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STATE of Wisconsin, Plaintiff-Respondent,
v.
Michael A. SVEUM, Defendant-Appellant-Petitioner.
Supreme Court of Wisconsin.
*321 For the defendant-appellant-petitioner there were briefs by Dean A. Strang, Marcus J. Berghahn, and Hurley, Burish & Stanton, S.C., Madison, and oral argument by Dean A. Strang.
For the plaintiff-respondent the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Amelia L. Bizzaro and Henak Law Office, S.C., Milwaukee; Laurence Jacques Dupuis and the American Civil Liberties Union of Wisconsin Foundation, Milwaukee; G. Michael Halfenger and Foley & Lardner, LLP, Milwaukee; Catherine Crump and the American Civil Liberties Union Foundation, New York, N.Y.; and Jennifer Granick and the Electronic Frontier Foundation, San Francisco, Cal., and oral argument by G. Michael Halfenger.
PATIENCE DRAKE ROGGENSACK, J.
¶ 1 We review a decision of the court of appeals[1] affirming the circuit court's judgment[2] convicting Michael A. Sveum (Sveum) of aggravated stalking and denying Sveum's post-conviction motion for a new trial. In upholding the judgment of conviction, the court of appeals affirmed the circuit court's denial of Sveum's motion to suppress evidence obtained from a Global Positioning System (GPS) tracking device, which law enforcement attached to Sveum's car. Our focus is on whether the circuit court erred in its denial of Sveum's suppression motion.
¶ 2 Sveum and the State have briefed two issues for purposes of our review: (1) whether the installation of a GPS tracking device to Sveum's car while his car was parked in the driveway of his home and the subsequent electronic monitoring of Sveum's car using the GPS constituted a search or seizure within the meaning of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution; and (2) whether the court order authorizing the installation and monitoring of a GPS tracking device on Sveum's vehicle constituted a valid warrant and, if so, whether the police reasonably executed the warrant.
¶ 3 We elect not to resolve the first issue, and assume, without deciding, that a search or seizure occurred in this case that required authorization by a warrant. We therefore decide only the second issue, concluding that the order authorizing law enforcement to install and monitor a GPS tracking device on Sveum's vehicle constituted a valid warrant and that the officers' execution of the warrant was reasonable. Accordingly, we affirm the decision of the court of appeals.
I. BACKGROUND
¶ 4 In 1996, "Sveum was charged with stalking and harassing Jamie Johnson [(Johnson) ], his former girlfriend." State v. Sveum (Sveum I), 220 Wis.2d 396, 399, 584 N.W.2d 137 (Ct.App.1998). "He was also charged with violating a harassment injunction for contacting [Johnson] personally and by telephone" and "criminal damage *322 to property." Id. Sveum was convicted of all charges, which the court of appeals affirmed. Id. He was sentenced to 11 years of probation for the stalking conviction that commenced upon serving three consecutive, three-year prison terms for the remaining three convictions. Sveum remained in confinement until his mandatory release date of July 2, 2002, when he was released on probation and parole.
¶ 5 In March 2003, Johnson reported to the police that she believed Sveum was stalking her again. On April 22, 2003, Detective Mary Ricksecker (Ricksecker) requested circuit court authorization to install and monitor an electronic device on Sveum's vehicle. Specifically, she requested to attach a GPS tracking device to Sveum's vehicle, a 1980 black Chevy Beretta Coup with a Wisconsin license plate number of 754 ELL and a Vehicle Identification Number (VIN) of 1G1LZ14A2LY130646, and to monitor the tracking device "inside such private and public areas." She further requested "permission to obtain a key to operate the motor vehicle, if necessary" and "to use the same methods to retrieve the device." Finally, she requested "that the order be authorized for a period of time not to exceed 60 days from the date the order is signed."
¶ 6 Ricksecker filed an affidavit in support of this request, alleging that GPS monitoring of Sveum's vehicle "could provide relevant information to the criminal investigation of the crime of stalking." Ricksecker averred the following:
That the affiant is a state certified law enforcement officer currently assigned as Detective with the Madison Police Department. Your affiant has worked full-time as a law enforcement officer for a[p]proximately 22 years. Your affiant has investigated numerous cases involving harassing phone calls, violation of restraining orders, domestic violence, sexual assaults and stalking. Your affiant has received formal training in the investigation of stalking and has trained law enforcement officers on the investigation of the crime of Stalking, in violation of Wisconsin Statute 940.32.
