State v. DiMiceli, 2020AP1302-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtGRAHAM, J.
PartiesState of Wisconsin, Plaintiff-Respondent, v. Todd DiMiceli, Defendant-Appellant.
Decision Date16 September 2021
Docket Number2020AP1302-CR

State of Wisconsin, Plaintiff-Respondent,

Todd DiMiceli, Defendant-Appellant.

No. 2020AP1302-CR

Court of Appeals of Wisconsin, District IV

September 16, 2021

Not recommended for publication in the official reports.

APPEAL from a judgment of the circuit court for Dodge County No. 2018CF91, MARTIN J. DE VRIES, Judge.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.


¶1 Todd DiMiceli appeals a judgment of conviction for two counts of possession of child pornography. He argues that the circuit court erroneously denied his motion to suppress evidence derived from a court-ordered subpoena for records from his internet service provider. Specifically, DiMiceli contends that the evidence should be suppressed because law enforcement did not serve the subpoena within five days as required by Wis.Stat. § 968.375(6) (2019-20).[1] We conclude that, under the circumstances, law enforcement's noncompliance with § 968.375(6) was a technical irregularity or error, and that it did not affect DiMiceli's substantial rights. Therefore, based on § 968.375(12), we affirm the circuit court.


¶2 This appeal arises out of an investigation conducted by the Wisconsin Department of Justice (the Department) into the sharing of child pornography over peer-to-peer networks. The pertinent facts are not in dispute.

¶3 On September 4, 2015, a Department agent downloaded four files containing what the agent believed to be child pornography from a specific IP address, thereby identifying that IP address as a potential source of child pornography.[2] The agent determined that the IP address was registered to Charter Communications.

¶4 On October 23, 2015, the Department secured a court-ordered subpoena under Wis.Stat. § 968.375. Although the subpoena was not made part of the record on appeal, the parties generally agree on its contents.[3] The subpoena ordered Charter to provide, among other things, IP assignment logs for the IP address on the date that the agent downloaded the files from that address, including the subscriber's name and service address. Pursuant to § 968.375(6), the circuit court ordered the Department to serve the subpoena within five days.

¶5 On November 2, 2015-nine calendar days after the circuit court issued the subpoena-the agent sent it to Charter's legal department by facsimile transmission. The following day, Charter provided DiMiceli's name, among other things, and identified the service address as that of DiMiceli's residence in Hustisford, Wisconsin.

¶6 After further investigation, the Department obtained a warrant to search the premises of the Hustisford residence and seize items that may contain evidence of child pornography. The warrant application identified DiMiceli's name and address, which was information obtained through the subpoena for Charter's records. The search of DiMiceli's residence resulted in the seizure of hard drives, computers, and other devices, which were subsequently searched pursuant to a second warrant. The Department found additional images of child pornography on those devices.

¶7 DiMiceli was charged with six counts of possession of child pornography. DiMiceli filed a motion seeking to suppress all evidence derived from the untimely served subpoena. The circuit court denied the motion. DiMiceli then pled guilty to two of the counts pursuant to a plea agreement, [4] and he now appeals the judgment of conviction based on the denial of his suppression motion.


¶8 Wisconsin Stat. § 968.375 provides statutory authority and requirements for court-issued subpoenas and warrants that are directed at persons who provide electronic communication or remote computing services and that compel the disclosure of information about their subscribers. At issue in this appeal is the proper interpretation and application of this statute-a question of law that we review de novo. Rechsteiner v. Hazelden, 2008 WI 97, ¶26, 313 Wis.2d 542, 753 N.W.2d 496. Statutory interpretation "begins with the language of the statute," and "[s]tatutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110.

¶9 Under Wis.Stat. § 968.375(2)(a), upon a showing of probable cause, a judge may issue a subpoena requiring an electronic communication or remote computing services provider to disclose information, including a subscriber's name and address.[5] Section 968.375(6) sets forth a deadline for serving such subpoenas: "A subpoena or warrant issued under this section shall be served not more than 5 days after the date of issuance." In this case, it is undisputed that the subpoena requiring the disclosure of DiMiceli's subscriber information was supported by probable cause as required by § 968.375(2)(a). It is also undisputed that the Department did not comply with § 968.375(6)'s five-day service deadline, and that it served the subpoena after the deadline had already passed.[6]

