State v. House

SHIRLEY S. ABRAHAMSON, C.J.

¶ 70. (dissenting). The majority opinion concludes that error was committed when the order authorized a wiretap for offenses not enumerated in Wis. Stat. § 968.28. Majority op., ¶ 2. The State specifically applied for and the order specifically authorized the interception of communications related to non-enumerated offenses. I agree with the majority opinion that the order violated the statutory requirements.

¶ 71. The majority opinion nonetheless refuses to suppress the evidence obtained as a result of this invalid order. The legislature carefully restricted the State's powers under the wiretapping statute and enacted suppression as an enforcement mechanism. Suppression is appropriate in the instant case to ensure proper compliance with statutory requirements. For the following reasons, I dissent.

HH

¶ 72. The Wisconsin legislature intended,1 like *34Congress,2 to circumscribe significantly the power to authorize wiretapping. Recognizing that it was granting an extraordinary power to law enforcement officials and explicitly recognizing the privacy interests at stake, the Wisconsin legislature, like Congress, carefully crafted the statute to contain precise requirements and subjected statutory violations to suppression.3

*35¶ 73. Contrary to the concurring opinion, the statutory language "dealing in controlled substances" must be narrowly interpreted so as not to "conflict[] with the narrowly circumscribed scope of § 968.28." Majority op., ¶ 28. When the legislature goes to great lengths to emphasize the rigor with which the law should be applied, the court ought to follow the legislature's lead. The majority opinion properly recognizes the precision with which the legislature "demarcated the crimes for which wiretaps may be authorized under [Wis. Stat.] § 968.28." Majority op., ¶ 27. The crimes of money laundering, racketeering, and continuing criminal enterprise are non-enumerated offenses and are not within the scope of the statute. Majority op., ¶ 13.

¶ 74. I agree with the majority opinion that the order that authorized surveillance for both enumerated and non-enumerated offenses was invalid; it violated the statutory requirements.

II

¶ 75. Despite recognizing that the order violated the statutory requirements, the majority opinion nonetheless concludes that "the authorization of a wiretap for non-enumerated offenses does not warrant suppression of the evidence obtained from the wiretap in this case." Majority op., ¶ 2. The majority opinion provides no sanction for the statutory violation, thus trivializing *36the statutory enumeration of the crimes for which wiretap authorization is allowed. At this point, I depart from the majority opinion.

¶ 76. Wisconsin Stat. § 968.30(9)(a) expressly provides for suppression of evidence for violations of the relevant statutory provisions. It states in full:

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.4

*37¶ 77. Suppression is appropriate under Wis. Stat. § 968.30(9)(a) when "the order of authorization under which [the communication] was intercepted is insufficient on its face." "Insufficient on its face" means, in ordinary parlance, inadequate on its face to meet the statutory requirements. The order here was plainly insufficient on its face.

¶ 78. The majority opinion interprets the phrase "an order insufficient on its face" to mean an order that has too little in it, that is, an order that is missing some important information. The majority opinion reasons that the order in the instant case does not have "too little" but instead has "too much" in it. Majority op., ¶ 37. The majority opinion concludes that the order, which references illegally enumerated crimes, merely contains "surplusage." I call an order with too much or too little inadequate on its face to meet the requirements of Wis. Stat. § 968.28.

¶ 79. Wisconsin Stat. § 968.30(9)(a) also expressly permits suppression when communications are "unlawfully intercepted." The majority opinion adopts the following standard to evaluate when a communication is "unlawfully intercepted" and a suppression motion should be granted: "[Wlhether a violation of the wiretapping statutes requires suppression depends upon *38whether the statutory purpose has been achieved despite the violation." Majority op., ¶ 38.

¶ 80. The purpose of federal Title III and its wiretapping provisions (upon which the state legislation is based) is, according to the United States Supreme Court, to prohibit all interceptions of oral and wire communications except those specifically provided for in the Act. "[Although] [t]he Act is not as clear in some respects as it might be,... it is at once apparent that it. . . limits the crimes for which intercept authority may be obtained ... ."5 Because of the violation, the statutory purpose of Wis. Stat. § 968.28 has not been achieved in the present case. The order does not sufficiently limit the crimes for which intercept authority may be obtained, and therefore the information garnered in violation of Wis. Stat. § 968.28 should be suppressed.

¶ 81. A somewhat differently worded test to determine whether evidence should be suppressed under federal Title III and its wiretapping provisions has been articulated by the United States Supreme Court: "[Suppression is required only for a 'failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.'" United States v. Donovan, 429 U.S. 413, 433-34 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527 (1974)). The majority opinion recognizes this test. Majority op., ¶ 42.

