2008 WI 57
Supreme Court of
Brian Harold Duchow,
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 303
(Ct. App. 2006-Unpublished)
June 10, 2008
Submitted on Briefs:
December 13, 2007
Source of Appeal:
Michael B. Brennan
For the plaintiff-respondent-petitioner the cause was argued by David J. Becker, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant-cross petitioner there were briefs and oral argument by Melinda A. Swartz, assistant state public defender.
2008 WI 57
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Brian Harold Duchow,
JUN 10, 2008
David R. Schanker
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review an
unpublished court of appeals decision
reversing a circuit court's
denial of Brian Duchow's (Duchow) motion to suppress threatening statements he
directed to a disabled child aboard a public school bus. The child, Jacob M., surreptitiously recorded
Duchow's statements using a voice-activated tape recorder that his parents
placed in his backpack. The circuit
court concluded that the tape-recorded statements were not "oral
communication" as defined by the Electronic Surveillance Control Law, Wis.
Stat. §§ 968.27-.33
and accordingly, the strictures of the Law did not operate to prevent use of
the statements. In contrast, the court
of appeals concluded that the statements were oral communication and that the
oral communication was lawfully intercepted.
However, the court of appeals also concluded that, notwithstanding the
statements' lawful interception, the statements could not be admitted at trial
because they were not intercepted
in accord with the "under color of law" requirement of Wis. Stat.
§ 968.29(3)(b). State v. Duchow,
2007 WI App 162, ¶42, 303
¶2 The dispositive issue in this appeal is whether Duchow's tape-recorded statements were "oral communication" as defined in Wis. Stat. § 968.27(12), a part of the Electronic Surveillance Control Law. We conclude that the statements were not "oral communication" because Duchow had no reasonable expectation of privacy in the statements. Because the statements are not "oral communication," they do not fall within the scope of the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression. Accordingly, we reverse the decision of the court of appeals.
¶3 Duchow, a former public school bus driver, was charged in a criminal complaint with one count of physical abuse of a child, contrary to Wis. Stat. § 948.03(2)(b), and one count of disorderly conduct, contrary to Wis. Stat. § 947.01, as a result of his alleged statements and acts while driving Jacob M. to and from school on April 29, 2003.
¶4 Jacob, who suffers from Downs Syndrome and Attention Deficit Disorder, was nine years old at the time the complaint was filed. Each morning, he was the first child to board the school bus driven by Duchow.
¶5 In the spring of 2003, Jacob's parents became concerned about recent adverse changes in Jacob's behavior. Jacob had allegedly spit at Duchow. In addition, Jacob's parents had observed him punch his toys, "kick at" the family dog and resist boarding the school bus in the morning. Moreover, Jacob's teacher relayed to his parents that Jacob had cried at school when it was time for him to board the bus to go home. Previously, Jacob had not exhibited such behavior.
¶6 Jacob's parents suspected something was amiss on the school
bus. They feared Jacob's bus driver,
whom they knew was Duchow, might be verbally or physically abusing him. As a result of their concern, Jacob's parents
placed a voice-activated recorder in Jacob's backpack before he boarded the school
· "Stop before I beat the living hell out of you."
· "You'd better get your damn legs in now."
· "Do I have to tape your mouth shut because you know I will."
· "Do you want another one of these?"
· "I'm gonna slap the hell out of you."
· "Do you want me to come back there and smack you?"
The sound of what Jacob's parents believed to be a slap was also recorded.
¶7 Jacob's parents played the tape before a Milwaukee Police Officer, who investigated the matter. The officer visited Duchow's home and conducted brief interviews with him on three occasions. According to the complaint, during these interviews, Duchow admitted that he had threatened Jacob. Duchow described the threats he had made as threatening to have Jacob removed from the bus, threatening to slap Jacob, and threatening to tape Jacob's mouth shut. Duchow further admitted that on April 29, 2003 he slapped Jacob twice in the face with an open hand.
¶8 After the State filed the information against Duchow, Duchow moved to suppress the contents of the tape recording on grounds that the recording was made in violation of the Electronic Surveillance Control Law. The circuit court initially granted Duchow's motion to suppress, but later reversed that decision when it revisited the issue as a result of the State's motion for reconsideration. On reconsideration, the circuit court concluded that Duchow's tape-recorded statements were not "oral communication" within the meaning of the Electronic Surveillance Control Law; and therefore, it held against Duchow.
