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Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – One-Party Consent Exception, Generally

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶8        The one-party consent exception reads as follows:

(2) It is not unlawful …:….

(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.

Wis. Stat. § 968.31(2)(b). This exception contains two requirements, one applicable to the person who intercepts a communication and a second applicable to one of the persons who is a party to the communication.

¶9        We will refer to the first requirement as the intercepting-person requirement. The intercepting person must be “a person acting under color of law,” and the dispute in this case centers on whether a law enforcement officer may ever be a person fitting this “color of law” requirement.

¶10      We will refer to the second requirement as the consenting-person requirement. Under this requirement, one of the persons who is a party to the communication must either be the person who intercepts the communication or be a person who gives prior consent to the interception. Although there is no technical “consent” requirement if the second requirement is met because the intercepting person is also a party to the communication, this situation involves implicit consent, hence the shorthand reference to this statute as the one-party consent exception.

 

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