*1 Wisconsin, Plaintiff-Respondent- STATE
Petitioner, v. SMITH, Defendant-Appellant.
Prettic
Supreme Court 25, Argued April 87-0209-CR. October 1988. Decided No. 1989.
(Also 571.) reported in 438 N.W.2d *2 plaintiff-respondent-petitioner For the the cause by argued attorney Ganser, was William assistant general, whom on brief with was Donald J. Hana- attorney general. way, defendant-appellant
For the there awas brief and by argument Yovovich, oral Michael assistant state public defender.
HEFFERNAN, CHIEF JUSTICE. The state has petitioned for review of decision the court of of appeals1 judgment by which reversed the of conviction county the LaCrosse circuit court of Prettic Smith for possession marijuana contrary of with intent to sell 161.41(lm), appeals sec. so, Stats. The court of did interception because it concluded that the warrantless telephone conversation, of Smith’s cordless which led police house, to search Smith’s awas “wire communication” under the Wisconsin Electronic Law, 968.33, Control Surveillance secs. 968.27 to Stats. therefore, effect, It concluded that the evidence poisonous obtained in the search “fruit of the suppressed tree” and its admission have been should by Judge Mulroy.2 Michael J. It reversed the conviction proceedings. and remanded for further 1 Smith, (Ct. App. State v. 259 Wis. 2d 419 N.W.2d 1987). 968.30(9)(a), Stats., specifically provides suppression
2Sec. for any communication, intercepted of “the contents ... or evidence we conclude that court Because protection erroneously give the statute to construed interception to the broadcast from warrantless telephone conversation, we reverse judgment appeals, leaving intact the thus for the circuit court LaCrosse conviction entered county. briefly A be stated. The facts in this case any prompting neighbor Smith, of Prettic without upon police, using while his radio scanner came with another Smith’s cordless person. neighbor recognized Smith’s voice and the was addressed and concluded name which he engaged drug might heard that Smith what he *3 police, selling. the who came to the infor- He notified taped subsequent and there conversa- mant’s house person persons were tions of Smith with third who buying marijuana from Smith. interested presented mag- taped to a conversations were probable for issuance of a istrate, found cause the who subsequent small search revealed a search warrant. The quantity marijuana, it revealed other and also supported apparatus Smith was a that the conclusion marijuana. Smith arrested at his home seller of was listening tape to the stationhouse. After the taken to guess you got recording, me, stated, “Well, I there’s he taped gave lying anything.” He then no about sense marijuana that, while was his and statement dealing seasonally unemployed, in mari- he had been living. juana make a suppress mari-
Nevertheless, Smith moved juana claimed, is not and this Smith evidence. claim therefrom, grounds the communication on derived intercepted.” unlawfully
refuted, that he believed that conversations on the telephone privacy. cordless were assured Smith ac- knowledged that he had never read the manual that accompanied telephone pur- the cordless it when was reception chased. The owner’s manual indicated that up could be attained over distances to 700 feet if the fully antennas on the handset and base unit were suppression hearing, supervi- extended. At the a sales company telephones sor of a which sold stated the principles general upon which operated signals FM were transmitted from —that the handset to the base unit and from the base unit to person pick the handset. He stated that another up could what was said on a cordless if within a listening frequency. short distance and on the same He that, stated if customers heard other conversations on telephones, telephones replaced their would be with operate frequency. one modified to on a different radio acknowledged He that a radio scanner would be able overhear a cordless conversation if it were frequency being tuned to the same as that used telephone. taking testimony suppression hearing, After at though the court stated “that it is called a though telephone, it is referred to as a a cordless telephone, it, fact, is a radio.” expect- that, stated while Smith said he privacy, *4 Judge ed Smith had not the read manual. Mulroy reading reasoned that a of the manual would person have led a reasonable to conclude there was no using assurance while a radio broadcast telephone. transmitter such as a cordless Although the trial court found that Smith believed private, his conversation would be the court protected by concluded the conversation was not the the electronic amendment or surveillance statute fourth communication,” because it was unreason- as an “oral court did suppression able for Smith so believe. question of whether the conversation not address Suppression protected as a “wire communication.” Appeal pleaded guilty. Smith then then was denied. followed.3 appeal appeals, to the court court
