State v. Todd DiMiceli, 2020AP1302-CR, District 4, 9/16/21 (not recommended for publication); case activity (including briefs)

Under § 968.375(6), a court-ordered subpoena for electronic communication records must be served within 5 days of issuance. The subpoena used to obtain internet records regarding DiMiceli from Charter Communications wasn’t served till 9 days after issuance. The records obtained led to further investigation and charges that DiMiceli was in possession of child pornography. (¶¶2-7). The delay in service of the subpoena doesn’t entitle DiMiceli to suppression of the evidence obtained with the subpoena because the violation of the 5-day service rule was a technical irregularity or error that did not affect DiMiceli’s substantial rights.

While § 968.375 creates various requirements regarding subpoenas (or warrants) for electronic communication records, it also provides that “[e]vidence 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.” § 968.375(12). The parties here appear to agree that the failure to serve the subpoena within 5 days is an “irregularity” or “error” (¶12), so the questions are whether it is “technical” and, if so, whether it “affect[ed] the substantial rights of the defendant.”

As to when a violation of a statute is “technical,” the court finds “helpful guidance” in a case DiMiceli cites, Jadair Inc. v. U.S. Fire Insurance Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997), even though that case involves a different context—namely, whether a defective notice of appeal invoked the jurisdiction of the court, id. at 207-08.

¶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.; [State v.] Gautschi, [2000 WI App 274,] 240 Wis. 2d 83, ¶15[, 622 N.W.2d 24]. 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.”); ….

Using this “helpful guidance,” the court concludes the late service of the subpoena was both technical and did not affect DiMiceli’s substantial rights.

The violation of the 5-day deadline was technical because that deadline is in place to assure prompt service so that the probable cause for the subpoena (or warrant) doesn’t dissipate or get stale. DiMiceli does not argue probable cause dissipated in his case. Thus, the delay here didn’t prevent the purpose of the statute from being served. (¶¶20-26).

The violation did not affect DiMiceli’s substantial rights because he does not identify any prejudice that he suffered as a result of the noncompliance, and there is no reason to believe that Charter would not have disclosed DiMiceli’s name and address if the subpoena had been served within the 5-day deadline in § 968.375(6). Moreover, the authorities could have reapplied for a subpoena after the deadline passed, as DiMiceli himself suggests it should have done, in which case the subpoena would have been reissued and Charter would have produced DiMiceli’s name and address. (¶¶17-19).

The court rejects DiMicela’s reliance on State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611, which held that noncompliance with statutory procedures for issuance of a warrant or subpoena can justify suppression. Popenhagen involved bank documents the state obtained using subpoenas issued under § 805.07, a civil subpoena statute that doesn’t require a showing of probable cause. Id., ¶8. The state should have instead used § 968.135, which does require probable cause. Id., ¶10. Because the state did not satisfy the probable cause requirement, the error or irregularity rendered the applicable statute’s probable cause requirement meaningless. Id., ¶61. In this case the state didn’t disregard the governing statute to avoid its requirements. “To the contrary, apart from the untimely service, the Department and the issuing judge complied with all of § 968.375’s requirements, and … the service of the subpoena nine calendar days after it was issued was sufficiently prompt to ensure that the probable cause supporting the subpoena did not dissipate.” (¶27).

Also, although the parties do not address the question, the court notes that the placement of the word “or” makes § 968.375(12) potentially ambiguous. It could mean “technical irregularities” or any “errors not affecting [the defendant’s] substantial rights.” Or the word “technical” could modify both “irregularities” and “errors,” so that the statute prohibits suppression if any “irregularities or errors” were “technical” and did not “affect[] [the defendant’s] substantial rights. The court assumes, without deciding, that “technical” modifies both “irregularity” and “error.” (¶12 n.8). Nor does it appear to make any difference to the arguments or outcome in this case. But if you have a case where there’s an arguable “irregularity” that isn’t “technical,” maybe the better argument is that such an irregularity merits suppression regardless of the effect on the defendant’s substantial rights.