State v. Sveum
787 N.W.2d 317, 328 Wis. 2d 369, 2010 WI 92 (2010)
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Rule of Law:
A court order authorizing the installation and monitoring of a GPS tracking device on a vehicle for an ongoing criminal investigation, supported by probable cause and particularity, constitutes a valid search warrant under the Fourth Amendment, even if it deviates from some statutory requirements for traditional warrants, provided those deviations are technical irregularities not affecting substantial rights.
Facts:
- In 1996, Michael Sveum was convicted of stalking and harassing Jamie Johnson, his former girlfriend, and served a prison term until his mandatory release date of July 2, 2002.
- In March 2003, Johnson reported to the police that she believed Sveum was stalking her again, having received nine hang-up calls at her residence between March 3 and April 12, 2003.
- Detective Mary Ricksecker investigated, confirming the hang-up calls originated from various pay phones in Dane County, and identified Sveum's 1980 black Chevy Beretta Coupe as a vehicle he primarily used.
- On April 22, 2003, Detective Ricksecker filed an affidavit and requested circuit court authorization to install and monitor a GPS tracking device on Sveum's vehicle for up to 60 days to gather evidence of stalking.
- On April 22, 2003, the circuit court issued an order granting the request, finding probable cause that the vehicle was being used in the commission of stalking and authorizing installation and monitoring of the GPS device.
- In the early morning hours of April 23, 2003, officers installed a battery-powered GPS device on the undercarriage of Sveum's vehicle while it was parked in the driveway of 2426 Valley Road, Cross Plains, and later replaced it twice due to battery life.
- The GPS data collected over 35 days revealed Sveum's vehicle traveled to locations near Johnson's residence and a shopping mall, coinciding with hang-up calls received by Johnson.
- Based on this GPS data, police obtained additional search warrants for Sveum's residence and vehicle, which uncovered further incriminating evidence related to Johnson, including photos and logs.
Procedural Posture:
- The State filed a complaint on August 4, 2003, charging Michael Sveum with aggravated stalking as a party to a crime in circuit court.
- Sveum filed a motion to suppress all information obtained from the GPS device, arguing it was unlawfully obtained in violation of the Fourth Amendment.
- The circuit court (Honorable Steven D. Ebert) denied Sveum's suppression motion, ruling that installing and monitoring the GPS device was not a search, but noted sufficient probable cause for the order.
- A jury found Sveum guilty of the charged offense.
- On February 6, 2007, the court entered a judgment of conviction and sentenced Sveum.
- Sveum filed a motion for post-conviction relief, seeking a new trial, which the circuit court denied.
- Sveum appealed the judgment of conviction and denial of post-conviction relief to the court of appeals (State v. Sveum (Sveum II), 2009 WI App 81).
- The court of appeals affirmed, concluding that installing and monitoring the GPS device did not constitute a search or seizure, and therefore did not address whether the court order was a warrant.
- Sveum petitioned the Wisconsin Supreme Court for review, which was granted.
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Issue:
Was the court order authorizing law enforcement to install and monitor a GPS tracking device on Michael Sveum's vehicle a valid search warrant, and was its subsequent execution reasonable under the Fourth Amendment, assuming arguendo that a search occurred?
Opinions:
Majority - Patience Drake Roggensack, J.
Yes, the court order authorizing the installation and monitoring of a GPS tracking device on Sveum's vehicle constituted a valid search warrant, and its execution was reasonable. The order met the three requirements for a valid warrant under the Fourth Amendment: 1) it was issued by a neutral, detached magistrate; 2) it was supported by probable cause demonstrated in Detective Ricksecker's affidavit, which detailed Sveum's history of stalking Johnson with hang-up calls, consistent with the reported new calls, and identified his vehicle; and 3) it particularly described the object (Sveum's vehicle by make, model, license, VIN), the circumstances justifying the surveillance, and the time limit (60 days) (Dalia v. United States, United States v. Karo). The court applied the severability doctrine, assuming arguendo that overly broad portions of the order (e.g., authorization to enter buildings or use a key) were invalid, but found that the core authorization to install, use, maintain, and remove the GPS device on the vehicle was supported by probable cause and particularity (State v. Noll, State v. Marten). The execution of the warrant was reasonable because it was conducted within the scope of the valid portions of the order (attaching the device to the undercarriage in the driveway, replacing it twice minimally, and removing it after 35 days). The failure to provide notice of the order was permissible for surreptitious searches (United States v. Grubbs, Groh v. Ramirez). The 35 days of continuous monitoring on a single warrant was reasonable given the ongoing nature of the stalking crime, which requires a 'course of conduct' (United States v. Squillacote). Finally, the technical irregularities regarding prompt return and inventory of the warrant, as required by Wis. Stat. §§ 968.15 and 968.17, did not prejudice Sveum's substantial rights because no tangible property was seized and he always had control over his vehicle's location, thus falling under Wis. Stat. § 968.22.
