ANN WALSH BRADLEY, J.
¶ 1. The petitioner, Jeffrey House, seeks review of an unpublished court of appeals decision affirming a judgment convicting him of conspiracy to deliver cocaine.1 House contends that the court of appeals erred in letting stand the circuit court's denial of his motion to suppress telephonic evidence on the ground that the evidence was obtained pursuant to an invalid wiretap order. He argues that because the wiretap order authorized interceptions of communica[5] tions for crimes not specifically enumerated in Wisconsin's wiretapping statutes, the order was unlawful and evidence from the wiretap should be suppressed.
¶ 2. We determine that the circuit court erred in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28.2 However, we also determine that the authorization of a wiretap for non-enumerated offenses does not warrant suppression of the evidence obtained from the wiretap in this case. The order included both enumerated and non-enumerated offenses, and it contained sufficient probable cause for the enumerated offenses. Further, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. Thus, the failure does not conflict with the statutory objectives of protecting privacy and limiting wiretapping to situations clearly calling for the use of such an extraordinary device. Accordingly, we affirm the court of appeals.
I
¶ 3. This case stems from an extended investigation of a drug-trafficking operation which focused on Samuel Caraballo and Felix Rivera. In March 2004, a detective in the Milwaukee Police Department applied to the circuit court of Milwaukee County for an order authorizing interception of communications from a cell phone associated with Caraballo. The application was based on an investigation by Milwaukee's High Intensity Drug Trafficking Area Drug Gang Task Force (HIDTA).
[6] ¶ 4. The affidavit supporting the application describes a drug-trafficking enterprise involving at least a dozen individuals and multiple businesses. It describes HIDTA's use of a variety of investigative techniques to gain information about the operation, including confidential informants, controlled purchases, physical surveillance, a John Doe investigation, garbage searches, and traces on telephone numbers associated with Cara-ballo. It also explains why those procedures and other possible investigative tools had failed, appeared unlikely to succeed if attempted, or were too dangerous to use.
¶ 5. The application for the wiretap asserts that the evidence produced by the HIDTA investigation was sufficient to show probable cause that the subjects had committed, were committing, and would continue to commit violations of a number of state drug trafficking statutes.3 These include § 961.41(1) (manufacture, distribution or delivery), § 961.41(lm) (possession with intent to manufacture, distribute or deliver) and [7] § 961.42 (keeping a place for using, manufacturing, keeping or delivering) for controlled substances, including cocaine, ecstasy, and heroin. The application also stated that the defendants had violated state conspiracy and racketeering statutes, including Wis. Stat. §§ 939.31 and 961.41(lx) (conspiracy), and §§ 946.83 and 946.85 (racketeering and continuing criminal enterprises).
¶ 6.. In addition to the violations of state law, the application asserted violations of federal statutes, including 21 U.S.C. §§ 841(a)(l)(possession with the intent to distribute and distribution of controlled substances), 846 (conspiracy), and 843(b)(use of a communication facility to facilitate controlled substance felonies). Further, it averred probable cause for violations of federal racketeering and money laundering laws, 18 U.S.C. §§ 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), and 1956 and 1957 (money laundering). The application for the wiretap was approved by the district attorney for Milwaukee County and the state attorney general.
¶ 7. The circuit court approved the wiretap for a 30-day period. The order authorizing the wiretap incorporates the language of the application and approves wiretapping for all of the crimes set forth in the application.4 The State requested and received two extensions of the wiretap.
[8] ¶ 8. In May 2004, the State filed a complaint naming over 30 people as defendants. The 15 counts in the complaint all pertain to drug trafficking and conspiracy to traffic drugs. The complaint did not include charges for money laundering, racketeering, or continuing criminal enterprise. House was charged with two counts of conspiracy to deliver cocaine. The complaint describes five calls that House made to Caraballo's phone in which House requests cocaine or arranges to receive cocaine from Caraballo.
