(dissenting). The jury in this case did not have to decide whether Mr. Rewolinski committed a crime when he killed the woman he lived with, Catherine Teeters. The jury had only to decide whether it was first-degree murder or manslaughter. In deliberating this choice, the jury had before them the important piece of evidence at issue in this appeal: a private conversation between Rewolinski and Teeters three hours before she died that was transcribed on a telecommunications device for the deaf (TDD). This transcription, torn off the TDD by Rewolinski immediately after his second conversation with Teeters, was forcibly taken from him by a deputy as he was leaving the sheriffs department, but before he killed Teeters. After the crime, the deputy read the transcript, and it was subsequently received into evidence.
The majority concludes that Rewolinski's recorded conversation was not protected by the Fourth Amendment to the United States Constitution. Inasmuch as his conversation with Teeters did not enjoy the protections of the fourth amendment, the majority determines that the police had every right to seize the transcript, read its contents, and use it in any manner they saw fit, including the use of it in evidence against Rewolinski.
The issue before us is whether the protections of the fourth amendment apply to the recorded transcript of the telephone conversation on the TDD between Rewolinski and Teeters, both of whom were dependent upon the TDD for telephone communication due to their deafness.
I disagree with the majority for three principal reasons. First, this case involving basic privacy rights comes *38to us from a very unique perspective. It involves privacy rights of the deaf. Yet the legal arguments presented to us, and the legal rationale set down by the majority, involve concepts of privacy that have evolved over the years in a world in which sound is a given. What are the reasonable expectations of privacy in a world without sound? Unless the issue is framed to take into account the very different world that is the world without sound, the issue is erroneously framed.
Second, I do not agree with the majority's conclusion that the fourth amendment does not apply to the tape of the TDD conversation. I conclude that the very important and fundamental interest of protecting conversational privacy from government intrusion is not offset by any societal interest in allowing the government to literally "seize" and examine without warrant this private telephone conversation. Accordingly, I would hold that this private telephone conversation, notwithstanding that it was made and recorded on a TDD, is subject to the protections of the Fourth Amendment to the United States Constitution.
Third, even if I agreed with the majority's conclusion that the fourth amendment did not apply to this taped conversation, I would write to express my disapproval with the analysis employed by the majority in determining the issue of whether there was a search within the meaning of the fourth amendment.
HH
This court is faced with an opportunity to embark on an uncharted course in an area of law sparsely developed: privacy rights of the deaf. The majority declines that challenge. The legal arguments presented to us by the state, and the legal rationale set down by the major*39ity, involve concepts of privacy that have evolved over the years in a world in which sound is a given.
But what of the world without sound? What of the world in which the approaching step that signals a presence cannot be heard? What of a world in which simple communication is dependent upon costly technological devices, or upon public displays called "sign" in which whispers of confidentiality are impossible?
What may be an unreasonable expectation of privacy in a world with sound may well be reasonable in a world without sound. Perhaps a hearing person who wishes to place a telephone call on a normal telephone in a police station a few feet from a police officer would not be entitled to the protections of the fourth amendment. If a person with normal hearing wishes to place a call, it may be reasonable to expect that person to go around the corner if he or she wishes privacy. But one will find few, if any, TDD's "around the corner." Other than in the home of another deaf person, the only likely place a deaf person will find a TDD is in the sheriffs department.
What is the response of the majority? The majority tells us that Rewolinski could have: (a) kept his conversation- brief; (b) asked someone else to call for him; (c) asked for a ride home; (d) walked home; or (e) hired a ride home. State v. Rewolinski, majority op. at 20. Thus, the majority advises deaf citizens that if they wish to rely on a technology that will enable them to lead more independent and productive lives in a hearing dominated world, they must subject themselves to the choices of either opening up their conversation for public examination, limiting their conversation to purposes this court finds appropriate, returning to their former dependence on others to make their phone calls for them, or bypassing the technology's advantages altogether. It is only because Rewolinski is deaf and could not make a call *40without using a government "phone" that a record of this call exists. To say that Rewolinski "assumed the risk" of having his conversation monitored when he had no reasonable alternatives, ignores reality. See Rewolinski, majority op. at 21. "It is idle to speak of 'assuming' risks in contexts where, as a practical matter, individuals have no realistic alternative." Smith v. Maryland, 442 U.S. 735, 750 (1979) (Marshall, J. dissenting).
