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Court of appeals asks SCOW: Is a search warrant for putting a GPS on a car void if not executed within 5 days?

State v. Johnny K. Pinder, 2017AP208-CR, District 2, certification filed 12/13/17, certification granted 3/14/18, affirmed, 2018 WI 106case activity (including briefs)

Issue (from certification):

If a search warrant issued under WIS. STAT. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per WIS. STAT. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

Mequon was seeing lots of burglaries, and police suspected that Pinder was the culprit. So they obtained a warrant to install a GPS tracking device on his car but then waited 10 days before executing the warrant. Uh oh. Section 968.15 provides:

(1) A search warrant must be executed and returned not more than 5 days after the date of issuance. (2) Any search warrant not executed within the time provided in sub. (1) shall be void and shall be returned to the judge issuing it.

The court of appeals is concerned that the plain language of the statute conflicts with SCOW’s decision in State v. Sveum, 2010 WI 92, 328 Wis. 2d 369, 787 N.W.2d 317, which contains broad language suggesting that technical failures to comply with § 968.15 and § 968.17 governing the execution and return of search warrants don’t require suppression of the evidence obtained under §968.22.  The court explains:

We are faced with at least two paths: (1) WIS. STAT. § 968.15 establishes both a bright-line procedural mandate (a warrant must be executed within five days) and an equally clear consequence for noncompliance (a warrant not so executed shall be void), leading to the conclusion that the warrant was void before the device was installed or (2) under Sveum, provided that the search is conducted reasonably per the factors discussed, violations of the statutory five-day execute and return limitations are “technical irregularities” that will not require suppression of the evidence as long as the delayed execution did not affect the substantial rights of the defendant. Certification at 17.

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