968.31 Annotation If a warrantless intercept complies with sub. (2) (b), commonly referred to as the one-party consent exception, the contents of the intercept may be disclosed in a felony proceeding. The phrase “person acting under color of law” does not exclude law enforcement officers. State v. Ohlinger, 2009 WI App 44, 317 Wis. 2d 445, 767 N.W.2d 336, 08-0135.

968.31 Annotation When determining whether a minor has the capacity to consent to “color-of-law surveillance” under sub. (2) (b), courts should consider the totality of the circumstances to determine whether consent is voluntarily given. The court should consider the minor’s knowledge, intelligence, and maturity. It is also appropriate to consider the minor’s education and state of mind, the demeanor and tone of voice of the officers requesting consent, the location at which consent is given, and the duration of the encounter. The court should also consider the police tactics used to elicit consent and any other relevant circumstances. State v. Turner, 2014 WI App 93, 356 Wis. 2d 759, 854 N.W.2d 865, 13-2101.

968.31 Annotation The use of the “called party control device” by the communications common carrier to trace bomb scares and other harassing telephone calls would not violate any law if used with the consent of the receiving party. 60 Atty. Gen. 90.

968.32 968.32 Forfeiture of contraband devices. Any electronic, mechanical, or other intercepting device used in violation of s. 968.31 (1) may be seized as contraband by any peace officer and forfeited to this state in an action by the department of justice under ch. 778.

968.32 History History: 1979 c. 32 s. 92 (8).

968.33 968.33 Reports concerning intercepted wire or oral communications. In January of each year, the department of justice shall report to the administrative office of the United States courts such information as is required to be filed by 18 USC 2519. A duplicate copy of the reports shall be filed, at the same time, with the office of the director of state courts.

968.33 History History: 1973 c. 12 s. 37; 1977 c. 187 s. 135; Sup. Ct. Order, 88 Wis. 2d xiii (1979).

968.34 968.34 Use of pen register or trap and trace device restricted.

968.34(1) (1) Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under s. 968.36 or 18 USC 3123 or 50 USC 1801 to 1811.

968.34(2) (2) The prohibition of sub. (1) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:

968.34(2)(a) (a) Relating to the operation, maintenance and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service;

968.34(2)(b) (b) To record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or

968.34(2)(c) (c) Where the consent of the user of that service has been obtained.

968.34(2m) (2m) The prohibition of sub. (1) does not apply to a telephone caller identification service authorized under s. 196.207 (2).

968.34(3) (3) Whoever knowingly violates sub. (1) may be fined not more than $10,000 or imprisoned for not more than 9 months or both.

968.34 History History: 1987 a. 399; 1991 a. 268, 269; 1997 a. 283; 2001 a. 109.

968.35 968.35 Application for an order for a pen register or a trap and trace device.

968.35(1) (1) The attorney general or a district attorney may make application for an order or an extension of an order under s. 968.36 authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a circuit court for the county where the device is to be located.

968.35(2) (2) An application under sub. (1) shall include all of the following:

968.35(2)(a) (a) The identity of the person making the application and the identity of the law enforcement agency conducting the investigation.

968.35(2)(b) (b) A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

968.35 History History: 1987 a. 399.

968.36 968.36 Issuance of an order for a pen register or a trap and trace device.

968.36(1) (1) Upon an application made under s. 968.35, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device within the jurisdiction of the court if the court finds that the applicant has certified to the court that the information likely to be obtained by the installation and use is relevant to an ongoing criminal investigation.

968.36(2) (2) An order issued under this section shall do all of the following:

968.36(2)(a) (a) Specify the identity, if known, of the person to whom is leased or in whose name is listed the telephone line to which the pen register or trap and trace device is to be attached.

968.36(2)(b) (b) Specify the identity, if known, of the person who is the subject of the criminal investigation.

968.36(2)(c) (c) Specify the number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order.

968.36(2)(d) (d) Provide a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.