Chapter 968

968.27 Annotation An informant who is a party to a tape recorded telephone conversation also acquired the conversation in the informant’s mind, regardless of the use of the tape recorder; that acquisition is not an “intercept.” The informant may testify to the conversation without use of the recording. State v. Maloney, 161 Wis. 2d 127, 467 N.W.2d 215 (Ct. App. 1991).

968.27 Annotation An “oral communication” under sub. (12) is a statement uttered under circumstances in which the speaker has a reasonable expectation of privacy. An individual has a reasonable expectation of privacy when the individual has both an actual subjective expectation of privacy in the speech and a subjective expectation that is one that society is willing to recognize as reasonable, which requires examination of the totality of the circumstances. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, 05-2175.

968.27 Annotation Courts have identified a non-exclusive list of factors to discern whether an individual’s expectation of privacy in the individual’s oral statements is objectively reasonable, including: 1) the volume of the statements; 2) the proximity of other individuals to the speaker; 3) the potential for the communications to be reported; 4) the actions taken by the speaker to ensure 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. State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, 05-2175.

968.27 Annotation That a global positioning system (GPS) tracking device did not emit any signal but rather received signals and stored data that could be retrieved later did not take it outside the meaning of a tracking device under sub. (4) (d). It is not rational to limit the admission of tracking information based on whether it is obtained in real time by a signal or at a later time by direct access to the device. State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769 N.W.2d 53, 08-0658.

968.27 Annotation Affirmed on other grounds. 2010 WI 92, 328 Wis. 2d 369, 787 N.W.2d 317, 08-0658.

968.28 968.28 Application for court order to intercept communications. The attorney general together with the district attorney of any county may approve a request of an investigative or law enforcement officer to apply to the chief judge of the judicial administrative district for the county where the interception is to take place for an order authorizing or approving the interception of wire, electronic or oral communications. The chief judge may under s. 968.30 grant an order authorizing or approving the interception of wire, electronic or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense for which the application is made. The authorization shall be permitted only if the interception may provide or has provided evidence of the commission of the offense of homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances or controlled substance analogs, a computer crime that is a felony under s. 943.70, sexual exploitation of a child under s. 948.05, trafficking of a child under s. 948.051, child enticement under s. 948.07, use of a computer to facilitate a child sex crime under s. 948.075, or soliciting a child for prostitution under s. 948.08, or any conspiracy to commit any of the foregoing offenses.

968.28 History History: 1971 c. 219; 1977 c. 449; 1983 a. 438; 1987 a. 399; 1995 a. 448; 2011 a. 271.

968.28 Annotation The authorization of a wiretap for offenses not enumerated in this section did not warrant suppression of the evidence obtained from the wiretap when the order included both enumerated and non-enumerated offenses and contained sufficient probable cause for the enumerated offenses, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, 05-2202.

968.29 968.29 Authorization for disclosure and use of intercepted wire, electronic or oral communications.

968.29(1) (1) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

968.29(2) (2) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer’s official duties.

968.29(3) (3) 

968.29(3)(a) (a) Any person who has received, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute of any other state, any information concerning a wire, electronic or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 to 968.37, may disclose the contents of that communication or that derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.

968.29(3)(b) (b) In addition to the disclosure provisions of par. (a), any person who has received, in the manner described under s. 968.31 (2) (b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding described in par. (a) in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording.

968.29(4) (4) No otherwise privileged wire, electronic or oral communication intercepted in accordance with, or in violation of, ss. 968.28 to 968.37 or 18 USC 2510 to 2520, may lose its privileged character.

968.29(5) (5) When an investigative or law enforcement officer, while engaged in intercepting wire, electronic or oral communications in the manner authorized, intercepts wire, electronic or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subs. (1) and (2). The contents and any evidence derived therefrom may be used under sub. (3) when authorized or approved by the judge who acted on the original application where the judge finds on subsequent application, made as soon as practicable but no later than 48 hours, that the contents were otherwise intercepted in accordance with ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute.

968.29 History History: 1971 c. 40 ss. 91, 93; 1987 a. 399; 1989 a. 121, 359; 1993 a. 98; 1995 a. 30.

968.29 Annotation Evidence of intercepted oral or wire communications can be introduced only if the interception was authorized under s. 968.30; consent by one party to the communication is not sufficient. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354 (1971).

968.29 Annotation Although one-party consent tapes are lawful, they are not authorized by ss. 968.28 to 968.33, and therefore the contents cannot be admitted as evidence in chief, but sub. (3) does not prohibit giving such tapes to the state. State v. Waste Management of Wisconsin, Inc., 81 Wis. 2d 555, 261 N.W.2d 147 (1978).

968.29 Annotation Although a taped telephone conversation was obtained without a court order, the defendant opened the door to the tape’s admission by extensive reference to the tape transcript during the defendant’s case-in-chief. State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994).

