On Point

State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding:

¶15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law “represents Wisconsin implementation of the electronic surveillance portion of [Title III],” the Omnibus Crime Control and Safe Streets Act of 1968. [7] Drafting File for ch. 427, Laws of 1969, Analysis by the Legislative Reference Bureau of 1969 A.B. 860, Legislative Reference Bureau, Madison, Wis. Although the legislative history of the Electronic Surveillance Control Law is silent on whether the definition of “oral communication” was meant to incorporate the speaker’s “reasonable expectation of privacy,” the legislative history of Title III provides guidance.State v. House, 2007 WI 79, ¶14, 302 Wis.  2d 1, 734 N.W.2d 140 (stating that because the Electronic Surveillance Control Law is “patterned after Title III[, our] interpretation . . . benefits from the legislative history and intent of Title III”). Our interpretation is assisted as well by the federal decisions that have considered Title III.State v. Gilmore, 201 Wis.  2d 820, 830, 549 N.W.2d 401 (1996) (recognizing that in interpreting the Electronic Surveillance Control Law, we may look to federal decisions interpreting Title III).

State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.

Holding:

¶2  The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12), a part of the Electronic Surveillance Control Law. We conclude that the statements were not “oral communication” because Duchow had no reasonable expectation of privacy in the statements. Because the statements are not “oral communication,” they do not fall within the scope of the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression. [4] Accordingly, we reverse the decision of the court of appeals.

…

¶25 We begin by considering the place where Duchow spoke. Duchow and Jacob were on a public school bus being operated to transport children to school. Duchow was an employee of the school district and Jacob was a grade school pupil. Courts have held that an individual-employee’s expectation of privacy is diminished in places that the individual shares with others, as compared with places retained for his or her exclusive use. …

…

¶27 School bus drivers endure a similarly diminished expectation of privacy inside the school buses they operate. …

…

¶37 Our review of the totality of the circumstances presented here leads us to conclude that Duchow had no reasonable expectation in the privacy of his threats and abuse of Jacob on the school bus. The school bus was public property, being operated for a public purpose. The statements Duchow seeks to protect were threats directed at a child while the child was being transported to school. Because Duchow threatened Jacob, Duchow engaged in speech that was likely to be reported. Duchow assumed the risk of disclosure. Accordingly, we conclude that Duchow’s abusive speech had no reasonable expectation of privacy attendant to it. Therefore, his threats to Jacob are not “oral communication” within the meaning of Wis. Stat. § 968.27(12).

¶38 Duchow’s argument that he and Jacob were the only individuals on the bus is of no consequence….

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding:

¶51      The trial court, having just heard a lengthy description of Payette’s violent and abusive conduct toward RS, directed that Payette not look at his victim during her statement to the court, because, the trial court said, “I just don’t want him intimidating her. We just asked him to turn around.” Payette claims that this order deprived him of his statutory (Wis. Stat. § 971.04 ^[15]) and due process right to be present at his sentencing, and he is, therefore, entitled to resentencing.

…

¶59      A trial court has considerable latitude in reasonable control of the courtroom and the conduct of parties and of witnesses before it. Wis. Stat. § 906.11(1); State v. Shanks, 2002 WI App 93, ¶10, 253 Wis. 2d 600, 644 N.W.2d 275 (“trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness”). We conclude that the limited restriction imposed here, based on the facts known to the trial court at the time, was a reasonable exercise of the trial court’s discretion to control the manner of proceedings before it. Neither Payette’s statutory nor constitutional rights were violated by this minor restriction during a small part of the sentencing hearing, nor has he demonstrated that he was in any articulable way prejudiced by it.

State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch

Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.

Holding:

¶12      Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable, and consequently, Wis. Stat. § 947.015 must be read with the limitation that only a false bomb scare that constitutes a “true threat” can be charged.

…

¶15      Indeed, this is exactly what the supreme court of the state of Washington did with a similar statute prohibiting threats. In State v. Johnston, 127 P.3d 707, 708-09 (Wash. 2006), an intoxicated man, Tracey Johnston, made various threats following his arrest at the airport. He was charged with making threats to bomb or injure property, contrary to the Washington statutes. Id. at 709. At his jury trial, the trial court refused to give an instruction offered by Johnston defining a “true threat.” Id. In reversing the conviction, the supreme court explained:

            Here, the statute reaches a substantial amount of protected speech. For example, threats made in jest, or that constitute political statements or advocacy, would be proscribed unless the statute is limited to true threats. Accordingly, the statute must be limited to apply to only true threats.

