consented, the interceptions were lawful and their contents are admissible into evidence as long as they can be properly authenticated.⁴

¶ 9. Riley responds that he did not impliedly consent to the interception of his outgoing telephone calls for two reasons. He submits that the SBC announcement failed to adequately notify him that his calls would be recorded. He zeroes in on the fact that the SBC announcement stated that the call "may" be recorded, not that it definitely "will" be recorded, and maintains that "mere knowledge of the capability of monitoring alone cannot be considered implied consent." He also claims that there is no evidence that he actually heard the SBC announcement when he placed his calls.

¶ 10. The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. State ex rel. Arnold v. County Court of Rock County, 51 Wis. 2d 434, 443, 187 N.W.2d 354 (1971). We therefore look to the federal courts' interpretations of the Title III consent exception for guidance. See id.; State v. Gilmore, 201 Wis. 2d 820, 825, 549 N.W.2d 401 (1996) ("[O]ur interpretation of WESCL benefits from the legislative history of Title III as well as from federal decisions that have considered Title III. Title III provides the minimum standard against which an interception must be judged." (Citations omitted.)).

¶ 11. Courts interpreting the federal law have concluded that "[C]onsent may be express or may be implied in fact from `surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.'" United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (second alteration in original) (citing United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987)). The federal circuit courts that have addressed the consent exception in the prison setting have overwhelmingly concluded that an inmate has given implied consent to electronic surveillance when he or she is on notice that his or her telephone call is subject to monitoring and recording and nonetheless proceeds with the call. See United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); Amen, 831 F.2d at 378-79; United States v. Willoughby, 860 F.2d 15, 19-20 (2d Cir. 1988); United States v. Workman, 80 F.3d 688, 693-94 (2d Cir. 1996); United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002); United States v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992); Van Poyck, 77 F.3d at 292. But see United States v. Daniels, 902 F.2d 1238, 1244-45 (7th Cir. 1990) (expressing reservations about finding Title III's consent requirement satisfied in this context).

¶ 12. We rely on this developed federal consensus on the scope of the consent exception and apply it to the WESCL. We have every reason to believe that in passing the WESCL, our legislature, like the federal legislature, would have included within the meaning of consent an inmate's implied acceptance of having his or her calls recorded. Although the WESCL does reflect congressional concern for protecting privacy rights, see State v. Gil, 208 Wis. 2d 531, 539-40, 561 N.W.2d 760 (Ct. App. 1997),⁵ that concern does not extend to inmates of a county jail. Jail inmates have no expectation of privacy in calls to nonattorneys placed on institutional telephones; their right to privacy is outweighed by the institution's need for safety and security. See J.A.L. v. State, 162 Wis. 2d 940, 948-49, 971 n.8, 471 N.W.2d 493 (1991) (noting in dicta that law enforcement officials' monitoring of some of an inmate's conversations in the interview rooms of a juvenile detention center did not violate the WESCL because the inmate had no justifiable expectation of privacy in "the context of a jailhouse setting"). Van Poyck, 77 F.3d at 290-91 ("no prisoner should reasonably expect privacy in his [or her] outbound telephone calls" and "institutional security concerns justify such recordings"); Hammond, 286 F.3d at 193-94 ("Though the...