968.29 Annotation Sub. (2) authorizes prosecutors to include intercepted communications in a criminal complaint. A prosecutor is a law enforcement officer under sub. (2), and preparation of complaints is within the prosecutor’s official duties. State v. Gilmore, 193 Wis. 2d 403, 535 N.W.2d 21 (Ct. App. 1995).

968.29 Annotation The state may incorporate intercepted communications in a criminal complaint if the complaint is filed under seal. Unilateral public disclosure of such communications in a complaint while not authorized does not subject the communication to suppression, but may entitle the defendant to remedies under s. 968.31. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123.

968.29 Annotation The state may use one-party consent recordings of criminal activity, the disclosure of which is not authorized under sub. (3) (b), if the evidence inadvertently falls within the “plain hearing” of law enforcement officers conducting authorized surveillance. State v. Gil, 208 Wis. 2d 531, 561 N.W.2d 760 (Ct. App. 1997), 95-3347.

968.29 Annotation Since interception by government agents of an informant’s telephone call was exclusively done by federal agents and was lawful under federal law, Wisconsin law did not govern its admissibility into evidence in a federal prosecution, notwithstanding that the telephone call may have been a privileged communication under Wisconsin law. United States v. Beni, 397 F. Supp. 1086 (1975).

968.30 968.30 Procedure for interception of wire, electronic or oral communications.

968.30(1) (1) Each application for an order authorizing or approving the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the court and shall state the applicant’s authority to make the application and may be upon personal knowledge or information and belief. Each application shall include the following information:

968.30(1)(a) (a) The identity of the investigative or law enforcement officer making the application, and the officers authorizing the application.

968.30(1)(b) (b) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify the applicant’s belief that an order should be issued, including:

968.30(1)(b)1. 1. Details of the particular offense that has been, is being, or is about to be committed;

968.30(1)(b)2. 2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

968.30(1)(b)3. 3. A particular description of the type of communications sought to be intercepted; and

968.30(1)(b)4. 4. The identity of the person, if known, committing the offense and whose communications are to be intercepted.

968.30(1)(c) (c) A full and complete statement whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

968.30(1)(d) (d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been obtained, a particular description of facts establishing probable cause to believe that additional communications for the same type will occur thereafter.

968.30(1)(e) (e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the court on each such application; and

968.30(1)(f) (f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

968.30(2) (2) The court may require the applicant to furnish additional testimony or documentary evidence under oath or affirmation in support of the application. Oral testimony shall be reduced to writing.

968.30(3) (3) Upon the application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic or oral communications, if the court determines on the basis of the facts submitted by the applicant that all of the following exist:

968.30(3)(a) (a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s. 968.28.

968.30(3)(b) (b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception.

968.30(3)(c) (c) Other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.

968.30(3)(d) (d) There is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.

968.30(4) (4) Each order authorizing or approving the interception of any wire, electronic or oral communication shall specify:

968.30(4)(a) (a) The identity of the person, if known, whose communications are to be intercepted;

968.30(4)(b) (b) The nature and location of the communications facilities which, or the place where authority to intercept is granted and the means by which such interceptions shall be made;

968.30(4)(c) (c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;

968.30(4)(d) (d) The identity of the agency authorized to intercept the communications and of the person authorizing the application; and

968.30(4)(e) (e) The period of time during which such interception is authorized, including a statement whether or not the interception shall automatically terminate when the described communication has been first obtained.

968.30(5) (5) No order entered under this section may authorize or approve the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with sub. (1) and the court making the findings required by sub. (3). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event be for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception.

968.30(6) (6) Whenever an order authorizing interception is entered pursuant to ss. 968.28 to 968.33, the order may require reports to be made to the court which issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the court requires.

968.30(7) (7) 

968.30(7)(a) (a) The contents of any wire, electronic or oral communication intercepted by any means authorized by ss. 968.28 to 968.37 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof all such recordings and records of an intercepted wire, electronic or oral communication shall be filed with the court issuing the order and the court shall order the same to be sealed. Custody of the recordings and records shall be wherever the judge handling the application shall order. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be properly kept and preserved for 10 years. Duplicate recordings and other records may be made for use or disclosure pursuant to the provisions for investigations under s. 968.29 (1) and (2). The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under s. 968.29 (3).

968.30(7)(b) (b) Applications made and orders granted under ss. 968.28 to 968.33 together with all other papers and records in connection therewith shall be ordered sealed by the court. Custody of the applications, orders and other papers and records shall be wherever the judge shall order. Such applications and orders shall be disclosed only upon a showing of good cause before the judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.

968.30(7)(c) (c) Any violation of this subsection may be punished as contempt of court.

968.30(7)(d) (d) Within a reasonable time but not later than 90 days after the filing of an application for an order of approval under par. (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the application and such other parties to intercepted communications as the judge determines is in the interest of justice, an inventory which shall include notice of:

968.30(7)(d)1. 1. The fact of the entry of the order or the application.

968.30(7)(d)2. 2. The date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application.

968.30(7)(d)3. 3. The fact that during the period wire, electronic or oral communications were or were not intercepted.