¶10 In some circumstances, evidence may be suppressed as a remedy for noncompliance with statutory requirements. State v. Popenhagen, 2008 WI 55, ¶¶12, 13 & n.10, 57-61, 309 Wis.2d 601, 749 N.W.2d 611. But not every violation of a warrant or subpoena statute will result in the suppression of evidence. State v. Sveum, 2010 WI 92, ¶¶57-58, 328 Wis.2d 369, 787 N.W.2d 317; State v. Raflik, 2001 WI 129, ¶15, 248 Wis.2d 593, 636 N.W.2d 690; State v. Elam, 68 Wis.2d 614, 620, 229 N.W.2d 664 (1975). The question in this appeal is whether DiMiceli is entitled to suppression of the evidence derived from the subpoena of Charter's records due to the Department's noncompliance with Wis.Stat. § 968.375(6).[7]

¶11 The answer is found in Wis.Stat. § 968.375(12). That subsection provides: "Evidence disclosed under a subpoena or warrant issued under this section shall not be suppressed because of technical irregularities or errors not affecting the substantial rights of the defendant." The resolution of this appeal turns on the interpretation and application of subsection (12).

¶12 In its briefing, the State tends to refer to the Department's noncompliance with Wis.Stat. § 968.375(6)'s five-day service deadline as an "irregularity" and DiMiceli tends to refer to it as an "error," but the parties do not identify any meaningful difference between those terms. Regardless of whether we consider the Department's noncompliance with the statutory deadline to be an "irregularity" or an "error," subsection (12) prohibits suppression when two conditions are met: the irregularity or error is "technical," and it did not "affect[] the substantial rights of the defendant."[8] Thus, in applying subsection (12), we must determine what is meant for an irregularity or error to be "technical" and also what is meant for the irregularity or error to "affect" a person's "substantial rights."

¶13 Our precedent is replete with examples of Wisconsin courts considering whether evidence should be suppressed as a result of an irregularity or error relating to a search warrant. Some decisions are grounded in a conclusion that the irregularity or error was "technical," others explain that it did not "affect" the defendant's "substantial rights," yet others explain that it did not "prejudice" the defendant, and some Wisconsin cases cite all of these grounds as a basis for declining to suppress evidence.[9] However, the analysis in these cases is thin, and the cases do not provide any clear guidance on the meaning of the key statutory terms or any consistent framework for determining whether an irregularity or error was technical and whether it affected a defendant's substantial rights.[10]

¶14 DiMiceli cites to Jadair Inc. v. U.S. Fire Insurance Co., 209 Wis.2d 187, 562 N.W.2d 401 (1997), a civil case that provides helpful guidance. We note that in Jadair the question about statutory violations arose in a different context-the question was whether a defective notice of appeal invoked the jurisdiction of the court, not whether evidence gathered pursuant to a court order should be suppressed. Id. at 207-08. Nevertheless, despite the differences in context, Jadair provides helpful guidance on what it means for a statutory violation to be "technical," see id. at 207-08, and cases following Jadair provide helpful guidance on what it means for a violation to "affect" a defendant's "substantial rights," see State v. Gautschi, 2000 WI.App. 274, ¶15, 240 Wis.2d 83, 622 N.W.2d 24.

¶15 The Jadair court contrasted defects that are "technical" with those that are "fundamental" in nature. Jadair, 209 Wis.2d at 208. It explained that a defect is fundamental if it prevents the purpose of the statute from being fulfilled. If noncompliance with a statutory requirement prevented the purpose of the statute from being fulfilled, a party need not show that it suffered prejudice as a result of the noncompliance. Id. However, if the purpose of the statute was served despite the noncompliance, the defect is technical, and the court must also examine whether it affected the complaining party's substantial rights. Id.; Gautschi, 240 Wis.2d 83, ¶15. Noncompliance affects a party's substantial rights if the party can show that it suffered prejudice as a result of the noncompliance. Gautschi, 240 Wis.2d 83, ¶15; see also Wis. Stat. § 805.18(1) ("The court shall, in every stage of an action, disregard any error … in the … proceedings which shall not affect the substantial rights of the adverse party."); Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis.2d 1, 629 N.W.2d 768 (stating that, for an error to "affect the substantial rights" of a party, "there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding").

¶16 This framework from Jadair is...

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