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Van Hollen Applauds Decision As Allowing Parents To Protect School children
MADISON - The Wisconsin Supreme Court ruled today that a tape recording capturing bus driver Brian Duchow's statements as he abused a boy (known in the court documents as Jacob M.) with Down Syndrome could be used in court.
The case involved a situation where the parents of a child noticed a change in their son's behavior after he began riding a school bus driven by Brian Duchow. The boy's parents placed a voice-activated tape recorder in their son's backpack and recorded Mr. Duchow making the following statements:
The sound of what Jacob's parents believed to be a slap was also recorded.
After listening to the recording, the boy's parents contacted police, who interviewed Duchow. The recordings revealed that Duchow was threatening the boy and making reference to past incidents involving physical abuse.
Duchow was charged with intentionally causing bodily harm to a child. The circuit court denied Duchow's motion to suppress the recordings from evidence, and Duchow pleaded guilty and was convicted. Duchow appealed the denial of his motion to suppress, and the Court of Appeals reversed the conviction, concluding that the tape recordings were "oral communications" that should be suppressed according to case law interpreting Wisconsin's Electronic Surveillance Control Law.
The Wisconsin Supreme Court reversed the Court of Appeals decision, ruling today that because Duchow's statements were made on a public school bus, being used for the public purpose of transporting school children, and because they were threats to harm Jacob for which Duchow assumed the risk that Jacob would report, Duchow had no reasonable expectation of privacy in his statements. Thus, the Wisconsin Electronic Surveillance Control Law did not provide a basis for suppression.
"Today's ruling is a common sense interpretation of the law and one that allows parents to protect their children as they go back and forth to school," said Wisconsin Attorney General J.B. Van Hollen, who appeared on the briefs the state filed with the Wisconsin Supreme Court. "It is a victory for school safety."
A copy of the decision can be found at http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=32999.
Assistant Attorney General David J. Becker represented the state in the Wisconsin Supreme Court.