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Thread: Wiretapping laws in WI

  1. #1
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    I haven't found much info on this on the state legislature site. There is talk on WI forums and other states forums about carrying recorders. This is all fine and dandy, however, it would be a shame to violate restrictions on wiretapping, especially while taping LEO encounters.

    I see one of a few scenarios:
    1. No restrictions
    2. Must inform person they are being taped
    3. Must openly display taping device
    4. Must comply with a peace officer deactivation request

    Does anybody know of restrictions on this?

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    http://nxt.legis.state.wi.us/nxt/gat...=eavesdropping

    Chapter 968 is titled COMMENCEMENT OF CRIMINAL PROCEEDINGS and includes

    968.01 Complaint.
    968.02 Issuance and filing of complaints.
    968.03 Dismissal or withdrawal of complaints.
    968.04 Warrant or summons on complaint.
    968.05 Corporations or limited liability companies: summons in criminal cases.
    968.06 Indictment by grand jury.
    968.07 Arrest by a law enforcement officer.
    968.073 Recording custodial interrogations.
    968.075 Domestic abuse incidents; arrest and prosecution.
    968.08 Release by law enforcement officer of arrested person.
    968.085 Citation; nature; issuance; release of accused.
    968.09 Warrant on failure to appear.
    968.10 Searches and seizures; when authorized.
    968.11 Scope of search incident to lawful arrest.
    968.12 Search warrant.
    968.13 Search warrant; property subject to seizure.
    968.135 Subpoena for documents.
    968.14 Use of force.
    968.15 Search warrants; when executable.
    968.16 Detention and search of persons on premises.
    968.17 Return of search warrant.
    968.18 Receipt for seized property.
    968.19 Custody of property seized.
    968.20 Return of property seized.
    968.205 Preservation of certain evidence.
    968.21 Search warrant; secrecy.
    968.22 Effect of technical irregularities.
    968.23 Forms.
    968.24 Temporary questioning without arrest.
    968.25 Search during temporary questioning.
    968.255 Strip searches.
    968.256 Search of physically disabled person.
    968.26 John Doe proceeding.
    968.265 Lie detector tests; sexual assault victims.
    968.27 Definitions.
    968.28 Application for court order to intercept communications.
    968.29 Authorization for disclosure and use of intercepted wire, electronic or oral
    communications.
    968.30 Procedure for interception of wire, electronic or oral communications.
    968.31 Interception and disclosure of wire, electronic or oral communications
    prohibited.
    968.32 Forfeiture of contraband devices.
    968.33 Reports concerning intercepted wire or oral communications.
    968.34 Use of pen register or trap and trace device restricted.
    968.35 Application for an order for a pen register or a trap and trace device.
    968.36 Issuance of an order for a pen register or a trap and trace device.
    968.37 Assistance in the installation and use of a pen register or trap and trace
    device.
    968.38 Testing for HIV infection and certain diseases.
    968.40 Grand jury.
    968.41 Oath or affirmation of grand jurors.
    968.42 Presiding juror and clerk.
    968.43 Reporter; salary; assistant.
    968.44 Witnesses.
    968.45 Witness rights; transcripts.
    968.46 Secrecy.
    968.47 District attorney, when to attend.
    968.48 Attendance; absence; excuse; number required for grand jury session;
    number required to concur in indictment.
    968.49 Fine for nonattendance.
    968.50 Report progress and return indictments.
    968.505 Procedure upon discharge of grand jury.
    968.51 Indictment not to be disclosed.
    968.52 Votes not to be disclosed.
    968.53 When testimony may be disclosed.

    968.31 covers eavesdropping. Is it the only apropos chapter? I can't say because the Wisc Statutes are apparently constructed to employ many attorneys.

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    968.31(2) seems to allow a party to a oral communication to record but there are plenty of weasel words before and after.

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    In Wisconsin you can legally record any conversation in which you one of the parties taking part in the conversation.
    A. Gold

    Failure to comply may result in discipline up to and including termination.
    The free man is a warrior. - Nietzsche "Twilight of the Idols"

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    From what I have been able to determine I'm of the opinion that Shotgun is correct.

