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BENCH BLOG: Court cuts through father’s arguments against wire in incest case

By: Jean DiMotto//September 22, 2014//

BENCH BLOG: Court cuts through father’s arguments against wire in incest case

By: Jean DiMotto//September 22, 2014//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC. She can be reached at [email protected].

Is a teenager capable of consenting to wear a wire? The Court of Appeals recently addressed this issue of first impression in Wisconsin.

The criminal charge against the male defendant in State v. Turner was repeated sexual assault of the same child, his 15-year-old daughter. The girl first reported a long history of incest to her high school guidance counselor.

The incest stopped when she threatened to run away from home when she was 14. But four weeks prior to her report to the guidance counselor she awoke with her father on top of her groaning while having intercourse with her. She was “pretty certain” her father ejaculated during the intercourse.

Recording the father

The guidance counselor requested police respond to the school, and the girl then reported the assaults in detail to the officer. After a discussion at school with a friend present, the daughter and the officer planned a recorded telephone call with the defendant. They went to the police station to make the call.

They had trouble reaching him, so the officer suggested a wireless body transmitter. The daughter agreed to wear a wire with the police listening to her conversation with her father.

Her conversation with the defendant was brief. The girl began by talking about the timing of her period and he interrupted to say she shouldn’t worry about being pregnant. “But you’re the only guy I’ve ever got…” and the defendant interrupted again, “I know, but I didn’t do anything inside or nothing like that. …”

Police then entered the home and arrested the man. After waiving his rights he confessed.

Nonetheless he brought a motion to suppress the recorded, incriminating statements. He argued that police violated the Wisconsin Electronic Surveillance Control Law since his daughter, because of her age, lacked capacity to consent to the surreptitious interception of the conversation.

Trial court decision

Outagamie County Circuit Judge Michael Gage conducted the suppression hearing. The first officer testified that during the planning discussions, he made clear to the girl that everyone would understand and they would not move forward if she felt it was “too difficult.”

He and another officer experienced with wires explained the wire body transmitter. The girl offered to help, did not appear hesitant and seemed to understand the process and equipment. When the wire was placed by a female assistant, she did not appear to be upset or emotional.

One officer testified that the girl was afraid her father would discover the device and repeatedly asked if the officers would be close enough to help her. Her “demeanor was good other than the fear of actually talking to her father.”

He said he noticed no difference between her reactions and those of “any adult he had worked with in the past.” She had a “full understanding” of the process.

Gage drew on cases of consent in other contexts since there was no case on point. He ruled that the “simple fact of minority status” is not an impediment to consent.

Rather, a subjective analysis was appropriate. Thus, such factors as age, education, intelligence, experience, background and capacity to understand what is going on should be considered.

Under this analysis, the testimony indicated the girl’s consent “was a considered judgment by someone acting with a reasonable motivation under the circumstances.”

Gage therefore denied the motion. The defendant later accepted a plea negotiation, was convicted and sentenced to imprisonment.

Court of Appeals opinion

Retired Court of Appeals Judge Thomas Cane, sitting as a reserve judge with the District 3 court, wrote the opinion on WESCL’s one-party consent exception. Generally WESCL criminalizes the interception and use of wire communications.

There is, however, a one-party consent exception whereby one party to the communication can give prior consent to the interception. But WESCL neither defines consent nor specifically states whether a minor can consent to police interception.

The defendant argued that the legislature requires parental consent for a minor in a number of important situations: marriage, military service, medical treatment, and obtaining a driver’s license. In addition, the legislature has determined that a minor lacks capacity to consent to sexual contact with an adult. Accordingly, he asserted that as a matter of law, a minor lacks capacity to consent to police interceptions of the minor’s conversations.

The court was unpersuaded. Rather, it accepted the state’s argument that consent under WESCL should be interpreted like consent in Fourth Amendment jurisprudence.

A 2002 Wisconsin case, State v. Tomlinson, is consistent with the federal view that courts considering a minor’s Fourth Amendment consent should focus on the voluntariness of the consent under the totality of circumstances.

Factors to be considered are age, knowledge, intelligence, maturity, education, state of mind, location where consent is given, duration of the encounter, tone of voice of the requesting officer and tactics used by police to obtain consent.

The defendant’s argument was not based on erroneous factual findings of the trial court but on whether as a matter of law his daughter lacked capacity to consent. Nonetheless the court reviewed Gage’s findings as a way to guide courts and litigants on “the proper application of the test we have adopted.”

Given Gage’s careful and scholarly findings and conclusions, it is no surprise that the court affirmed Gage.


What did initially surprise me is that the court didn’t simply decide that it would be absurd for an incestuous father to be able to throw out his daughter’s consent to recording surveillance and withhold his own, since this would frustrate the state’s legitimate and compelling interest in protecting children from abusive caregivers. The court merely indicated this absurdity in a footnote.

However, by deciding this case under a Fourth Amendment analysis, the court wisely gives this case broader application. Other sorts of wrongdoing by both adults and juveniles, such as drug dealing, may lead to a minor’s voluntary consent to wear a wire body transmitter.

This opinion is an excellent example of straightforward, logical writing that builds to a solid conclusion. Cane’s depth of experience and talent as an appellate court writer is obvious.

His understanding of an appellate court’s role in instructing the bench and bar adds to his gravitas. His application of the newly adopted test to the facts in this case is a thing of beauty.

Can we call him out of retirement?


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