Oct. 27, 2023 – The five-day limit established in state law for executing a search warrant does not apply to the time it takes to analyze evidence seized under the warrant, the Wisconsin Court of Appeals District IV has ruled in State v. Drachenberg, 2022AP2060 (Oct. 12, 2023).

On Jan. 29, 2021, the police submitted to Wood County Circuit Court an affidavit requesting a search warrant for the residence of John Drachenberg.

The circuit court issued the warrant on the same day it was requested.

In addition to describing in detail the types of evidence the police were authorized to search for, the warrant authorized the police to conduct a forensic analysis on the media and data contained in any devices seized under the warrant.

The warrant also authorized the police to remove devices from Drachenberg’s residence and analyze them later.

Motion to Suppress

The police served the warrant on Drachenberg three days later, on Feb. 1, 2021. They seized numerous electronic devices, including a desktop computer.

On March 29, 2021, law enforcement completed a forensic analysis of the desktop computer and the other devices. That analysis turned up 272 images and five videos, which the police believed were child pornography.

In April 2021, the Wood County District Attorney charged Drachenberg with seven counts of violating Wis. Stat. section 948.05(1)(b) (sexual exploitation of a child) and three counts of violating section 948.12(1m) (possession of child pornography).

Drachenberg filed a motion to suppress the images and the videos. He argued that because the forensic analysis wasn’t completed until two months after the date the warrant was issued, the state had violated section 968.15(1).

Section 968.15(1) requires the police to execute a search warrant not more than five days after the date of issuance.

The circuit court denied Drachenberg’s motion. Drachenberg then pleaded no contest to one count of possession of child pornography.

Drachenberg appealed.

Definition of ‘Execute’

On appeal, Drachenberg argued that under section 968.15(1), the police must complete all the tasks that a judge has authorized in a search warrant within five days from the date warrant was issued.

The state argued that it was only searches conducted in the places mentioned in the warrant and the seizure of items described in the warrant that must be completed within five days under section 968.15(1).

Writing for a three-judge panel, Judge Brian Blanchard noted that the question was one of first impression.

Blanchard agreed with Drachenberg that the word “execute” generally connotes the completion of an event.

But Judge Blanchard pointed out that section 968.12(1) defines a search warrant as an order authorizing searches for the purpose of “seizing designated property or kinds of property.”

“Based on this definition, a search warrant is completely put into effect and its purpose is accomplished under Wis. Stat. section 968.15(1) when the designated places are searched and the designated items are seized,” Blanchard wrote. “This undermines Drachenberg’s interpretation of ‘executed’ in section 968.15(1).”

Timing Reference Is Important

Additionally, Judge Blanchard noted that section 968.12(3)(f) requires the person who executes the warrant to enter “the exact time of execution” on the face of a duplicate warrant.

“This timing reference provides support for the view that, for purposes of Wis. Stat. ch. 968’s procedural search warrant provisions, execution contemplates a more limited period of time than will sometimes be needed for the post-seizure analysis of items,” Blanchard wrote.

Judge Blanchard concluded that the same reasoning applied to the authority, granted under section 968.16, for the police to detain and search anybody “on the premises at the time” of a search authorized by a warrant.

“If the execution of a warrant were interpreted to include subsequent analysis of seized items that have been removed from the scene of the search, it would suggest, illogically, that police have the authority to detain a person after the police have already left the designated places … after completing the search,” Blanchard wrote.

Warrant Is Only Part of Investigative Process

In support of his argument, Drachenberg argued that search warrants and supporting affidavits often describe investigative acts that take place after the completion of the search and seizures authorized by the warrants.

But the inclusion of such information is necessary to allow a judge to make a probable cause determination, Judge Blanchard explained.

“The affidavit and the warrant do not describe the forensic analysis as a continuing execution of the search warrant,” Blanchard wrote. “Instead … the forensic analysis is additional government conduct needed to determine the nature of the seized items as part of the overall investigation of which the initial search and seizure are only two elements.”

Persuasive Authority from Other States

Drachenberg cited federal caselaw containing dicta that he argued indicates that a warrant is not considered executed until items seized under the warrant have been analyzed.

But that caselaw, Judge Blanchard noted, involved challenges to warrants under the Fourth Amendment to the U.S. Constitution, which wasn’t the case with Drachenberg’s appeal.

Judge Blanchard also reasoned that caselaw from other states with statutes identical or similar to section 968.15(1) holds that the analysis of items seized under a search warrant need not be completed within the statutory time limit for executing the warrant.

“While it is of course not dispositive to an interpretation of the Wisconsin statute, it is notable that Drachenberg does not cite a case from any jurisdiction in which a statutory time limit for the execution of a search warrant was deemed to have been exceeded due to the post-seizure analysis of seized items,” Blanchard wrote.