State v. Sveum

*411N. PATRICK CROOKS, J.

¶ 75. {concurring). I join the majority opinion and agree with its conclusions that the order authorizing police officers to attach and monitor the Global Positioning System (GPS) tracking device to Sveum's vehicle was a valid warrant, and that the execution of that warrant was reasonable. I write separately to emphasize two points of concern.

¶ 76. First, I believe that the scope of applicability of this case should be limited to similar factual situations, specifically, those based on a valid warrant in which the challenged search involves a GPS device that an officer attaches to a vehicle in order to collect data from public roadways. Given the increased prevalence of GPS devices used in day-to-day activities and the speed with which technological advances expand the ability and ways in which a person or object can be tracked, I believe that expanding this holding to other uses or other devices could have the potential to weaken protections guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.

¶ 77. Second, I echo my colleagues' requests, see Justice Ziegler's concurrence, ¶¶ 79, 84; Chief Justice Abrahamson's dissent, ¶ 126, that the Wisconsin legislature weigh in on this issue and enact legislation governing the proper procedures for issuing a warrant, executing that warrant, and other procedural concerns related to police searches using GPS, such as time limits and return on the warrant requirements. See Wis. Stat. § 968.17. The Federal Rules of Criminal Procedure currently set forth parameters for warrants authorizing the installation and monitoring of GPS devices. See Fed. R. Crim. P 41(e)(2)(C).1 Such direction from the *412Wisconsin legislature would be appropriate and well within its province, considering that it has previously set forth procedures for authorizing and executing similar electronic searches, such as those involving the interception of wire, electronic, and oral communications, see Wis. Stat. §§ 968.28-968.31, and the use of a pen register or a trap and trace device, see Wis. Stat. §§ 968.34-968.37.

¶ 78. For the foregoing reasons, I respectfully concur.

Rule 41(e)(2)(C) provides:

*412(C) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may he used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:
(i) complete any installation authorized by the warrant within a specified time no longer than 10 calendar days;
(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and
(iii) return the warrant to the judge designated in the warrant.

Fed. R. Crim. E 41(e)(2)(C).