State v. Smith

• Decision Date: 02 June 1976
• Docket Number: No. 75--27--CR,75--27--CR
• Citation: 72 Wis.2d 711,242 N.W.2d 184
• Parties: STATE of Wisconsin, Plaintiff-in-Error, v. Mildred Victoria SMITH, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 184

242 N.W.2d 184

72 Wis.2d 711

STATE of Wisconsin, Plaintiff-in-Error, v. Mildred Victoria SMITH, Defendant-in-Error.

No. 75--27--CR.

Supreme Court of Wisconsin.

Submitted May 5, 1976.

Decided June 2, 1976.

Bronson C. La Follette, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen., filed brief for plaintiff-in-error.

Robert E. Sutton, Milwaukee, filed brief for defendant-in-error.

HANLEY, Justice.

One issue is raised on appeal. If an oral communication is lawfully intercepted because of the consent of a party to the conversation but is otherwise inadmissible into evidence in a criminal prosecution due to a failure to comply with statutory requirements, does such deficiency require the additional suppression of the testimony of the consenting participant?

No reference is made in the criminal complaint to the radio device. Although the undercover officer was not the complainant, the complaint recites his statements to the complainant of his observation of the illicit offer to commit an act of sexual perversion for a thing of value. It in no manner indicates that the complainant was relying on the taped conversation. Reference was made in the suppression hearing to a review of the recording by the issuing district attorney prior to charging the defendant, but the fact that this officer reviewed all available data before exercising his discretion does not confer any special status on that evidence.

The defendant sought to insure that the tape of the conversation and the testimony of the eavesdropping officers would not be used as evidence against her. On this appeal, the state concedes that it is bound to agree because of our ruling in State ex rel Arnold v. County Court (1971), 51 Wis.2d 434, 187 N.W.2d 354.

In Arnold a private construction contractor consented to the concealment in his office of a microphone wired to monitoring and recording devices for the purpose of interception of conversations between himself and a public official suspected of misconduct through the acceptance of bribes. The defendant official sought to bar the admission of the tapes into evidence. Finding no constitutional bar to such admissibility, this court construed the particular language of the Wisconsin statutory procedures on eavesdropping to require the exclusion. Sec. 968.31(2)(b), Stats., was noted merely as declaring 'not unlawful' the non- warrant interception (with the consent of a participant) of conversations otherwise privileged under the act from eavesdropping. Since the comprehensive structure of the applicable statutes which seek to restrict eavesdropping without judicial consent could be circumvented by these lawful yet non-warrant intrusions, the court chose to limit their evidentiary admissibility and thus their attractiveness.

An obvious consequence of Arnold would be similar treatment of the testimony of those who have gained their knowledge of the conversation through the use of the surreptitious device. Absent in Arnold and raised here is the admissibility of the testimony of the consenting conversationalist.

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. Smith cannot assert that the device produced the officer's testimony. Since the functions of the exclusionary rule are to discourage unconstitutional conduct and to insure integrity in the judicial process by disregarding evidence produced through an impermissible procedure, Conrad v. State (1974), 63 Wis.2d 616, 635, 218 N.W.2d 252, the rule was wholly served without also requiring the silence of the 'plumber.' Even if the 'constable has blundered,' People v. Defore (1926), 242 N.Y. 13, 21, 150 N.E. 585, there is a limit to the applicable corrective measures.

This is even more true because Smith is in error in her assertion of an underlying constitutional infirmity. In regards to the question of a Fourth Amendment violation by the concealment for eavesdropping purposes of a mechanical device for broadcasting with the consent of one party to a conversation, defendant argues that Berger v. New York (1967), 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 and Katz v. United States (1967), 389 U.S. 347, 88...