On argued question on a basis that was not or decided party its brief. court of mentioned either held that radio of cordless tele- appeals of a phone protected, unique conversation was because provision of the Wisconsin statute court a protect evinced a intent believed as a “wire communication.” further with the discussion of proceeding Before of the of the rationale the rationale contrary, case to it on we decide this which provisions state of the Wisconsin necessary to the basic Control Law. Electronic Surveillance any prohibits interception That statute communication, defined, “oral” as without “wire” or any communi- approval. The contents of prior judicial of secs. in violation strictures cation obtained Stats., 968.27-968.33, be received in evidence in cannot 968.30(8) fact, In Sec. a court. Wisconsin may punishable a be intercept such Sec. 968.31. criminal sanctions. Stats., provides: 971.31(10),
3Section suppress (10) denying motion to evidence a An order a admissibility challenging of a of a defendant statement motion judgment upon appeal of conviction reviewed upon judgment notwithstanding was entered the fact that such guilty. plea of *5 The terms “wire communication” and “oral com- statutorily munication” are defined: 968.27 Definitions. As used in ss. 968.28 to 968.33:
(1) any ‘Wire communication’ means commu- part through nication made in whole or in the use of facilities for the transmission of communications wire, cable, the aid of microwave or other like point origin point connection between the reception operated by any person furnished or engaged public utility providing operating as a intrastate, such facilities for the transmission of foreign interstate or communications. any ‘Oral communication’ means oral
(2) person communication exhibiting uttered an expectation that such subject communication is not interception under justifying circumstances such expectation.
Thus, if police which the intercepted without a is warrant either a “wire commu- communication,” nication” or an “oral its use in court proceedings prohibited. is Where there is a “wire communication,” e.g., ordinary telephone, statutory landline there is a presumption of confidentiality. person Even were a to know that being conversation was in fact intercepted by police authorities, complete confidence, there could be as a law, that, matter of in the prior absence of judicial approval, the contents of the conversation or evidence derived therefrom could not be proceed- used ings. expectation privacy, whether reasonable or unreasonable, irrelevant, because the privacy of a “wire communication” as a matter of law. Where, however, there is an communication,” “oral there must only be not a subjective belief that *6 private, in but that belief person have in the would that a reasonable
must be one circumstances. judge Smith’s did not address whether trial
The a “wire communi- was conversation pose question that at Indeed, did not counsel cation.” hearing hearing. suppression at the The evidence Smith believed Prettic concerned with whether was private whether his belief was his conversation that subjective belief Did he have the reasonable one. was a judge private? The trial his conversation would that one, for the not a reasonable this belief was found that telephone was a a cordless demonstrated that evidence broadcasting broadcasting range device, a radio short interception by ready subject stan- device that was receivers, or scanners, other dard radio judge telephones. Thus, concluded that the trial could one in which there was not Smith’s conversation objective there a reasonable that was conclusion be an interception privacy. expectation of The warrantless for the the basis in this case did—furnish could—and paraphernalia at marijuana seized search. The be “fruit of held not home were Smith’s 968.30(9)(a), suppressible poisonous tree,” under sec. interception supra, of a of an Stats., the fruit but protected the statute was not which fourth amendment.4 the circuit did not address The court not an Smith’s conversation rationale court’s done so need it have Nor communication.” “oral light was a Smith’s conversation its conclusion disagree protected we Because communication.” statutory Stats., 968.27(12), particularized codifi is a 4Section States, Katz v. United See right. fourth amendment cation of the U.S. 347 appeals reasoning the court of
with and conclusion respect, obliged question are we address the whether Smith’s conversation was an “oral communica- tion.” We do so and conclude it was not. We do so on analysis reasoning the basis of the correct and the judge adopt. above, trial summarized which we appeals, sponte, court of sua as it could when interpreting concluded that a cordless tele- phone conversation was as a “wire communi- ejusdem generis. cation” under the rationale of appeals, reasoning effect, turned the against agreeing trial court itself first with the trial *7 court that the conversation awas radio broadcast and by interpretation reaching then, an of the conclusion that a radio transmission of by a conversation radio was a “like connection” under 968.27(1), appeals sec. Stats. The court of stated: only protects statute not
Wisconsin’s
communi-
cations broadcast
from a transmitter
to a receiver
microwave,
means of
but adds ‘other like connec-
to
tion’
method of audio transmission.