If we are to be truly sensitive to our role of providing justice we must consider what "reasonable expectations" the deaf should have when using a TDD and what precautions adequately protect their TDD conversations from being exposed. On this basis alone, I would remand for a hearing, such as that proposed by the other dissenting opinion, to give us far more facts than the record before us reveals. As noted clinical writer and neurologist Oliver Sacks recently observed about our society, n[w]e are remarkably ignorant about deafness .... Ignorant and indifferent." O. Sacks, Seeing Voices: A Journey Into the World of the Deaf 1 (1989). I agree. We need to be enlightened to the realities of living in a world without sound, and how that world affects the protection of privacy to which we are all entitled.
The majority concludes that the forcible taking and examination of the TDD printout was not a search or seizure within the meaning of the fourth amendment because citizens do not enjoy a reasonable expectation of privacy in their telecommunications when the communication is made from government equipment at a government agency in the presence of a government official who "could have" acted to "oversee" the conversation. I disagree. Society's fundamental interest in protecting *41conversational privacy necessitates application of fourth amendment standards to this case.
The application of the fourth amendment depends upon whether the person invoking its protection against unreasonable searches can claim a " 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' " that has been invaded by government action. Smith, 442 U.S. at 740. The focus in a "was-there-a-search" case within the meaning of the fourth amendment is on whether there is a privacy interest that should be or has been recognized as warranting fourth amendment protection. Thus, the Supreme Court has emphasized, " [t]he test of legitimacy is . . . whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." California v. Ciraolo, 476 U.S. 207, 212 (1986) (quoting Oliver v. United States, 466 U.S. 170, 182-83 (1984)).
Therefore, the question of was-there-a-search is essentially a question of policy to be determined by weighing the societal interest in protecting the individual's asserted privacy interest against the societal interest in permitting police to engage in the conduct at issue, unrestrained by any fourth amendment requirement of reasonableness. See Hudson v. Palmer, 468 U.S. 517, 527 (1984); State v. Stevens, 123 Wis. 2d 303, 334, 367 N.W.2d 788 (1985) (Heffernan, C.J., dissenting).
Rewolinski asserts that the sheriff department's conduct invaded his right of conversational privacy in a telecommunication. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court made it explicit that the fourth amendment applies to telecommunications. It is the "contents" of telecommunications that Katz protects. See Smith v. Maryland, 442 U.S. at 741. The Katz decision "implicitly recognized that the broad and unsuspected governmental incursions into conversa-
*42tional privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards." United States v. United States District Court, 407 U.S. 297, 313 (1972) (footnote omitted). The federal government itself has argued that private oral and electronic communications are, along with protection of the home and structures such as hotel rooms and offices, core privacy interests which should receive maximum protection from governmental search and seizure under the fourth amendment. United States v. Chadwick, 433 U.S. 1, 9 n.4 (1977). The proliferation of wiretapping statutes1 further attests to society's broad recognition of the value and necessity of conversational privacy.2
*43Our intellectual and emotional growth and our enjoyment of life are stimulated by and, indeed, require communication with others. In today's society, telecommunications play a vital role in our personal and professional relationships. Because conversations also have the capacity to manipulate, humiliate, and incriminate the individual when the words he or she speak are exposed to an unanticipated audience, privacy in our conversations is often essential to their value. As Justice Brandéis wisely reminded us, the makers of our Constitution recognized:
the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone . . .. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
The continued vitality of a free society depends upon the interaction of ideas and emotions, both in public and in private, and it is the fourth amendment we rely upon to protect the private exchange of our thoughts. Any government interception of conversation threatens people's sense of security in the privacy of their personal conversations and interferes with the values inherent in that speech.
