State Of Wis. v. Sveum

• Decision Date: 20 July 2010
• Docket Number: No. 2008AP658-CR.,2008AP658-CR.
• Citation: 787 N.W.2d 317,2010 WI 92
• Parties: STATE of Wisconsin, Plaintiff-Respondent,v.Michael A. SVEUM, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

787 N.W.2d 317

2010 WI 92

STATE of Wisconsin, Plaintiff-Respondent,v.Michael A. SVEUM, Defendant-Appellant-Petitioner.

No. 2008AP658-CR.

Supreme Court of Wisconsin.

Argued March 2, 2010.

Decided July 20, 2010.

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For the defendant-appellant-petitioner there were briefs by Dean A. Strang, Marcus J. Berghahn, and Hurley, Burish & Stanton, S.C., Madison, and oral argument by Dean A. Strang.

For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by Amelia L. Bizzaro and Henak Law Office, S.C., Milwaukee; Laurence Jacques Dupuis and the American Civil Liberties Union of Wisconsin Foundation, Milwaukee; G. Michael Halfenger and Foley & Lardner, LLP, Milwaukee; Catherine Crump and the American Civil Liberties Union Foundation, New York, N.Y.; and Jennifer Granick and the Electronic Frontier Foundation, San Francisco, Cal., and oral argument by G. Michael Halfenger.

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review a decision of the court of appeals ¹ affirming the circuit court's judgment ² convicting Michael A. Sveum (Sveum) of aggravated stalking and denying Sveum's post-conviction motion for a new trial. In upholding the judgment of conviction, the court of appeals affirmed the circuit court's denial of Sveum's motion to suppress evidence obtained from a Global Positioning System (GPS) tracking device, which law enforcement attached to Sveum's car. Our focus is on whether the circuit court erred in its denial of Sveum's suppression motion.

¶ 2 Sveum and the State have briefed two issues for purposes of our review: (1) whether the installation of a GPS tracking device to Sveum's car while his car was parked in the driveway of his home and the subsequent electronic monitoring of Sveum's car using the GPS constituted a search or seizure within the meaning of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution; and (2) 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.

¶ 3 We elect not to resolve the first issue, and assume, without deciding, that a search or seizure occurred in this case that required authorization by a warrant. We therefore decide only the second issue, concluding that the order authorizing law enforcement to install and monitor a GPS tracking device on Sveum's vehicle constituted a valid warrant and that the officers' execution of the warrant was reasonable. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 4 In 1996, “Sveum was charged with stalking and harassing Jamie Johnson [ (Johnson) ], his former girlfriend.” State v. Sveum (Sveum I), 220 Wis.2d 396, 399, 584 N.W.2d 137 (Ct.App.1998). “He was also charged with violating a harassment injunction for contacting [Johnson] personally and by telephone” and “criminal damage to property.” Id. Sveum was convicted of all charges, which the court of appeals affirmed. Id. He was sentenced to 11 years of probation for the stalking conviction that commenced upon serving three consecutive, three-year prison terms for the remaining three convictions. Sveum remained in confinement until his mandatory release date of July 2, 2002, when he was released on probation and parole.

¶ 5 In March 2003, Johnson reported to the police that she believed Sveum was stalking her again. On April 22, 2003, Detective Mary Ricksecker (Ricksecker) requested circuit court authorization to install and monitor an electronic device on Sveum's vehicle. Specifically, she requested to attach a GPS tracking device to Sveum's vehicle, a 1980 black Chevy Beretta Coup with a Wisconsin license plate number of 754 ELL and a Vehicle Identification Number (VIN) of 1G1LZ14A2LY130646, and to monitor the tracking device “inside such private and public areas.” She further requested “permission to obtain a key to operate the motor vehicle, if necessary” and “to use the same methods to retrieve the device.” Finally, she requested “that the order be authorized for a period of time not to exceed 60 days from the date the order is signed.”

¶ 6 Ricksecker filed an affidavit in support of this request, alleging that GPS monitoring of Sveum's vehicle “could provide relevant information to the criminal investigation of the crime of stalking.” Ricksecker averred the following:

That the affiant is a state certified law enforcement officer currently assigned as Detective with the Madison Police Department. Your affiant has worked full-time as a law enforcement officer for a[p]proximately 22 years. Your affiant has investigated numerous cases involving harassing phone calls, violation of restraining orders, domestic violence, sexual assaults and stalking. Your affiant has received formal training in the investigation of stalking and has trained law enforcement officers on the investigation of the crime of Stalking, in violation of Wisconsin Statute 940.32.