‘super high frequency
Microwaves are
radio waves.’
Bardwell,
(M.D.
Edwards v.
Supp.
632 F.
La.),
(5th
aff’d,
We find this rationale syllogism employed appeals the court of reveals that basically that, it is flawed. court of asserts protected connecting because a link in a wire or cable transmission, be a microwave transmission spectrum are but a of the of radio microwaves pro- waves, all radio wave transmissions are therefore specialized tected. We think this overlooks the nature telephonic relays as used in communica- microwave compare contrast, tion networks and fails to or to them types with, other of radio broadcasts.
A microwave link communication is a targeted operating beam, focused or radio on a line-of- relay sight position basis one to the next. A very special type microwave is a of radio wave. Its high frequency efficiently extreme directionally allows it to be Macropedia,
transmitted. 16 “Telecom- Systems,” Encyclopedia Brittanica, Inc., munications pp. 1986). (Chicago 504-12 Microwave transmissions comparable are focused beams to a stone aimed at a specific target, will not from its A which deviate course. telephone broadcast, hand, on the other is of frequency capable being much and is thus not lower particular is, in a direction. It defini- transmitted target, tion, It is not a stone hurled at a “broadcast.” analogous dropped pool but is rather to a stone into a equal water, which results the transmission waves lap against any energy directions, all which will path emanating enlarg- obstacle in the ing and ever *8 energy concentric circles until the wave transmitted phenomenon totally analogous An is diminished. oc- a cordless transmitter is used. curs when signals unit Weak are transmitted the base and intercepted handset in all directions and be within by anyone listening who is about one thousand feet compatible telephone, scanner, a or other with intercept transmission, To a radio receiver. microwave interceptor however, line of must be “in the direct using sophisticated listening equip- fire” and must be
97 is, single e.g., Microwave band receiver. side ment, a [like “like connection the words use point origin point of and between cable] or wire analogy general reception.” radio broadcast to a The of totally imperfect as to be is so or a unpersuasive. operative the statute are words effect, to a linear connection refer that, those analogous line-of- cable, microwave as a wire, a and to a analogy posit sight no device. words transmission by technology type the defendant utilized to the in this case. particularized mean- has a “microwave”
The term
technology
ing
and surveillance
of broadcast
in terms
regulations:
frequency
extremely high
consists
Microwave
point-to-point
on line-of-
transmitted
radio waves
located on towers or
antennas
sight paths between
(in
systems) and
microwave
building tops
terrestrial
station ‘dish’ antennas
and earth
between satellites
99-541,
Rep.
(in
systems.) S.
No.
satellite-based
Sess., reprinted in
U.S. Code
Cong.,
2d
99th
3555, 3563.
Cong, and Admin. News
specific
use of
term.
is a narrow
This
support
court of
is no evidence
There
anything
more was meant.
contention
express
intention
is no
There
intimated
equated
with
were to
microwave transmissions
generally.
radio transmissions
broadcast
question
difficult
not addressed
A more
appeals: Whether, conced-
court or the court
circuit
ing
conversation transmitted
that the
subject to
the base unit
radio waves
the handset or
interception,
easy
the communication
or casual
because it was
communication”
nevertheless
*9
part
through
the use of facilities
...
“made ...
by any person engaged
public
as a
operated
or
furnished
968.27(1),
apparent
It is
Sec.
