State v. Smith
| Decision Date | 25 April 1989 |
| Docket Number | No. 87-0209-CR,87-0209-CR |
| Citation | 149 Wis.2d 89,438 N.W.2d 571 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Prettic SMITH, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
William Gansner, Asst. Atty. Gen., argued and Donald J. Hanaway, Atty. Gen., on brief, for plaintiff-respondent-petitioner.
Michael Yovovich, Asst. State Public Defender, for defendant-appellant.
The state has petitioned for the review of a decision of the court of appeals 1 which reversed the judgment of conviction by the LaCrosse county circuit court of Prettic Smith for possession of marijuana with intent to sell contrary to sec. 161.41(1m), Stats. The court of appeals did so, because it concluded that the warrantless interception of Smith's cordless telephone conversation, which led the police to search Smith's house, was a protected "wire communication" under the Wisconsin Electronic Surveillance Control Law, secs. 968.27 to 968.33, Stats. It therefore, in effect, concluded that the evidence obtained in the search was the "fruit of the poisonous tree" and its admission should have been suppressed by Judge Michael J. Mulroy. 2 It reversed the conviction and remanded for further proceedings.
Because we conclude that the court of appeals erroneously construed the statute to give protection from warrantless interception to the broadcast portion of a cordless telephone conversation, we reverse the court of appeals, thus leaving intact the judgment of conviction entered by the circuit court for LaCrosse county.
The facts in this case may be briefly stated. A neighbor of Prettic Smith, without any prompting by the police, while using his radio scanner came upon Smith's cordless telephone conversation with another person. The neighbor recognized Smith's voice and the name by which he was addressed and concluded from what he heard that Smith might be engaged in drug selling. He notified the police, who came to the informant's house and there taped subsequent conversations of Smith with a third person or persons who were interested in buying marijuana from Smith.
The taped conversations were presented to a magistrate, who found probable cause for the issuance of a search warrant. The subsequent search revealed a small quantity of marijuana, and it also revealed other apparatus that supported the conclusion Smith was a seller of marijuana. Smith was arrested at his home and taken to the stationhouse. After listening to the tape recording, he stated, "Well, I guess you got me, there's no sense in lying about anything." He then gave a taped statement that the marijuana was his and that, while seasonally unemployed, he had been dealing in marijuana to make a living.
Nevertheless, Smith moved to suppress the marijuana evidence. Smith claimed, and this claim is not refuted, that he believed that conversations on the cordless telephone were assured privacy. Smith acknowledged that he had never read the manual that accompanied the cordless telephone when it was purchased. The owner's manual indicated that reception could be attained over distances up to 700 feet if the antennas on the handset and base unit were fully extended. At the suppression hearing, a sales supervisor of a company which sold telephones stated the general principles upon which the cordless telephone operated--that FM radio signals were transmitted from the handset to the base unit and from the base unit to the handset. He stated that another person could pick up what was said on a cordless telephone if within a short distance and listening on the same frequency. He stated that, if customers heard other conversations on their telephones, the telephones would be replaced with one modified to operate on a different radio frequency. He acknowledged that a radio scanner would be able to overhear a cordless telephone conversation if it were tuned to the same frequency as that being used by the cordless telephone.
After taking testimony at the suppression hearing, the court stated "that though it is called a telephone and though it is referred to as a telephone, a cordless telephone, that it, in fact, is a radio."
The court stated that, while Smith said he expected privacy, Smith had not read the manual. Judge Mulroy reasoned that a reading of the manual would have led a reasonable person to conclude there was no assurance of privacy while using a radio broadcast transmitter such as a cordless telephone.
Although the trial court found that Smith believed his telephone conversation would be private, the court concluded the conversation was not protected by the fourth amendment or the electronic surveillance statute as an "oral communication," because it was unreasonable for Smith to so believe. The suppression court did not address the question of whether the conversation was protected as a "wire communication." Suppression was denied. Smith then pleaded guilty. Appeal then followed. 3
On appeal to the court of appeals, that court decided the question on a basis that was not argued or mentioned by either party in its brief. The court of appeals held that the radio portion of cordless telephone conversation was protected, because of a unique provision of the Wisconsin statute that the court believed evinced a legislative intent to protect a radio conversation as a "wire communication."
Before proceeding further with the discussion of the rationale of the court of appeals and of the rationale on which we decide this case to the contrary, it is necessary to state the basic provisions of the Wisconsin Electronic Surveillance Control Law.
That statute prohibits the interception of any "wire" or "oral" communication, as defined, without prior judicial approval. The contents of any communication obtained in violation of the strictures of secs. 968.27-968.33, Stats., cannot be received in evidence in a Wisconsin court. Sec. 968.30(8) and (9). In fact, to intercept such a communication may be punishable by criminal sanctions. Sec. 968.31.
The terms "wire communication" and "oral communication" are statutorily defined:
967.27 Definitions. As used in ss. 968.28 to 968.33:
(1) 'Wire communication' means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, microwave or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a public utility in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications.
(2) 'Oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.
Thus, if a telephone conversation which the police intercepted without a warrant is either a "wire communication" or an "oral communication," its use in court proceedings is prohibited. Where there is a "wire communication," e.g.., ordinary communication by landline telephone, there is a statutory presumption of confidentiality. Even were a person to know that the conversation was in fact being intercepted by police authorities, there could be complete confidence, as a matter of law, that, in the absence of prior judicial approval, the contents of the conversation or evidence derived therefrom could not be used in court proceedings. The expectation of privacy, whether reasonable or unreasonable, is irrelevant, because the privacy of a "wire communication" is protected as a matter of law.
Where, however, there is an "oral communication," there must be not only a subjective belief that the communication is private, but that belief in privacy must be one that a reasonable person would have in the circumstances.
The trial judge did not address whether Smith's cordless telephone conversation was a "wire communication." Indeed, counsel did not pose that question at the suppression hearing. The evidence at the hearing was concerned with whether Prettic Smith believed that his conversation was private and whether his belief was a reasonable one. Did he have the subjective belief that his conversation would be private? The trial judge found that this belief was not a reasonable one, for the evidence demonstrated that a cordless telephone was a short range radio broadcasting device, a broadcasting device that was subject to ready interception by standard radio scanners, radio receivers, or other cordless telephones. Thus, the trial judge concluded that Smith's conversation was not one in which there could be an objective conclusion that there was a reasonable expectation of privacy. The warrantless interception could--and in this case did--furnish the basis for the search. The marijuana and paraphenalia seized at Smith's home were held not to be "fruit of the poisonous tree," suppressible under sec. 968.30(9)(a), Stats., supra, but the fruit of an interception of a conversation which was not protected by the statute or the fourth amendment. 4
The court of appeals did not address the circuit court's rationale that Smith's conversation was not an "oral communication." Nor need it have done so in light of its conclusion that Smith's conversation was a protected "wire communication." Because we disagree with the court of appeals reasoning and conclusion in that respect, we are obliged to address the question of whether Smith's conversation was an "oral communication." We do so and conclude it was not. We do so on the basis of the correct analysis and the reasoning of the trial judge summarized above, which we adopt.
The court of appeals, sua sponte, as it could when interpreting a statute, concluded that a cordless telephone conversation was protected as a "wire communication" under the rationale of ejusdem generis. The court of appeals, in effect, turned the reasoning of the trial court against itself by...
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