968.30 Procedure for interception of wire, electronic or oral communications.
(1) Each application for an order authorizing or approving the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the court and shall state the applicant's authority to make the application and may be upon personal knowledge or information and belief. Each application shall include the following information:
(a) The identity of the investigative or law enforcement officer making the application, and the officers authorizing the application.
(b) A full and complete statement of the facts and circumstances relied upon by the applicant, to justify the applicant's belief that an order should be issued, including:
1. Details of the particular offense that has been, is being, or is about to be committed;
2. A particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;
3. A particular description of the type of communications sought to be intercepted; and
4. The identity of the person, if known, committing the offense and whose communications are to be intercepted.
(c) A full and complete statement whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.
(d) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been obtained, a particular description of facts establishing probable cause to believe that additional communications for the same type will occur thereafter.
(e) A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any court for authorization to intercept, or for approval of interceptions of, wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the court on each such application; and
(f) Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
(2) The court may require the applicant to furnish additional testimony or documentary evidence under oath or affirmation in support of the application. Oral testimony shall be reduced to writing.
(3) Upon the application the court may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, electronic or oral communications, if the court determines on the basis of the facts submitted by the applicant that all of the following exist:
(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s. 968.28.
(b) There is probable cause for belief that particular communications concerning that offense will be obtained through such interception.
(c) Other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.
(d) There is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or are leased to, listed in the name of, or commonly used by the person.
(4) Each order authorizing or approving the interception of any wire, electronic or oral communication shall specify:
(a) The identity of the person, if known, whose communications are to be intercepted;
(b) The nature and location of the communications facilities which, or the place where authority to intercept is granted and the means by which such interceptions shall be made;
(c) A particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates;
(d) The identity of the agency authorized to intercept the communications and of the person authorizing the application; and
(e) The period of time during which such interception is authorized, including a statement whether or not the interception shall automatically terminate when the described communication has been first obtained.
(5) No order entered under this section may authorize or approve the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days. The 30-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or 10 days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with sub. (1) and the court making the findings required by sub. (3). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event be for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after the interception.
(6) Whenever an order authorizing interception is entered pursuant to ss. 968.28 to 968.33, the order may require reports to be made to the court which issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the court requires.
(7)
(a) The contents of any wire, electronic or oral communication intercepted by any means authorized by ss. 968.28 to 968.37 shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order or extensions thereof all such recordings and records of an intercepted wire, electronic or oral communication shall be filed with the court issuing the order and the court shall order the same to be sealed. Custody of the recordings and records shall be wherever the judge handling the application shall order. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be properly kept and preserved for 10 years. Duplicate recordings and other records may be made for use or disclosure pursuant to the provisions for investigations under s. 968.29 (1) and (2). The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under s. 968.29 (3).
(b) Applications made and orders granted under ss. 968.28 to 968.33 together with all other papers and records in connection therewith shall be ordered sealed by the court. Custody of the applications, orders and other papers and records shall be wherever the judge shall order. Such applications and orders shall be disclosed only upon a showing of good cause before the judge and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
(c) Any violation of this subsection may be punished as contempt of court.
(d) Within a reasonable time but not later than 90 days after the filing of an application for an order of approval under par. (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the application and such other parties to intercepted communications as the judge determines is in the interest of justice, an inventory which shall include notice of:
1. The fact of the entry of the order or the application.
2. The date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application.
3. The fact that during the period wire, electronic or oral communications were or were not intercepted.
(e) The judge may, upon the filing of a motion, make available to such person or the person's counsel for inspection in the manner provided in ss. 19.35 and 19.36 such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to the issuing judge the serving of the inventory required by this subsection may be postponed. The judge shall review such postponement at the end of 60 days and good cause shall be shown prior to further postponement.
(8) The contents of any intercepted wire, electronic or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court of this state unless each party, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving the information.
(9)
(a) Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of this state, or a political subdivision thereof, may move before the trial court or the court granting the original warrant to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. The motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make the motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire, electronic or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of ss. 968.28 to 968.37. The judge may, upon the filing of the motion by the aggrieved person, make available to the aggrieved person or his or her counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interest of justice.
(b) In addition to any other right to appeal, the state shall have the right to appeal:
1. From an order granting a motion to suppress made under par. (a) if the attorney general or district attorney certifies to the judge or other official granting such motion that the appeal is not entered for purposes of delay and shall be diligently prosecuted as in the case of other interlocutory appeals or under such rules as the supreme court adopts; or
2. From an order denying an application for an order of authorization or approval, and such an appeal shall be ex parte and shall be in camera in preference to all other pending appeals in accordance with rules promulgated by the supreme court.
(10) Nothing in ss. 968.28 to 968.375 shall be construed to allow the interception of any wire, electronic, or oral communication between an attorney and a client.
History: 1971 c. 40 s. 93; 1981 c. 335 s. 26; 1987 a. 399; 1993 a. 486; 2009 a. 349.
Although a taped telephone conversation was obtained without a court order, the defendant opened the door to the tape's admission by extensive reference to the tape transcript during his case-in-chief. State v. Albrecht, 184 Wis. 2d 287, 516 N.W.2d 776 (Ct. App. 1994).
The state may incorporate intercepted communications in a criminal complaint if the complaint is filed under seal. Unilateral public disclosure of such communications in a complaint while not authorized does not subject the communication to suppression, but may entitle the defendant to remedies under s. 968.31. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123.
Suppression of wire communications is reserved for those that are illegally intercepted and does not apply to legally intercepted communications that are improperly disclosed. State v. Gilmore, 201 Wis. 2d 820, 549 N.W.2d 401 (1996), 94-0123.
Not every failure to follow wiretapping statutes makes an interception unlawful such that suppression is required. Whether a violation of the wiretapping statutes requires suppression depends upon whether the statutory purpose has been achieved despite the violation. The authorization of a wiretap for offenses not enumerated in this section did not warrant suppression of the evidence obtained from the wiretap when the order included both enumerated and non-enumerated offenses, it contained sufficient probable cause for the enumerated offenses, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. State v. House, 2007 WI 79, 302 Wis. 2d 1, 734 N.W.2d 140, 05-2202.
Sub. (10) does not require that all intercepts by a county jail are unlawful because the telephone intercept system has the potential to record inmates' calls to their attorneys. State v. Christensen, 2007 WI App 170, 304 Wis. 2d 147, 737 N.W.2d 38, 06-1565.
Communications privacy: A legislative perspective. Kastenmeier, Leavy & Beier. 1989 WLR 715 (1989).