A minor does not as a matter of law lack the capacity to consent to police interception of the minor’s conversations with another person and therefore vicarious consent by a parent is not required.
After Turner’s 15-year-old daughter told police Turner had been sexually assaulting her, the police arranged for her to wear a body wire so they could listen to her conversations with Turner. (¶¶3-6). Turner was recorded making some incriminating statements, which he moved to suppress on the grounds that, as a matter of law, a minor doesn’t have the capacity to consent for purposes of § 968.31(2)(b), the provision of the Wisconsin Electronic Surveillance Control Law that permits the admission of recordings of conversations intercepted with the consent of one of the parties to the conversation. (¶¶6, 8).
While acknowledging that, as a matter of legislative judgment, a minor cannot provide consent in many situations, the court notes WESCL is silent on whether a minor may or may not consent and thus “[t]he statute, as a plain-language matter, neither endorses nor prohibits the practice.” (¶22). Based on the approach of the federal courts in interpreting the federal law on which WESCL is based, the court concludes the statute was intended to incorporate the principles of consent used in Fourth Amendment law. (¶¶23-24). Relying on cases addressing consent to search given by minors, Gregoire v. Henderson, 302 F. Supp. 1402 (E.D. La. 1969), State v. Folkens, 281 N.W.2d 1 (Iowa 1979), and State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, the court establishes the following standard:
¶29 Consistent with Gregoire, Folkens, and Tomlinson, we conclude that when determining whether a minor has the capacity to consent to color-of-law surveillance under Wis. Stat. § 968.31(2)(b), courts should consider the totality of the circumstances to determine whether consent was voluntarily given. Voluntariness cannot be summed up in a “‘talismanic definition.’” [State v.] Artic, [2010 WI 83,] 327 Wis. 2d 392, ¶32 [, 786 N.W.2d 430] (quoting Schneckloth [v. Bustamonte,] 412 U.S. [218,] 224 [(1973)]). An individual’s consent to color-of-law interception “must be ‘an essentially free and unconstrained choice,’ not ‘the product of duress or coercion, express or implied.’” See id. (quoting Schneckloth, 412 U.S. at 225, 227) (citations omitted). “Consent is not voluntary if the state proves ‘no more than acquiescence to a claim of lawful authority.’” Id. (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)).
¶30 In considering the totality of the circumstances, the court should consider the minor’s knowledge, intelligence, and maturity. The age, intelligence, and maturity of a child are important because, as a child gets older, he or she will have a greater capacity to understand events affecting his or her life and will exercise a greater responsibility over his or her own affairs. See Tomlinson, 254 Wis. 2d 502, ¶32. 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 was given, and the duration of the encounter. See People in Interest of R.A., 937 P.2d 731, 738 (Colo. 1997) (en banc). The court should also consider the police tactics used to elicit consent and any other relevant circumstances. See Artic, 327 Wis. 2d 392, ¶33 (factors include police use of deception, trickery, or misrepresentation, threats or physical intimidation, the conditions attending the request, prior experience with the police, and whether the police informed the individual he or she could refuse consent).
Under this standard, Turner’s daughter had the capacity to consent. At the time she authorized the police interception, she was well into her teens and was taking regular high school classes. Her demeanor was not unusual and she demonstrated an appropriate concern for her safety. There is no indication police used tactics designed to overcome her will and police testified she was willing to assist them. (¶¶9-12). “We agree wholeheartedly with the circuit court that ‘the facts support the conclusion that [consent] was a considered judgment by someone acting with a reasonable motivation under the circumstances ….’” (¶32).
The court notes (¶20 n.4) Turner’s apparent adoption of the reasoning in State v. Duchow, 2005AP2175-CR (Wis. Ct. App. April 3, 2007) (unpublished), which suggested a minor does indeed lack the capacity to consent to interception of communications. The minor’s capacity to consent was really beside the point in that case, though, as he couldn’t consent in fact because there was no indication he knew his parents had placed a voice-activated recorder in his backpack. And in any event, the supreme court reversed on alternate grounds, without reaching the issue of whether WESCL permits (or requires) vicarious consent by a child’s parent. State v. Duchow, 2008 WI 57, ¶2 n.4, 310 Wis. 2d 1, 749 N.W.2d 913.