My series of posts on recent criminal cases in the Wisconsin Supreme Court continues with State v. Sveum, 2010 WI 92.
Sveum presents a classic Fourth Amendment problem: police want to use a new surveillance technology (here, GPS tracking), but the nature of the technology does not mesh well with existing legal doctrine. Should current search-and-seizure rules be rigorously enforced to the detriment of useful policing innovations, or should existing doctrines be stretched to accommodate the new technology? In Sveum, the court avoided broad pronouncements, but on the whole seemed more inclined to the accommodationist approach. The big question that the court dodged was whether secretly placing and monitoring a GPS tracking device on a suspect’s car counts as a search or seizure for Fourth Amendment purposes. The court simply assumed for the sake of argument that a search or seizure occurred. Although it is not clear what the underlying dynamics were on the court, Justice Ziegler’s concurring opinion suggests that she may be a swing vote. Her position is as follows:
Absent a warrant or exigent circumstances, the monitoring of a tracking device in a private area, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of that area. (¶ 80)
However, it remains my position that installing and monitoring a GPS tracking device on a vehicle in a public area does not constitute a search or seizure within the meaning of the Fourth Amendment. (¶ 83)
Ziegler thus endorses a middle-ground approach that distinguishes between monitoring in private and public areas. It may be that three justices were pushing for a categorical exclusion of GPS tracking from Fourth Amendment protections, while three others favored a broader rule of inclusion than Ziegler’s. In the absence of a majority behind any approach, the court chose to leave resolution of the issue for another day.
In the end, the court did not have to resolve the issue because (in the view of a majority of the justices) any search that occurred complied with the Fourth Amendment.
The first step in the analysis was to determine whether there was a constitutionally valid warrant for the search. Although there were a number of statutory problems with the order authorizing the placement of a tracking device on Sveum’s car – more about this later — the court did not consider these violations in deciding that the order constituted a constitutionally valid warrant.
Constitutional warrant doctrine requires that a warrant “particularly describe the place to be searched” (¶ 27). It is not obvious, however, how this requirement is to be satisfied by a GPS order — there is no “place” that is searched when a tracking device is used. No matter. Drawing on an earlier case dealing with different tracking technology, the Sveum court found the particularity requirement satisfied in light of these considerations:
First, the affiant explained that Sveum’s vehicle, identified by make, model, license plate and VIN, was the object into which the GPS device was to be placed. Second, the affiant described the circumstances that led agents to wish to install the GPS device. . . . Finally, [the affiant] requested authorization to monitor the GPS device “for a time not to exceed 60 days.” The order [authorizing the device] generally reiterated such information. Accordingly, we conclude that such information suffices to permit issuance of a warrant authorizing GPS installation and surveillance on Sveum’s vehicle. (¶ 52, citations omitted)
This language will surely be parsed with care by law enforcement officers and lower-court judges in the future as it seems to identify various specific conditions that, if satisfied, will cause a GPS order to be regarded as a constitutionally valid warrant. It is not clear, though, whether all of these conditions must be satisfied — are they necessary or merely sufficient? For instance, what if an order omits the vehicle’s license number and VIN? What if monitoring is authorized for 70 days instead of 60?
Having found a constitutionally valid warrant, the court next considered whether it was executed in a reasonable manner — the Fourth Amendment requires that a “search must be conducted reasonably and appropriately limited to the scope permitted by the warrant” (¶ 53). Reasonableness review “requires a balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion” (¶ 54).
Thus, as in Pinkard (see my post here), the court avoided an opportunity to make a categorical ruling on a Fourth Amendment issue and instead backed into a mushy interest-balancing test. As noted in my earlier post, this contrasts with the formalist tendencies evident in some of the court’s other recent decisions.
It was in connection with the interest-balancing test that the court reached the mismatch between GPS tracking and Wisconsin statutory law on search and seizure. ”Whether a search was reasonably ordered and executed is further informed by the Wisconsin Statutes” (¶ 55). The court seemed to equate the constitutional reasonableness analysis with the mandate of Wis. Stat. § 968.22: “No evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant.” Citing the statute, the court concluded, “[V]iolations of the Wisconsin statutes governing search warrants were mere ‘technical irregularities’ that did not render the search unreasonable. Accordingly, the data seized from the GPS device was not subject to suppression” (¶ 58).
Of particular note, there were apparent violations of Wis. Stat. §§ 968.15 (which requires a search warrant to be executed and returned not more than five days after the date of issuance) and 968.17(1) (which requires a search warrant to be returned to the clerk of court, along with an inventory of any property taken, within 48 hours of execution). Sveum’s car was tracked for 35 days, and no return of the warrant was ever made.
The majority conceded the violations, but brushed them aside in light of the particular nature of a GPS “search”: “Because the officers in this case did not seize any tangible evidence, but instead intangible electronic data, there was no property to be returned to Sveum and, therefore, no property to safeguard prior to its return to Sveum” (¶ 70).
The court also seemed to hint, in light of federal standards, that 45 days might mark the line between constitutionally reasonable and unreasonable for GPS tracking:
We note that under the Federal Rules of Criminal Procedure, which explicitly govern warrants for tracking devices, officers may use a tracking device for a period not more than 45 days from the date the warrant was issued. As the United States Supreme Court has explained, ‘Federal Rule of Criminal Procedure 41 reflects the Fourth Amendment’s policy against unreasonable searches and seizures.’ Here, the officers removed the GPS tracking device 35 days from the date the order was issued. As we have explained, the officers’ use of the GPS device for 35 days was reasonable and therefore, the lack of a return to the circuit court in five days did not violate Sveum’s substantial rights. (¶ 71)
Based on the court’s reasoning, the return and inventory statutes seem to be a dead letter when it comes to GPS tracking. This is certainly a helpful accommodation to the use of the technology — I imagine it is common for a device to have to remain in place for more than five days for it to accomplish its purpose. But it is arguably up to the legislature, not the courts, to revise the statutes to fit the technology (as has already been done in the federal system).