¶ 9. House moved to suppress evidence obtained from the wiretap on two grounds. First, he asserted that the order for the wiretaps was unlawful because it authorized wiretaps for crimes not enumerated in Wis. Stat. § 968.28. Second, he argued that the extensions for the wiretap were unlawful because they failed to conform to the requirement under Wis. Stat. §§ 968.30 and 968.28 that applications for extensions receive approval from the district attorney and the attorney general. The circuit court denied the motion with regard to the first ground. However, it granted House's [9] motion to exclude the evidence obtained from the wiretap during its extension.5
¶ 10. House subsequently entered a guilty plea to one count of conspiracy to deliver cocaine. He was sentenced to two years, six months initial confinement and three years, six months extended supervision. He appealed the denial of his suppression motion, arguing that money laundering, racketeering, and continuing criminal enterprise were outside the scope of Wisconsin's wiretapping statutes. The court of appeals questioned the validity of the State's claim that such crimes are encompassed in "dealing in controlled substances," which is within the scope of the statutes. Nonetheless, it affirmed House's judgment of conviction. It determined that including offenses not enumerated in Wisconsin's wiretap statutes in the wiretap order did not render the order unlawful.
II
¶ 11. In this case we must determine whether a circuit court erred in authorizing a wiretap for offenses not enumerated in Wisconsin's wiretap statutes, and if so, whether suppression of evidence obtained by the wiretap is warranted. In resolving these questions we interpret statutes and apply those statutes to the particular facts of this case. Questions of statutory interpretation and application present questions of law which we review independently of the determinations rendered by the circuit court and the court of appeals. Kierstyn v. Racine Unified School Dist., 228 Wis. 2d 81, 88, 596 N.W.2d 417 (1999).
[10] III
¶ 12. House contends that because money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated crimes for which wiretaps are authorized under the Wisconsin wiretap statutes, the order authorizing the wiretap in this case was unlawful. We begin our analysis by examining the words of Wisconsin's wiretap statute, Wis. Stat. § 968.28. It states in relevant part that a circuit court may authorize wiretaps only where the wiretap may provide, or has provided, evidence of certain enumerated crimes:
The authorization [of an interception] shall be permitted only if the interception may provide or has provided evidence of the commission of the offense of homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances or controlled substance analogs, a computer crime that is a felony under s. 943.70, or any conspiracy to commit any of the foregoing offenses.
¶ 13. A plain reading of the statute reflects that the crimes of money laundering, racketeering and continuing criminal enterprise are not specifically enumerated crimes. Nevertheless, the State argues that a circuit court may authorize wiretaps for those crimes insofar as they constitute "dealing in controlled substances," which is an enumerated offense under § 968.28. We disagree. Not only is such an interpretation inconsistent with the plain words of the statute, it also contradicts the legislative intent that § 968.28 be a restrictive statute. By authorizing a wiretap for money laundering, racketeering, and continuing criminal enterprise, the circuit court expanded the scope of a wiretap beyond the statutory limit. It therefore erred in providing such an authorization.
[11] ¶ 14. The interception of wire, oral, and electronic communications is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which is codified at 18 U.S.C. Part I, Ch. 119, § 2510, et sub. (2006). Wisconsin's electronic surveillance statutes are patterned after Title III. Our interpretation of the state statutes therefore benefits from the legislative history and intent of Title III and from federal decisions considering Title III. State v. Gilmore, 201 Wis. 2d 820, 825, 549 N.W.2d 401 (1996).
¶ 15. Congress intended that Title III be construed strictly because it knew that it was creating an investigative mechanism which potentially threatened the constitutional right to privacy. "[I]t carefully wrote into the law the protective procedures for the issuance of warrants which the Supreme Court had declared in Katz v. United States [389 U.S. 347 (1967)] and Berger v. New York [388 U.S. 41 (1967)] were constitutional precondition^] of... electronic surveillance." United States v. Capra, 501 F.2d 267, 277 (2d Cir. 1974) (internal quotations omitted).
