On Point: K. Electronic surveillance

State v. Bobby L. Tate, 2014 WI 89, 7/24/14, affirming an unpublished court of appeals decision; majority opinion by Justice Roggensack; case activity

State v. Nicolas Subdiaz-Osorio, 2014 WI 87, 7/24/14, affirming an unpublished per curiam court of appeals decision; lead opinion by Justice Prosser; case activity

In two decisions consisting of 8 separate opinions spread out across almost 200 pages, the supreme court is unable to muster a majority on the central issue presented: Whether cell phone location tracking is a search under the Fourth Amendment. Instead, in both cases a majority assumes without deciding that cell phone tracking is a search and then affirms the convictions, although on different grounds. If you’re looking only for the holdings, here they are: In Tate, a majority holds that the circuit court’s “order” that a cell phone service provide information about the cell phone location was reasonable because it met the requirements for a search warrant. In Subdiaz-Osorio, a majority holds that the warrantless acquisition of the cell phone location data was supported by probable cause and exigent circumstances. If you’re looking for more information, read on.

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: The Wisconsin Electronic Surveillance Control Law excludes from coverage “(a)ny communication from a tracking device,” § 968.27(4)(d); a GPS device is such a “tracking device” and, therefore excluded from WESCL coverage.

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶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.

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether, for purposes of authorizing one-party consent under WESCL, “a person acting under color of law” may be a law enforcement officer.

Holding:

¶2        [H]e contends that Wis. Stat. § 968.31(2)(b), commonly referred to as the one-party consent exception,

State v. Brian Harold Duchow,  2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12).

Holding:

¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition contained in the Electronic Surveillance Control Law,

State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding:

¶15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law “represents Wisconsin implementation of the electronic surveillance portion of [Title III],” the Omnibus Crime Control and Safe Streets Act of 1968.

State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.

Holding:

¶2  The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis.

State v. Jeffrey Allen House, 2007 WI 78, affirming unpublished opinion
For House: Michael J. Steinle

Issue/Holding1:¶

¶12      House contends that because money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated crimes for which wiretaps are authorized under the Wisconsin wiretap statutes, the order authorizing the wiretap in this case was unlawful. We begin our analysis by examining the words of Wisconsin’s wiretap statute,

State v. Troy Curtis Christensen, 2005 WI App 203
For Christensen: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Given proper notice that calls are subject to recording or monitoring, WESCL allows intercepts of outgoing jail calls notwithstanding the potential for capturing attorney-client calls. (State v. Deonte D. Riley, 2005 WI App 203, ¶13 n. 5, which left this issue open, thereby extended.)

There was no indication that an attorney-client call had in fact been intercepted,

State v. Deonte D. Riley, 2005 WI App 203
For Riley: William E. Schmaal

Issue/Holding: A recorded message heard by any jail inmate placing an outgoing call, to the effect the call may be recorded, was sufficient to trigger WESCL’s one-party consent exception:

¶10      The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. …

¶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.