¶9 Duchow pled guilty to physical abuse of a child and the State dismissed the disorderly conduct charge. Judgment was entered convicting Duchow of physical abuse of a child.
¶10 Duchow appealed, and the court of appeals reversed the circuit
court's order denying Duchow's motion to suppress his tape-recorded
statements. The court of appeals
concluded that the statements had been lawfully intercepted, but they could not
be admitted at trial because they were not intercepted "under color of
law" as Wis. Stat. § 968.29(3)(b)
requires. Duchow, 303
A. Standard of Review
¶11 This case requires us to interpret and to apply portions of the
Electronic Surveillance Control Law. We
review questions of statutory interpretation and application independently, but
benefiting from the decisions of the court of appeals and the circuit court. Marder v. Bd. of Regents of the Univ. of
Wis. Sys., 2005 WI 159, ¶19, 286
B. Oral Communication
¶12 Resolution of the
question of whether Duchow's tape-recorded statements constitute "oral
communication" under the facts of this case requires us to interpret and
to apply Wis. Stat. § 968.27(12), a provision of the Electronic
Surveillance Control Law. "[S]tatutory
interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry.'" State
ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI
76, ¶43, 236 Wis. 2d 211, 612 N.W.2d 659).
If the words of the statute exhibit a "plain, clear statutory
meaning," without ambiguity, the statute is applied according to the plain
meaning of the statutory terms.
¶13 We begin our discussion with the plain language of Wis. Stat. § 968.27(12), which defines "oral communication":
"Oral communication" means any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. "Oral communication" does not include any electronic communication.
We note that the statute does not include every oral statement, but rather, it is restricted to those made in certain circumstances.
¶14 The parties offer competing interpretations of Wis. Stat. § 968.27(12). On the one hand, Duchow argues that an
"oral communication" is a statement uttered under circumstances in
which the speaker has a reasonable expectation that the statement will not be intercepted. On the other hand, the State argues that an
"oral communication" is a statement uttered under circumstances in
which the speaker has a reasonable expectation of privacy. In the context of the Electronic Surveillance
Control Law, which limits the interception and use of oral statements, Duchow's
interpretation and the State's interpretation are both reasonable. When comparing wire communication with alleged
oral communication, without the competing interpretation asserted by Duchow, we
have employed the State's interpretation that an oral communication is one made
under circumstances in which the speaker maintains a reasonable expectation of privacy. State v. Smith, 149
sources include legislative history.
¶16 The legislative history of Title III indicates that Congress intended the definition of "oral communication" in Title III, which reads nearly identically to the definition contained in the Electronic Surveillance Control Law, to incorporate the "reasonable expectation of privacy test" introduced in Katz v. United States, 389 U.S. 347 (1967). S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2113, 2153, 2178 ("Title III was drafted to . . . conform with Katz . . . ."). Accordingly, nearly all of the federal circuit courts that have considered the definition of "oral communication" in Title III have concluded that it requires the speaker to have a reasonable, as well as a subjective, expectation of privacy. Kee v. City of Rowlett, Texas, 247 F.3d 206, 211 n.8 (5th Cir. 2001) (citing id.); United States v. Longoria, 177 F.3d 1179, 1181 (10th Cir. 1999) (citing same); In re John Doe Trader Number One, 894 F.2d 240, 242 (7th Cir. 1990) (citing same); United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978) (citing same).
¶17 Indeed, it appears that only the Sixth,
Circuits have interpreted "oral communication" in Title III as Duchow
urges us to define it, i.e., that the speaker have merely a reasonable
expectation of non-interception.