¶ 16. Congress also intended to limit wiretapping to investigations of certain major offenses. S. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2186. Title III circumscribes the authority of both federal and state agencies. The authority of federal agencies is set forth in subsection (1) of 18 U.S.C. § 2516 and the authority of the state agencies is set forth in subsection (2).
¶ 17. Each of the offenses enumerated in 18 U.S.C. § 2516(1) was chosen by Congress "either because it is intrinsically serious or because it is characteristic of the operations of organized crime." S. Rep. No. 1097 at 2186. In enacting 18 U.S.C. § 2516(2), Congress intended that [12] any state statute permitting wiretaps "must meet the minimum standards reflected as a whole in the proposed chapter," and that states "would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation." S. Rep. No. 1097 at 2187.
¶ 18. Thus, 18 U.S.C. § 2516(2) is intended to provide two things. It assures that states would allow wiretapping only for crimes that are at least as "intrinsically serious" or as "characteristic of organized crime" as those crimes enumerated in § 2516(1). It also allows, if the legislatures so choose, that state statutes may place greater restrictions on wiretaps than do the federal statutes. However, states may not enact legislation broader than that which is authorized for the states under 18 U.S.C. § 2516(2).
¶ 19. Title III outlines the requirements that federal agencies must meet in order to receive authorization for interceptions and designates by statute number the offenses for which wiretaps may be authorized. 18 U.S.C. § 2516(1). The enumerated offenses are set forth in subparagraphs (a) through (f). For instance, subpara-graph (a) includes those offenses that fall within the national security category, including offenses involving espionage, sabotage, and treason. Subparagraph (b) includes the offenses of murder, kidnapping, robbery and extortion. Subparagraphs (c), (d), and (e) enumerate scores of federal offenses, including the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marijuana, or other dangerous drugs, racketeering, and money laundering. Finally, subparagraph (f) includes any conspiracy to commit the specifically enumerated federal offenses.
¶ 20. Subparagraph (2) of 18 U.S.C. § 2516 authorizes states to enact laws governing state law enforcement agents' use of wiretaps and sets forth the following requirements:
[13] The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or 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, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.
18 U.S.C. § 2516(2)(emphasis added).
¶ 21. Wisconsin's wiretapping statutes reflect the provisions set forth in 18 U.S.C. § 2516(2).6 Under Wis. Stat. § 968.30(3)(a) a court may not enter an order [14] for a wiretap unless "[t]here is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in s. 968.28." In turn, § 968.28 provides that interceptions of communications may be authorized for only a limited group of offenses:
homicide, felony murder, kidnapping, commercial gambling, bribery, extortion, dealing in controlled substances or controlled substance analogs, a computer crime that is a felony under s. 943.70, or any conspiracy to commit any of the foregoing offenses.
¶ 22. It is clear that the legislature intended that the offenses enumerated in § 968.28 be patterned after those in 18 U.S.C. § 2516(2). Thus, § 968.28 sets forth mostly the same crimes, in the same order, and in largely the same language as the crimes listed in 18 U.S.C. § 2516(2). However, unlike its federal counterpart, the state wiretap statute does not include the offense of robbery.
¶ 23. As noted, Title III permits states "to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation." United States v. Capra, 501 F.2d at 276 (quoting S. Rep. No. 1097, supra, 2187). Wisconsin's legislature allowed that most of those crimes explicitly designated by 18 U.S.C. § 2516(2) could be the basis for a wiretap. However, the legislature did not permit circuit courts to authorize wiretaps for the purpose of providing evidence for robbery, even though robbery is an offense for which states may allow wiretapping under 18 U.S.C. § 2516(2).
