State v. Rewolinski

Wisconsin, STATE of Plaintiff-Respondent, REWOLINSKI, Robert Donald Defendant-Appellant-

Petitioner. Supreme Court Argued September No. 88-2312-CR. 1990. Decided December 1990. (Also reported 401.) in 464 N.W.2d ABRAHAMSON, J., dissents. HEFFERNAN, C.J.,

BABLITCH, J., AND dissent. defendant-appellant-petitioner For there were Williamson, Brady by Jeffrey C. J. Kassel and briefs Sinykin, argument LaFollette & and oral Madison Mr. Williamson. plaintiff-respondent argued

For the the cause Wellman, by Sally attorney assistant with general, Hanaway, attorney on the was Donald J. whom briefs general.

STEINMETZ, J. The issues this case are several:

(1) Does a criminal defendant bear the burden establishing subjective expec- both that he manifested a allegedly by govern- that was tation invaded legitimate? expectation action that ment and that was (2) expecta- legitimate Did the defendant have a privacy in tion the conversations or in the TDD1 printout tape that recorded those conversations when victim, Teeters, his call to the Catherine and the victim's dispatch him in call to occurred while he was area of department's using depart- office, the sheriff the sheriff presence TDD, ment's in the and line of of sheriff vision department personnel?

(3) legitimate expecta- Even if the defendant had a privacy, police tion was the conduct reasonable in light of the facts and circumstances of this case such police that conduct did not violate defendant's con- rights? stitutional

(4) If the trial court committed an error admit- ting evidence about certain statements defendant made him, to Catherine Teeters and statements she made to was that error harmless?

(5) Should court remand the for case an evi- dentiary hearing?

We conclude that Robert Rewolinski did have a expectation by reasonable invaded 1 TDD ais term used to for describe telecommunications by people device for A TDD the deaf. is a used device deaf ordinary telephone communicate over lines. It functions send computerized ing receiving signals correspond to the pressing keyboard type user's of letters on a similar to that of a letters, By typing writer. a series of a user forms words and party sentences that then are transmitted to on the other end of party using the line. That must also a TDD in be order for place. communication to take A simultaneous electronic readout messages displayed of the sent and received on on is a screen each respective completes of the TDD's and the basic communication process. Furthermore, action. we conclude that even

government privacy, police an con- if had such he light the total facts cir- duct was reasonable case, including cumstances of this the defendant's deaf- ness, no and therefore there was constitutional violation. violation, if Even there were a constitutional consti- Finally, Rewolinski is deemed to tuted harmless error. 971.31, his under sec. Stats.2 rights have waived No Thus, necessary. hearing for a we remand case appeals unpublished opinion of the court of affirm the court, county Judge the Pierce circuit which affirmed Wing, presiding. Robert W. 971.31, Stats., provides, part:

2 Section relevant (1) Any capable is of Motions before trial. motion which general may trial of the issue be determination without the made before trial. (5), (2) Except objections provided in sub. as defenses and insufficiency proceedings, in of the based on defects the institution indictment, complaint, invalidity in information or whole or in of the founded, part prosecution of the statute on the or the use of which by illegal means to shall be trial motion secure evidence raised before may, however, deemed The court entertain such to be waived. trial, any jeopardy in case the defendant waives motion at which suppress may have The motion to evidence shall be that attached. so jeopardy appears it with of when that the defen- entertained waiver surprised by possession of dant is the state's such evidence. (3) admissibility any shall The statement of the defendant by evidentiary hearing in at the the court an be determined trial out defendant, motion, by presence jury, unless the chal- of the admissibility lenges such statement before trial. (3), (4) Except provided in be deter- as sub. a motion shall general that mined before trial of issue unless the court orders arising for the trial. All issues of fact be deferred determination at jury. motion shall be tried the court without a out such (5)(a) be within 10 Motions trial shall served and filed before days appearance initial in a misdemeanor after the defendant days arraignment felony in a unless or 10 action action after permits. court otherwise Robert Rewolinski killed Catherine on Teeters evening 9,1987, Prescott, June at their home near in county. speak, they Pierce Both deaf and unable to had together years, for living raising been six their chil- two dren. Rewolinski admitted committing the acts that caused Teeters' death. facts show that he strangled father," her after she told him he an was "unfit he would not be to see their future, able children he and that must move out of The jury the house. had to between first-degree choose murder manslaughter and, trial, six-day after found Rewolinski guilty of murder. body

Teeters' was found with her submerged head partially filled bathtub with a belt around her neck. Ligature strangulation was determined to be the cause of death. After the killing, Rewolinski police summoned personnel mind," "I my the house. stated, lost he he claiming passion killed Teeters the heat of after Teeters' to him remarks that evening, though even he already had known that Teeters was having an ongoing with affair another man.

Earlier on day of the killing, Rewolinski had aby patrol been arrested state officer for operating a motor vehicle a suspended operator's with license. He then county taken to the Pierce department's sheriff released, office. After being depart- Rewolinski asked personnel ment if he could depart- use the at the telephone ment office make a call in order to arrange Department for a personnel ride. agreed request to his device, the although they use obligated were not to do so. department's The sheriff TDD displayed transmis- in sions one-half inch tall format on a simultaneous elec- tronic The readout. device also had memory a feature transmissions, which although recorded the record does set capabilities operation not forth the and of the mem- capacity

ory addition, had the In the device feature. type-written printout all transmissions create a person using A the could and receive. device would send printout press privacy of the conver- a button so that no The not show be created. record does sation would knew the existence of whether the defendant purpose, although its it does indicate button or of operational. button was TDD at house Teeters had a their Rewolinski and design operation in and the sheriff that was similar department's department's TDD, TDD. Like the sheriff TDD a simultaneous the Rewolinski-Teeters' emitted However, the electronic readout of all transmissions. record whether the Rewolinski-Teet- does indicate printout so, and, if create ers' TDD was able to a was button. whether there department's TDD was located The sheriff dispatch office, area of the an area of restricted access. department device, In use order for Rewolinski to through personnel had to unlock a door which Rewolin- passed get in the ski then order to to the device dispatch area, Once in in the area. Rewolinski was personnel presence department line of who vision his he observed behavior as used the device. ride. the device to call Teeters for a

Rewolinski used depart- later, A him at she called back to short time printout During conversations, cre- ment. the two press ated Rewolinski did not the button that because displaying non- would have limited machine to permanent readout on the screen. After the con- second completed, ripped versation had been Rewolinski printout, started of the conversations from the printout to exit office hand. with the bundled his dispatcher, Deputy him Roed, Sheriff Sandra told stop printout he and surrender the to her. When printout, dispatcher refused to the surrender the forced open posses- Rewolinski's hand and from removed it his printout sion. did She not read the at the time because busy regular dispatch duties, she her but, was with set it logging aside a for at later time. printout

The contents of the refer to Rewolinski's previous physical assault on Teeters and her fear him. printout The records her "I statement that am scared to you in [a] death that will make us die car accident." The printout also reflects the fact that she made Rewolinski promise pick up before him she would that he not would hurt her the The children. trial court allowed the printout prosecution evidence, into and lim- the offered testimony printout. ited as to the contents of the printout tape presented any jury itself at time.