However, more recently, the Eighth and Eleventh Circuits have modified
their views. For example, although the
Eighth and Eleventh Circuits once defined "oral communication" as
involving a reasonable expectation of non-interception in Angel v. Williams,
12 F.3d 786, 789-90 (8th Cir. 1993) and in
employed reasoning from federal decisions in the past in interpreting the
Electronic Surveillance Control Law. In Smith,
149 Wis. 2d at 95 n.4, we relied on federal law in deciding that the term,
"oral communication," in Wis. Stat. § 968.27(12) is to be
understood as applying to those statements made only under circumstances in
which the speaker has a reasonable expectation of privacy (concluding
that § 968.27(12) is a "particularized statutory codification of the
[F]ourth [A]mendment right."). In Smith, we held that the
communication at issue, a cordless telephone conversation, did not constitute
an "oral communication" as defined by the Electronic Surveillance
Control Law because "objectively there could be no reasonable expectation
of privacy" in the speech.
¶19 The legislative history of the Electronic Surveillance Control Law
expressly states that the legislature intended the Electronic Surveillance
Control Law to effect the state "implementation" of Title III. The Electronic Surveillance Control Law and
Title III define "oral communication" using nearly identical
language, which Congress intended to "reflect" the law as set out in Katz. Katz explained the
"reasonable-expectation-of-privacy" standard. We also explained in Smith that the
Electronic Surveillance Control Law incorporated the Katz standard of
reasonableness into the definition of "oral communication." Smith,
2. Reasonable expectation of privacy
individual has a reasonable expectation of privacy when he or she has both (1)
an actual subjective expectation of privacy in the speech, and (2) a subjective
expectation that is one that society is willing to recognize as
reasonable. State v. Bruski, 2007
WI 25, ¶23, 299
second component reflects that protections from unreasonable searches and
seizures, as described in the Fourth Amendment of the federal constitution
as well as Article I, § 11 of the state constitution,
must be determined by reference to the "'scope of privacy that a free
people legitimately may expect.'" State
v. Whitrock, 161
¶22 Recognizing that the law requires an examination of the totality of the circumstances in determining whether an individual has a reasonable expectation of privacy, courts have identified a non-exclusive list of factors to discern whether an individual's expectation of privacy in his or her oral statements is objectively reasonable. The factors include the following: (1) the volume of the statements; (2) the proximity of other individuals to the speaker, or the potential for others to overhear the speaker; (3) the potential for the communications to be reported; (4) the actions taken by the speaker to ensure his or her privacy; (5) the need to employ technological enhancements for one to hear the speaker's statements; and (6) the place or location where the statements are made. See, e.g., Kee, 247 F.3d at 213-15.
¶23 Duchow advances five arguments to support his contention that his subjective expectation that his statements would not be revealed is objectively reasonable. First, he asserts that it is uncommon for school bus riders to carry a tape recorder in their backpacks. Second, Duchow points out that he and Jacob were the only individuals on the bus. Third, Duchow made the statements in an enclosed vehicle, rather than in a public place. Fourth, Duchow claims that the volume at which he delivered the statements was sufficiently low that a third party outside of the bus could not overhear them. Finally, he argues that this court's acceptance of the State's contention that there is no reasonable expectation of privacy in statements made to a victim during a crime would be tantamount to a ruling that all intercepted communications during the commission of a crime may be recorded without compliance with the Electronic Surveillance Control Law. We conclude that Duchow's arguments are discordant with what society is willing to recognize as reasonable.
¶24 In so concluding, we apply certain factors among those listed above. The factors we have selected are neither an exclusive, nor a mandatory, list. The relevant factors will vary, depending on the facts each case presents. Here, we conclude that the place or location where the statements were made and the potential for the statements to be reported are the most significant factors.
begin by considering the place where Duchow spoke. Duchow and Jacob were on a public school bus
being operated to transport children to school.
Duchow was an employee of the school district and Jacob was a grade
school pupil. Courts have held that an
individual-employee's expectation of privacy is diminished in places that the
individual shares with others, as compared with places retained for his or her
A classroom in a public school is not the private property of any teacher. A classroom is a public space in which government employees communicate with members of the public. There is nothing private about communications which take place in such a setting. Any expectations of privacy concerning communications taking place in . . . classrooms such as those subject to the proposed audio monitoring in this case are inherently unreasonable and beyond the protection of the Fourth Amendment.
¶27 School bus drivers endure a similarly diminished expectation of
privacy inside the school buses they operate.
Goodwin v. Moyer, No. 3:CV-05-781, 2006 WL 839342 (M.D.
