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Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – One-Party Consent Exception – Law Enforcement Officer as Consenting Party

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

Issue: Whether, for purposes of authorizing one-party consent under WESCL, “a person acting under color of law” may be a law enforcement officer.

Holding:

¶2        [H]e contends that Wis. Stat. § 968.31(2)(b), commonly referred to as the one-party consent exception, does not apply when the intercepting person is a law enforcement officer and the party to the communication who consents to the intercept is also a law enforcement officer. We disagree and, therefore, affirm the circuit court.

¶14      The phrase “a person acting under color of law” in Wis. Stat. § 968.31(2)(b) is patterned, along with much of the Electronic Surveillance Control Law, after the federal wiretapping law. See State v. Gilmore, 201 Wis. 2d 820, 825, 549 N.W.2d 401 (1996). When interpreting the Electronic Surveillance Control Law, we benefit from federal decisions considering counterpart provisions. Id.see also State v. House, 2007 WI 79, ¶14, 302 Wis. 2d 1, 734 N.W.2d 140. As the State points out, federal cases discussing federal law recognize that law enforcement officers may be “person[s] acting under color of law” for purposes of the federal wiretapping statute. Seee.g.United States v. Passarella, 788 F.2d 377, 379 (6th Cir. 1986); United States v. Nelligan, 573 F.2d 251, 254 (5th Cir. 1978); United States v. Rich, 518 F.2d 980, 985 (8th Cir. 1975); United States v. Upton, 502 F. Supp. 1193, 1196 (D.N.H. 1980).

¶15      Moreover, we agree with the State that the legislative history of Wisconsin’s one-party consent exception supports the inclusion of law enforcement officers. …

The court flatly rejects the invitation to look to § 1983 cases to explicate “under color of law” for wiretapping purposes, ¶¶20-22.

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