968.29 Authorization for disclosure and use of intercepted wire, electronic or oral communications.

(1) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose the contents to another investigative or law enforcement officer only to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use the contents only to the extent the use is appropriate to the proper performance of the officer's official duties.

(3)

(a) Any person who has received, by any means authorized by ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute of any other state, any information concerning a wire, electronic or oral communication or evidence derived therefrom intercepted in accordance with ss. 968.28 to 968.37, may disclose the contents of that communication or that derivative evidence only while giving testimony under oath or affirmation in any proceeding in any court or before any magistrate or grand jury in this state, or in any court of the United States or of any state, or in any federal or state grand jury proceeding.

(b) In addition to the disclosure provisions of par. (a), any person who has received, in the manner described under s. 968.31 (2) (b), any information concerning a wire, electronic or oral communication or evidence derived therefrom, may disclose the contents of that communication or that derivative evidence while giving testimony under oath or affirmation in any proceeding described in par. (a) in which a person is accused of any act constituting a felony, and only if the party who consented to the interception is available to testify at the proceeding or if another witness is available to authenticate the recording.

(4) No otherwise privileged wire, electronic or oral communication intercepted in accordance with, or in violation of, ss. 968.28 to 968.37 or 18 USC 2510 to 2520, may lose its privileged character.

(5) When an investigative or law enforcement officer, while engaged in intercepting wire, electronic or oral communications in the manner authorized, intercepts wire, electronic or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subs. (1) and (2). The contents and any evidence derived therefrom may be used under sub. (3) when authorized or approved by the judge who acted on the original application where the judge finds on subsequent application, made as soon as practicable but no later than 48 hours, that the contents were otherwise intercepted in accordance with ss. 968.28 to 968.37 or 18 USC 2510 to 2520 or by a like statute.

History: 1971 c. 40 ss. 91, 93; 1987 a. 399; 1989 a. 121, 359; 1993 a. 98; 1995 a. 30.

Evidence of intercepted oral or wire communications can be introduced only if the interception was authorized under s. 968.30; consent by one party to the communication is not sufficient. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354 (1971).

Although one-party consent tapes are lawful, they are not authorized by ss. 968.28 to 968.33 and therefore the contents cannot be admitted as evidence in chief, but sub. (3) does not prohibit giving such tapes to the state. State v. Waste Management of Wisconsin, Inc. 81 Wis. 2d 555, 261 N.W.2d 147 (1977).

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).

Sub. (2) authorizes prosecutors to include intercepted communications in a criminal complaint. A prosecutor is a law enforcement officer under sub. (2), and preparation of complaints is within the prosecutor's official duties. State v. Gilmore, 193 Wis. 2d 403, 535 N.W.2d 21 (Ct. App. 1995).

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.

The state may use one-party consent recordings of criminal activity, the disclosure of which is not authorized under sub. (3) (b), if the evidence inadvertently falls within the “plain hearing" of law enforcement officers conducting authorized surveillance. State v. Gil, 208 Wis. 2d 531, 561 N.W.2d 760 (Ct. App. 1997), 95-3347.

Since interception by government agents of an informant's telephone call was exclusively done by federal agents and was lawful under federal law, Wisconsin law did not govern its admissibility into evidence in a federal prosecution, notwithstanding that the telephone call may have been a privileged communication under Wisconsin law. United States v. Beni, 397 F. Supp. 1086.