By Joe Forward, Legal Writer, State Bar of Wisconsin

July 22, 2010 – A warrant that authorized police to use a Global Positioning System (GPS) tracking device to monitor a stalking suspect for 60 days was valid, and execution of the warrant was reasonable, the Wisconsin Supreme Court recently held.

In State v. Sveum, 2010 WI 92 (July 20, 2010), the supreme court ruled 5-2 that a valid and properly executed warrant precluded suppression of evidence derived from a GPS system implicating Michael Sveum in the crime of stalking.

However, two concurring opinions called on the legislature to establish procedures relating to police searches using GPS systems, and a dissenting opinion by Chief Justice Shirley S. Abrahamson asserted the warrant at issue clearly did not meet statutory requirements.

Facts and procedure

In 1996, Sveum was convicted of stalking his former girlfriend and sentenced to prison. Upon release in 2002, his former girlfriend reported that Sveum was stalking her again. Police requested and obtained a warrant to install and monitor a GPS device on Sveum’s car.

In the early morning hours, police attached the GPS system to the undercarriage of Sveum’s car using magnetic equipment and tape. Because of limited battery power, the GPS system was twice replaced using the same method. Police monitored Sveum using the GPS devices for approximately 35 days. The data incriminated Sveum.

Based on the GPS data, police also obtained warrants to search Sveum’s home and vehicle. Those searches also uncovered incriminating evidence that Sveum was stalking his ex-girlfriend, and the state charged him with aggravated stalking.

Sveum moved to suppress the evidence obtained from the GPS device, arguing that it was unlawfully obtained in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures. That motion was denied by the circuit and appeals courts.

Sveum was convicted of aggravated stalking and sentenced to seven years, six months in prison with five years extended supervision. He filed a motion for post-conviction relief. That motion was denied by the circuit and appeals courts. Sveum petitioned the supreme court.

The supreme court reviewed the appeals court’s denial of Sveum’s motion to suppress evidence obtained from the GPS system. It considered the question of “whether the court order authorizing the installation and monitoring of a GPS tracking device on Sveum’s vehicle constituted a valid warrant and, if so, whether the police reasonably executed the warrant.”

The court did not address the question of whether installation of a GPS tracking device on Sveum’s car at his residence and subsequent monitoring constituted a search and seizure that would require a warrant in the first place.

Majority

The majority – in an opinion written by Justice Patience D. Roggensack – held that the order authorizing police to install and monitor a GPS tracking device on Sveum’s vehicle constituted a valid warrant under the U.S. and Wisconsin constitutions’ protections against unlawful searches and seizures, and police execution of the warrant was reasonable.

The warrant allowed police to install and monitor the GPS tracking device, enter upon Sveum’s property to install it, obtain a key to Sveum’s car to move it, or to install the device in the engine compartment or in the trunk. The warrant authorized the device to remain for 60 days.

The warrant was valid, the court held, because it was issued by a neutral, detached magistrate, police demonstrated probable cause to believe evidence sought from the GPS system would aid in conviction for stalking, and it outlined with particularity the scope of the search.

Police execution of the warrant was reasonable, the court held, because the execution was appropriately limited to the scope permitted by the warrant. That is, execution of the warrant “stayed well within the confines of the authority granted by the order.”

Violations of warrant statutes – majority view

The majority acknowledged that the warrant at issue violated two specific warrant statutes.

First, Wis. Stat. section 968.15 requires that search warrants be “executed and returned not more than 5 days after the date of issuance.” Second, section 986.17(1) requires that a search warrant be returned to the clerk of court “within 48 hours after execution” and that such return “be accompanied by a written inventory of any property taken.”

In this case, the warrant was fully executed 35 days after it was issued, and was not returned along with a written inventory to the circuit court. But a “violation of a Wisconsin statute relating to search warrants does not necessarily lead to the conclusion that a search that was conducted is unreasonable,” the court explained.

That is, mere violations or technical irregularities do not warrant suppression of evidence unless the “violation or irregularity is material” or has “prejudiced the defendant or affected the defendant’s substantial rights,” the court wrote.

The court pointed to section 968.22, which provides: “No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.”

Suppression of evidence is not warranted here, the court held, because the violations of sections 968.15 and 968.17 were “technical irregularities” and Sveum failed to demonstrate that he was prejudiced by the violations, or that his substantial rights were violated.

Violations of the warrant statutes – dissent view

The dissent – written by Chief Justice Abrahamson (Bradley, J. joined) – argued that failure to meet the statutory requirements voided the warrant from the beginning. That is, the violations were not mere “technical irregularities” that can be disregarded under section 968.22.

Abrahamson argued that the order granting GPS surveillance violated section 968.15, which requires the warrant to be executed and returned not more than five days after issuance. She also argued that the order violated section 968.12 because the order did not fit within the definition of "search warrant." That is, installing a GPS is not a "search of a designated person, a designated object, or a designated place." Finally, she argued that a court order that does not make a provision for the warrant's return is not valid under section 968.17.

The statutory violations “were significant substantive departures from the statutory mandates that were designed to protect the privacy interests of the subject of a search warrant,” Abrahamson wrote. “It cannot be credibly argued that Sveum’s substantial rights were not affected as a result.”

Concurrences

Both Justices Annette K. Ziegler and N. Patrick Crooks filed concurring opinions, agreeing that the order authorizing police to install and monitor a GPS tracking device on Sveum’s vehicle constituted a valid warrant, and police execution of the warrant was reasonable.

However, both agreed that the legislature should establish the proper standards and procedures for GPS surveillance.

Justice Crooks went further to state that the majority’s holding “should be limited to cases with similar factual situations, that is, to cases involving GPS surveillance. Expanding the holding in other cases “could have the potential to weaken protections guaranteed by the Fourth Amendment,” Crooks wrote.

Noting that this case involved installation of a GPS system in “private area,” Justice Ziegler stated her position that installing and monitoring a GPS device on vehicles in “public areas” does not constitute a search or seizure within the meaning of the Fourth Amendment.

Based on its rulings, the supreme court affirmed the lower’s conviction judgment and upheld the lower court’s denial of Sveum’s motion for a new trial.

Attorneys

Dean Strang and Marcus Berghahn of Hurley, Burish & Stanton S.C, Madison, represented Michael Sveum. Assistant Attorney General Daniel O’Brien represented the state.