Id. at 711-12.

¶16      Wisconsin Stat. § 947.015 must be read with the requirement that only “true threats” can be prosecuted. Here, the police who responded to Robert T.’s phone call believed the threat was real. Also, Robert T. apparently intended to frighten the listener; thus, his call appears to fall within the ambit of a “true threat.” Therefore, the statute is constitutional.

The court rejects Robert T.’s interpretation of Virginia v. Black, 538 U.S. 343 (2003) that a “true threat” is limited to threats to a specific person or group:

¶19      In addition, we note that Wisconsin law has never limited a “true threat” to one which is directed at a person or group of persons and threatens bodily harm or death. Also, our research has been unable to find any cases which have adopted Robert T.’s interpretation of Virginia. Since Virginia was decided, numerous states have dealt with related statutes criminalizing bomb scare/threat and false alarms and numerous prosecutions have taken place for threatening to blow up property. See, e.g., Johnston, 127 P.3d 707; State v. Gibson, No. 2007-G-2755, slip op., 2007 WL 4150950 (Ohio Ct. App. Nov. 21, 2007); see also United States v. Brahm, ___ F. Supp.2d ___, 2007 WL 3111774, at *1 (D.N.J. Oct. 19, 2007) (charging a Wisconsin resident for posting information on a website that he knew to be false concerning acts that would cause damage to buildings or vehicles, and involving use of weapons of mass destruction and radiological dispersion devices). Certainly if the Supreme Court meant to severely limit the definition of “true threats” to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged. They have not been, and we are satisfied that Robert T.’s interpretation is wrong. Consequently, the trial court erred in so finding. Thus, the trial court’s order is reversed and remanded with directions that the trial court reinstate the delinquency petition.

But compare, Fogel v. Collins, 9th Cir No. 06-15395, 6/27/08 (“In most cases where courts have found that speech constituted a true threat, the threatening speech was targeted against specific individuals or was communicated directly to the subject of the threat.”)

State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson

Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.

The court follows the 6-factor test adopted by State v. Juan M. Orta, 2003 WI App 93 (another public bathroom case, but with distinguishable facts, ¶17: there, multiple individuals were in a single stall, the door to which wasn’t locked). Although the majority purports to weigh each factor individually, it comes down to these crucial facts, ¶¶26-27: “Neitzel’s claim of privacy while using the only restroom for males at a gas station for at least twenty-five minutes, without responding to the officer’s knocking, is not consistent with historical notions of privacy. … While his initial use of the restroom was for its intended purpose, his expectation that he continue to have the private use of the locked restroom for at least twenty-five minutes, without responding to knocking and while dozing off, is not reasonable.”As you can gather, Neitzel either fell asleep or passed out drunk while on the toilet. (Do not attempt this trick at home.) The State apparently sought something like a bright-line rule that passage of time alone eliminates any expectation of privacy, but the court declines the invitation, ¶21 n. 5: “However, we do not establish a period of time beyond which there is no reasonable expectation of privacy. Instead, our analysis takes into account the period of time Neitzel was occupying the restroom scoupled with the knocking and lack of response.” The concurrence, however, is dubious about significant limits as a practical matter, ¶31 (“The majority’s result is dangerous because appellate courts usually do not like bright lines, and the next case will involve a twenty-minute stay in a mens’ or womens’ room. And then one of fifteen minutes, until the result is that nobody has an expectation of privacy in a locked rest room if someone knocks.”). Just so.

One wonders, too, exactly why a response to knocking would be necessary to assert a right to privacy. The majority simply asserts that “(a) person seeking privacy while using a public restroom of this type would customarily respond to a knock on the door by explaining how much longer he or she would be occupying the restroom,” ¶23. But as the concurrence suggests (¶30), the majority is reductionistic: human behavior is too idiosyncratic, too subject to uncontrollable variables, to be collapsed into such a rigid formulation. But here we are, and for the time being anyway, the holding is fact-specific.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Displayed image on cell phone satisfied plain view doctrine (lawful position of officer, inadvertent discovery, probable cause to be images displayed contraband), ¶¶23-25.

State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead

Issue/Holding: Reasonable suspicion supported the frisk, given: the type of crime being investigated (residential burglary); the suspect’s admitted possession of, but initial reluctance to produce, two knives; and, his repeated reaching into his pants pockets, ¶¶3-11.