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Secret recording excluded

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

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Case Analysis

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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.”

Click here for Case Analysis.

David Ziemer can be reached by email.

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