Wisconsin Supreme Court rules recording on school bus is admissible.

• Author: Ziemer, David

Byline: David Ziemer

The surreptitious recordings of a bus driver threatening a disabled child were properly held admissible at his trial for child abuse.

Concluding that the driver did not have a reasonable expectation of privacy in the statements, the court wrote, By telling [the boy] that he would harm him, [the bus driver] ... assumed the risk that his threatening statements would be revealed to others.

Brian Duchow was a school bus driver. The first student on his route was Jacob, who has Down syndrome.

In 2003, Jacob's parents suspected he was being abused, and placed a voice-activated recorder in his backpack.

The tape recorded Duchow making the following statements to Jacob:

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.

The parents then played the tape for a Milwaukee Police Officer, who interviewed Duchow.

Duchow admitted making the threats and admitted to slapping Jacob twice on the day of the recording.

Duchow was charged with child abuse, and he moved to suppress the recording.

Milwaukee County Circuit Court Judge Michael B. Brennan denied the motion, after which Duchow pleaded guilty. On appeal, the Court of Appeals reversed in an unpublished opinion.

The Supreme Court granted review, and reversed the Court of Appeals, in an opinion by Justice Patience Drake Roggensack.

The court concluded that the threats do not constitute an oral communication within the meaning of sec. 968.27(12).

The statute defines oral communication as any oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.

Duchow argued that his statements fit, because he did not expect that they would be recorded or intercepted.

The Supreme Court agreed that this was a reasonable interpretation, but rejected it, relying on legislative history.

The statute is patterned on Title III, the Omnibus Crime Control and Safe Streets Act of 1968, which has been interpreted by numerous other jurisdictions to require that the speaker have an objectively reasonable, as well as a subjective, expectation of privacy.

The court fund that Duchow did not have a reasonable expectation of...