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Wisconsin Electronic Surveillance Control Law (WESCL), §§ 968.27-.37 – Jailhouse Calls – One-Party Consent: Notice to Inmate of Potential for Intercept

State v. Deonte D. Riley, 2005 WI App 203
For Riley: William E. Schmaal

Issue/Holding: A recorded message heard by any jail inmate placing an outgoing call, to the effect the call may be recorded, was sufficient to trigger WESCL’s one-party consent exception:

¶10      The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. …

¶11      Courts interpreting the federal law have concluded that “[C]onsent may be express or may be implied in fact from ‘surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.’” United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (second alteration in original) (citing United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987)). The federal circuit courts that have addressed the consent exception in the prison setting have overwhelmingly concluded that an inmate has given implied consent to electronic surveillance when he or she is on notice that his or her telephone call is subject to monitoring and recording and nonetheless proceeds with the call. …

¶12      We rely on this developed federal consensus on the scope of the consent exception and apply it to the WESCL. We have every reason to believe that in passing the WESCL, our legislature, like the federal legislature, would have included within the meaning of consent an inmate’s implied acceptance of having his or her calls recorded. Although the WESCL does reflect congressional concern for protecting privacy rights,see State v. Gil, 208 Wis. 2d 531, 539-40, 561 N.W.2d 760 (Ct. App. 1997), [4] that concern does not extend to inmates of a county jail. …

¶13      We therefore hold that so long as an inmate is given meaningful notice that his or her telephone calls over institutional phones are subject to surveillance, his or her decision to engage in conversations over those phones constitutes implied consent to such surveillance. …

¶14      Riley received the requisite meaningful notice.  Prior to phone calls placed from the jail telephones, the inmates hear the SBC announcement.  The announcement warns inmates that the call “may be recorded.”  The fact that the announcement contains the permissive modal auxiliary verb “may” rather than the obligatory modal auxiliary verb “will” is of no consequence. …

Foreign authority to the effect that “(e)very federal circuit court to address the issue has concluded that Title III is not violated when a jail or prison routinely monitors and records outgoing calls placed by inmates on the institution’s telephones and the inmates are put on notice of the recording policy”: People v. Windham, Cal App No. A111600, 11/8/06.

Riley holds open “the question of whether the monitoring and recording of jailhouse telephone calls falls outside the purview of the WESCL because it is conducted by law enforcement officers acting in the ordinary course of their duties,” ¶7 n. 2. The court also reaffirms the “core message” of State ex rel. Arnold v. County Court of Rock County, 51 Wis. 2d 434, 443-44, 187 N.W.2d 354 (1971) (“derived from one-party consent surveillance, while lawfully obtained, was inadmissible”), ¶16 n. 7:

Although the legislature has since created an exception to the admissibility requirements for one-party consent surveillance in felony cases, we conclude that the core message of Arnold has survived.  The court’s distinction between interception and admissibility may apply in other situations.  Further, the legislature has not weakened the WESCL’s protections for individual privacy.  Court authorization or approval is still required for interceptions of wire and oral communications covered by the WESCL to be admissible in court proceedings.  See Wis. Stat. § 968.29(3)(a) (permitting the disclosure in court proceedings of communications intercepted “in accordance with ss. 968.28-.37”.


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