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Wisconsin Electronic Surveillance Control Law, § 968.28 – Limited to “Enumerated Offenses” – Remedy for Invalid Wiretap Order

State v. Jeffrey Allen House, 2007 WI 78, affirming unpublished opinion
For House: Michael J. Steinle

Issue/Holding1:

¶12      House contends that because money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated crimes for which wiretaps are authorized under the Wisconsin wiretap statutes, the order authorizing the wiretap in this case was unlawful. We begin our analysis by examining the words of Wisconsin’s wiretap statute, Wis. Stat. § 968.28. …

¶13      A plain reading of the statute reflects that the crimes of money laundering, racketeering and continuing criminal enterprise are not specifically enumerated crimes. Nevertheless, the State argues that a circuit court may authorize wiretaps for those crimes insofar as they constitute “dealing in controlled substances,” which is an enumerated offense under § 968.28. We disagree. Not only is such an interpretation inconsistent with the plain words of the statute, it also contradicts the legislative intent that § 968.28 be a restrictive statute. By authorizing a wiretap for money laundering, racketeering, and continuing criminal enterprise, the circuit court expanded the scope of a wiretap beyond the statutory limit. It therefore erred in providing such an authorization.

¶28      The State’s view that the circuit court may authorize wiretaps for racketeering, continuing criminal enterprise, and money laundering because those crimes constitute “dealing in controlled substances” conflicts with the narrowly circumscribed scope of § 968.28. By authorizing a wiretap for racketeering, continuing criminal enterprise, and money laundering, the circuit court expanded the scope of the wiretap beyond the limit authorized by law.

¶29      The State correctly asserts that dealing in controlled substances may provide a foundation for racketeering or continuing criminal enterprise charges and that money laundering may be an aspect of a drug dealing operation. However, those offenses may also be based on crimes not enumerated in § 968.28. Thus, including them in an order authorizing a wiretap in effect authorizes a wiretap for other crimes that would support a racketeering, continuing criminal enterprise, or money laundering charge.

The court recites WESCL history, which derives from federal legislation: “Our interpretation of the state statutes therefore benefits from the legislative history and intent of Title III and from federal decisions considering Title III,” ¶14. Thus, analysis of federal cases and Title Congressional history will be highly relevant to construction of WESCL. That analysis reveals that wiretap legislation such as WESCL passed by states may be more, but may not be less, restrictive than Title III, ¶17, and that overarching principle guides the court here:

¶33      In sum, we conclude that money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated offenses in § 928.28 and that those offenses are not included within “dealing in controlled substances,” which is an enumerated offense. Such a construction would contradict the legislative intent that § 968.28 be a restrictive statute and would result in expanding the scope of a wiretap authorization beyond the statutorily imposed limitations. Accordingly we determine that the circuit court erred in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28.

The lead opinion, incidentally, has 3 votes. A 3-vote concurrence would hold the wiretap valid, but the single-vote dissent joins the lead opinion on the issue of invalidity of the order, making the lead opinion the majority. (The dissent is really on a separate ground, whether this invalidity requires suppression.)

Issue/Holding2Where the wiretap order is invalid because it authorized interceptions for “unenumerated” crimes, suppression is nonetheless not required because the order also authorized taps for enumerated crimes:

¶48      With scant and equivocal law on the effect of including non-enumerated offenses in a wiretapping order, we must decide whether the purposes of the wiretapping statutes have been fulfilled despite the violation of § 968.28 by including surplus, non-enumerated offenses in the wiretap order. We determine that under the circumstances here, the purposes have been fulfilled.

¶50      … The focus of the application and the order was distribution and possession with intent to distribute cocaine, heroin, and ecstasy, as well as conspiracy to commit those crimes.

¶51      Those crimes are all squarely within the scope of § 968.28. Because the focus of this case was on enumerated crimes, the intercept procedures were used in a situation “calling for the employment of this extraordinary investigative device.”Giordano, 416 U.S. at 527. The addition of the non-enumerated crimes does not undermine this purpose.

¶60      In the present case, the purposes of the wiretap statutes have been fulfilled and the error appears to be of no material consequence. The enumerated crimes that served as the basis for the wiretap order were crimes of sufficient magnitude to warrant a wiretap. Further, the privacy protections of the probable cause requirements under § 968.30(3) were met. There is no contention that the police intercepted any of House’s communications that were unrelated to the enumerated offenses in the order, and House was charged with only enumerated offenses. Accordingly, even though we have concluded that the circuit court erred in listing the non-enumerated offenses, we determine the error does not constitute an unlawful interception such that suppression is warranted.

 

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