GPS tracking upheld by court in stalking case

Listen to this article

The Wisconsin Supreme Court has assumed, without deciding, that placing a Global Positioning System (GPS) tracking device on a car is a search or seizure within the meaning of the Fourth Amendment.

In doing so, the court may have given more protection to defendants than the Court of Appeals, which held that no search or seizure occurs at all in such instances. State v. Sveum, 2009 WI App 81, 319 Wis.2d 498, 769 N.W.2d 53.

Unfortunately for the defendant, though, the court held that the officers complied with the Fourth Amendment in his case.

Michael A. Sveum had a history of stalking Jamie Johnson going back to 1996.

In March 2003, Johnson reported to the police that she believed Sveum was stalking her again. The police obtained a court order authorizing them to attach a GPS device to Sveum’s car in order to track it. The device was attached while the car was parked in Sveum’s driveway. After five weeks, the police retrieved it, and downloaded its information — a detailed history of the vehicle’s location over that period.

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.

The searches revealed additional evidence incriminating Sveum.

Sveum was then charged with aggravated stalking, and the circuit court denied his motions to suppress evidence obtained from the GPS device and from the searches of his home and car.

The jury found Sveum guilty and he appealed, but the Court of Appeals affirmed. The Supreme Court granted review, but also affirmed, in an opinion by Justice Patience Drake Roggensack.

The court began by stating that the court assumes without deciding that covert GPS tracking requires authorization by a warrant. Instead, the court resolved the case by holding that the order in this case was a valid warrant, and its execution was reasonable.

The court acknowledged several flaws with the warrant.

First, it authorized the officers to obtain and use a key to operate and move the vehicle, and to open the engine compartment and trunk areas of the vehicle. But because there was no evidence the officers ever did this, the court held these portions of the warrant could be severed, while the rest of the warrant remained valid.

Second, sec. 968.15 requires a search warrant to be executed and returned not more than five days after the date of issuance. Here, however, the order said the GPS could be attached for 60 days, and the order was never returned to the court.

But the court held that return was a ministerial duty which does not render execution unreasonable. The court also held the length of time was justified by the complex ongoing nature of a stalking investigation.

Roggensack wrote, “A search obtaining this type of evidence could not have been completed in a single day. Moreover, the daily continuous monitoring of the GPS device on Sveum’s vehicle ‘were not separate searches requiring separate warrants, but instead were simply reasonable continuations of the original search.”

Justices N. Patrick Crooks and Annette Kingsland Ziegler both wrote concurrences urging the Legislature to enact specific legislation to govern the attachment of tracking devices to vehicles. Justice Ziegler’s concurrence also concluded that the Fourth Amendment is not implicated by installing and monitoring a tracking device on a vehicle in a public area.

Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justice Ann Walsh Bradley. The dissent assumed, as did the lead opinion, that a search or seizure occurred in this case that required authorization by a warrant.

But the dissenters concluded that the defects identified above rendered the warrant void ab initio, because sec. 968.15 says a search warrant that is not executed and returned in five days “shall be void and shall be returned to the judge issuing it.”

“I recognize that the problems presented by technologically assisted physical surveillance are complex and that the interests of privacy and crime detection are substantial,” Abrahamson wrote. “The myriad of technical, legal and policy issues involved in electronic surveillance lend themselves to legislative resolution, not ad hoc judicial authorizations or a bewilderingly complex judicial attempt to shoehorn the possibilities of new surveillance technologies into the parameters of statutes that were never meant to accommodate them.”

David Ziemer can be reached at [email protected].