¶ 24. In addition, § 2516(2) of the federal statute provides that states may authorize wiretaps for "other crime[s] dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated [15] in any applicable State statute authorizing such interception." 18 U.S.C. § 2516(2). Consistent with those requirements, in 1983 the Wisconsin legislature amended § 968.28 to include "a computer crime that is a felony under s. 943.70." 1983 Wis. Act 438. Computer crimes are dangerous to life, limb, or property,7 felony computer crimes are punishable by imprisonment for more than one year,8 and the state statute authorizing wiretaps designates computer crimes as subject to wiretapping.
¶ 25. The legislative history of the computer crimes provision demonstrates the intent that Wisconsin's wiretapping statutes be restrictive in accordance with Title III. The drafting instructions for 1983 Wis. Act 438 reflected the federal requirement that offenses must be specifically enumerated in the statute in order to obtain authorization for a wiretap:
To: Bruce
From: Dick White
Drafting Instructions:
Authorize use of wiretaps in computer crime cases where there is a significant risk of causing great bodily harm because of the crime. (Cannot currently get a wiretap in these cases — it's not a specifically authorized crime for which wiretapping can be authorized ....)
Legislative Reference Bureau drafting file for 1983 Wis. Act 438.
[16] ¶ 26. A "Note to File" also recognizes that the federal legislation limits the state's ability to authorize wiretapping by the enumeration of only certain offenses. "18 U.S.C. 2516 — limits state regulation of wiretapping to certain offense[s]." A subsequent drafter's note reflects that the original draft of the amendment needed to be modified in keeping with the "restrictive" approach of the legislation:
DRAFTER'S NOTE: When you review this draft, please note the following: (1) The wiretap revision is more restrictive than you requested. The federal law (18 U.S.C. 2516) limits the states to covering offenses which are punishable by imprisonment for more than one year. I limited the change accordingly ....
Legislative Reference Bureau drafting file for 1983 Wis. Act 438.
¶ 27. Thus, the legislature carefully demarcated the crimes for which wiretaps may be authorized under § 968.28. It followed the provisions in Title III, but deliberately did not include every crime contemplated in 18 U.S.C. § 2516(2). Further, where § 968.28 allows that a wiretap can be authorized for a crime not explicitly set forth in the federal statute, it carefully complies with the requirements of § 2516(2) providing for such additions.
¶ 28. The State's view that the circuit court may authorize wiretaps for racketeering, continuing criminal enterprise, and money laundering because those crimes constitute "dealing in controlled substances" conflicts with the narrowly circumscribed scope of § 968.28. By authorizing a wiretap for racketeering, continuing criminal enterprise, and money laundering, the circuit court expanded the scope of the wiretap beyond the limit authorized by law.
[17] ¶ 29. The State correctly asserts that dealing in controlled substances may provide a foundation for racketeering or continuing criminal enterprise charges and that money laundering may be an aspect of a drug dealing operation. However, those offenses may also be based on crimes not enumerated in § 968.28. Thus, including them in an order authorizing a wiretap in effect authorizes a wiretap for other crimes that would support a racketeering, continuing criminal enterprise, or money laundering charge.
¶ 30. As an example, by including racketeering in the authorization, the circuit court potentially incorporated more than one hundred additional criminal offenses. Section 946.82 defines expansively "racketeering activity." Among the statutes listed as potentially constituting racketeering are §§ 943.32 (Robbery), 943.38 (Forgery), 943.76 (Infecting animals with a contagious disease), 944.34 (Keeping place of prostitution), and 946.49 (Bail jumping). An order that authorizes the interception of communications "concerning or related to" racketeering violations, therefore, has the effect of authorizing the interception of communications concerning or related to robbery, forgery, infecting animals with a contagious disease, keeping a place of prostitution, and bail jumping. These offenses are clearly not among those for which the legislature has authorized wiretapping. Moreover, as noted above, the legislature conspicuously declined to include robbery in the list of crimes for which wiretapping may be authorized, despite the fact that Title III expressly provides that state wiretapping statutes may include robbery. 18 U.S.C. § 2516(2).