Stats.
that
utility_”
portion of the conversation
that was
this case a
by
by a
was transmitted
facilities owned
overheard
were transmitted
public utility. The defendant’s words
from the handset
unit to the handset and
by the base
hence,
and,
by public utility lines to the
the base unit
Smith.
talking to Prettic
person who was
whether,
then,
is
if the
question,
conversation
communication,
part,”
“in
is transmitted
land
utility,
entire conversation is
public
lines of a
wire
(9th
Hall,
States v.
have
however,
are,
helped
problem. We
analysis
any other
not
followed
that Hall has
been
by the fact
its
in Hall itself
acknowledgment
court and
*10
illogical
fact that a
in
view
was
conclusion
telephones
mobile radio
two
between
communication
unprotected
Hall,
in
The court
conversation.
anwas
literally.
language
take the
however, chose to
that Hall
concluded
in
cases have
courts
similar
Other
congressional
state
act or
that
in
incorrect
congressional
patterned
act could not
after the
statutes
protect
a “wire communication”
as
intended to
have
portion
conversation.
of a
radio transmitted
Uniformly,
approach
brushed
has been
Hall literal
Dorsey
being
State,
v.
402
See
unreasonable.
aside as
1981);
(Fla.
Bardwell,
v.
632 F.
Edwards
1178
So. 2d
Supp.
(5th
1986),
(M.D.
tion ... base unit and the handset to the federal v. Fata is People The reference adopted an amendment was But identical wiretap law. provides 399. It 87 Wis. Act. in Wisconsin the radio ... does not include communication’ ‘“wire communication that of a cordless telephone handset the cordless between transmitted 968.27(17), Stats. 1987-88. unit.” Sec. the base that, 17, 1988, the May since clear It is therefore *11 amendment, the a conversation of this date of effective protec- to case is not entitled intercepted in this type Accordingly, whatever communication.” tion as a “wire hold, precedential on the it is not opinion might this communica- cordless of whether a question not, It is communication.” as a “wire protected tion is language supersed- the of the this case on decide for we specifically exclude that did not statute pre-1988 ed In protection. telephone communications cordless amendment, the future, to the 1988 subsequent the not be afforded will type Smith conversation Prettic construing we are not the new statute It is protection. in this case is one. The decision original the but not to cases only case to this applicable therefore case is decision in this in the future. Our may arise that Allwright, Smith v. only.” train day for this “good Roberts, J.). (dissent (1944) 649, 669 U.S. helpful respect Nevertheless, the statute new earlier one. construe the how we should to revised statute that the 1988 appear It would referred the cases we have the rationale of reflects conversa- cordless concluded that that above not be accorded communications —should tions —radio to landline that is afforded presumption Thus, it is reasonable communications.” legisla- and the Wisconsin congress that conclude that a that held cases ture, having examined communication,” not a “wire cordless surveillance of the interpretations in their acquiesced had what in the statutes explicit made law and judicial result of as the only implicit been theretofore legis- we examine Accordingly, when interpretation. reasonably we can question, of the resolution lative prior its interpreted legislature conclude communica- mean that a statute conver- manner from substantial was different tion wire, cable, microwave “by the aid of conducted sations 968.27(17), can Stats. We Sec. connection.” other like explication as a the new statute look at then against prior statute viewed meaning of understanding and the prevailing cases backdrop of the therefore technology.6 We of current light of inter- interpretation proper conclude it is that subsequent amendments law and vening case communication” upon the “wire to look is reasonable as a list of enumer- in the statute technologies specified narrowly should be technologies ated the statute as it construe Although we construed. *12 telephone conver- the time that cordless prior to existed appro- it is protection, denied specifically sations were of the not ever the intent it was priate to hold a that did not follow conversations protect to legislature microwave, like or a cable, line-of-sight a wire, a proper in a example, might while we For connection. however, wholly unreason recognize, that it would not be 6We necessary have been that no amendment would to conclude able original meaning change of the legislature to meant unless the statute, i.e., telephone conversations were that cordless changed statute, signalled amendment a but the under the earlier legislative intent. technology conclude that a communication like
case optics, sufficiently not referred to in the fiber cable, wire, or focused-line-of-sight similar to micro- connections to be included in the classification of wave communications,” broadcasting by radio a cor- very type technology. dless different of primary difference between cordless technologies of protected by transmission and the list the statute is the ease with which cordless To intercepted. expand conversations commonly, of the statute to such a presumption innocently, technology overheard as broadcast radio greatly expand be to the reach of the statute. would categories Contrast should be noted in the two protection provided by legislature by the Wisconsin Electronic Surveillance Control Act. While the “oral portion depends upon communication” of the statute shifting expectations privacy, social “wire com- portion specific legislative munication” carves out a communications, protection for certain common carrier other reference to reasonableness. There is no without to extend the justification legis- discernible presumption expectation lative of a reasonable portion under wire statute conver- telephones. sations on cordless While, as we have demonstrated earlier in this reasonably opinion, provision the “microwave” does not lead all transmissions are conclusion that communications,” apparent it is protected ‘’wire also does not fit technology comfortably types with the of communication reasonably presumption be afforded the should respect to “wire communica- privacy given law conclude, therefore, that, it under the law as tions.” We prior existed the radio