¶28 We are persuaded by the reasoning of Plock and Goodwin: (1) The bus Duchow operated was not his personal space; nor did it become his personal property because he operated it; (2) the bus was being operated to convey public school students when the statements were made; (3) Jacob was a public school student; and (4) the bus had windows through which Duchow and Jacob could be seen.
¶29 The totality of the circumstances here includes more than a public place; it also includes statements that are likely to be reported because they are threats to injure the person to whom the statement was made.
¶30 A person's reasonable expectation of privacy is compromised when he
or she knowingly exposes statements to others, rather than keeping them to
himself or herself. Longoria, 177
F.3d at 1182 (citing Katz, 389
¶31 In Longoria, federal agents sought to thwart a drug
smuggling operation by outfitting a tire shop, from which drugs were allegedly
transported, with audio and video surveillance equipment. Longoria, 177 F.3d at 1181. The tire shop's owner acted as the
government's informant, and he saw to it that Longoria's statements were
¶32 The Tenth Circuit upheld the district court's denial of Longoria's
motion to suppress.
¶33 Longoria's reasoning applies to the circumstances here. Duchow's threats to harm Jacob, a person who could not personally repeat the words Duchow said, are analogous to Longoria's incriminating statements made in the presence of the informant, a person who could not repeat the statements in English that Longoria had made in Spanish. Duchow's threat to harm Jacob, such as his threat to slap Jacob's face, was the type of statement that is likely to be reported to others. Duchow had no right to prevent Jacob from telling others what Duchow said or did. And in his own way, Jacob did tell. He told his parents when he began acting in an aggressive, angry fashion with his toys and his dog, and he told his school teacher when he cried when it was time for him to ride the school bus home. See id. at 1183. By telling Jacob that he would harm him, Duchow, like Longoria, assumed the risk that his threatening statements would be revealed to others.
¶34 Moreover, preservation of a privacy interest in threats to harm the
person to whom the threat is made is not what "free people legitimately
may expect." Whitrock, 161
¶35 State v. Inciarrano, 473 So. 2d 1272, 1275 (
¶36 While Inciarrano may be interpreted to hold that an individual's
expectation of privacy hinges to some extent on his or her right to be on a
premises, it may also reasonably be interpreted to hold that an individual does
not have a reasonable expectation of privacy in statements that evince an
intent to harm the person to whom the statement was made. Either interpretation, however, is consistent
with the notion that individuals do not have a reasonable expectation of
privacy in statements to others that are likely to be reported. Accordingly, the Florida Supreme Court
concluded that the recorded conversation did not constitute "oral
communication" within the meaning of
¶37 Our review of the totality of the circumstances presented here leads us to conclude that Duchow had no reasonable expectation in the privacy of his threats and abuse of Jacob on the school bus. The school bus was public property, being operated for a public purpose. The statements Duchow seeks to protect were threats directed at a child while the child was being transported to school. Because Duchow threatened Jacob, Duchow engaged in speech that was likely to be reported. Duchow assumed the risk of disclosure. Accordingly, we conclude that Duchow's abusive speech had no reasonable expectation of privacy attendant to it. Therefore, his threats to Jacob are not "oral communication" within the meaning of Wis. Stat. § 968.27(12).
¶38 Duchow's argument that he and Jacob were the only individuals on
the bus is of no consequence. As the
¶39 Duchow's arguments that bus riders rarely carry tape recorders in
their backpacks and that he did not speak in an overly loud voice are also
unavailing. Duchow never was vested with
exclusive control of the school bus he drove, which cuts against his having any
reasonable expectation of privacy in the passenger area of the bus.
¶40 In sum, because Duchow's statements were made on a public school bus, being used for the public purpose of transporting school children; because they were threats to harm Jacob for which Duchow assumed the risk that Jacob would report, Duchow had no reasonable expectation of privacy in his statements. Accordingly, his statements do not constitute "oral communication" as defined by the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression.
¶41 The dispositive issue in this appeal is whether Duchow's tape-recorded statements were "oral communication" as defined in Wis. Stat. § 968.27(12), a part of the Electronic Surveillance Control Law. We conclude that the statements were not "oral communication" because Duchow had no reasonable expectation of privacy in the statements. Because the statements are not "oral communication," they do not fall within the scope of the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression. Accordingly, we reverse the decision of the court of appeals.
