State v. Sveum

• Citation: 2009 WI App 81,769 N.W.2d 53
• Decision Date: 07 May 2009
• Docket Number: No. 2008AP658-CR.,2008AP658-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Michael A. SVEUM, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Court of Appeals of Wisconsin

769 N.W.2d 53

2009 WI App 81

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

No. 2008AP658-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs November 12, 2008.

Opinion Filed May 7, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael A. Sveum.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O'Brien, assistant attorney general, and J.B. Van Hollen, attorney general.

Before DYKMAN, LUNDSTEN and BRIDGE, JJ.

¶ 1 LUNDSTEN, J

Michael Sveum challenges his aggravated stalking conviction. At Sveum's jury trial, the prosecution presented detailed tracking information about the movements of Sveum's car obtained from a Global Positioning System tracking device (GPS device) that police secretly attached to his car. Sveum argues that the police obtained this tracking information in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. The State responds that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view. We agree with the State. At the same time, we urge the legislature to consider regulating both police and private use of GPS tracking technology.

¶ 2 Sveum's other challenges to his conviction include whether the GPS tracking information should be suppressed under the Wisconsin Electronic Surveillance Control Law, whether a search warrant for Sveum's residence and car was valid, whether the circuit court committed error by admitting evidence of Sveum's prior stalking conviction, whether Sveum's trial counsel was ineffective, and whether an erroneous jury instruction requires a new trial. We reject all of Sveum's arguments and affirm the judgment and order.

Background

¶ 3 Sveum was convicted of stalking Jamie Johnson in 1996 and was later imprisoned for related crimes against Johnson. In 1999, from prison, he began stalking Johnson again with help from his sister. Sveum continued stalking Johnson when he was released from prison in 2002. In March 2003, Johnson reported to the police that she believed Sveum was stalking her again.

¶ 4 As part of their investigation, police sought and received a warrant authorizing them to covertly attach a GPS device to Sveum's car in order to track it. Based in part on tracking information retrieved from the GPS device, the police obtained a warrant to search one of Sveum's residences and his car.¹ The search revealed additional evidence incriminating Sveum, along with evidence confirming his sister's involvement.

¶ 5 Sveum was charged with an aggravated stalking offense under WIS. STAT. § 940.32(2) and (3)(b) (2001-02), as party to a crime.² The more serious "aggravated" version of the crime was charged based on Sveum's previous conviction for stalking Johnson. See § 940.32(3)(b). The circuit court denied motions by Sveum to suppress evidence obtained from the GPS device and from the search of his residence and car. A jury found Sveum guilty, and the court sentenced him to seven years and six months in prison followed by five years of extended supervision. We discuss additional facts as needed below.

Discussion

A. Suppression Of GPS Evidence Under Fourth Amendment

¶ 6 Sveum challenges the admission of GPS tracking information showing the movements of his car. He argues that the warrant³ authorizing police to place the GPS device on his car was overly broad. The State responds that the warrant was unnecessary because no Fourth Amendment search or seizure occurred. In reply, Sveum implicitly concedes that placing the GPS device on his car and using it to monitor public travel does not implicate the Fourth Amendment. He contends, however, that because the GPS device permitted the police to monitor the location of his car while it was in his garage and in his employer's garage, places out of public view, all of the information obtained from the GPS device should have been suppressed. Because we agree with the State that no Fourth Amendment search or seizure occurred, we do not address Sveum's warrant argument.

¶ 7 We begin with a recap of the pertinent facts. The battery-powered GPS device used here periodically receives and stores location information from one or more satellites. To obtain tracking information, the device must be physically retrieved and its information downloaded to a computer. The result is a detailed history, including time information, of the device's location and, hence, the vehicle's location. While Sveum's car was in his driveway, police secretly attached the device to the underside of his car with a magnet and tape. The police tracked Sveum's car with the device for about five weeks. During this time, Sveum parked his car in his enclosed garage and inside a garage at his place of employment, a car care center.

¶ 8 We agree with the State 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. The seminal cases on this topic are United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).

¶ 9 In Knotts, government agents planted a "beeper"—a radio transmitter emitting periodic signals that permit tracking with a radio receiver—inside a five-gallon drum. See Knotts, 460 U.S. at 277-78, 103 S.Ct. 1081. Using the beeper, the agents were able to track a vehicle transporting the drum and determine that it had come to rest on the defendant's premises. Id. at 277-78, 282, 284-85, 103 S.Ct. 1081. The Court held that the monitoring of the beeper while the vehicle was in public view did not invade any legitimate expectation of privacy and, therefore, did not constitute a search or seizure under the Fourth Amendment. Id. at 285, 103 S.Ct. 1081. The Court reasoned that the device simply made it easier to discover what was already "voluntarily conveyed to anyone who wanted to look." See id. at 281-82, 103 S.Ct. 1081. The Court explained:

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [one of the defendant's accomplices] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

... [N]o ... expectation of privacy extended to the visual observation of [the] automobile arriving on [the private] premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the "open fields."

Visual surveillance from public places along [the] route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police.

Id. (citation omitted). The Knotts Court specifically noted that "nothing in [the] record indicates that the beeper signal was received or relied upon after it had indicated that the drum ... had ended its automotive journey to rest on [defendant]'s premises." Id. at 284-85, 103 S.Ct. 1081. Similarly, "there [was] no indication that the beeper was used in any way to reveal information as to the movement of the drum within the [premises], or in any way that would not have been visible to the naked eye from outside the cabin." Id. at 285. Thus, the Court concluded, the Fourth Amendment was not implicated. Id.

¶ 10 In contrast, a year later in Karo, the Court concluded that when police used a similar beeper planted in a similar container to determine how long the container remained at certain locations and to reveal the specific location of the container within a storage facility, a Fourth Amendment search occurred. See Karo, 468 U.S. at 708-10, 717-18 & n. 5, 104 S.Ct. 3296. The Karo Court explained that the government used the device to obtain "information that it could not have obtained by observation from outside the curtilage of the house." See id. at 715-16, 104 S.Ct. 3296.

¶ 11 Knotts and Karo teach that, to the extent a tracking device reveals vehicle travel information visible to the general public, and thus obtainable by warrantless visual surveillance, the use of the device does not normally implicate Fourth Amendment protections. It follows that no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum's car that was visible to the general public.

¶ 12 We also agree with the State that the police action of attaching the GPS device to Sveum's car, either by itself or in combination with subsequent tracking, does not constitute a search or seizure.⁴ The State aptly relies on United States v. Garcia, 474 F.3d 994 (7th Cir.2007).

¶ 13 The Garcia court concluded that attaching a GPS device to a car while the car was in a public place did not convert the subsequent tracking into a Fourth Amendment search. See id. at 996-98. The court reasoned:

[I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

Id. at 997. Like the Seventh Circuit, we discern no privacy interest protected by the Fourth Amendment that is invaded when police a GPS device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of...