¶ 31. The wiretap order also authorized interceptions of communications concerning continuing criminal enterprise and violations of 18 U.S.C. §§ 1956 and [18]*181957, two federal money laundering statutes. Similar to the effect of authorizing interceptions for racketeering, authorizing the interception of communications for continuing criminal enterprise and money laundering in effect authorizes interceptions for crimes not enumerated in § 968.28. Further, while "dealing in controlled substances" may provide a foundation for the crimes of money laundering, racketeering, and continuing criminal enterprise, those crimes encompass a great deal more than dealing in controlled substances. Interpreting "dealing in controlled substances" as including racketeering, continuing criminal enterprise, and money laundering therefore conflicts with the restrictive nature of the Wisconsin statutes.
¶ 32. The State also argues that, even if "dealing in controlled substances" does not include the offenses of money laundering, racketeering, and continuing criminal enterprise as a general matter, in this case it is clear that those crimes are all part of a drug trafficking operation. With this view, only those money laundering, racketeering, and continuing criminal enterprise activities related to drug trafficking would be open to interception here. This argument is unpersuasive. It is contrary to the language of the order, which does not limit interceptions of communications regarding money laundering, racketeering, and continuing criminal enterprise to instances where those crimes are related to drug trafficking.9
[19] ¶ 33. In sum, we conclude that money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated offenses in § 928.28 and that those offenses are not included within "dealing in controlled substances," which is an enumerated offense. Such a construction would contradict the legislative intent that § 968.28 be a restrictive statute and would result in expanding the scope of a wiretap authorization beyond the statutorily imposed limitations. Accordingly we determine that the circuit court erred in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28.
IV
¶ 34. Having determined that the circuit court erred in authorizing a wiretap for crimes not enumerated in § 968.28, we turn to the question of whether suppression is required. House asserts that the suppression of any evidence resulting from the wiretap is required under § 968.30(9)(a). Our interpretation of the statutes and case law leads us to conclude that suppression is not warranted in this case.
¶ 35. We make this determination because the non-enumerated crimes in the order are surplusage. The wiretap order includes both enumerated and non-enumerated offenses. It is undisputed that there was [20] probable cause for the enumerated offenses. There is no indication that communications regarding non-enumerated offenses were intercepted, and no non-enumerated offenses were charged. Thus, the statutory-objectives of protecting privacy and restricting wiretaps to situations clearly calling for their use have been fulfilled despite the violation of § 968.28.
¶ 36. In addressing this issue, we look first to the statutory provision for suppression. Wisconsin Stat. § 968.30(9)(a) sets forth the conditions under which information gathered by wiretap may be suppressed. It provides for suppression "on the grounds that the communication was unlawfully intercepted; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. . . ,"10 It is undisputed that the wiretaps in this case were made in conformity with the authorization order.
¶ 37. Further, the order authorizing the wiretap was not insufficient on its face. Section 968.30(4) lists the things that must be specified in an order authoriz[21] ing a wiretap. It requires, for example, that an order specify the person to be wiretapped, the organization authorized to perform the wiretap, and the person authorizing the application for the wiretap. Wis. Stat. §§ 968.30(4)(a) and '(d). Relevant to this case is the requirement that the order specify the "the particular offense to which [the wiretap] relates." Wis. Stat. § 968.30(4)(c). In this case, the order did specify the offenses to which the wiretap related. The error was not that the order was "insufficient on its face," which is a potential ground for exclusion under § 968.30(9)(a). Rather, the error was that by referencing non-enumerated offenses, the order included too much.
¶ 38. Because the evidence here cannot be excluded on the grounds that the interception did not conform with the order or that the order was insufficient on its face, exclusion would have to be on the ground that "the communication was unlawfully intercepted." Although the circuit court erred in authorizing a wiretap for offenses not enumerated in § 968.28, not every failure to follow wiretapping statutes makes an interception unlawful such that suppression is required. United States v. Chavez, 416 U.S. 562, 574-75 (1974). Rather, whether a violation of the wiretapping statutes requires suppression depends upon whether the statutory purpose has been achieved despite the violation. United State v. Cunningham, 113 F.3d 289, 293-94 (1st Cir. 1997) (quoting United States v. Johnson, 696 F.2d 115, 121 (D.C. Cir. 1982).
