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Recording on school bus is admissible

By: dmc-admin//June 16, 2008//

Recording on school bus is admissible

By: dmc-admin//June 16, 2008//

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The surreptitious recordings of a bus driver threatening a disabled child were properly held admissible at his trial for child abuse.

Concluding that the driver did not have a reasonable expectation of privacy in the statements, the court wrote, “By telling [the boy] that he would harm him, [the bus driver] … assumed the risk that his threatening statements would be revealed to others.”

Brian Duchow was a school bus driver. The first student on his route was Jacob, who has Down syndrome.

In 2003, Jacob’s parents suspected he was being abused, and placed a voice-activated recorder in his backpack.

The tape recorded Duchow making the following statements to Jacob:

“Stop before I beat the living hell out of you.”

“You’d better get your damn legs in now.”

“Do I have to tape your mouth shut because you know I will.”

“Do you want another one of these?”

“I’m gonna slap the hell out of you.”

“Do you want me to come back there and smack you?”

The sound of what Jacob’s parents believed to be a slap was also recorded.

The parents then played the tape for a Milwaukee Police Officer, who interviewed Duchow.

Duchow admitted making the threats and admitted to slapping Jacob twice on the day of the recording.

Duchow was charged with child abuse, and he moved to suppress the recording.

Milwaukee County Circuit Court Judge Michael B. Brennan denied the motion, after which Duchow pleaded guilty. On appeal, the Court of Appeals reversed in an unpublished opinion.

The Supreme Court granted review, and reversed the Court of Appeals, in an opinion by Justice Patience Drake Roggensack.

The court concluded that the threats do not constitute an “oral communication” within the meaning of sec. 968.27(12).

The statute defines “oral communication” as any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.

Duchow argued that his statements fit, because he did not expect that they would be recorded or intercepted.

The Supreme Court agreed that this was a reasonable interpretation, but rejected it, relying on legislative history.

The statute is patterned on Title III, the Omnibus Crime Control and Safe Streets Act of 1968, which has been interpreted by numerous other jurisdictions to require that the speaker have an objectively reasonable, as well as a subjective, expectation of privacy.

The court fund that Duchow did not have a reasonable expectation of privacy in the statements, applying a six-factor test:

(1) the volume of the statements;

(2) the proximity of other individuals to the speaker, or the potential for others to overhear the speaker;

(3) the potential for the communications to be reported;

(4) the actions taken by the speaker to ensure his or her privacy;

(5) the need to employ technological enhancements for one to hear the speaker’s statements; and

(6) the place or location where the statements are made.

Relying on two of the factors, the court concluded that recognizing an expectation of privacy in Duchow’s statements would be “discordant with what society is willing to recognize as reasonable.”

The first factor was the place or location where the statements were made — a public school bus.

The court cited numerous cases from other jurisdictions holding that teachers, janitors, and school bus drivers do not have a reasonable expectation of privacy in statements made in schools and on buses.

In a bus, the court found, society has an interest in ensuring that the children and bus driver alike are protected from “misdeeds” against each other.

The second factor was the likelihood that the statements would be reported, because they were threats to injure.

“By telling Jacob that he would harm him, Duchow … assumed the risk that his threatening statements would be revealed to others,” Roggensack wrote. “Preservation of a privacy interest in threats to harm the person to whom the threat is made is not what ‘free people legitimately may expect.’ To the contrary, those types of threats to harm are precisely the type of statements that one would reasonably expect to be reported.”

Because the statements do not constitute “oral communication” under the statute, the court held there is no basis for suppressing them.

Case analysis

In an oft-quoted opinion, Seventh Circuit Judge Richard A. Posner stated that multi-factor tests are usually “redundant, incomplete, and unclear.” Palmer v. City of Chicago, 806 F.2d 1316 (7th Cir. 1986). The assessment applies to the six-factor test adopted in this case, as well.

Despite adopting a six-factor test, the court only relied on two in reaching its decision.

In a footnote, Roggensack wrote, “We do not diminish the importance of the remaining factors in other contexts.”

The court also stated that many of those factors weigh against Duchow:

“First, the volume of Duchow’s statements is relatively less important because Duchow and Jacob were the only individuals on the school bus when Duchow made the statements at issue. Although there is no evidence that others were present to overhear Duchow’s statements, Duchow may fairly be said to have shouted at Jacob.

“Second, the record does not indicate that Duchow took any specific measures to ensure that his statements remained private.

“Finally, although an electronic device recorded Duchow’s statements, nothing in the record indicates that any ‘technological enhancements’ were needed to do so.”

In practice, however, it is likely that the same two factors on which the court relied in this case will be the key factors in every case, notwithstanding the court’s statement that “in other contexts,” they will be significant.

Roggensack wrote, “Duchow’s argument that he and Jacob were the only two individuals on the bus is of no consequence. … ‘There is nothing private about communications [that] take place in [] a [public] setting’ (cite omitted).”

However, it cannot be the case that it is of “no consequence” at all that Duchow and Jacob were the only two people on the bus.

Obviously, there is a greater expectation of privacy when only two persons are present than when there are 10.

Furthermore, factor two of the six-factor test is “the proximity of other individuals to the speaker, or the potential for others to overhear the speaker.”

That factor may be outweighed by the others weighing in favor of the state, but the fact that Duchow and Jacob were the only two on the bus must be a factor weighing in favor of an expectation of privacy, not a fact of “no consequence.”

Some of the other factors &md
ash; volume of the statements, and actions taken by the speaker to ensure his or her privacy — all relate to the same consideration as factor two: limiting the number of hearers to one.

A better formulation would be a three-factor test, with factors one, two, four, and five rolled into one: whether others are likely to overhear the statements.

In addition, those four factors appear to be more relevant to whether a speaker has a subjective expectation in the privacy of his statements than whether society will recognize that expectation as objectively reasonable.

Thus, in practice, it is likely that the two factors relied on by the court in this case will also control the result in future cases.

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