Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — No Reasonable Expectation of Privacy by School Bus Driver in Statements Recorded While Transporting Student

State v. Brian Harold Duchow, 2008 WI 57, reversingunpublished decisionFor Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.


¶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. [4] Accordingly, we reverse the decision of the court of appeals.

¶25 We 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 exclusive use. …

¶27 School bus drivers endure a similarly diminished expectation of privacy inside the school buses they operate. …

¶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….