¶ 39. In United States v. Giordano, 416 U.S. 505 (1974), an application for a wiretap stated that an Assistant Attorney General specially designated by the Attorney General had authorized the application, pur[22] suant to 18 U.S.C. § 2516(1).11 416 U.S. at 508-09. In fact, the application had been reviewed and authorized by the Executive Assistant to the Attorney General, who did not have statutory authority to authorize wiretap applications. Id. at 509-10. The Court determined that the interceptions were unlawful and suppression was warranted because the order failed to satisfy a statutory requirement "that directly and substantially implements] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." Id. at 527.
¶ 40. In contrast, Chavez involved an application for a wiretap that indicated a designated Assistant Attorney General had approved the application, when in fact the Attorney General had approved the application. 416 U.S. at 565-66. The Court determined that where it is clear that the Attorney General authorized the application for a wiretap, the misidentification of the approving official on the application does not undermine the purpose of statute. Thus, the Court concluded that the misidentification did not render interceptions unlawful and that suppression of evidence from the wiretap would be error. Id. at 579-80.
¶ 41. United States v. Donovan, 429 U.S. 413 (1976), involved an application for a wiretap in which the Government failed to comply with 18 U.S.C. [23] § 2518(1)(b)(iv), which requires that the Government include in any wiretap application "the identity of the person, if known, committing the offense and whose communications are to be intercepted." Id. at 416. The Court determined that so long as the authorizing court fulfills the statutory requirements to determine that normal investigative techniques are unsuccessful and to find probable cause,12 the failure to identify a person under § 2518(1)(b)(iv) does not render a wiretap unlawful. Id. at 436. As in Chavez, the failure to comply with the statute did not render the interceptions unlawful, and did not require suppression. Id. at 439.
¶ 42. Federal courts analyzing the Title III suppression provisions in fight of Giordano, Chavez, and Donovan have determined that "violations of even .. . central requirements do not mandate suppression if the Government demonstrates to the court's satisfaction that the statutory purpose has been achieved despite the violation." Cunningham, 113 F.3d at 293-94; United States v. Lopez, 300 F.3d 46, 56 (1st Cir. 2002); see also United States v. Chun, 503 F.2d 533, 542 (9th Cir. 1974).
¶ 43. The few federal courts that have addressed the question of whether including non-enumerated offenses in a wiretap order requires suppression have come to varying conclusions. House cites to two federal cases for the view that interceptions made pursuant to an order that references non-enumerated offenses are subject to suppression, United States v. Millstone, 684 F. Supp. 867 (W.D.Pa. 1988)(reversed on other grounds), and United States v. Ward, 808 F. Supp. 803 (S.D.Ga. 1992).
¶ 44. In Millstone, a Pennsylvania court authorized a wiretap based on a finding of probable cause [24] that the subject of the wiretap was committing three crimes: prostitution, racketeering, and conspiracy to commit prostitution and racketeering. 684 F. Supp. at 869. The court determined that the wiretap was illegal because prostitution and racketeering are not enumerated offenses within the scope of 18 U.S.C. § 2516(2), and that any evidence from such a wiretap was inadmissible. Id. at 870. Millstone, however, is inapt. In that case, the wiretap order referenced only non-enumerated offenses. This contrasts with the present case, where the non-enumerated offenses are surplus to an enumerated offense.
¶ 45. In Ward, the court authorized wiretaps based on applications asserting, among other offenses, violations of 18 U.S.C. § 1953 (interstate transportation of wagering material) and 26 U.S.C. § 7201 (tax evasion), neither of which are enumerated in 18 U.S.C. § 2516(1). Citing to Giordano, the court determined that Congress intended to restrict wiretap authorizations to specific offenses, and that an order authorizing interceptions for non-enumerated offenses warrants suppression. 808 E Supp. at 806.