On 12-21-1994 Michael A[.] Sveum, dob 08-04-67, was convicted of Violation of a Domestic Abuse Order.... The complain[an]t in the case was Jamie Johnson. On 12-11-1995 Sveum was convicted ... of Violation of a Domestic Abuse Order. Your Affiant knows the facts in this case were based on hang-up calls received by Jamie Johnson at her residence.
On 10-09-1996 Sveum was convicted... of Felony Stalking, Violation of a Harassment Restraining Order, and Harassment. The victim in this case was Jamie Johnson. Your affiant investigated this criminal case and knows the facts of the complaint. Johnson was receiving hang-ups during the course of the criminal behavior, which ceased upon him becoming incarcerated. Two hours after Sveum was released on bail... she reported a hang-up call.
...
[Sveum] is currently employed in the City of Madison and living at 6685 Cty Tk K Blue Mounds.
On 3-28-03 Jamie Johnson a resident in the City of Madison reports that where she currently resides with the phone number is []. Since 3-3-03 thru 4-12-03 she and her housemate have received nine hang-up calls at that number. She reports that the caller ID information lists "PRIVATE". She indicates prior to this they have not had any hang-up calls. Johnson advised your affiant that TDS Metrocom is the service provider for [her phone number]. Your affiant believes the information provided *323 by Johnson to be truthful and reliable as it was gained by her as a witness to the events above.
Your affiant contacted TDS Metrocom for records of the incoming hang-up calls reported by Johnson. Your affiant believes the information kept by TDS... to be truthful and reliable as it [is] kept in the normal course of business. Your affiant knows that hang-up calls could be criminal harassment or felony stalking.
From the information provided by TDS Metrocom and information from the Dane County 911 dispatch center, your affiant learned the hang-up calls were made from pay phones located at the Meadowood Library 5740 Raymond Rd, Party City located at 223 Junction Rd., American TV located at 2404 W. Beltline hwy, Super America located at 2801 Fish Hatchery Rd, Kohl's food store located at 3010 Cahill Rd, and Kitt's Korner Sports Bar and Grill located at 3738 County Rd P. All of these locations are in the County of Dane. Your affiant believes the information provided by 911 Dispatch to be truthful and reliable as it is kept in the normal course of business.
Your affiant has found in the course of this investigation that Michael Sveum is the primary user and/or exercises dominion and control over a 1980 black Chevy Beretta Coup with a Wisconsin license plate number of 754 ELL and a VIN number of 1G1LZ14A2LY130646, which is stored and/or parked at an address of 6685 County Trunk K in Iowa County, Wisconsin or stored or parked at 2426 Valley Street, Cross Plains in Dane County, Wisconsin, herein after referred to as "the Target Vehicle." ... [A] records check with the Wisconsin Department of Transportation ... indicate[d] the owner of the aforementioned Target Vehicle ... [is] Michael Sveum with a VIN number of 1G1LZ14A2LY130646, at an address of 2426 Valley Street, Cross Plains, Dane County, Wisconsin.
...
Your affiant believes that Sveum ... maintains dominion and control over as well as being the primary user of the aforementioned vehicle.
...
Your affiant states that there is probable cause to believe based on the above information that the Target Vehicle is presently being utilized in the commission of a crime to wit, stalking.... Your affiant states that there is probable cause to believe that the installation of a [GPS] tracking device on the Target Vehicle in conjunction with the monitoring, maintenance and retrieval of information from that [GPS] tracking device will lead to evidence of the aforementioned criminal violations including the places of the violation and the means of the violation and the identification of associates assisting in the aforementioned violations.
Your affiant states that the [GPS] tracking device, which is covertly placed on a criminal suspect's automobile, is equipped with a radio satellite receiver, which, when programmed, periodically records, at specified times, the latitude, the longitude, date and time of readings and stores these readings until they are downloaded to a computer interface unit and overlaid on a computerized compact disc mapping program for analysis.
...
That based upon the affiant's experience, the [GPS] tracking devices internal battery packs limited use necessitates the use of the suspect's automobile battery power in order to effectively install, monitor, and maintain the [GPS] tracking *324 device over an extended period of time....[3]
...
Your affiant is aware that persons involved in criminal activities or conspiracies maintain the means and fruits of their violations, often in remote locations including garages, homes and storage sheds. Your affiant believes that the installation of the [GPS] tracking device has been shown to be a successful supplement to visual surveillance of the vehicle due to the inherent risks of detection of manual, visual surveillance by the target of law enforcement personnel. The [GPS] tracking device lessens the risk of visual detection by the suspect and is generally considered more reliable since visual surveillance often results in the loss of sight of the Target Vehicle.