By the Court.—The decision of the court of appeals is reversed.
 State v. Duchow, 2007
WI App 162, 303
 The Honorable Michael
B. Brennan of
 All further references to the Wisconsin Statutes are to the 2005-06 version, unless otherwise noted.
 We do not address whether the Electronic Surveillance Control Law permits vicarious consent by a parent or whether the statements were recorded "under color of law."
 Duchow's employer suspended him from duty after the State filed the complaint against him. The circuit court judge subsequently ordered that, while the case is pending, Duchow is prohibited from driving any bus with children aboard.
 Duchow had filed written complaints that Jacob had spit at him during bus rides.
 The federal counterpart
 Title III defines "oral communication" as follows: "'[O]ral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication[.]" 18 U.S.C. § 2510(2).
 Specifically, the legislative history states that the definition of oral communication "is intended to reflect existing law," and then cites Katz v. United States, 389 U.S. 347 (1967). S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2178.
 Boddie v. Am. Broad. Cos., 731 F.2d 333, 339 (6th Cir. 1984).
 Angel v. Williams, 12 F.3d 786, 789-90 (8th Cir. 1993).
 Neither United States v. Peoples, 250 F.3d 630 (8th Cir. 2001) nor United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993) explains the shift in analysis or the difference between the two standards.
 Later in State v. Smith,
149 Wis. 2d 89, 438 N.W.2d 571 (1989), we explained that in order to
protect a telephone conversation from interception, the expectation of privacy
in the conversation must be reasonable under the Fourth Amendment standards set
out in Katz. Smith, 149
We rely on Katz as authority for our decisions
 The Fourth Amendment of the U.S. Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
 Article I, § 11 of the Wisconsin Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
 We forgo applying the
factors we most recently cited in State v. Bruski, 2007 WI 25, 299
Wis. 2d 177, 727 N.W.2d 503, for determining whether an individual's
expectation of privacy is reasonable. We
do so because the Bruski factors apply to assertions of a privacy
interest that were taken from the context of an expectation of privacy in real
property. State v. Fillyaw, 104
 In identifying these two factors as most relevant, we do not diminish the importance of the remaining factors in other contexts. However, they are of less relative importance under the facts presented here. Nonetheless, many of these factors cut against Duchow.
First, the volume of Duchow's statements is relatively less important because Duchow and Jacob were the only individuals on the school bus when Duchow made the statements at issue. Although there is no evidence that others were present to overhear Duchow's statements, Duchow may fairly be said to have shouted at Jacob.
Second, the record does not indicate that Duchow took any specific measures to ensure that his statements remained private.
Finally, although an electronic device recorded Duchow's statements, nothing in the record indicates that any "technological enhancements" were needed to do so.
 Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, No. 07 C 50060, 2007 WL 4553071 (N.D. Ill. Dec. 18, 2007), is an unpublished opinion from the United States District Court for the Northern District of Illinois. That court adheres to the Federal Rules of Appellate Procedure, permitting citation to unpublished opinions. Fed. R. App. P. 32.1.
Federal Rules of Appellate Procedure 32.1 provides in relevant part:
(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and
(ii) issued on or after January 1, 2007.
 Goodwin v. Moyer,
No. 3:CV-05-781, 2006 WL 839342 (M.D.
 Duchow cannot circumvent our conclusion that his threats to Jacob that he would harm him were likely to be reported by presuming that Jacob would not report them to anyone because Jacob is a mentally disabled child with a significant speech impairment. Statements are "knowingly exposed" even when the speaker harbors doubts about the hearer's comprehension and ability to repeat them. Longoria, 177 F.3d at 1183. Longoria held that the defendant did not have a reasonable expectation of privacy in his statements because he spoke in Spanish and believed that the informant did not understand Spanish:
[W]e find no precedent recognizing expectations of privacy based on a listener's ability to comprehend a foreign language and decline to find such an expectation in this case . . . . [C]omprehension is a malleable concept not easily measured by either the defendant or the court. Attempting to delineate a standard based on subjective evaluations of linguistic capabilities would be unworkable to say the least.
 At the time