¶ 46. The most recent district court to address the question is the Eastern District of Wisconsin, which reached a different conclusion than the Ward court. In United States v. O'Neill, 27 F. Supp. 2d 1121 (E.D. Wis. 1998), an order authorized a wiretap for numerous offenses set forth in 18 U.S.C. § 2516(1). In addition, the order listed 18 U.S.C. § 842(h) (concerning stolen explosives), which is not enumerated in the statute. Id. at 1127. The court denied the defendant's motion to suppress, rejecting the view that "reference to a non-listed offense in the surveillance authorizations completely invalidates those authorizations." Id.
[25] ¶ 47. The Tenth Circuit has addressed a related issue. In United States v. Smart, 278 F.3d 1168 (10th Cir. 2002), federal investigators submitted an application for a court order authorizing a wiretap to investigate several offenses, including violations of 42 U.S.C. § 1320a-7b (fraud relating to federal health care programs). Id. at 1170. That offense is not enumerated in 18 U.S.C. § 2516(1). The order authorizing the wiretap, however, did not reference the non-enumerated offense. The Tenth Circuit concluded that the order was not unlawful and that suppression was unwarranted. Id. at 1174. However, the court specifically declined to address the question of whether an order referencing non-enumerated offenses would merit suppression. "The question of whether an order authorizing wiretapping in investigation of both enumerated and non-enumerated offenses would survive review is saved for another day." Id.
¶ 48. With scant and equivocal law on the effect of including non-enumerated offenses in a wiretapping order, we must decide whether the purposes of the wiretapping statutes have been fulfilled despite the violation of § 968.28 by including surplus, non-enumerated offenses in the wiretap order. We determine that under the circumstances here, the purposes have been fulfilled.
¶ 49. The court in United States v. Escobar-de Jesus discussed the purposes that Title III seeks to achieve: "the statutory objectives of protecting privacy interests and ensuring that intercept procedures are used only in 'those situations clearly calling for the employment of this extraordinary investigative device.' " 187 F.3d 148, 171 (1st Cir. 1999)(quoting Giordano, 416 U.S. at 527); see Lopez, 300 F.3d at 56.
[26] ¶ 50. Here the order contains both enumerated and non-enumerated offenses. There is no question that the foundation of the wiretap application and order in this case is dealing in controlled substances. The application for the wiretap detailed an extensive drug trafficking operation and an elaborate law enforcement investigation of that operation. The focus of the application and the order was distribution and possession with intent to distribute cocaine, heroin, and ecstasy, as well as conspiracy to commit those crimes.
¶ 51. Those crimes are all squarely within the scope of § 968.28. Because the focus of this case was on enumerated crimes, the intercept procedures were used in a situation "calling for the employment of this extraordinary investigative device." Giordano, 416 U.S. at 527. The addition of the non-enumerated crimes does not undermine this purpose.
¶ 52. Likewise, inclusion of the non-enumerated offenses here does not undermine the purpose of protecting privacy interests. As the court in Escobar-de Jesus noted:
To the extent that Title III is designed to protect privacy interests similar to those reflected in the Fourth Amendment... that statutory purpose was served by the district court's finding of probable cause to intercept and by the order's inclusion of other items of particularity, including the identity of the person whose communications were to be intercepted, the nature and location of the telephone line to be intercepted, a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which the communications relate....
187 F.3d at 171 (internal citations omitted).
[27] ¶ 53. In order to authorize a wiretap, § 968.30(3) requires that the circuit court find probable cause to believe that (a) a person is committing, has committed, or is about to commit a crime, (b) communications regarding the crime will be intercepted, (c) other investigative techniques have failed or are unlikely to succeed, and (d) the wiretapped facilities are used or will be used in connection with the crimes. Here, there is no question that there was probable cause for each of these with respect to the enumerated drug offenses. The error in this case is one of referencing surplus offenses alongside the enumerated offenses for which there was ample probable cause.