103 protected is not a “wire commu- conversation telephone nication.” is to be telephone
If a cordless interception, it must be under at all protected States, of Katz v. United amendment standards fourth (1967), codified in sec. and as now U.S. 347 389 It 968.27(12), Stats., “oral communication.” as an there can be no for the future appear would an conversation as of a protection communication,” belief of subjective whatever the “oral user, the Federal Communications Com- because a cordless base unit has ordered that mission legend, “Privacy may communications must bear the C.F.R., sec. using phone.” while this not be ensured notification, expecta- light In of this 15.236 privacy cannot be a reasonable one. tion Thus, appear it that this court can formulate would communi- precedent respect no for the future “oral of a cordless protection respect cation” use placed telephone. By legend required the F.C.C. to be telephone, society on has announced the expectation privacy that an is not policy objective Hence, any is irrele- subjective expectation reasonable. vant. postulated expectation also be
It respect to cordless communica- tions has been terminated as a matter of law as 968.27(17), the amended sec. result of specifically excluded a cordless as a “wire This in a a legislative communication.” sense expecta- declaration that there could be no reasonable Hence, privacy. there could be no tion of communica- conversation as either an “oral” or appear unlikely present tion.” It would most under the *14 statutory byor F.C.C. rule —that there state of the law— any telephone assertion that a cordless conversa- can intercepted a warrant and the tion cannot be without thereof be admitted into evidence. contents development applauded, that need be This is not a but it reflects the realities of modern communication interception and the ease with which can be accom- purpose plished to do so. The without even conve- by nience to the user of a cordless is matched interception the ease of the of its conversation others.7 light case,
In the instant of the nature of the technology used, communication, broadcast ob- expectation jectively there be no reasonable could protec- privacy.8 is The cordless not accorded tion as a for “wire communication.” The court of device statutory interpretation appeals was incorrect led it to that conclusion. The clear trend of a cordless decisional law has been that protected is not to be deemed either a communication.” communication” or an “oral statutory changes those deci- Recent have validated sions. statutory accordingly conclude that no
We rights the warrant- were violated fourth amendment states, commonly “Cor used shortwave listener’s handbook 7A kHz, telephones these can from ... to ... dless are found Helms, fascinating listening.” Shortwave provide H. hours of Handbook, Cliffs, 29, (Prentice-Hall, Englewood Listening p. Inc. (1987) (emphasis original). Jersey New party using privacy expectations of a note that 8We phone may be a “oral communica normal landline well unknowingly conversing party with another who is tion” even if that County rel. Arnold v. See State ex telephone. using a cordless Co., Rock Court of 51 Wis. 2d at on his cor- Smith’s conversation interception of less obtained the search telephone. The evidence dless intercepted conver- on the premised into evidence. admissible sation was reversed, contrary is and the to the appeals decision to stand. may be allowed conviction By the Court. —Decision of the court of reversed. *15 ABRAHAMSON,
SHIRLEY J. (dissenting). S. that conversation transmit- concludes majority The telephone in this case is neither a the cordless ted over communication under nor an “oral” “wire” statute, Surveillance Control Electronic the Wisconsin 1985-86, no search 968.27, and that therefore sec. Stats. needed. warrant was significance this case is of limited recognize
I statute has been amended and the Wisconsin because regarding new rules cordless adopted FCC has my disagreement I write to state phones. Nonetheless interpretation of the statute. The majority’s with to exclude the radio has been amended statute from the statu- of cordless The FCC now of wire communication. tory definition legend: “Priva- telephones to bear the requires using not be ensured when cy of communications person unlikely using Thus it seems that a phone.” this that the communication can claim communication; it would be difficult to show is an oral These expectation justified. an of not, however, affect this case. developments do of majority’s I definitions conclude communication” are at odds communication” and “oral statute and the intent. with the words of the Therefore, I dissent. interpretation opinion’s majority the defini-
The
conclude,
not,
I
tion of “wire communication”
Because the
of the statute.