968.30(7)(e) (e) The judge may, upon the filing of a motion, make available to such person or the person’s counsel for inspection in the manner provided in ss. 19.35 and 19.36 such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to the issuing judge the serving of the inventory required by this subsection may be postponed. The judge shall review such postponement at the end of 60 days and good cause shall be shown prior to further postponement.

968.30(8) (8) The contents of any intercepted wire, electronic or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court of this state unless each party, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the information.

968.30(9) (9) 

968.30(9)(a) (a) Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of this state, or a political subdivision thereof, may move before the trial court or the court granting the original warrant to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. The motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, electronic or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of ss. 968.28 to 968.37. The judge may, upon the filing of the motion by the aggrieved person, make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interest of justice.

968.30(9)(b) (b) In addition to any other right to appeal, the state shall have the right to appeal:

968.30(9)(b)1. 1. From an order granting a motion to suppress made under par. (a) if the attorney general or district attorney certifies to the judge or other official granting such motion that the appeal is not entered for purposes of delay and shall be diligently prosecuted as in the case of other interlocutory appeals or under such rules as the supreme court adopts; or

968.30(9)(b)2. 2. From an order denying an application for an order of authorization or approval, and such an appeal shall be ex parte and shall be in camera in preference to all other pending appeals in accordance with rules promulgated by the supreme court.

968.30(10) (10) Nothing in ss. 968.28 to 968.375 shall be construed to allow the interception of any wire, electronic, or oral communication between an attorney and a client.

968.30 History History: 1971 c. 40 s. 93; 1981 c. 335 s. 26; 1987 a. 399; 1993 a. 486; 2009 a. 349.

968.30 Annotation Although a taped telephone conversation was obtained without a court order, the defendant opened the door to the tape’s admission by extensive reference to the tape transcript during the defendant’s case-in-chief. State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994).

968.30 Annotation The state may incorporate intercepted communications in a criminal complaint if the complaint is filed under seal. Unilateral public disclosure of such communications in a complaint while not authorized does not subject the communication to suppression, but may entitle the defendant to remedies under s. 968.31. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123.

968.30 Annotation Suppression of wire communications is reserved for those that are illegally intercepted and does not apply to legally intercepted communications that are improperly disclosed. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123.

968.30 Annotation Not every failure to follow wiretapping statutes makes an interception unlawful such that suppression is required. Whether a violation of the wiretapping statutes requires suppression depends upon whether the statutory purpose has been achieved despite the violation. The authorization of a wiretap for offenses not enumerated in this section did not warrant suppression of the evidence obtained from the wiretap when the order included both enumerated and non-enumerated offenses, it contained sufficient probable cause for the enumerated offenses, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, 05-2202.

968.30 Annotation Sub. (10) does not require that all intercepts by a county jail are unlawful because the telephone intercept system has the potential to record inmates’ calls to their attorneys. State v. Christensen, 2007 WI App 170, 304 Wis. 2d 147, 737 N.W.2d 38, 06-1565.

968.30 Annotation Communications Privacy: A legislative perspective. Kastenmeier, Leavy, & Beier. 1989 WLR 715.

968.31 968.31 Interception and disclosure of wire, electronic or oral communications prohibited.

968.31(1) (1) Except as otherwise specifically provided in ss. 196.63 or 968.28 to 968.30, whoever commits any of the acts enumerated in this section is guilty of a Class H felony:

968.31(1)(a) (a) Intentionally intercepts, attempts to intercept or procures any other person to intercept or attempt to intercept, any wire, electronic or oral communication.

968.31(1)(b) (b) Intentionally uses, attempts to use or procures any other person to use or attempt to use any electronic, mechanical or other device to intercept any oral communication.

968.31(1)(c) (c) Discloses, or attempts to disclose, to any other person the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this section or under circumstances constituting violation of this section.

968.31(1)(d) (d) Uses, or attempts to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this section or under circumstances constituting violation of this section.

968.31(1)(e) (e) Intentionally discloses the contents of any oral, electronic or wire communication obtained by authority of ss. 968.28, 968.29 and 968.30, except as therein provided.

968.31(1)(f) (f) Intentionally alters any wire, electronic or oral communication intercepted on tape, wire or other device.

968.31(2) (2) It is not unlawful under ss. 968.28 to 968.37:

968.31(2)(a) (a) For an operator of a switchboard, or an officer, employee or agent of any provider of a wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose or use that communication in the normal course of his or her employment while engaged in any activity which is a necessary incident to the rendition of his or her service or to the protection of the rights or property of the provider of that service, except that a provider of a wire or electronic communication service shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

968.31(2)(b) (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.

968.31(2)(c) (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 where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any state or for the purpose of committing any other injurious act.

968.31(2)(d) (d) For any person to intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public.

968.31(2)(e) (e) For any person to intercept any radio communication that is transmitted:

968.31(2)(e)1. 1. By any station for the use of the general public, or that relates to ships, aircraft, vehicles or persons in distress;

968.31(2)(e)2. 2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public;