The defendant contends that he has been sub- ject illegal I, of an search and seizure sec. under Article 11 of the Wisconsin Constitution the Fourth Amendment of the United States Constitution. He by admitting claims that the trial court erred printout of TDD his with communications the victim allowing testimony as to the contents of the printout. He claims that con- these communications are stitutionally protected interception, arguing from party he as a to a out conversation carried via a had the same reasonable as would telephone relying States, user on Katz v. United (1967).3 government U.S. He further claims conduct was unreasonable and harmful error for trial Katz,

3 In at search 389 U.S. the Court held a and seizure government electronically occurred when the listened to and public "bugging" recorded a criminal defendant's tele words booth, phone privacy upon because it which he "violated using justifiably [public] telephone relied while booth." Finally, the defen- evidence. printout judge admit statutory hearing for a reversal or remand asks for dant on TDD evidence.4 an unreasonable police conduct constitutes

Whether of the state and federal seizure violation search and place, in the on whether depends, first constitutions5 justifiable or reasonable legitimate, had defendant govern by was invaded expectation of that 735, Maryland, 442 U.S. 740 See Smith v. ment action.6 Andreas, (1983); 765, (1979); v. 463 U.S. 771 Illinois Stevens, 303, 316, 2d N.W.2d 788 State v. 123 Wis. 367 denied, (1985); Fillyaw, 104 474 852 State v. cert. U.S. 700, 715, (1981), cert. denied Wis. 2d 312 N.W.2d 795 (1982). emphasizing It U.S. 1026 is worth that 455 constitutionality government or reasonableness question unless and until it conduct does come into legitimate expectation he established that had i.e., government conduct, that was invaded implicate the 4 Rewolinski concedes that this case does not Law, Electronic sec. Wisconsin Surveillance Control 968.27-968.33, Stats. 1985-86. outset,

5 At the we note that court said has provisions and the United search seizure States Constitution State, Conrad v. and Wisconsin 63 Constitution are "identical." 616, 622, 218 (1974). 2d This Wis. N.W.2d 252 court has "consist ently routinely conformed the law search and seizure under developed by the state constitution the United States Fry, v. Supreme amendment." State Court under the fourth 131 denied, 153, 172, (1986), cert. Wis. 2d 388 U.S. N.W.2d 565 479 Thompkins, 135, State 989; 144 Wis. 2d 423 N.W.2d 823 (1988). regard, "legitimate," "justifiable"

6 Inthis the terms "rea McKennon, United States v. interchangeable. sonable" are 814 (11th 1987). n.5 F.2d 1543 Cir. meaning

that a search or seizure within the of the fourth amendment even occurred. subject

Once it is established that the defendant was police seizure, conduct, to a search or then the to be constitutional, must have been State v. reasonable. (1977). Monahan, 387, 395, 76 Wis. 2d N.W.2d " applicable 'The rule fundamental to searches and per seizures is that warrantless searches are se unreason- except able under the Fourth Amendment under certain " quoting circumstances,' Bell, well-defined State v. (1974). 534, 540, Wis. 2d 215 N.W.2d 535 Id. The ulti- mate standard under the fourth amendment is the rea- light sonableness of the search or seizure in of the facts State, and circumstances case. Bies v. 76 Wis. 2d (1977); Cady 457, 468, 251 N.W.2d 461 Dombrowski, v. (1973). 413 U.S.

REASONABLE EXPECTATION OF PRIVACY The of determination whether the defendant had a expectation privacy depends sepa-

reasonable of on two questions. question rate The first is whether the individ- by subjective expec- actual, ual his conduct exhibited an privacy. question tation of The second is whether such expectation legitimate justifiable an is or in that it is one society willing recognize that is as Ste- reasonable. Maryland, vens, 316; 123Wis. Smith 2d at v. 442 U.S. at (1978). 740; Illinois, Rakas v. 439 U.S. 143-44 n.12 Expectation Burden as to Reasonable of Proof of Privacy preliminary question A is whether a criminal defen- establishing dant bears the of burden both that he mani- expectation privacy of that subjective was fested expectation that by action and government invaded parties agree In legitimate. regard, all was authority bears the burden of holds that defendant actual, expecta- subjective he manifested an proving that by govern- he was violated privacy tion of which claims Thus, question which remains is ment conduct. proving also bears the burden of whether the defendant expectation privacy legitimate of subjective that his society recognize it is justifiable in that one that will as conclude that the defendant bears the reasonable. We burden. involving alleged curtilage

In a an search of the case home, Katz interpreted this court of a defendant's protec- that a who wishes to invoke the hold defendant show, "inferentially tion of the fourth amendment must least, expectation pri- of subjective at reasonable State, 616, 631, vacy." 2d 218 N.W.2d Conrad Wis. (1974). Conrad, expecta- In neither the defendant's proof tion of nor the allocation burden issue; that the was at the court assumed defendant had a Id. expectation privacy. reasonable at 623. The state- Conrad, upheld holds authority, ment as other showing subjec- that his a defendant bears burden reasonable, agree. and we tive Supreme States Court itself has stated United has proponent suppress that "the a motion establishing burden of that his own Fourth Amendment by challenged were search or rights violated seizure." Rakas, occasion, at 131 n.l. On another U.S. Court den, the criminal defendant "bears the bur- stated that expectation he proving legitimate

of had a of Rawlings privacy" allegedly item searched. Ken- tucky, 98, (1980). 448 U.S. 104-05 appeals placed The court of of this state also has prove subjective burden on the defendant to both the objective prongs expectation pri- of the asserted of vacy. Rhodes, 722, In State v. 724-25, 149 Wis. 2d (Ct. 1989), App. appeals N.W.2d 630 the court of held a prove legitimate expectation pri- defendant "must his vacy in the area searched" and must show he "had a subjective expectation privacy society pre- which is pared recognize as In reasonable." State v. Curbello- Rodriquez, (Ct. 414, 423, 119 Wis. 2d 351 N.W.2d 758 1984), App. appeals the court of held that the "burden is prove legitimate expectation on the defendant to his privacy," Callaway, citing 503, State v. 520, 106 Wis. 2d (1982). 317 N.W.2d cert denied 459 U.S. 967 While along Rawlings, cases, these Rakas with were "standing" legal principles they cases, the discussed are applicable to "was-there-a-search" cases. Riley,

This made clear in Florida v. 448 U.S. (1989). Riley, S. 109 Ct. 693 In a "was-there-a-search" recognized case, Justice O'Connor that "the defendant proving must bear the burden of that his one, was a reasonable thus that a search within meaning of the Fourth Amendment even took place." (O'Connor, concurring). J., Moreover, Id. at 699 plurality clearly assumed what Justice O'Connor explicitly position stated when it assumed the suggesting state reference to "the record not other- Riley, wise." 109 S. Ct. at 696-97. other'jurisdic-

Lower federal courts and courts tions also have held that the criminal defendant has the proving subjective expectation burden of both a and a legitimate expectation in "was-there-a- Hershenow, search" cases. In United States v. 680 F.2d (1st 1982), 847, 855 Cir. the court held the burden is on " only real, the defendant to 'establish not that he had a privacy subjective expectation ., . of . but that " (quot objectively, expectation, was reasonable' viewed (1st ing Goshorn, 697, 700 Cir. v. 628 F.2d United States 1980)). Michols, 732, v. S.W.2d 737 Accord State 628 (Mo. 1982); Hightower App. State, v. 672 P.2d Ct. 1983); (Okla. App. Bellina, v. United States Crim. 675 1981). (4th 665 F.2d 1340 Cir.

Following authorities, clear is these proof question of defendant bears the burden of on expectation privacy subjective rea- his of was whether prove Thus, that a search or seizure within sonable. meaning occurred, of the fourth amendment a crimi- establishing nal bears the burden of both that defendant subjective expectation he manifested a by expec- government was action and that that invaded applicable legitimate. proof tation was The burden is by preponderance See, a State of the credible evidence. (1980); Edwards, 367, 377, 2d Wis. N.W.2d Rogers, 243, 247, State v. 148 Wis. 2d 435 N.W.2d 275 (1988).7 a Search or Seizure Occurred

Whether legitimate expecta- As to Rewolinski had a whether privacy, question then, tion first is whether he can expectation subjective privacy. establish that he had a question dispositive However, this the issue. subjective expec- is, if That even Rewolinski did have arguably tation of he did not—the con- —which trolling question is whether such an legitimate totality under the of the circumstances. We Matlock, States v. United

7 Asthe stated in Court 415 U.S. 164, 178 (1974), "controlling proof suppres n.14 burden of at hearings impose proof greater sion should no burden than preponderance of the evidence." regardless hold that was not and sodo the of fact that proof question. Rewolinski bears the of burden on the legitimate expectation privacy expecta A of is an society prepared recognize tion which is reasonable, as objectively, justifiable i.e., viewed it is the under circum Maryland, Smith stances. 442 U.S. at 740. Whether a legitimate expectation privacy defendant had of depends upon totality the of the circumstances. Rawl ings, 104; 448 Cleveland, U.S. State v. at 118 Wis. 2d (1984). 615, 633, 348 N.W.2d 512 The court must con whether, expectation legitimate by sider an of balancing society permitting gov the interest of the ernment conduct to occur and the interest by Palmer, asserted the individual. Hudson v. 468 U.S. (1984). question 517, 527 is one of mixed fact and underlying evidentiary law. The historical and facts by binding appellate found the trial court are on the they against great weight court unless are the and clear preponderance of the evidence. But whether there was a seizure, i.e., search or whether those facts and undis puted gave legitimate expectation pri facts rise to a vacy part on the of the defendant is a matter of law independently which this court determines. State v. Wisumierski, 722, 734, Wis. 2d 317 N.W.2d (1982). Fillyaw, following