When weighing the competing societal interests involved in considering the question of was-there-a-search, "it is important to begin by specifying precisely the nature of the state activity that is challenged." *44Smith 442 U.S. at 741. The search in this case occurred when the sheriffs department examined the printout of Rewolinski's conversation to gather information regarding the contents of that communication. The record establishes that the contents of the printout were not fully examined by Deputy Roed until Rewolinski confessed to killing Catherine Teeters.3 Contrary to the majority's assertion, there is no testimony that the printout was set aside for Togging" at a later time. There is no evidence that Pierce County routinely used printouts for logging. And most importantly, there is no reason advanced why logging calls represents an important societal interest that requires an examination of the entire contents of each call made from the TDD. The only apparent purpose for the examination of the printout at the time the examination of the contents of the conversation took place was to look for evidence. To do that, the police should have had a warrant. There was no exigency, the tape was not about to leave their possession.
Furthermore, Deputy Roed's inspection of the printout's contents constituted a search regardless of whether she was lawfully in possession of the printout.4 *45Legal possession of an article does not endow law enforcement officials with any concomitant authority to also search the contents of the article. See, e.g., Walter v. United States, 447 U.S. 649, 654 (1980) (Stevens, J. concurring), (stating that, "[t]he fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents."); United States v. Khoury, 901 F.2d 948, 959-60 (11th Cir. 1990) (holding that an FBI agent's investigation of the written contents of a notebook that was lawfully in the possession of the FBI constituted a search that violated the defendant's fourth amendment rights).
Robert Rewolinski had a legitimate expectation of privacy because society's interest in protecting conversational privacy exceeds society's interest in the police conduct at issue here. Conversational privacy is a basic personal freedom protected by the fourth amendment. Curiosity and investigation are the only apparent reasons for the sheriff department's exploration of the contents of the printout they knew contained a personal phone conversation. Logging calls for administrative convenience is not the kind of overwhelming societal interest required to overcome the right of conversational privacy. Moreover, it is axiomatic that we cannot allow police practice to define the scope of the fourth amendment's protection.
Robert Rewolinski's thoughts and emotions should not become an open book subject to examination with*46out warrant simply because he used government equipment to make a communication or because he was suspected of a crime. The state violated the defendant's constitutional rights just as surely as if it had broken into his home without a warrant and taken personal letters, just as surely as if it had tapped his telephone without a warrant to obtain evidence for trial. Accordingly, I conclude a search occurred within the meaning of the fourth amendment when Deputy Roed examined the contents of the printout. A warrant could have and should have been procured before the sheriffs department examined the personal communication between Rewolinski and the woman with whom he lived. The taped conversation on the TDD printout should not have been allowed into evidence.
HH HH
I also wish to emphasize that even if I agreed with the majority's ultimate conclusion that there was no reasonable expectation of privacy, I would find it necessary to express my concerns regarding the analysis of the majority. The opinion reflects a questionable choice of precedent, an undue emphasis on property rights, and an overly narrow application of the term "knowingly expose." In essence, the reasoning the majority employs provides few clues as to what fact or facts in this case are relied upon to distinguish it from Katz, in which the Supreme Court found a reasonable expectation of privacy in the defendant's telecommunication. The majority's failure to specify which factor(s) are determinative of the was-there-a-search issue will cause confusion in the lower courts and provide little guidance to the law enforcement agencies of this state.
*47The cornerstone of the majority's entire analysis, the "Fillyaw factors," are largely irrelevant and inappropriate in this context because they are geared toward assessing the "reasonableness" of an asserted spatial privacy interest. The focus in State v. Fillyaw, 104 Wis. 2d 700, 312 N.W.2d 795 (1981), cert. denied, 455 U.S. 1026 (1982), was whether the defendant had a "legitimate expectation of privacy in the invaded place," his girlfriend's apartment. Id. at 710 (emphasis added). Fillyaw addressed the question traditionally referred to as one of "standing."5 Consequently, the Fillyaw factors emphasize property rights and the defendant's control over an area because they are significant when addressing whether a defendant may legitimately claim that his rights were violated by government intrusion into a place.
The Fillyaw factors are inappropriate here because Rewolinski does not claim that his property was invaded by the search or that police intruded into a "constitutionally protected area." "Petitioner's claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a 'legitimate expectation of privacy' that petitioner held." Smith, 442 U.S. at 741. The Fillyaw factors are directed at determining the validity of constitutional claims that the government intruded upon the defendant's expectation of privacy in a place. Accordingly, the Fillyaw factors are only useful for determining what the petitioner has already conceded — that he was not in a constitutionally protected area.