    There are two recognized kinds of conversation recording, "single party" and "two(multiple) party". Single party is when the person doing the recording is part of the conversation. notification to the other party is not required. Two party requires that all members of the conversation must be made aware of the recording. States differ as to which type applies. Wisconsin is a "single party" state. Statute 968.31(2)(c) is the relevant statute. In short it says that the prohibitions and penalties of 968.31 don't apply if one of the parties in the conversation is aware that the recording is taking place.

    The down side is that the recording may not be admissible as evidence. Court precedence in Wisconsin is that a recording is generally not admissible as evidence unless it involves a serious crime such as drugs, murder, rape etc. I would guess that courts are reluctant to accept it as evidence because it comes to close to infringing on our Fourth and Fifth amendment rights.

    Even though the recording may not be admissable in court I know that I would record all of my encounters involving open carry. While the recording may not be admissable it is still important information for me to give to an attorney.

    There probably is little harm of informing an officer that you are recording a conversation. If the officer says no you need not answer any furthur questions. The Wisconsin Terry Law only requires that if you are involved in a "casual" stop you must give your correct name and address . A casual stop is a stop where you are detained and questioned and are not involved in any suspicious or criminal activity. You don't have to answer any questions you are uncomfortable in answering. In fact usually "The less said. The better said".

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    I don't open carry for several reasons.

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    Pointman wrote:
    This is not legal advice, nor current, and I did not read the laws on this myself
    Was my time wasted in finding what I could and posting them? And there were mixed messages in your mention of 'polite' and appearance.

    Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA *******

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    Your time is not wasted in posting the laws.

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    Sorry, as I noted elsewhere and IIRC in a note to you, I have disabled PM to encourage my detractors to vent their spleen for all to see rather than in my PM in-box.

    Only I know LEO 229 in his heart of hearts, a venal Anony Mouse putz, from his deposits in my PM.

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    smithman wrote:
    I haven't found much info on this on the state legislature site. There is talk on WI forums and other states forums about carrying recorders. This is all fine and dandy, however, it would be a shame to violate restrictions on wiretapping, especially while taping LEO encounters.

    I see one of a few scenarios:
    1. No restrictions
    2. Must inform person they are being taped
    3. Must openly display taping device
    4. Must comply with a peace officer deactivation request

    Does anybody know of restrictions on this?
    Years ago it was printed in the front of the phone book. I remember it to read something like this:

    "Recording conversations is illegal unless one of the parties in the conversation is aware of the conversation being recorded."

    I asked the same question to a former WI police officer, now federal agent, and I was told the quote above before I said it to the officer and this wasn't too long ago. I am not a lawyer and laws change. In most cases it can't be used as evidence but the recording may be allowed to be played in court. Again, I'm not a lawyer and you would think a statute could be found that was understandable.



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    Many of these laws are poorly written because they originate from the starting point of a 3rd party recording a 2-party conversation and the recorder need only inform one of them.

    If you consent to the oral recording (and the officer has no expectation of privacy under the law) you're good to go. As Pointman mentions I imagine the more articulate one is in defining the scope of the recording the better.

    Sidebar question for Lammie, though...

    In mentioning "casual" stop, are you talking about an investigative detention? My understanding is that a consensual contact is one in which you are free to depart, i.e., to which the answer to the question "Am I free to go?" is "Yes."

    Anything else is a seizure, however brief. Thoughts?



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    WIG19

    I used the term "casual" in the same context as you use the words "consensual contact". A stop to gather information but one in which an arrest is not probable.

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    Lammie wrote:
    WIG19

    I used the term "casual" in the same context as you use the words "consensual contact". A stop to gather information but one in which an arrest is not probable.
    OK, I was just curious. I use the term casual contact to describe a situation wherein my freedom of movement hasn't been restricted. Officers I know that have talked with me about it differentiate between "hey can I ask you a question?" (and you're perfectly free to answer "no thanks" and keep on truckin') which they term a consensual (or casual) contact...

    versus "stay right here for a moment because I need to ask you a question" which they'd call an investigative detention and you are not free to go. (You have been legally - albeit briefly - seized. Not arrested, but your freedom of movement is now restricted.) Often the way to find out is simply to ask:

    "Am I free to go Officer?"


    I get what you mean; we just use different terms. Thanks.

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