¶ 82. Wisconsin Stat. § 968.28, with a more limited list of offenses for which surveillance is permissible than the federal law, is a clear statutory requirement *39that plays a central and functional role in achieving the legislative purpose of guarding against unwarranted use of electronic surveillance, and it directly and substantially implements the legislative intent to limit the use of intercept procedures to only a few expressly enumerated offenses.

¶ 83. Applying the text of § 968.30(9)(a) and United States Supreme Court case law, I would hold that suppression is appropriate in the circumstances of the instant case. I remain unpersuaded by what the majority opinion in essence treats as a "no harm, no foul" situation.

¶ 84. In the instant case the application and order contained no clerical error. There was no inadvertent mistake. The error is one that goes to, and directly undermines, a fundamental tenet of the wiretapping statute, namely the explicit limitation on the crimes for which wiretapping is permissible. Compliance with § 968.28 is no mere technicality. By authorizing surveillance for crimes not enumerated in the statute, the order in the instant case clearly violates the standard for suppression set forth by the United State Supreme Court in Donovan and Giordano.

¶ 85. The majority opinion is correct that there is limited authority on the issue presented. Indeed, the only case directly analyzing and deciding the issue presented in the instant case is United States v. Ward, 808 F. Supp. 803 (S.D. Ga. 1992), which the Ward court described as a case of first impression.6

¶ 86. In Ward, the order for wiretaps allowed surveillance for two offenses not enumerated in the federal wiretapping statute. The Ward court reasoned *40that permitting the government to proceed without sanctions for the over-inclusive applications and intercept orders provides no incentive to the government to fulfill its responsibilities to comply with the statute. Suppression, on the other hand, serves the deterrent purpose of the statute and places the burden on the government to comply with the statute, according to the Ward court.

¶ 87. The Ward court decided to suppress the evidence collected pursuant to the overbroad and invalid order, emphasizing that the government, as well as the people, must obey the laws. The Ward court quoted Justice Brandéis' famous words on the rule of law:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.... To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.7

¶ 88. I would follow Ward in the instant case. For the reasons set forth, I dissent.

The memorandum submitted by Robert W. Warren, then-Attorney General of the State of Wisconsin, to the legislature considering the wiretap bill explained that although wiretapping is an extremely useful "tool," there must be "strict limitations" to the electronic surveillance authority granted to local law enforcement. Warren further explained that "I do not advocate, and indeed, this bill opposes the indiscriminate or uncontrolled or unsupervised use of electronic surveillance by law enforcement officers or agencies. . . . [L]aw enforcement usage should be allowed only upon court approval and supervision." Analysis of Assembly Bill 860 by Robert W Warren, *34Attorney General, at 2, in Bill Drafting File on Laws of 1969, ch. 427 (available at Wis. Legislative Reference Bureau, 1 East Main St., Madison, Wis.).

One of the express goals of the statute was "to protect effectively the privacy of wire and oral communications," and accordingly the wiretapping statute "prohibit[s] any unauthorized interception of such communications." See Assembly Bill 860 in Bill Drafting File on Laws of 1969, ch. 427 (available at Wis. Legislative Reference Bureau, 1 East Main St., Madison, Wis.).

"Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications." United States v. Giordano, 416 U.S. 505, 515 (1974).

This court has expounded on the careful balance Congress sought to achieve between permitting law enforcement officials to use wiretapping and protecting individual rights in State v. Gilmore, 201 Wis. 2d 820, 830-31, 549 N.W.2d 401 (1996), in which the court explained that "[i]n enacting Title III Congress displayed an overriding concern with protecting privacy." Gilmore, 201 Wis. 2d at 830. See also majority op., ¶ 15 ("Congress intended that Title III be construed strictly because it knew that it was creating an investigative mechanism which potentially threatened the constitutional right to privacy.").

Attorney General Warren explained the provisions allowing for suppression as follows: "These built in safe-guards provide a dual purpose — that of discouraging law enforcement and prosecutive officers as well as judges from seeking and granting electronic surveillance warrants except in selective *35investigative situations, and, obviously, the safeguards protect the citizen from unjustified surveillance." Analysis of Assembly Bill 860 by Robert W Warren, Attorney General, at 6, in Bill Drafting File on Laws of 1969, ch. 427 (available at Wis. Legislative Reference Bureau, 1 East Main St., Madison, Wis.).

Wisconsin Stat. § 968.30(9)(a) mirrors the suppression provision located in the federal wiretapping statute, 18 U.S.C. 2518(10)(a), which provides in pertinent part:

Any aggrieved person ... may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—
*37(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
... If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.

United States v. Giordano, 416 U.S. 505, 515 (1974).

United States v. Ward, 808 F. Supp. 803, 805 (S.D. Ga. 1992).

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).