the words
consistent with
phone
intercepted
in this case were
communications
part
through
of facilities ...
the use
“made ...
public
any person engaged
operated
aas
furnished or
they clearly
pages
utility
majority opinion
98-99,
...,"
at
statutory
communica-
definition
"wire
fall within the
Privacy Rights and
Note,
DeLaurier:
State v.
tion.” See
Telephones
is Put
Amendment
Fourth
Cordless
—The
(1986);
1087, 1093-94
Hold,
L. Rev.
19 J. Marshall
on
Note,
Admissibility
Eaves-
Evidence Obtained
Telephones,
dropping
L. Rev.
86 Colum.
on Cordless
(1986); Note,
III Protection
Title
338-339
for
Telephones,
143, 154.
U. Ill. L. Rev.
Wireless
opinion’s
majority
of “wire commu-
definition
contrary
legislative intent. The
also
nication” is
correctly
that,
opinion
observes
of the court
legislature
drafting
on the
focused
protecting
purposes
for
citizens’ need
twin
for
need
and the citizens’
enforcement
effective law
privacy
*16
Wis. 2d
142
and oral communication.
of written
1987).
(Ct.
legisla-
App.
The
562, 568,
The communica- not “oral were communications dant’s “objectively there statute because under the tions” expectation majority privacy,” no could be reasonable unpersuasive opinion page I at 105. find this conclusion supports This record the conclu- and unsubstantiated. expectation that the that the defendant’s commu- sion interception subject justified. not nication was “[apparently, most customers The FCC concluded that phones signal are unaware that... [cordless] who use space through can be received an transmitted A number consumers are sur- unintended listener. prised about this feature of cordless and concerned Reg. phones.” Furthermore, 48 Fed. expressly in this case did not the owner’s manual telephone was a radio inform the reader that could be or that the conversation persons. The manual is at defen- monitored other pp. appendix, brief, 102-108. Indeed I believe dant’s reasonable inference to be drawn from the that the more phone privacy is that of a manual could be maintained. forth, I
For the reasons set dissent. (dissenting). BABLITCH, WILLIAM A. J. police may deliberately, without a issue is whether the private eavesdrop warrant, on a wireless majority in one’s home. The conversation carried out disagree. says “yes.” I interception by the
I conclude that the deliberate police conversation in one’s home is subject to the fourth amendment of the United States Constitution. any expectation majority concludes communication cannot in a cordless one, because the F.C.C. has ordered
be a reasonable telephone base unit must bear the that a cordless *17 legend, “Privacy communications not be ensured
108 phone. using C.F.R., 15.236 sec. this while opinion page Majority 104. at merely “warning” the obvious. F.C.C. states concept technology quickly rendering the Modern only. interest communications of historic today, everything say Nearly homes, on the our we capable being overheard streets, offices, our listening abroad device. Embassies have form some lengths, private great go citizens, to unavailable to confidentiality of all communications held assure within. important question, not answered society ought recognize
majority, is whether private respect con- wireless conversations private. I I conclude it should. in one’s home as ducted dissent. therefore