In we defined the as elements although controlling relevant, exclusive, in neither nor legiti- determination whether the defendant had a (1) privacy: mate whether the defendant (2) property premises; had interest he whether (3) legitimately (lawfully) premises; on the whether complete right he had dominion and control and (4) precautions others; exclude he whether took custom- arily (5) seeking privacy; put taken those whether he use; (6) whether private to some property historical notions privacy is consistent with

claim of Individually 2d n.6. Fillyaw, 104 Wis. at 712 privacy. that Rewolinski did collectively, these factors indicate legitimate expectation privacy. not have a First, "property interest as to a defendant's property Supreme Court has stated that premises," the alone, although controlling, are relevant. rights, case, Rakas, TDD and 143. In the instant U.S. at department prop- ink sheriff printout paper and were in the sheriff erty, and TDD itself was located Also, item is located department's office. whether the public private place in is the conduct occurs either a Katz, (Harlan, concurring). U.S. at 361 J. relevant. case, In this Rewolinski carried out his conversa- area, normally dispatch from the an restricted tions area personnel occupied by depart- department to sheriff personnel Department calls. ment at the time of the personnel to unlock a to in dispatch had door the area TDD, gain order for Rewolinski to access to the indicat- ing department dispatch strong a interest the area. "public" pervaded by The location here was and was "public" presence. Rewolinski had "property no interest premises." in the

Second, as to legitimately whether Rewolinski was (lawfully) premises, the noteworthy on that he was longer depart- no under he the arrest when used sheriff Although ment's TDD to communicate with Teeters. he legitimately premises, presence was on his the was the Thus, previous result of a "Fil- arrest and release. lyaw factor," all, if it only favors Rewolinski so at does to very degree. limited

Third, isit clear that Rewolinski did not have "com- plete right dominion and the to control and exclude department's others" using while the sheriff TDD tele- He phone. certainly could not exclude dispatcher from the communications nerve center the office. As noted, dispatcher dispatch was during area her job conversations. It was to be there. She could see Rewolinski and observed his during behavior conver- sations. rightfully Rewolinski could not anything do Katz, it. about Unlike the defendant Rewolinski was public telephone using he to entitled control. He not request privacy; did nor right- could he fully expected have any request for granted. to be

Similarly, the facts show that Rewolinski no had "dominion and control." He ended the first conversation by telling department personnel Teeters that sheriff presence were in his for him waiting conclude explained conversation. He her department per- might Then, sonnel equipment. need use the when the ended, call he dispatch left the area. When Teeters later back, dispatcher called received the call first and then had. to escort Rewolinski back into the dispatch area and to the TDD in for him order to take the All call. of these factors indicate that no Rewolinski had "domin- respect ion and control" dispatch with to the area or the TDD located there.

The dissent states a search warrant should have sheriff, been sought crime, before deputy after the read TDD. the This would have been useless since the TDD memory device a had feature which recorded trans- missions well as tape. as It producing the was not neces- sary to obtain a search warrant to consider information in the machine belonging to the sheriff.

Fourth, precautions as to customarily taken those seeking privacy, Supreme the Court has said that person what a exposes public, "knowingly to even office, his own home not subject is a Fourth protection." Riley, Amendment quot- 109 S. Ct. at (1986). ing Ciraolo, In v. 476 U.S. California exposed printout knowingly case, Rewolinski place dispatcher, he so did and readout to the public own home or office. The dis- far than his more simply patcher, practical matter, have could as a printout, just approached TDD as a and read the might being spoken passerby an the words into overhear might ordinary telephone, or have able to read she been standing off to the inch tall readout while one-half circumstances, where side at some distance. Under these voluntarily proceeded with his conversations Rewolinski obviously though printout even exposed were the readout dispatcher, expectation to the no be reasonable. could evidently lag during addition, in one

In what was a explaining lag conversations,.Teeters, TDD talking Rewolinski, him is to me." Teet- told that "Bob evidently referring Orr, ers occupant Bob another adult Rewolinski-Teeters’ house who also living primary quarters inwere the base- deaf and whose dwelling. all by of the Rewolinski-Teeters' For ment (cid:127) standing do, and could "Bob" was Rewolinski knew during their the entire conversations and knew contents. knowingly exposed he TDD conversations Because dispatcher "Bob," and to Rewolinski could both privacy not them. have reasonable 1988). (Me. Herbest, 442, 444 See A.2d State inability to his and While is true that due Teeters' speak ordinary an to hear or Rewolinski could use public telephone options Teeters, to communicate with other than an extended conversation with Teeters were disposal. at He could have Teeters on the his called kept point brief and to the and have the conversations (of ride),8 needing a or he could have asked sheriff department personnel place a call for him to Teeters person give or another him a ride. record does not department show whether he asked the sheriffs for a ride home. Nor does record indicate that he could afternoon, not have walked home on that summer public conveyances that could not be hired.

Fifth, "put property Rewolinski did not to some private purpose use." While his in using the sheriff department's nature, TDD was of personal it was no way private. To contrary, purpose Rewolinski's ride, using the device was to call for a dispatcher, and the obligation so, under no him permitted do to use the is, device for purpose. that That dispatcher knew of Rewolinski's use of purpose the device as well as his it, using and she knew it at the time the conversa- tions were ongoing.

Finally, as to whether "the claim of is con- sistent with privacy," historical notions of the United Supreme States Court has said that a relevant factor is society possesses whether as a whole an understanding an scrupulous protection area deserves the most Greenwood, government from intrusion. California States, (1988); U.S. 486 43 Oliver v. United U.S. (1984). Also, per- the Court considers whether mitting police conduct at issue would diminish the amount of freedom and to the remaining coun- try's citizens degree open to a consistent with a free and Riley, (Brennan, J., society. dissenting); 109 S. Ct. at Stevens, (Heffernan, C.J., 123 Wis. 2d at 334 dissent- point"

8 A brief conversation would not that was "to the legitimate expectation itself have endowed Rewolinski with a privacy. practical matter, however, might As a have meant damaging the words he now claims were to him never would have spoken. been customary Society's recognition

ing). behavior and habits the use of domestic and business common properties significant. C., In re Deborah is also 30 Cal. (1981); Rptr. 125, 852, 446, Cal. 635 P.2d 452 3d 177 (9th 1990). Chevron, v. Strikes No. 89-15208 Cir. dispatch police station, The area of a definition necessity, pervaded by government is an area intru- police Telephone placed dispatch sion. calls to and from (See routinely n.9, areas are monitored and recorded. infra.) operations Such are not inconsistent with a free open society. dispatch police area a station is society deserving as not an area a whole would view as scrupulous protection government the most from intru- permit Allowing sion. keep the conduct here—to sheriff to walking property a casual user from off with sheriff justifiably can which be assumed contain information department process sheriff needs to or to which public general simply members of the should not have access—will not diminish the amount of freedom and privacy guaranteed people by to the the state and federal constitutions. distinguish

Furthermore, the defendant fails to between his statements to Teeters and Teeters' state- eavesdropping contempora- ments to him. Katz involved neously telephone nothing on conversations. There is suggest person Katz to that one can have a reasonable person in the words another com- during person municates to him a A conversation. has no authority control or over his co-conversationalist. The co-conversationalist's words are her own. above,

Given the factors considered it is clear that legitimate expectation pri- Rewolinski did have a vacy, i.e., that no search or seizure occurred. This find- ing is consistent with what this court v. stated State

22 Dombrowski, 486, 44 (1969). Wis. 2d 171 N.W.2d 349 " ' is, implies That "search a prying places into hidden ' " for 495, that which is concealed." Id. at quoting State, 338, 332, Edwards 38 2dWis. N.W.2d " (1968). Furthermore, 'A implies search an examination premises person of one's or with a view to discovery or guilt contraband evidence of in prose- to be used cution of a criminal action. The term implies [search] " exploratory investigation quest.' Dombrowski, States, Wis. quoting 2d at Haerr v. United 240 F.2d (5th 1957). Thus, case, Cir. in this where the TDD printout and readout were at all times within view dispatcher, of the dispatcher plainly where the saw the printout in hand, bundled the defendant's and where the dispatcher was not searching for contraband or evidence crime, of a it can be said that no search occurred. conclusion,

In any expectation privacy by defendant was not temporary reasonable. His and out- possession printout tape by ward of the tearing it off of TDD department's the sheriff in bundling his hand does not him protected endow with a interest. circumstances, totality Under the of the the defendant did legitimate expectation not have a in the typed Teeters, words he on the TDD in and sent to him, in printout tape words she sent to from the sheriff department's machine. He assumed the risk using department telephone equip- attendant sheriff dispatch purposes ment located in the area for of official presence business in the immediate others.