On 12-21-1994 Michael A[.] Sveum, dob 08-04-67, was convicted of Violation of a Domestic Abuse Order.... The complain[an]t in the case was Jamie Johnson. On 12-11-1995 Sveum was convicted ... of Violation of a Domestic Abuse Order. Your Affiant knows the facts in this case were based on hang-up calls received by Jamie Johnson at her residence.

On 10-09-1996 Sveum was convicted ... of Felony Stalking, Violation of a Harassment Restraining Order, and Harassment. The victim in this case was Jamie Johnson. Your affiant investigated this criminal case and knows the facts of the complaint. Johnson was receiving hang-ups during the course of the criminal behavior, which ceased upon him becoming incarcerated. Two hours after Sveum was released on bail ... she reported a hang-up call.

...

[Sveum] is currently employed in the City of Madison and living at 6685 Cty Tk K Blue Mounds.

On 3-28-03 Jamie Johnson a resident in the City of Madison reports that where she currently resides with the phone number is [ ]. Since 3-3-03 thru 4-12-03 she and her housemate have received nine hang-up calls at that number. She reports that the caller ID information lists “PRIVATE”. She indicates prior to this they have not had any hang-up calls. Johnson advised your affiant that TDS Metrocom is the service provider for [her phone number]. Your affiant believes the information provided by Johnson to be truthful and reliable as it was gained by her as a witness to the events above.

Your affiant contacted TDS Metrocom for records of the incoming hang-up calls reported by Johnson. Your affiant believes the information kept by TDS ... to be truthful and reliable as it [is] kept in the normal course of business. Your affiant knows that hang-up calls could be criminal harassment or felony stalking.

From the information provided by TDS Metrocom and information from the Dane County 911 dispatch center, your affiant learned the hang-up calls were made from pay phones located at the Meadowood Library 5740 Raymond Rd, Party City located at 223 Junction Rd., American TV located at 2404 W. Beltline hwy, Super America located at 2801 Fish Hatchery Rd, Kohl's food store located at 3010 Cahill Rd, and Kitt's Korner Sports Bar and Grill located at 3738 County Rd P. All of these locations are in the County of Dane. Your affiant believes the information provided by 911 Dispatch to be truthful and reliable as it is kept in the normal course of business.

Your affiant has found in the course of this investigation that Michael Sveum is the primary user and/or exercises dominion and control over a 1980 black Chevy Beretta Coup with a Wisconsin license plate number of 754 ELL and a VIN number of 1G1LZ14A2LY130646, which is stored and/or parked at an address of 6685 County Trunk K in Iowa County, Wisconsin or stored or parked at 2426 Valley Street, Cross Plains in Dane County, Wisconsin, herein after referred to as “the Target Vehicle.” ...

[A] records check with the Wisconsin Department of Transportation ... indicate[d] the owner of the aforementioned Target Vehicle ... [is] Michael Sveum with a VIN number of 1G1LZ14A2LY130646, at an address of 2426 Valley Street, Cross Plains, Dane County, Wisconsin.

...

Your affiant believes that Sveum ... maintains dominion and control over as well as being the primary user of the aforementioned vehicle.

...

Your affiant states that there is probable cause to believe based on the above information that the Target Vehicle is presently being utilized in the commission of a crime to wit, stalking.... Your affiant states that there is probable cause to believe that the installation of a [GPS] tracking device on the Target Vehicle in conjunction with the monitoring, maintenance and retrieval of information from that [GPS] tracking device will lead to evidence of the aforementioned criminal violations including the places of the violation and the means of the violation and the identification of associates assisting in the aforementioned violations.

Your affiant states that the [GPS] tracking device, which is covertly placed on a criminal suspect's automobile, is equipped with a radio satellite receiver, which, when programmed, periodically records, at specified times, the latitude, the longitude, date and time of readings and stores these readings until they are downloaded to a computer interface unit and overlaid on a computerized compact disc mapping program for analysis.

...

That based upon the affiant's experience, the [GPS] tracking devices internal battery packs limited use necessitates the use of the suspect's automobile battery power in order to effectively install, monitor, and maintain the [GPS] tracking device over an extended period of time....³

...

Your affiant is aware that persons involved in criminal activities or conspiracies...