*48The Fillyaw court was quick to point out that the factors it set forth are neither controlling nor exclusive. Fillyaw, 104 Wis. 2d at 711-12 n.6. Nor are they always relevant. As Justice Marshall emphasized in Oliver v. United States, 466 U.S. 170, 189 n.8 (1984) (Marshall, J., dissenting), "[t]he privacy interests protected by the Fourth Amendment are not limited to expectations that physical areas will remain free from public and government intrusion. (Citation omitted.) The factors relevant to the assessment of the reasonableness of a nonspatial privacy interest may well be different. . .." The fourth amendment "protects people, not places." Katz, 389 U.S. at 351. Different factors must be considered when assessing the reasonableness of a nonspatial privacy interest.
The majority's emphasis on the defendant's inability to exercise control over the TDD or the dispatch area also skews its perception of what activity "knowingly exposes" a conversation. See majority op. at 18. The majority seems to suggest that the presence of others during a telecommunication automatically opens that conversation up for interception by any available means. The risk, however, that accompanies making a phone call in a public place in the presence of others is that of being overheard or here, overseen; had Rewolinski's conversation been "overheard," he could not claim a reasonable expectation of privacy to those portions of the conversation that were overheard. Everyone understands this risk. There is not, however, any similar understanding that telephone conversations in public places, government owned or not, are recorded.
Moreover, there is a substantial distinction between information gathered by the naked ear or eye and information gathered through electronic means or other *49means which enhance the senses.6 Rewolinski has not "knowingly exposed" his conversation simply because there are bystanders who may oversee some portion of the conversation. "It is privacy that is protected by the Fourth Amendment, not solitude." O'Connor v. Ortega, 480 U.S. 709, 730 (1987) (Scalia, J. concurring). There is a dramatic difference, in privacy terms, between a conversation in which bits and pieces of information are sporadically revealed to an inattentive bystander and a focused police examination of the totality of that information accomplished through electronic recording.
Justice Harlan noted the greater intrusion posed by the interception of a conversation by electronic means:
Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed . . .. Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. All those values are sacrificed by a rule of law that permits official monitoring of private discourse . . .. United States v. White, 401 U.S. 745, 787-89 (1971) (Harlan, J., dissenting) (footnote omitted).
*50Justice Harlan's observations are particularly persuasive under Rewolinski's circumstances. There apparently is no independent recollection by Deputy Roed of "overseeing" any of Rewolinski's conversation. She may never have had any direct view of the TDD screen. Furthermore, Rewolinski can control the information exposed to bystanders by tailoring his conversation when bystanders may see the conversation, by quickly ending the conversation, or by blocking the view of the screen.
Rewolinski did not knowingly expose his conversation by not turning off the printer. The reasoning of the majority indicates that the contents of the conversation would have been just as admissible had the officers recovered it from the TDD's memory. The printout, which resembles a cash register tape, would be more difficult for an observer to oversee than the half inch letters on the screen itself. The record does not even show whether Rewolinski knew he could stop the printer. Regardless, the inquiry should center upon whether Rewolinski took "normal" precautions. See Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). "Normally," taking the only recording of a conversation that has not been overheard or, in this case, overseen, would protect its privacy.
Finally, although the majority initially acknowledges that societal interests must be balanced to assess whether the fourth amendment is implicated, it never engages in balancing, preferring instead to essentially address the was-there-a-search question by considering what privacy expectations a "reasonable man" would have under these circumstances. By continuing to view fourth amendment questions from this perspective, the majority fails to consider, let alone preserve, the values the amendment was designed to protect. When consider*51ing what is a "reasonable expectation of privacy," courts should focus on privacy interests rather than on privacy expectations in order to rationally reflect the purposes of the fourth amendment.
Focusing on expectations leaves open the opportunity for the "government by edict or by known systematic practice to condition the expectations of the populace in such a way that no one would have any real hope of privacy." United States v. Taborda, 635 F.2d 131, 137 (2d Cir. 1980). Justice Marshall issued a similar warning: "law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications." Smith, 442 U.S. at 750 (Marshall, J. dissenting).