WHETHER GOVERNMENT CONDUCT WAS REASONABLE

If legitimate expec- the defendant had established a by government that invaded tation was meaning i.e., seizure within action, a search and place, issue then the took amendment of the fourth constitutional. was the search be whether would Here, if even Rewolinski Monahan, at 395. 76 Wis. 2d privacy, legitimate the action ahad especially dispatcher reasonable, in view of sheriff It follows of this case. circumstances" the "well-defined violation. no constitutional that there was Supreme has said that one States Court The United determining the reasonable- to be considered factor police at the time of the conduct is whether ness of the police of a the item was evidence knew that seizure (1973); Cady Dombrowski, 413 U.S. crime. v. Dombrowski, In 2d at 495-96. State v. regard, Wis. emphasizing that there was no crime it bears suspicion crime, case, of a when the dis- this patcher let alone tape. printout Nor could there be retrieved the suggests any knowledge This fact alone of a crime. police was reasonable. conduct this case dispatcher in that the Nor did the this case know printout tapes she from the contents of the retrieved become evidence of a crime. This defendant would later points In Illi- also to the reasonableness of her conduct. — Rodriguez, —, 110 S. Ct. nois U.S. (1990), Supreme emphasized Court that reasonable- ness under the fourth amendment does not demand factually law enforcement officers be correct their police judgment The assessment of a situation. challenged officers at the time of the conduct must be responsible, Rodriguez, it 110 S. but need not be correct. question Ct. at 2799. The crucial is whether officer's response objectively understandable, reasonable and response is, that whether it was a reasonable to the situ- Rodriguez, facing ation 110 officer at the time. S. Ct. at 2800.

24 case, In dispatcher way had no of predicting printout that the later would become pertaining evidence to a crime. She reasonably understandably and believed that she could not allow the defendant to walk off with printout tape. She reasonably understandably and tape belonged believed the to department the sheriff and might contain information —from Rewolinski's conversations, possibly previous from other conversa- printed tions out on the paper tape continuous and not yet removed from the TDD —that needed to be assessed and which at least for the being department time preserve, needed to for purpose logging and ana- activity. lyzing call The evidence the depart- indicates routinely printout ment did save the tapes for later reference.9 departments routinely incoming outgo

9 Police record all and accurate, ing dispatches calls order to make sure their are to information, verify keep log emergency and to and non- calls, emergency practice illegal and this is not considered inter See, e.g. v. Kootenai ception or electronic surveillance. Greenfield County, Village 1387, 1389 (9th 1985); Jandak v. 752 F.2d Cir. Brookfield, 815, (N.D. 1981); People Supp. v. F. Ill. 520 822 Canard, People 444, 466, (1967); Rptr. 257 Cal. 2d 65 29 Cal. Cole, 3d, (1989). App. 186 Ill. 542 N.E.2d calls, police legitimate keep

The have a need to records of and calls, notes, long enough log them make to retain do necessary preserve important whatever else is information and Tobias, Communications, 449, See public. to serve the Police (1974); Fieler, Guide, (1980); Dispatcher's Ekblom & Radio sec. Heal, (1982). Response 25-29 The Police to Calls from the Public Wileman, Policy Agencies See also Police Model Manual for (1976). important processing 45-47 of such information because, among things, department where and other it tells the protect how to allocate scarce resources with which to serve connection, public. In this the fact that a and its conversation, tape printout tape than a recorded the rather department's TDD sometimes would This sheriff engaged printout feature was when the malfunction previous portions printing spontaneously sheriff out ongoing department conversations transmissions while dispatcher printed.10 being knew of this mal- were reasonably suspected that, because of She function. malfunction, tape Rewolinski-Teeters' conver- only might contained not Rewolinski's sations have messages other, to each but also confidential Teeters' police members of about information information previous public TDD recorded from trans- printed during then out the Rewolinski- missions and right no to such Rewolinski had Teeters' conversations. parties. police Indeed, about the and third information arguably responsibility dispatcher would have a keep from him. The malfunction meant also that reasonably expected department could not be the sheriff any rely solely upon retrieving from information memory purposes TDD for the internal feature of the logging; department department records and had not only practice legitimate need to save the but also fully possible printout tapes piece together so as to as as department's the information needed for the administra- purposes. tive dispatcher possession

If had not taken of and printout tape, retained the but instead had read the lengthy tape any portions pertaining time, at the torn off given tapes him, to the defendant and then his complaint private would have been that she read his thereby right conversations and that she had violated his words, spoken recorder which would have recorded is not consti- tutionally significant. apparent malfunctioning

10 It is the TDD was because it repeated messages certain of the defendant's and Teeters' over printout and over on the of their conversations. Furthermore, privacy. suggested task sorting separating pertinent

out and impertinent from informa- tion is one dispatcher that the reasonably should not be required to spot," undertake "on the while on active dispatch duty, occupied immediately with more demand- ing tasks such as monitoring police radio communica- tions receiving emergency and calls directed to the sher- iff department.

Finally, it bears noting ”[p]olice safety is of paramount importance in fourth amendment jurispru- Murdock, 217, 237, dence." State v. 155 Wis. 2d 455 (1990) (Abrahamson, J., N.W.2d 618 In dissenting). this light, it is not police unreasonable for a officer to be concerned and to react in way a measured when mem- public pick bers of the in up police articles stations and take them into their possession, own espe- this is cially so respect with police restricted areas of stations.

HARMLESS ERROR DOCTRINE Since we have determined that there was no consti- case, tutional violation in this we need not consider whether, if violation, there had been a constitutional it Nevertheless, would have constituted harmless error. we note that of appeals Judge court Thomas Cane case, found harmless error and we choose to com- briefly application ment on the of the harmless error Dyess, 525, standard 124 set forth State v. Wis. 2d (1985). Dyess, 370 222 N.W.2d Under constitutional error if possibility is harmless there is no reasonable the error contributed to the conviction. Id. at 543. The Dyess beyond test is consistent with the "harmless Chapman California, reasonable doubt" standard of v. Grant, (1967). 139 Wis. 2d See State U.S. (1987) J., (Day, concurring). 45, 73-74, N.W.2d 744 Teeters' statements has claimed that The defendant her, during kill made their fear that he would expressing her, kill before he did TDD a few hours conversation case —and devas- prosecution's to the indispensable were they "directly contra- tating to the defendant —because in the contention that he acted the defendant's dicted argued, has Accordingly, the defendant passion." heat of " transcript evidence about admission [t]he the difference between first- literally represented in manslaughter" Wisconsin.11 degree and that the defendant passion" argument The "heat of subjective objective has a element and an wishes to make Lee, 1, 12, State v. 108 Wis. 2d 321 N.W.2d 108 element. (1982). attorney conceded at trial that the The district defendant, passion." in acted the "heat of subjectively, test, a defendant's heat of respect objective With to the Id. provocation." passion adequate "must be the result of cause an must be such that would "provocation This ordinary, person reasonable to be overcome with emo Johnson line of degree tion to the discussed the Id., State, 146, 108 Johnson v. 129 Wis. N.W. cases." ref. (1906). in Johnson that: This court stated passion which will reduce what would heat of [T]he manslaughter murder to ... is such otherwise be reasonable, disturbance, adequate caused mental ordinarily provocation as would so overcome and suspend judgment the of dominate or exercise of the ordinary for the time an man as to render his mind incapable being to the voice of reason: make him deaf forming executing that distinct intent to take degree, human life essential to murder the first 11First-degree manslaughter murder and are codified at sec. 940.01, 940.05, Stats. 1985-86 and sec. 1985-86. him, uncontrollably, impel-

to cause to act from the ling cause, disturbing force rather from than any real cruelty wickedness of heart or or reckless- disposition ness of . . ..