Dissenting - Shirley S. Abrahamson, C.J.
No, the court order was not a valid search warrant, and the evidence should be suppressed because the order failed to comply with mandatory statutory requirements, rendering it void. Assuming a search requiring a warrant, the Order explicitly violates Wis. Stat. § 968.15, which mandates that a search warrant 'must be executed and returned not more than 5 days after the date of issuance' and states that any warrant not executed within this timeframe 'shall be void.' The Order authorized surveillance for up to 60 days, and the GPS was monitored for 35 days without a return to the judge, directly contravening the statute's clear language. This is not a 'technical irregularity' forgivable under Wis. Stat. § 968.22; the legislature has explicitly declared such a warrant void. Furthermore, the order did not designate a clerk for return within 48 hours with an inventory of seized property (data), as required by Wis. Stat. § 968.17(1), undermining judicial supervision and protection of privacy interests. The dissenting opinion also argues that the Order does not fit the definition of a 'search warrant' under Wis. Stat. § 968.12(1) because it wasn't for 'seizing designated property' in the traditional sense, and it did not fall under any other statutory authorization for searches (e.g., wiretaps exclude tracking devices). The cumulative effect of these numerous statutory violations affected Sveum's substantial rights, warranting suppression. Courts do not have inherent power to authorize searches outside statutory frameworks, and the legislature needs to address new surveillance technologies.
Concurring - N. Patrick Crooks, J.
Yes, the order was a valid warrant and its execution was reasonable. Justice Crooks concurred with the majority but emphasized two points: 1) the holding's applicability should be limited to similar factual situations involving GPS devices attached to vehicles for collecting data from public roadways, to avoid weakening Fourth Amendment protections given rapid technological advancements; and 2) the Wisconsin legislature should enact specific legislation governing GPS search procedures, time limits, and return requirements, similar to federal rules (Fed. R. Crim. P. 41(e)(2)(C)) and existing state statutes for other electronic surveillance (e.g., wiretaps, pen registers).
Concurring - Annette Kingsland Ziegler, J.
Yes, the order was a valid warrant and its execution was reasonable. Justice Ziegler concurred with the majority but clarified that judicial approval was appropriately sought in this case because law enforcement intended to install or monitor the GPS device in private areas (Sveum's driveway and potentially inside private locations). Monitoring a tracking device in a private area without a warrant or exigent circumstances violates the Fourth Amendment (United States v. Karo). Justice Ziegler reiterated her position, based on United States v. Knotts and United States v. Garcia, that installing and monitoring a GPS device on a vehicle in a public area does not constitute a search or seizure under the Fourth Amendment, and therefore a warrant might not be necessary in such instances. She also joined the call for the Wisconsin legislature to establish specific parameters and standards for GPS tracking devices, similar to federal rules (Fed. R. Crim. E 41) and state statutes for other electronic surveillance.
Analysis:
This case significantly broadens the interpretation of what constitutes a 'valid search warrant' for novel surveillance technologies like GPS tracking in Wisconsin. By applying the severability doctrine and classifying statutory non-compliance as 'technical irregularities' when substantial rights are not prejudiced, the court allows for judicial authorization of searches even without explicit statutory frameworks. This decision provides law enforcement with a mechanism to utilize GPS technology for investigations, but it also highlights a legislative gap that could lead to uncertainty regarding evolving surveillance methods. Future cases will likely test the boundaries of 'technical irregularities' and the scope of 'substantial rights,' potentially prompting legislative action to codify specific rules for such technologies.