¶ 54. Moreover, there is no contention that including the offenses led to additional interceptions in this case. House makes no claim, and there is nothing in the record before us to suggest, that the wiretap intercepted communications beyond those pertaining to dealing in controlled substances. The evidence obtained by the wiretap addressed only the properly enumerated offenses.
¶ 55. Additionally, House has been charged only with crimes enumerated in § 968.28. House was charged with conspiracy to deliver cocaine. He was not charged with money laundering, racketeering, or continuing criminal enterprise. The error of including non-enumerated crimes in the authorization for the wiretap appears to have no consequence as to either the evidence obtained or to the charges that were brought.
¶ 56. Thus, the addition of the non-enumerated offenses does not undermine the statutory purpose of privacy protection in this case. The probable cause requirements under § 968.30(3), which serve to protect privacy, were met. Further, with respect to House, the [28] communications intercepted and the crimes charged were within the scope of § 968.28.
¶ 57. We find support for this view in cases involving misrepresentations in wiretap applications. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court addressed the circumstances in which it is appropriate to suppress evidence derived from a warrant issued on the basis of an affidavit that contained false statements concerning probable cause. Id. at 155-56. The Court determined that even where a defendant makes a sufficient allegation that an affidavit is based on a deliberate misrepresentation, a hearing may not be required. Rather, when information "that is the subject of the alleged falsity or reckless disregard is set to one side, [and] there remains sufficient content in the warrant affidavit to support a finding of probable case, no hearing is required." Id. at 171-72.
¶ 58. The Franks test applies to wiretap applications. United States v. Small, 423 F.3d 1164, 1172 (10th Cir. 2005), United States v. Southard, 700 F.2d 1, 8 (1st Cir. 1983). Thus, a deliberately or recklessly false statement made in an affidavit to obtain a wiretap order "does not in and of itself invalidate that. . . order, or compel suppression of evidence obtained upon its execution." United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir. 1985). Rather, false statements that are material to a finding of probable cause will invalidate the order. Id.
¶ 59. We acknowledge that the Franks test applies to false statements rather than to the inclusion of non-enumerated offenses. Nonetheless, its methodology is relevant here. Under Franks the presence of willful false statements in an application will not render a wiretap order invalid if there remains probable cause [29] even when the false statements are removed. Here, we determine that the purposes of Wisconsin's wiretapping statutes were fulfilled despite the inclusion of non-enumerated offenses in the order.
¶ 60. In the present case, the purposes of the wiretap statutes have been fulfilled and the error appears to be of no material consequence. The enumerated crimes that served as the basis for the wiretap order were crimes of sufficient magnitude to warrant a wiretap. Further, the privacy protections of the probable cause requirements under § 968.30(3) were met. There is no contention that the police intercepted any of House's communications that were unrelated to the enumerated offenses in the order, and House was charged with only enumerated offenses. Accordingly, even though we have concluded that the circuit court erred in listing the non-enumerated offenses, we determine the error does not constitute an unlawful interception such that suppression is warranted.
V
¶ 61. In sum, we determine that the circuit court erred in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28. However, we also determine that the authorization of a wiretap for non-enumerated offenses does not warrant suppression of the evidence obtained from the wiretap in this case. The order included both enumerated and non-enumerated offenses, and it contained sufficient probable cause for the enumerated offenses. Further, the evidence obtained by wiretap was for enumerated offenses, and charges were brought only for enumerated offenses. Thus, the failure does not conflict with the statutory objectives of protecting privacy and limiting wiretap[30] ping to situations clearly calling for the use of such an extraordinary device. Accordingly, we affirm the court of appeals.
By the Court. — The decision of the court of appeals is affirmed.