Id. at 160. Dyess

Thus, question under is there whether any possibility any reasonable error in that admission of conclude, jury effect, evidence led Rewolin- that ski did not the objective meet element of manslaugh- defendant, course, ter test. The argues there is that possibility reasonable that the admission of the evidence objects to which he the jury's resulted in conclusion there "adequate provocation." was not argument appears defendant's address not to prong of objective manslaughter relating test subjective prong. instead to the expression Teeters' him simply fear of not to Rewolinski and desire see do closely whether, appear question related objectively, provocation" by which "adequate there "ordinary, person" an reasonable would be overcome possibil certainly with There is no emotion. reasonable ity challenged led the its con jury evidence "adequately provoked." clusion that Rewolinski was not "directly argument It the defendant's did not contradict1' To the "literally represent" or the outcome of the case. objects contrary, evidence to which Rewolinski the evidence by jury be a to be might considered reasonable he did "adequately provoked" and thus that that he was guilty of passion" act in "heat of so would be the and See, e.g., first-degree murder. manslaughter instead of (1964) Hoyt, State v. 128 N.W.2d 645 Wis. 2d (husband's wife humiliating behavior toward and violent adequate provocation for jury could be as basis taken actions). Hence, possibility is no reasonable for her there guilty jury him first- to the find that the evidence led manslaughter. degree murder instead clearly Judge assumed, the Furthermore, as Cane arguing attorney may in that have been incorrect district subjective element for heat of met even the Rewolinski suggests passion. Independent in record evidence passion. subjective may heat of have been no there prosecution did kill showed the defendant not that anger. one, Rather, first he instantaneous moment manually, strangled putting his hands around Teeters wrapped squeezing that, he a belt her neck. After proceeded tighten it her neck and around around Finally, fill neck until the belt broke. he took time to dragged water, or two-thirds full of carried bathtub placed bathroom, and her face Teeters into the down the water. objection, jury

Without learned that the victim previous restraining had obtained a order directed at the defendant, because the defendant had beaten her and go made threats that her if she he would shoot did jury objection, heard, back him. The without that as grounds temporary restraining sought for a she on order day death, her Teeters stated the defendant had yellow rope tried kill himself with a he rope "put very fright- her; almost to" she was previously ened making and that defendant knew of and was killing hurting threats about male Teeters' friend. possibility summation,

In is no there reasonable prosecutor's that either the evidence or the refer- brief closing argument ences to it on cross-examination and prejudiced Any beyond harmless, error defense. reasonable doubt.

EVIDENTIARY HEARING perfect. used below procedure The was Due to case, judge this con- circumstances trial did not evidentiary hearing presence duct an of out of the An jury. evidentiary hearing presence outside (under Stats.) 971.31(4), jury statutory sec. preferable, constitutionally but it is not required. Cf. Sowders, v. Watkins (1981) (hearing 449 U.S. 341 presence jury outside on identification evidence not A required). a hearing, although remand for sometimes permitted,12 necessary is not case. suppress

Two motions to filed were several months accompanied before The trial. motions were state- later, a hearing requested ment would be if such necessary. were deemed The motion suppress, final request which a hearing, included stated for was not day made until before the trial no wit- when state's present during nesses were The trial available. court tape the trial did allow the into part evidence and its jury, contents revealed to after only ruling but on the suppression The judge motion. was satisfied there no violation the defendant's rights. constitutional The trial did not deprive opportu- court the defendant of the testify, nity to call limit questions witnesses or requests asked. defense made no such in fact procedure agree- defense stated the of the trial court was able. The defendant in this be case can deemed to have statutory 971.31, right waived his under sec. Stats. Moreover, questions the defendant would now pertain subjective expec- like to raise at a his hearing State, Upchurch 12 See 64 Wis. 2d N.W.2d (1974). question dispositive privacy on the is not which

tation of privacy. expectation legitimate He does not of of his questions be relevant his would to the answers show how pri- subjective expectation any of that to demonstrate vacy was reasonable. permitting eviden- for a further remand

The rule finality. appro- tiary hearing It is of the interest serves unnecessarily applied priately would if failure to remand Here, it could conviction. of a criminal result reversal fact, harm that, in no error or on remand be shown permitting should not be used remand The rule occurred. simply party opportunity give what it to do a legitimate before, is, to show done should have expectation statutory procedures privacy. We find the of case, this under the facts of but that should be followed protected. interests were the defendant's subjective has not shown either The defendant pri- expectation legitimate expectation privacy of or a of vacy. addition, facts and circumstances In under the unreasonably deputy case, did not act sheriff tape. printout confiscating There was no error any defendant. harm to the that caused appeals By of the court the Court —The decision is affirmed. (dissent- ABRAHAMSON, J.

SHIRLEY S. ing). from this this court cannot determine Because expecta- legitimate had a the defendant record whether on the telecommu- in his communication tion of (TDD), I remand the would for the deaf nications device sup- evidentiary hearing defendant's on the case for an pression eviden- court holds the motion. After the circuit findings tiary hearing fact, the record and makes should be forwárded to this court for decision about the expectation legitimate privacy. defendant's A expectation is, legitimate according cases, Supreme United States Court an prepared society recognize as Majority reasonable. op. out, As points at 16. Professor LaFave this statement is tautological. The protects fourth amendment those may justifiably interests that claim fourth amendment Seizure, Search and protection. LaFave, 2.1(d), p. sec. (2d 1987). ed. question The answer to the of justify what interests fourth amendment protection judgment is a value a court makes based on the of totality circumstances. . question "This must . . assessing be answered particular practice nature of a likely and the extent of its impact on the security individual's sense of balanced against utility of a technique the conduct as of law White, enforcement." United States v. 401 U.S.

(1971) (Harlan, dissenting). op. J. also majority See at 16.1 parties persuasion

1 The debate has the of in who burden adjudicative case. The state contends that this case involves both legislative Adjudicative ordinarily and facts. facts are historical lawsuit; pertaining legislative ordinarily facts to the facts refer to grounds policy judgments. Adjudicative the factual for facts are generally evidentiary proved hearing. Legislative may in an facts evidentiary through be hearing furnished the court an or briefs may pub investigation the court obtain the facts on its own adjudicative legislative lished For discussions of facts sources. (Rule) 902.01, research, and the of social sec. use science see 1985-86; McCormick, Evidence, (3d 1984), Stats. at sec. ed. Methodology Monahan, Social Facts: Scientific 928; Walker and Precedent, Legal as (1988); L. 76 Calif. Rev. 877 Walker and A in Monahan, Social Frameworks: New Use Social Science Law, Social (1987); Walker, L. 73 Va. Rev. 559 Monahan and Authority: Obtaining, Evaluating, Establishing Social Sci- States, (1967), Katz v. United 389 U.S. Since expecta- society regards recognized that have courts personal communica- in the contents privacy tion when the communication even legitimate, as tions telephone booth. public from a telephone his conversa- argues that The defendant be accorded the same Teeters should Catherine tion with if out of gone as he had protection fourth amendment telephone. He public and used department the sheriffs him requires his that neither deafness —which argues he was telephone the fact that type of special use a —nor affect his fourth department should in the sheriff's without personal communications right amendment surveillance. government society may recognize argues

The state that while personal communi- legitimate expectation situations, society recog- does not made other cations made on any interest communications nize area, in dispátch in the department's telephone, deputy of a sheriff. presence totality of the in this case is a record Missing may balance the com- from which a court circumstances privacy of conversa- interests of the individual's peting enforce- utility of the conduct of the law tion and the (1986); Davis, Law, in Facts U. Pa. L. Rev. 477 ence in Davis, Judicial, Legis- (1980); Lawmaking, L. Rev. 931 80 Colum. lative, Lawmaking: Proposed A Research Administrative and Court, (1986); Supreme Flor- Service the 71 Minn. L. Rev. for (Brennan, dissenting). Riley, 465-66 J. ida v. 488 U.S. issue, adjudi- the legal once the court has The determinative facts, legal legislative facts meet the and is whether the cative part legitimate expectation privacy on the of the of standard applicability persuasion burden of to decid- defendant. The of the determining1 question the facts is ing of law rather than to dubious. in recording

ment officers keeping and the record of the telephone defendant's conversation. record is devoid relating facts involving communications the use TDD any telephone the or located in the depart- sheriffs particularly dispatch ment the area. 971.31(4), 1987-88, sec.