These warnings should be heeded. As I observed in State v. Smith, 149 Wis. 2d 89, 109, 438 N.W.2d 571 (1989) (Bablitch, J., dissenting), "[mjodern technology is quickly rendering the concept of privacy of communications of historic interest only. Nearly everything we say today, in our homes, on the streets, in our offices, is capable of being overheard by some form of listening device." The knowledge that the government has the ability to intercept the most private of conversations, even in a home or office, should not affect whatsoever the privacy interest a person has in those conversations, nor the protections the fourth amendment brings to them. As modern technology rapidly erodes the public's "expectations" of privacy, it is imperative that this court intercede when government conduct interferes with interests that should be or have been recognized as being protected by the fourth amendment, regardless of whether the "reasonable man" expects that privacy. Neither police policy nor modern technology should be *52allowed to mold the public's expectations and dictate what is a reasonable privacy interest. As Professor Amsterdam observed, "neither Katz nor the fourth amendment asks what we expect of government. They tell us what we should demand of government." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384 (1974).
I am authorized to state that CHIEF JUSTICE NATHAN HEFFERNAN joins in this dissent.
TDD conversations were not protected by Wisconsin's wiretapping statute at the time Rewolinski used the Pierce County Sheriff Department's TDD in 1987. Since that time, the statutes have been expanded in scope to include "electronic communication" which is defined as "any transfer of. . . writing . . . wholly or partially transmitted by a wire . . .." Section 968.27(4), Stats., 1987-88. The interception of electronic communication, including TDD communications, is subject to the same restrictions as wire or oral communications. See sec. 968.28-968.31, 1987-88.
The parties dispute whether Rewolinski's conversation would have been protected by the present wiretapping statutes in light of sec. 968.27(7) (a)2., Stats., which excludes electronic or oral communication "[b]eing used by a . . . law enforcement officer in the ordinary course of his or her duties."
Cf. A Model Code of Pre-Arraignment Procedure, sec. 210.3(2) (1975), which holds the public's interest in conversational privacy in such high regard that it provides for a general prohibition against seizure of recordings made for personal communication:
With the exception of handwriting samples, and other writings or recordings of evidentiary value for reasons other than their testimonial content, things subject to seizure . . . shall not include personal diaries, letters, or other writings or recordings, made solely for private use or communication to an individual occupying a family, *43personal or other confidential relation, other than a relation in criminal enterprise, unless such things have served or are serving a substantial purpose in furtherance of a criminal enterprise.
The following is from public defender John Leonard's cross-examination of Deputy Roed:
Q: Okay. When did you first read the tapes?
A: I started reading them later on that evening but I didn't have a chance to finish with my other duties. I just threw it aside.
It is not clear whether "later in the evening" meant after Catherine Teeters's death had been reported or during the time between approximately 5:20 P.M. and 8:15 P.M. between Rewolinski's contacts with the sheriffs department. In any case, however, the tapes were not fully inspected prior to the homicide investigation.
I believe the record is inadequate to determine whether the sheriff's department had lawful possession of the printout. *45Although I think it is unquestionable that the forcible taking of the printout from Rewolinski's clenched fist constituted a seizure because there was a meaningful interference with Rewolinski's possessory interest in the printout, see United States v. Jacobsen, 466 U.S. 109, 113 (1984); State v. Friday, 147 Wis. 2d 359, 374, 434 N.W.2d 85 (1989), I would remand on this issue to give the state the opportunity to show that this seizure was reasonable.
"We note this summary [of the Fillyaw factors] as it may be useful to courts in determining the standing of defendants in other cases . . .." Fillyaw, 104 Wis. 2d at 711-12 n.6 (emphasis added).
See United States v. Taborda, 635 F.2d 131, 139 (2d Cir. 1980), in which the court concluded that naked eye observations of the defendant's apartment from 190 feet away were admissible, but held that to the extent agents used a telescope to identify objects or activities that could not be identified without the telescope, those observations were improper. The court remanded the case to the district court to determine which observations were made with the naked eye.