The case is a good candidate for Supreme Court review and ultimately, reversal.
The court of appeals distinction between recordings made under color of law, and those not made under color of law, was plainly rejected by the Wisconsin Supreme Court in State v. Maloney, 2005 WI 74, 281 Wis.2d 595, 698 N.W.2d 583.
Section 968.31(2) makes one minor distinction between the two, but it is not relevant to the case.
The statute provides, 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.
(c) For a person not 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 unless the communiation is intercepted for the purpose of committing any criminal or tortious act or for the purpose of committing any other injurious act (emphasis added).
Thus, the recording should only be inadmissible if it was made for the purpose of committing a criminal, tortious or injurious act. Since there can be no plausible contention that this is the case here, the tape should have been held admissible.
In Maloney, as in the case at bar, the court did not find that making the recordings was an injurious act. Thus, the court held that, whether or not the recording was made under color of law, it was admissible. Maloney, 698 N.W.2d at 592.
In the case at bar, the courts analysis of this issue examined only sec. 968.29, and disregarded sec. 968.31. Under Maloney, however, it is sec. 968.31 that determines the admissibility issue.
Accordingly, should the State seek, and the Supreme Court grant, review in this case, it should be expected that the decision will be reversed.
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David Ziemer can be reached by email.