Although requires Stats. issues by suppression of fact raised a be motion decided the circuit court without a jury although and the requests defendant made several hearing for a on his motion, suppression the circuit court not grant did I hearing. think the circuit erred in not court holding hearing.

Thus the record does not furnish adequate informa- TDD, operation tion about the department's the the practice of monitoring incoming outgoing and conversa- (of hearing tions the the hearing impaired) and on tele- phones department located the or in dispatch the areas, and the needs of law enforcement to monitor tele- phone both hearing hearing impaired calls of the happen be in department who but who are us, arrest. The tell example: under record does not for (cid:127) whether department any sheriffs has estab- policy TDD; lished about the use of the (cid:127) department routinely whether the sheriffs permits TDD; hearing impaired to use the « readily whether other TDD devices were available department to the defendant outside the sheriffs but vicinity department; sheriffs (cid:127) department's used whether the defendant had 9,1987; TDD before June

(cid:127) disengage whether the knew how to defendant printer printed on the so that no record appeals' opinion The court of conversation was made. assumed, proof, that the defendant knew without factual decided not to do printer so. disengage how to (Wis. slip unpublished op. Appeals, at 9 Ct. of Court 1989); App. 7, Nov.

(cid:127) regularly department and cus- the sheriffs whether tape; tomarily TDD retains the (cid:127) memory feature which had "a whether the producing tape," as well as the transmissions recorded majority op. majority opinion although makes at the memory finding such a that the machine has a fact feature;

(cid:127) depart- posted in were notices the sheriffs whether (or alerting telephone users of the TDD near the ment any telephone) about law enforcement officers' other conversations; access to the (cid:127) telephones placed from calls to and the whether dispatch routinely recorded, areas are monitored p. majority op. although brief, the 36 and at state's the they are; conclude that (cid:127) department whether the sheriffs had access to telephone hearing persons using tele- conversations phones department department in the and whether telephone hearing treated conversations and of the impaired hearing the same manner or a different manner;

(cid:127) why department recorded, did, the sheriffs if telephones department, on conversations located in the including public conversations made members of the department arrest, who were not under and how used recordings. opinion, majority state, defendant, agree I that the court's decision on whether the defen- legitimate dant had must be totality based on the of the circumstances. Because the any record is almost devoid of the "circumstances" decision, needed to make I do not believe court can legitimate expecta- decide whether the defendant had a privacy. hearing. tion of I would therefore remand for a (dissenting). BABLITCH, WILLIAM A. J. The jury in this case did not have to decide whether Mr. Rewolinski committed a crime when he killed the jury with, woman he lived Catherine Teeters. The had only first-degree to decide whether it was murder or manslaughter. deliberating jury In choice, this the had important piece before them the of evidence at issue in appeal: private a conversation between Rewolinski and Teeters three hours before she died that was tran- scribed on a telecommunications device for the deaf (TDD). transcription, by This torn off the TDD immediately Rewolinski after his second conversation forcibly by deputy Teeters, with taken from him a as leaving department, he was the sheriffs but before he deputy crime, killed Teeters. After the the read the tran- script, subsequently and it was received into evidence. majority concludes that Rewolinski's recorded protected by conversation was not the Fourth Amend- ment to the United States Constitution. Inasmuch as his enjoy protections conversation with Teeters did not majority amendment, of the fourth determines that police every right transcript, had to seize the read its any they contents, fit, and use it manner saw includ- ing against the use of it evidence Rewolinski. protections

The issue before us is whether the apply transcript fourth amendment to the recorded telephone TDD conversation on the between dependent Teeters, Rewolinski and both of whom were upon telephone for communication due to their deafness. disagree majority principal

I with the for rea- three involving privacy rights First, sons. this case basic comes privacy perspective. very unique involves It us from a presented arguments legal rights Yet the the deaf. majority, legal set down us, rationale concepts over the have evolved involve years given. are the is a What sound in world which expectations in world without reasonable into account to take issue is framed Unless the sound? sound, very is the world without world that different erroneously framed. the issue is majority's agree conclu- Second, I with the do not apply the to amendment does the fourth sion that very tape I that the TDD conversation. conclude of the protecting important con- interest of and fundamental government is not intrusion from versational allowing govern- by any in the societal interest offset literally examine without warrant "seize" and ment to Accordingly, telephone private I conversation. telephone private conversation, not- hold that this would withstanding TDD, recorded on a that it was made and protections subject Fourth Amendment the of the to Constitution. to the United States majority's agreed Third, if I with the conclu- even apply to this the fourth amendment did not sion that express my disap- taped conversation, I would write analysis employed by majority proval in with the determining there was a search the issue of whether meaning within the of the fourth amendment.

HH opportunity This court is faced an to embark with sparsely in on an uncharted course an area of law devel- oped: majority privacy rights The declines of the deaf. presented challenge. legal arguments to us that The legal by major- state, and the rationale set down ity, concepts involve that have over evolved years given. in in a world which sound is a what of

But the world without sound? What of approaching step signals pres- in which world a simple ence cannot be heard? What of a world which dependent upon costly technological communication is upon public displays "sign" devices, or called in which whispers confidentiality impossible? are may pri-

What be an unreasonable vacy may in a world with sound well be reasonable a Perhaps hearing person world without sound. a who place telephone telephone wishes to a call on a normal police police a station a few feet from a officer would not protections be entitled of the fourth amendment. person hearing place If may call, with normal wishes to expect person go

be reasonable to around the privacy. few, corner if he or she wishes But one will find any, if TDD's "around the corner." than in the Other person, only likely place home another deaf a deaf person department. will find a is in the sheriffs response majority? majority

What is the (a) kept tells us that Rewolinski have: could his conver- (b) (c) brief; him; sation- asked someone else to call for (d) (e) home; home; asked for a ride or walked hired a op. majority Rewolinski, Thus, ride home. State v. at 20. majority they deaf if advises citizens that wish rely technology on a that will enable them to more lead independent productive hearing in lives a dominated they subject world, must themselves to the choices opening up public either their conversation for examina- limiting purposes tion, their conversation to this court appropriate, returning dependence finds to their former phone bypas- them, on sing others make their calls for technology's advantages only altogether. It is Rewolinski is because deaf and could not make a call that a record of "phone" using government without "assumed the say To that Rewolinski call exists. monitored when he had having his conversation risk" of reality. See Rewolin alternatives, ignores no reasonable ski, speak 'assuming' 21. "It is idle to majority op. at matter, where, individuals practical in as a risks contexts Maryland, Smith v. realistic alternative." have no (Marshall, (1979) dissenting). J. U.S. truly providing to our role of

If are to be sensitive we expectations" what "reasonable must consider justice we pre TDD and using when what deaf should have TDD protect their conversations adequately cautions alone, I would remand exposed. On this basis being from proposed by as that the other dissent hearing, for a such more than the record give us far facts ing opinion, neurologist As noted clinical writer and before us reveals. recently society, observed about our Oliver Sacks n[w]e Ignorant deafness .... remarkably ignorant about are Journey Seeing A Voices: Sacks, O. and indifferent." World the (1989). Into the I agree. We need to of Deaf in living realities of a world with enlightened be to the sound, protection of and how that world affects the out privacy to which we are all entitled. taking and concludes that the forcible majority printout was not a search or

examination of the fourth amendment meaning seizure within enjoy a reasonable because citizens do when the communi- their telecommunications equipment govern- at a government from cation is made presence government of a official agency ment I the conversation. acted to "oversee" who "could have" Society's protecting fundamental interest disagree. 40 privacy application conversational necessitates of fourth amendment standards to this case.

