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COA holds that “execution” of a search warrant does not include later forensic analysis of seized items, meaning that such analysis is not subject to five-day statutory deadline governing the “execution” of search warrants

State v. John J. Drachenberg, 2022AP2060-CR, 10/12/23, District IV (recommended for publication); case activity

In a decision recommended for publication, COA clarifies that the “execution” of a search warrant does not include forensic analysis that can occur weeks or months later. Accordingly, even though those activities may occur outside the statutory window, this does not create a statutory (as opposed to constitutional) argument for suppression.

In many ways, this is a straightforward child pornography case. Police received a tip from an “online platform provider” warning them about suspected child pornography; having traced that online activity to Drachenberg, police applied for a search warrant to seize electronic devices so that they could be subjected to eventual forensic analysis. (¶4). Under § 968.15(1), “[a] search warrant must be executed and returned not more than 5 days after the date of issuance.” This appeal turns on the definition of “execute,” which everyone agrees has not yet been defined by case law.  (¶16). In Drachenberg’s view, “execute” refers not only to physical seizure of the electronic devices but also to their later forensic analysis, as explicitly contemplated in this warrant. (¶2). Because it is undisputed that two more months passed before police got around to analyzing his devices, he asserts that the circuit court should have suppressed the copious evidence of wrongdoing uncovered therein. (Id.).

COA disagrees. In its view, “the deadline to execute a search warrant in Wis. Stat. § 968.15(1) applies to the search of the places, and seizure of the items designated in a search warrant and does not apply to later, off-site analysis of those items that is also authorized in the warrant.” (¶3). Thus, COA does not accept Drachenberg’s argument that because the search warrant authorized eventual forensic analysis, that task also needed to be completed within the statutorily-mandated five-day window for the “execution” of a search warrant. (¶18).

To get there, COA applies well-settled methods of statutory interpretation. Chiefly, “closely related statutes show that [“execute”] refers to the search of the designated places and seizure of the designated items and not to the later, off-site analysis of seized items.” (Id.). For example, § 968.12(1) defines a “search warrant” as “an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designated object or a designated place for the purpose of seizing designated property or kinds of property.” (Emphasis COA’s). Likewise, both § 968.12(3)(f) and § 968.16 contain language suggesting that the “execution” of a search warrant is explicitly tied to the contemporaneous seizure or search, not to any “post-seizure analysis.” (¶¶21-22).

Although Drachenberg appears to concede that these statutes are closely related, he then shifts focus to common law sources of authority in support of his interpretation. (¶23). COA is unpersuaded and accuses Drachenberg of knocking “down a straw-figure argument.” (Id.). In COA’s reading, both cases cited by Drachenberg (State v. Herrmann and State v. Sveum) actually support COA’s reading of the relevant statute as being focused on the initial search and seizure, not on subsequent data analysis or later forensic testing. (Id.).

It also does not matter (from a statutory construction perspective) that the warrant explicitly contemplated future forensic analysis as that fact has no relevance to a plain-text analysis of the relevant statute. (¶27). Instead, description of future data analysis–rather than functioning to restrict the actions of law enforcement–is (in COA’s view) simply an explanation of why and how the seized items will contain evidence of a crime. (¶28). And, while COA acknowledges that judicial authorization (like that contained in this warrant) is necessary to permit further analysis of the contents of the seized items, such analysis is simply not contemplated within the statutory concept of a warrant’s “execution.” (¶29). Instead, with respect to timing, the legislature’s only limitation is the one placed on the initial seizure, and to apply the five-day limitation to any ensuing “complicated and time-consuming” analysis would violate State ex rel. Kalal v. Dane County Circuit Court’s command to avoid “unreasonable or absurd” results when interpreting a statute. (Id.).

As COA explains:

Subject to whatever constitutional limits may apply, police are entitled to bolster the case for probable cause by obtaining authorization to analyze any seized item in a way that could be reasonably expected to reveal evidence of a crime. Police are also entitled to provide the issuing judge with context about how the seized items would be used to detect or prove a criminal offense.

(¶30). COA therefore rejects arguments which would limit those investigations to the five-day window or would oblige officers to continually seek a new a warrant every five days until the contemplated analysis is completed. (¶31).

COA also concludes that its interpretation is consistent with the legislatively-expressed policy of avoiding “unreasonable delay in executing validly issued warrants.” (¶32). Likewise, the statute is also designed to avoid probable cause from becoming stale, and this interpretation–especially in context of electronic evidence–also serves that purpose. (¶33). Finally, COA rejects arguments based on federal case law as well as reliance on an earlier unpublished COA decision. (¶35). COA’s decision is also in accord with the holdings reached by other states when interpreting analogous statutory provisions. (¶36).

It is worth noting that COA repeatedly clarifies that this case is only about the statutory five-day limit. Thus, COA explicitly leaves the door open to other challenges that could be raised when there is a lag between seizure and analysis. COA concedes that “the later, off-site analysis of seized items can be challenged as unreasonably delayed under the Fourth Amendment.” (¶3). An unusually long lag in time may also create a claim that probable cause has dissipated. (¶14). And, while not an issue in this case because the warrant explicitly authorized later forensic analysis, a warrant that does not contemplate a search of the contents of a digital device may be subject to obvious challenges, while–following an evolution in how we think about electronic devices and their storage capabilities–overbreadth challenges may also be cognizable.

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