State v. Michael A. Sveum, 2010 WI 92, affirming 2009 WI App 81; for Sveum: Dean A. Strang, Marcus J. Berghahn; BiC; Resp.; Reply; Amicus (ACLU); Resp. to Amicus
A circuit court “order” authorizing law enforcement to place and monitor a GPS tracking device on Sveum’s vehicle satisfied 4th amendment Warrant Clause (all warrants must be validly issued) and Reasonableness Clause (warrants must be reasonably executed) requirements.
Summary follows. Note first, though, that the court of appeals held “that neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public,” 2009 WI App 81, ¶8. But the supreme court “elect(s) not to resolve [that], and assume(s), without deciding, that a search or seizure occurred in this case that required authorization by a warrant,” ¶3. This methodology leaves the court of appeals holding – GPS tracking in public isn’t a search or seizure – intact, so that future litigants are bound by it. It might be thought that by saying this issue isn’t necessary to resolve, the supreme court reduced the lower court discussion to dicta. Not so. Zarder v. Acuity, 2010 WI 35. This isn’t an uncommon problem: the supreme court affirming on a different ground, but leaving undisturbed the court of appeals’ rationale. There’s an easy solution — the supreme court need merely declare explicitly what is implicit (and non-controversial), that its resolution reduces the court of appeals’ to dicta. After all, if the court of appeals didn’t need to take up the issue then its unnecessary discussion oughtn’t be binding. But under long-standing organizing principles, the court of appeals simply lacks authority to withdraw language from its own published opinions absent explicit such authorization from the supreme court. The latter court therefore must be sensitized to the need to undertake this task. Now, the summary.
¶20 The “warrant clause provides  particularized protections governing the manner in which search and arrest warrants are issued.” Id., ¶19. The United States Supreme Court has interpreted the Warrant Clause to be “‘precise and clear,'” and as requiring only three things: (1) prior authorization by a neutral, detached magistrate; (2) a demonstration upon oath or affirmation that there is probable cause to believe that evidence sought will aid in a particular conviction for a particular offense; and (3) a particularized description of the place to be searched and items to be seized. Dalia v. United States, 441 U.S. 238, 255 (1979) (quoting Stanford v. Texas, 379 U.S. 476, 481 (1965)).
¶39 We conclude that the order authorizing the installation and monitoring of a GPS tracking device on Sveum’s vehicle was a valid search warrant under the Fourth Amendment. First, the order was signed by a neutral and detached magistrate. Second, Ricksecker’s affidavit provided probable cause for the portion of the order authorizing law enforcement to “install, use, [and] maintain” a GPS tracking device on Sveum’s vehicle and to subsequently “remove” such device. Assuming, arguendo, that the portions of the order granting law enforcement broader authority to search, i.e., authorization to search “any buildings and structures containing the vehicle,” are invalid because the affidavit failed to demonstrate probable cause to search such areas, we sever those portions from the order. Finally, the order particularly described the object into which the GPS was to be placed, i.e., Sveum’s vehicle; the circumstances that led agents to seek to install the GPS, i.e., evidence of Sveum’s stalking activities; and the length of time for which GPS surveillance was requested, i.e., no more than 60 days. See Karo, 468 U.S. at 718.
A judge issued the GPS order upon application supported by sworn affidavit. Pretty straightforward. And probable cause is, as always, intensely fact-specific, making that determination mundane so far as analysis is concerned. What you might find a bit startling is the scope of the authorization — just how far the order authorized the police to intrude, which is set out in ¶7. (It included authority, for example, “to obtain and use a key to operate and move the vehicle[.]” J Police authority, in a word, to joyride Sveum’s vehicle, § 943.23.) But the court concludes that even if portions of the warrant are overbroad (something merely assumed for purposes of discussion), the remedy under the “severability” doctrine would be to strike them; and the remaining, valid portions of the warrant satisfied probable cause and particularity requirements, ¶¶50-52.
¶53 Even if a court determines that a search warrant is constitutionally valid, the manner in which the warrant was executed remains subject to judicial review. See State v. Andrews, 201 Wis. 2d 383, 390, 549 N.W.2d 210 (1996). “A search ‘must be conducted reasonably and appropriately limited to the scope permitted by the warrant.'” Id.(quoting Petrone, 161 Wis. 2d at 542). “[I]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by the warrant——subject of course to the general Fourth Amendment protection ‘against unreasonable searches and seizures.'” Dalia, 441 U.S. at 257.
¶59 The officers entered the driveway to install the GPS device in Sveum’s vehicle. Installation was achieved simply, by attaching the device with magnets and tape to the vehicle’s undercarriage. Maintenance of the GPS device included replacing the device twice, due to its limited battery life. Both replacement devices were installed in the same manner as the first. After monitoring Sveum’s vehicle for 35 days, the officers removed the GPS device. Execution in this manner stayed well within the confines of the authority granted by the order, which authorized law enforcement to “install, use, [and] maintain” a GPS tracking device on Sveum’s vehicle and to subsequently “remove” such device.
The court stresses that the police entered neither any building nor any compartment of the truck itself, ¶60. Both installation and replacement were “minimally intrusive,” id. What about the idea of 35 days of GPS surveillance under authority of a single warrant? The crime under investigation, stalking, requires a “course of conduct,” so that by definition a search couldn’t have been conducted in a single day. Instead, the court says, each passing day represented a reasonable continuation of the original search, ¶67, citing United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000). The dissent disagrees, arguing that the GPS order didn’t satisfy statutory requirements for a warrant, therefore was void. A warrant must be executed and returned within 5 days of issuance, and not only was this one executed over a 35-day period but a return was never made, ¶¶86-97.
Pretty clear, whether you agree with majority or dissent, that this was a jerry-rigged procedure. (Remarkably, as the dissent points out, both the police and issuing judge perceived a lack of statutory authority for a GPS warrant, ¶93.) A majority (2 separate concurrences and the 2 dissenters) implore “the Wisconsin legislature (to) weigh in on this issue and enact legislation governing the proper procedures for issuing a warrant,” ¶77. Such an effort was recently made, 2009AB171, but failed.
More: The D.C. Circuit has now held that GPS monitoring does require a warrant. United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. No. 08-3030 8/6/10). That case is described by leading 4th A expert Orin Kerr as “a potentially revolutionary Fourth Amendment decision: It introduces a new ‘mosaic’ theory of the Fourth Amendment that allows individual law enforcement steps that are not searches to become a search when collected together.” Kerr goes on to say in an extended analysis that this “mosaic theory” doesn’t work. But if the panel hearing holds up on (presumed) en banc review, it sets up a circuit conflict which could well induce Supreme Court review. Also see Judge Kozinski’s dissent from denial of en banc hearing in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), in which the panel rejected the need for a GPS warrant:
I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.
Persuasive? Or merely polemical? You be the judge. In any event, Judge Kozinski’s strongly worded dissent may help tilt the balance in favor of cert review.