The application depends of the fourth amendment person protection upon invoking against whether the its " can 'justifiable,' unreasonable searches claim a a 'rea- " sonable,' or a 'legitimate privacy' Smith, by government has been invaded action. 442 U.S. at 740. The focus a "was-there-a-search" case within meaning of the fourth amendment on is whether there is a privacy interest that should be or has been recognized warranting as protection. fourth amendment " Thus, Supreme emphasized, has Court test [t]he legitimacy . . government's is . whether intrusion upon personal infringes protected societal values Ciraolo, by the Fourth v. Amendment." 476 California States, (1986) U.S. (quoting Oliver v. United (1984)). 466 U.S. 182-83

Therefore, question of was-there-a-search is essentially question of policy to be determined weighing the societal interest in protecting the individ ual's asserted against interest the societal inter est permitting police engage issue, the conduct at by any requirement unrestrained fourth amendment Palmer, reasonableness. See Hudson v. 517, 527 468 U.S. Stevens, State v. (1984); 303, 334, 123 Wis. 2d (1985) (Heffernan, C.J., N.W.2d 788 dissenting). Rewolinski department's asserts that the sheriff conduct his right invaded conversational in a States, Katz United telecommunication. In 389 U.S. (1967), Supreme Court made it explicit that the fourth amendment applies to telecommunications. It the "contents" of that Katz pro- telecommunications Maryland, tects. See Smith v. The Katz 442 U.S. at 741. "implicitly decision recognized the broad and unsuspected governmental incursions into conversa- privacy electronic surveillance entails which

tional Amendment safe- of Fourth application necessitate Court, v. United States District United States guards." omitted). (1972) (footnote The 313 federal U.S. oral and elec- argued private itself has government are, of along protection with communications tronic offices, such as hotel rooms home and structures maximum which should receive privacy interests core from search and seizure under governmental protection Chadwick, States United fourth amendment. (1977). of proliferation wiretapping n.4 The U.S. society's recognition broad of further attests to statutes1 privacy.2 necessity of conversational the value and by protected wire 1 TDD Wisconsin's conversations were County tapping at time used Pierce statute Rewolinski time, the Department's TDD in 1987. Since that statutes Sheriff expanded scope in to include "electronic communica been have "any writing wholly . . . . . is as transfer of. tion" which defined 968.27(4), Stats., by . .." partially . Section or transmitted wire communication, interception of The electronic includ 1987-88. communications, subject ing TDD the same restrictions as to 968.28-968.31, See sec. 1987-88. or communications. wire oral parties dispute conversation would whether Rewolinski's present wiretapping light protected by in have been statutes 968.27(7) Stats., (a)2., or sec. which excludes electronic oral by . in "[b]eing used a . . law enforcement officer communication ordinary course of his or her duties." Procedure, Pre-Arraignment A sec. 2 Cf. Model Code 210.3(2) (1975), public's which holds the interest conversa provides general high regard for a tional such that it personal against recordings for prohibition made seizure communication: samples, exception handwriting writings

With and other or evidentiary recordings of for reasons other than their testimo- value content, things subject personal . . nial . shall not include seizure diaries, letters, solely pri- writings recordings, for or made other occupying family, vate or communication to an individual use growth Our intellectual and emotional and our enjoyment require and, indeed, life are stimulated today's society, communication with others. In telecom- play personal profes- munications a vital role in our relationships. sional Because conversations also have the capacity manipulate, humiliate, and incriminate the speak exposed individual when the words he or she are unanticipated audience, an our conversations is often essential to their value. As Justice Brandéis wisely us, reminded the of makers our Constitution recognized: significance spiritual nature,

the of man's of his feel ings They of only part and his intellect. knew that pain, pleasure of the and satisfactions of life to are be things. They sought protect found in material to beliefs, thoughts, Americans in their their their emo conferred, They tions and their sensations. against as Government, . . Olm right the the be to let alone .. States,

stead v. United (1928) 277 U.S. (Brandeis, J., dissenting). vitality society depends

The continued of a free upon pub- emotions, of in the interaction ideas and both private, rely in lic and it is the fourth amendment we upon protect private exchange thoughts. to the of our Any interception government of conversation threatens people's personal security of in sense the of their conversations interferes with the values inherent speech. that weighing competing

When the societal interests question considering involved the of was-there-a- important begin specifying precisely search, "it is to activity challenged." the nature of the state that personal relation, or other confidential other in crimi- than a relation enterprise, things serving nal unless such have a sub- served are purpose enterprise. stantial in furtherance of a criminal occurred search this case 741. The

Smith 442 U.S. at of printout department examined the sheriffs when gather regard- information Rewolinski's conversation communication. record of that ing contents not printout were that the contents establishes until fully by Deputy Roed Rewolinski con- examined Contrary killing Catherine Teeters.3 fessed to assertion, testimony there is no majority's for a later time. Togging" set aside at printout was There routinely County used is no evidence that Pierce importantly, most there is no printouts logging. for And why represents impor- an logging reason advanced calls requires an examination of the tant societal interest from TDD. The contents each call made entire only purpose for the examination of the apparent time the printout at the examination the contents place to look for To the conversation took was evidence. that, police do should have had a warrant. There was exigency, tape leave no about their possession.

Furthermore, inspection Deputy Roed's search printout's regardless contents constituted a lawfully possession printout.4 she was whether following public 3 The is from John defender Leonard's cross- Deputy Roed: examination of Okay. you tapes? When first

Q: did read evening reading A: I started them on that but later I didn't have a just my chance I to finish with other duties. threw it aside. evening" not It is clear whether "later in the meant after Cathe- reported during rine Teeters's death had been the time between approximately 5:20 P.M. and 8:15 P.M. between Rewolinski's department. any case, however, contacts with the sheriffs In fully tapes inspected prior investigation. were not to the homicide inadequate 4 I is believe the record to determine whether the department possession printout. sheriff's had lawful

44 Legal possession of an article does not endow law any authority enforcement officials with concomitant See, e.g., Walter v. also search the contents of the article. States, 649, United (1980) (Stevens, 447 U.S. 654 J. that, concurring), (stating FBI agents fact that "[t]he possession lawfully were of the boxes film did not authority contents."); United give them to search their Khoury, States v. (11th 1990) 959-60 Cir. F.2d FBI (holding agent's investigation that an of the written contents of notebook lawfully posses- that was in the sion of the FBI constituted a search that violated the rights). defendant's fourth amendment Robert legitimate Rewolinski had a expectation of privacy society's because in protecting interest conversa- society's tional police exceeds interest in the conduct at issue here. Conversational a basic personal protected by the freedom fourth amendment. Curiosity investigation only are the apparent rea- sons for the department's exploration sheriff of the con- printout they tents of the knew personal contained a phone conversation. calls for Logging administrative convenience is not of overwhelming kind societal required interest the right overcome of conversational Moreover, privacy. it is axiomatic that we cannot allow police practice to scope define the fourth amend- protection. ment's thoughts

Robert Rewolinski's and emotions should open subject become an book to examination with- Although unquestionable taking I think it is the forcible printout from Rewolinski's fist clenched constituted a seizure meaningful because there was a interference Rewolinski's with Jacobsen, see United States possessory printout, in the interest Friday, State v. (1984); 359, 374, 466 U.S. 2d 147 Wis. (1989), give N.W.2d I would remand on this issue to opportunity state the show that seizure was reasonable. government equip- he used simply because out warrant he sus- or because was to make communication ment The violated the defendant's pected of a crime. state if surely as had rights just as broken constitutional personal and his home without a warrant taken into letters, tapped telephone if his just surely as as it had to for trial. Accord- warrant obtain evidence without a meaning I conclude a search occurred within the ingly, Deputy when Roed examined the the fourth amendment A printout. contents of the could have warrant procured depart- been before the sheriffs should have personal communication between ment examined The woman with whom he lived. Rewolinski printout on the TDD should not taped conversation into have been allowed evidence.

