Secret
recording excluded
Police
involvement required for tape's admission
By
David Ziemer
david.ziemer@wislawjournal.com
April
9, 2007
| What
the court held Case:
State v. Duchow, No. 2005AP2175-CR Issue:
Is a one-party consent recording admissible, if it is not made under color of
law? Holding:
No. Only if
the recording is made by a person acting under color of law is the recording admissible. Attorneys:
For Appellant:
Swartz, Melinda A., Milwaukee; For Respondent: Becker, David J., Madison; Loebel,
Karen A., Milwaukee. |
A
one-party consent recording, obtained without police involvement, is inadmissible
evidence, the Wisconsin Court of Appeals held on April 3.
The
parents of Jacob M., a minor with Down syndrome, placed a voice-activated recorder
in his backpack, because they feared he was being abused by Brian Harold Duchow,
the driver of the boy’s school bus.
After
listening to the recording, they contacted the police, and Duchow was charged
with intentionally causing bodily harm to a child and disorderly conduct.
Duchow
moved to suppress the recording, but Milwaukee County Circuit Court Judge Michael
B. Brennan denied the motion. After pleading guilty, Duchow appealed, and the
court of appeals reversed, in a decision written by Judge Joan F. Kessler, and
joined by Judge Ted E. Wedemeyer. Judge Patricia S. Curley dissented.
The
court began with a lengthy review of Wisconsin’s history of electronic surveillance
law. Early law all but entirely prohibited its admission in court, but since 1970,
statutes have steadily increased its admissibility.
Turning
to the merits, the court held first that Duchow’s statements were “oral
communications” covered by the Wisconsin Electronic Surveillance Control
Law, sec. 968.27.
The
parties agreed that Duchow had a subjective expectation that his statements would
not be recorded, and the court concluded that he had an objectively reasonable
expectation, as well, because Duchow and Jacob were the only two people on the
bus.
The
court next held that Jacob’s parents could vicariously consent on his behalf
to the recording of the conversations. Thus, the recording qualifies as a private
one-party consent interception, and is not unlawful under sec. 968.31(2)(c).
Nevertheless,
the court held that the recording cannot be used as evidence against Duchow.
The
court concluded, “the recording by Jacob’s parents, while ‘not
unlawful,’ was not one they obtained ‘under color of law.’ Therefore,
law enforcement officers or agents were not permitted by Wis. Stat. sec. 968.29(3)
to disclose the contents of the interception, because they had not obtained the
interception from someone acting under color of law. See Wis. Stat. secs. 968.29(3)(b)
and 968.31(2)(b).”
The
court continued, “This problem might have been easily remedied if another
secret recording under the supervision of the police had occurred. Had that step
been taken, we have little doubt that such a follow-up interception would have
been obtained under color of law and admissible under sec. 968.29(3).”
The
Dissent
Judge Curley
dissented for two reasons.
First,
she noted that in State v. Maloney, 2005 WI 74, par. 35, 281 Wis. 2d 595, 698
N.W.2d 583, the Supreme Court stated that videotapes taken by a person not acting
under color of law were “still admissible at trial under Wis. Stat. sec.
968.31(2)(c) because [the person] consented to their interception by police and
did not do so for the purpose of committing an illegal act.” Maloney, 281
Wis. 2d 595, ¶35.
Second,
she concluded that majority interpretation was “illogical and contrary to
common sense.”
Curley
wrote, “The tape revealed Duchow yelling such things as, ‘Stop before
I beat the living hell out of you,’ and ‘I’m going to slap the
hell out of you.’ Duchow also admitted to the police that he had slapped
the child twice on the bus ride. To suggest that the victim be subjected to another
such incident, just to make the recording admissible, is cruel and inhumane.”
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here for Case Analysis.
David
Ziemer can be reached by email.
