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Police blotter: Secret recording inadmissible against bus driver

Parents of 9-year-old put recorder in his backpack when concerned about abuse by school bus driver. But recording can't be used as evidence.

Police Blotter is a weekly CNET report on the intersection of technology and the law.

What: Milwaukee school bus driver's abuse of a child is discovered after parents place a voice-activated recorder in son's backpack.

When: Wisconsin Court of Appeals rules April 3.

Outcome: Court says in 2-1 vote that recording cannot be used against bus driver in court because it was not obtained by police.

What happened, according to court documents:
Sometime around April 2003, Jacob Mutulo's parents began worrying that their 9-year-old son was being mistreated by the school bus driver.

According to a report that they placed on their own Web site, the school reported earlier in that school year that Jacob had been yelling and shouting in class and was reluctant to get on the school bus to return home. And the bus driver, Brian Duchow, complained that Jacob had been spitting at him.

Because Jacob has Down syndrome, the parents couldn't easily find out directly from him what was going on. According to Milwaukee radio station WTMJ AM 620, Jacob weighed about 50 pounds at the time and was not able to carry on a normal conversation. (He had also been diagnosed with Attention Deficit Hyperactivity Disorder.)

His frustrated parents eventually came to suspect that Jacob's poor behavior at school had something to do with the bus driver who had started at the beginning of the school year. They placed a voice-activated tape recorder in Jacob's backpack and listened to it at the end of the day.

It was a remarkably disturbing recording. The tape revealed Duchow yelling such things as, "Stop before I beat the living hell out of you" and "I'm going to slap the hell out of you." Another statement was: "Do I have to tape your mouth shut, because you know I will."

The parents called the police, and Milwaukee Police Officer Steven Wells interviewed Duchow after listening to the recording for himself. The police chose not to carry out their own electronic interception.

Duchow eventually was charged with intentionally causing bodily harm to a child and with disorderly conduct. He admitted to slapping the boy twice that day. What makes this case relevant to Police Blotter is that Duchow asked the judge to suppress the recording so it could not be used against him.

After the trial judge denied the request, Duchow pleaded guilty to intentionally causing bodily harm to a child--but reserved his right to appeal.

Wisconsin state law generally prohibits the disclosure of intercepted conversations, leaving the appeals court in a bit of a tight spot. The exceptions to that general rule apply to police and to people working in concert with police.

A majority of the Wisconsin appeals court ruled that the recording was lawfully obtained--but could not be lawfully disclosed because it was not done in cooperation with police--and reversed the lower court's ruling. The case was sent back to a circuit judge, and it's unclear what will happen next.

If the police had bugged the bus the next day and remained nearby to intervene, if necessary, this would have never become an issue.

Excerpts from the Wisconsin appeals court's majority opinion:
If the interception in this case had been obtained "under color of law"--that is, through police involvement--references to the interception in the complaint would be permitted. A repeat interception in the present case could have been supervised by law enforcement with the resulting information obtained "under color of law."

That would have made the contents of such a recording admissible in this felony prosecution under Wis. Stat. 968.29(3) and properly disclosed in the complaint. However, in the present case, Duchow pleaded guilty and, therefore, the content of the interception was not used at trial. Whether the complaint itself, with disclosure of the content of the interception, would have been admissible at trial, we need not decide.

Jacob's parents acted responsibly and in the best interests of their child when they took reasonable action to protect their child from a reasonably suspected threat of harm. As the private party under the rationale of the Waste Management case, they promptly disclosed what they recorded to a law enforcement officer. There was nothing more appropriate they could have done under the circumstances.

Likewise, the officer acted appropriately in investigating the information that properly came to his attention. He interviewed Duchow and could properly communicate what he learned from the interview.

However, the recording by Jacob's parents, while "not unlawful," was not one they obtained "under color of law." Therefore, law enforcement officers or agents were not permitted by Wis. Stat. 968.29(3) to disclose the contents of the interception because they had not obtained the interception from someone acting under color of law.

This problem might have been easily remedied if another secret recording under the supervision of the police had occurred. Had that step been taken, we have little doubt that such a follow-up interception would have been obtained under color of law and admissible.

For all the foregoing reasons, we conclude that Duchow's electronically intercepted communications were "oral communications" under Wis. Stat. 968.27(12), that Jacob's parents properly consented on his behalf to the electronic interception under Wis. Stat. 968.31(2)(c), that they properly delivered the recording to law enforcement and that law enforcement officers properly used the information they learned in their investigation.

However, because the interception was not obtained under color of law, the contents of the interception were not admissible in the felony prosecution against Duchow. Therefore, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Excerpts from the dissent by Judge Patricia Curley:
I agree with the majority's conclusions that the recorded statements of Duchow were oral communications and that the child victim's parents could give vicarious consent to tape-record the conversation the child victim had with Duchow. However, I disagree with the majority's conclusion that the tape recording was inadmissible.

Here, the child victim's parents consented on the child's behalf to intercept the conversation between the child and Duchow, and the recording was turned over to the police. Further, their purpose in doing so was not to commit "a criminal or tortuous act." Thus, following the Maloney holding, the tape was admissible.

Moreover, under the circumstances present here, it seems illogical and contrary to common sense to approve the parents' actions to protect their child by tape-recording the conversation but prevent the state from prosecuting the offenses revealed by the recording.

I am also concerned with the majority's solution that "(t)his problem might have been easily remedied if another secret recording under the supervision of the police had occurred."

Clearly, this child had already been victimized by Duchow. The tape revealed Duchow yelling such things as, "Stop before I beat the living hell out of you," and "I'm going to slap the hell out of you."

Duchow also admitted to the police that he had slapped the child twice on the bus ride. To suggest that the victim be subjected to another such incident, just to make the recording admissible, is cruel and inhumane.

Therefore, although I agree with the majority's analysis in all other respects, I respectfully dissent with regard to the admissibility of the recordings at trial.