HHHH emphasize I I agreed also wish to that even if with conclusion rea- majority's ultimate that there no I privacy, necessary find it expectation sonable would express my regarding analysis of the concerns opinion majority. questionable The reflects choice precedent, emphasis property rights, on and an an undue overly term application "knowingly narrow essence, employs In expose." reasoning majority provides in are few clues as what fact or facts this case Katz, upon distinguish relied it from which the Supreme pri- Court found a reasonable vacy major- the defendant's telecommunication. factor(s) ity's specify failure to which are determinative issue cause was-there-a-search will confusion provide guidance the lower courts and little to the law agencies of this enforcement state. majority's analysis,

The cornerstone of the entire "Fillyaw largely inappro factors," the are irrelevant and priate they geared in this context are because toward assessing spatial pri the "reasonableness" of an asserted vacy Fillyaw, interest. The in State v. 104 focus 2dWis. (1981), denied, 312 N.W.2d 795 cert. 455 U.S. 1026 (1982), "legitimate was whether the defendant had a expectation privacy place," girl in the invaded his apartment. added). (emphasis Fillyaw friend's Id. at traditionally question addressed the referred to as one of Fillyaw "standing."5 Consequently, empha the factors property rights size and the defendant's control over an they significant addressing area because are when may legitimately whether a defendant claim his that rights by government were violated intrusion into a place. Fillyaw inappropriate

The factors are here because property Rewolinski does not claim that his was invaded police the search or that intruded a into "constitu- tionally protected claim, rather, area." "Petitioner's notwithstanding trespass, that, the absence of a infringed 'legiti- State, Katz, as did the Government in privacy' petitioner mate held." Fillyaw Smith, at 741. The U.S. are directed factors validity determining at claims constitutional government upon expecta- intruded the defendant's place. Fillyaw Accordingly, tion of fac- only determining petitioner tors are useful for what the already has conceded—that he not a constitution- was ally protected area. Fillyaw may summary as be "We note this [of factors] standing determining

useful courts in of defendants Fillyaw, (emphasis . other cases . .." at n.6 104 Wis. 2d 711-12 added). point Fillyaw quick out that court controlling nor neither exclusive. it set forth are

factors always they Fillyaw, n.6. are 2d at 711-12 Nor 104 Wis. emphasized in Oliver As Justice Marshall relevant. (1984) (Marshall, States, 170, 189 n.8 466 U.S. United protected by dissenting), J., interests "[t]he expectations that are limited to Amendment Fourth public govern- physical free from areas will remain omitted.) (Citation relevant intrusion. The factors ment nonspatial of a of the reasonableness to the assessment privacy may . .." well different. The fourth interest be "protects places." people, Katz, 389 U.S. amendment must considered when at 351. Different factors be nonspatial privacy assessing the of a reasonableness interest. majority's emphasis on inabil-

The the defendant's ity dispatch over the area to exercise control the activity "knowingly perception its also skews exposes" of what op. majority The a conversation. See at 18. suggest majority presence the seems to that of others automatically during opens that a telecommunication by up interception any conversation for means. available accompanies making phone risk, however, that a public place presence in call in a of others is that being here, overseen; overheard or con- had Rewolinski's "overheard," been versation he could not claim a reason- privacy portions able con- to those Everyone that versation were overheard. understands any not, however, this risk. There is similar understand- ing telephone public places, gov- conversations not, ernment owned or are recorded.

Moreover, there is a substantial distinction between gathered by eye naked information ear or and infor- gathered through mation means electronic or other means which enhance the senses.6 Rewolinski has not "knowingly exposed" his simply conversation because there bystanders may are portion who oversee some the conversation. "It protected is by is Amendment, Fourth not solitude." O'Connor v. Ortega, (1987) (Scalia, 480 U.S. concurring). J. is There difference, terms, a dramatic between a con- pieces versation which bits and of information are sporadically revealed to an bystander inattentive police focused examination of totality of that infor- accomplished mation through recording. electronic Justice greater by Harlan noted the posed intrusion interception of a by conversation electronic means: Authority hardly required is support proposi- tion that words would be good measured a deal more carefully and if communication inhibited one sus- pected being his conversations were transmitted and . .. easily transcribed . Much exchange off-hand forgotten may obscurity and one count on the of his remarks, protected very fact of limited audi- ence, and the likelihood that the listener will either said, forget overlook or what is as well as the lis- inability tener's to reformulate a conversation with- having out to contend with a All documented record. by per- those values are sacrificed a rule of law monitoring private . mits official . .. discourse White, (1971) 745, United States v. 401 U.S. 787-89 (Harlan, J., (footnote omitted). dissenting) Taborda, (2d 6 SeeUnited States v. 635 F.2d Cir. 1980), eye in which the court concluded that naked observations admissible, apartment away of the defendant's from feet were identify agents telescope but held that to the extent used a objects or activities that could be identified without the not tele scope, improper. those observations were The court remanded the case to the district court to determine which observations were eye. with the made naked per- particularly are Harlan's observations

Justice appar- There circumstances. under Rewolinski's suasive Roed of by Deputy recollection ently independent no is may She any conversation. "overseeing" of Rewolinski's Fur- screen. any direct view of have had never thermore, the information control Rewolinski can tailoring his conversation bystanders by exposed conversation, by quickly may see the bystanders when conversation, by the view of the blocking ending the screen. expose his knowingly conversa-

Rewolinski did not reasoning The turning printer. not off the tion that the contents of the conversation majority indicates officers just been as admissible had the would have memory. printout, from TDD's recovered it more register tape, would be which resembles cash the half inch difficult for an observer to oversee than on the screen itself. The record does even letters stop the show whether Rewolinski knew he could inquiry upon printer. Regardless, should center precautions. "normal" See whether Rewolinski took (1980). Rawlings Kentucky, "Nor- 448 U.S. mally," taking only recording conversation that overseen, or, case, been in this would has not overheard protect its privacy.

Finally, although majority initially acknowl- be edges that societal interests must balanced to assess implicated, fourth whether the amendment never engages balancing, essentially preferring instead to question by considering address the was-there-a-search privacy expectations a man" what "reasonable would By continuing have under these circumstances. to view questions perspective, fourth amendment from consider, majority preserve, fails to let alone values designed protect. the amendment was consider- When

50 ing privacy," what is a "reasonable of courts privacy privacy should focus on expectations interests rather than on rationally purposes in order to reflect of the fourth amendment.

Focusing expectations open opportu- on leaves nity "government by by system- for the edict or known practice expectations popu- atic to condition the way any hope in such lace that no one would have real privacy." Taborda, 131, of United States v. 635 F.2d 137 (2d 1980). warning: Cir. Justice Marshall issued a similar simply by announcing officials, "law enforcement their samples intent to monitor the content of random of private phone put first-class mail or conversations, could public they on notice of risks would thereafter Smith, assume in such 442 communications." U.S. at (Marshall, dissenting). J. warnings These I should be As heeded. observed Smith, State v. 149 Wis. 2d N.W.2d (1989) (Bablitch, "[mjodern dissenting), technology J., is quickly rendering concept of of communica- only. Nearly everything say tions of historic interest we today, in homes, streets, our on offices, in our capable being by listening overheard form some knowledge government device." The that the has the ability intercept private conversations, the most office, even a home or should not affect whatsoever person interest conversations, has those protections brings nor the the fourth amendment technology rapidly public's them. As modern erodes the "expectations" privacy, imperative it is that this court government intercede when conduct interferes with recognized being interests that should orbe have been as protected regardless amendment, the fourth privacy. expects whether the "reasonable man" police policy technology Neither nor modern should be and dictate public's expectations to mold allowed As Professor privacy interest. is a reasonable what Katz nor the fourth observed, "neither Amsterdam They government. expect what we amendment asks Amster- government." we should demand of tell us what Amendment, the Fourth Perspectives on dam, 58 Minn. (1974). L. Rev. that CHIEF JUSTICE

I am authorized to state in this dissent. joins NATHAN HEFFERNAN

Case Details

Case Name: State v. Rewolinski

Court Name: Wisconsin Supreme Court

Date Published: Dec 20, 1990

Citation: 464 N.W.2d 401

Docket Number: 88-2312-CR

Court Abbreviation: Wis.