State v. House

N. PATRICK CROOKS, J.

¶ 62. {concurring). While I join the majority's conclusion that suppression of the evidence obtained from the wiretap in this case is not warranted, I disagree with the majority's determination that the circuit court erred in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28. I write separately because I read "dealing in controlled substances" under § 968.28 to be broad enough to encompass the allegations of money laundering, racketeering, and continuing criminal enterprise in this case.

¶ 63. Here, the offenses of money laundering, racketeering, and continuing criminal enterprise were all part of a drug trafficking operation. This conclusion is supported by the affidavit of Detective Stanaszak, which stated, "I believe that SAMUEL CARABALLO is operating a drug trafficking organization involving numerous family members and other individuals that distributes cocaine, Ecstasy (MDMA) and heroin in and around the Milwaukee area from sources located outside Wisconsin, utilizing commercial properties to facilitate these activities and likely launder the proceeds."

¶ 64. The application for a wiretap on the phone of Samuel Caraballo listed the offenses under investigation as violations of Wis. Stat. § 961.41(1)(a) (manufacture, distribution or delivery of controlled substances), Wis. Stat. § 946.41(lm) (possession of controlled substances with intent to manufacture, distribute or deliver), and Wis. Stat. § 961.42 (keeping a place for using, manufacturing, keeping or delivering controlled substances). The application also listed violations of Wis. Stat. § 941.41(lx) (conspiracy to commit violations of section 961.41), and Wis. Stat. §§ 946.83 and 946.85 (racketeering and continuing criminal enterprises). The application further listed violations of 21 U.S.C. § 841(a)(1) (distribution of and possession with intent to distribute controlled substances), 21 U.S.C. § 843(b) (use of a communication facility to facilitate controlled substance felonies), 18 U.S.C. § 1952 (interstate or foreign travel or transportation in aid of racketeering enterprises), and 18 U.S.C. §§ 1956 and 1957 (money laundering). Although the wiretap application listed offenses not explicitly enumerated in Wis. Stat. § 968.28,. it was not invalid, because it established, along with the affidavit of Detective Stanaszak in support of the application, probable cause that there was a nexus between the offenses of money laundering, racketeering, and continuing criminal enterprise, and the offense of "dealing in controlled substances" in this case. Wis. Stat. § 968.28.

¶ 65. The majority opinion states that the legislature intended that the offenses enumerated in Wis. Stat. § 968.28 be patterned after those set forth in 18 U.S.C. § 2516(2). Majority op., ¶ 22. The majority opinion quotes former Wisconsin Attorney General Robert W Warren in support of its position that authorization of wiretapping is permissible only in certain crimes which have been listed in the federal statute. Majority op., ¶ 21 n.6 (citing Legislative Reference Bureau drafting file for ch. 427, Laws of 1969).

¶ 66. Under 18 U.S.C. § 2516(2), the principal prosecuting attorney of any state is authorized to apply to a judge for an order authorizing interception of wire, oral, or electronic communications, where such interception may provide evidence of certain types of offenses, including "dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year. ..." The inclusion of the language "or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year..." suggests that Congress intended that a state, in accordance with 18 U.S.C. § 2516(2), could authorize wiretapping for a broad range of dangerous offenses, not limited to the offenses explicitly enumerated in the statute.

¶ 67. Additionally, a closer look at then Attorney General Robert W Warren's Analysis of Assembly Bill 860¹ evidences an intent that Wisconsin's wiretapping statute be used to fight organized crime. Attorney General Warren stated, "Today's law enforcement officers need the legal authorization to record the conversations of criminals and others who are reasonably suspected of serious crimes, and particularly organized crimes." Legislative Reference Bureau drafting file for ch. 427, Laws of 1969. The offenses of money laundering, racketeering, and continuing criminal enterprise in this case are "organized crimes" of the type contemplated by Attorney General Warren. The legislative history of Wisconsin's wiretapping statute, as well as the broad, inclusive language of 18 U.S.C. § 2516(2), support a conclusion that the circuit court did not err in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28.

¶ 68. For the above stated reasons, I respectfully concur.

¶ 69. I am authorized to state that Justices JON E WILCOX and PATIENCE DRAKE ROGGENSACK join this concurrence.

1 1969 Assembly Bill 860 established Wisconsin's wiretapping statutes.