¶ 7 On the same day Ricksecker requested authorization, the circuit court issued an order granting her request to install and monitor a GPS tracking device on Sveum's vehicle. The court concluded that "[b]ased on the information provided in the affidavit submitted by Detective Ricksecker, the court finds that there is probable cause to believe that the installation of a tracking device in the below listed vehicle is relevant to an on-going criminal investigation and that the vehicle is being used in the commission of a crime of stalking...." The court ordered the following:
1. The State[']s request to install and monitor a tracking device on the below listed vehicle is granted based on the authority granted in [United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)].
2. The Madison Police Department is authorized to place an electronic tracking device on a 1990 black Beretta with a license plate number of 754 ELL and a VIN of 1G1LZ14A2LY130646, and they are hereby authorized to surreptitiously enter and reenter the vehicle and any buildings and structures containing the vehicle or any premises on which the vehicle is located to install, use, maintain and conduct surveillance and monitoring of the location and movement of a mobile electronic tracking device in the vehicle and any and all places within or outside the jurisdiction of Iowa or Dane County, including but not limited to private residence and other locations not open to visual surveillance; to accomplish the installation, agents are authorized to obtain and use a key to operate and move the vehicle for a required time to a concealed location and are authorized to open the engine compartment and trunk areas of the vehicle to install the device.
3. It is further ordered that the Madison Police Department shall remove the electronic tracking device as soon as practicable after the objectives of the surveillance are accomplished or not later than 60 days from the date the order is signed unless extended by this court or another court of competent jurisdiction.
¶ 8 In the early morning hours of April 23, 2003, Ricksecker and three other law enforcement officers located Sveum's vehicle parked in the driveway of 2426 Valley Road, Cross Plains. A battery-powered GPS tracking device was attached to the "undercarriage" of Sveum's vehicle with magnetic equipment and tape. The officers did not open the engine compartment or trunk area of the vehicle while installing *325 the GPS. Because of the limited battery life of the GPS, the officers replaced the GPS twice. Both replacement devices were attached to Sveum's vehicle in the same manner in which the first was attached, i.e., to the undercarriage of the vehicle with magnetic equipment and tape while parked in the driveway of 2426 Valley Road, Cross Plains. The third and final GPS was removed from Sveum's vehicle on May 27, 2003.
¶ 9 Upon removal of the GPS devices, the stored information on each of the GPS devices was downloaded and then stored on a disk. The information from the disk was put on a map so the officers could see where Sveum's vehicle had traveled.
¶ 10 The GPS device revealed data incriminating Sveum. The GPS data indicated that on April 25, 2003, Sveum's vehicle traveled to a location 468 feet from Johnson's residence, and his vehicle remained there from 8:14 p.m. to 9:08 p.m. Sveum's vehicle then traveled to a shopping mall near Mineral Point Road and the Beltline Highway and remained there from 9:16 p.m. to 9:19 p.m. Phone records indicated that at 9:17 p.m. Johnson received a hang-up call from a pay phone located near the shopping mall where Sveum's vehicle was. Additionally, the GPS data demonstrated that on April 26, 2003, Sveum's vehicle traveled to a location 277 feet from Johnson's residence and remained there from 8:28 p.m. to 9:43 p.m.
¶ 11 Based, in part, on the above-described tracking data from the GPS devices, the police obtained two additional search warrants. One warrant authorized the police to search the premises located at 2426 Valley Road, Cross Plains and Sveum's vehicle. The search revealed evidence incriminating Sveum, including photos of Johnson, a handwritten chronological log recording sightings of Johnson and letters sent to his sister, Renee Sveum, asking for information about Johnson. The other warrant authorized the police to search the premises located at 6685 County Trunk Highway K, Renee Sveum's residence, which did not reveal any incriminating evidence.
¶ 12 On August 4, 2003, the State filed a complaint charging Sveum[4] with aggravated stalking as a party to a crime contrary to Wis. Stat. § 940.32(3)(b) (2001-02)[5] and Wis. Stat. § 939.05 (2001-02). Sveum filed a motion to suppress all information obtained from the GPS device, arguing that it was unlawfully obtained in violation of the Fourth Amendment.[6] The circuit court denied the motion on the grounds that installing and monitoring the GPS device was not a search. While the circuit court did not specifically address whether the court order authorizing police use of the GPS device was a warrant, it noted that the affidavit provided sufficient probable cause to obtain the order.
¶ 13 The case proceeded to trial where a jury found Sveum guilty of the charged offense. On February 6, 2007, the court entered a judgment of conviction and sentenced Sveum to seven years and six *326 months in prison followed by five years of extended supervision. Sveum filed a motion for post-conviction relief, seeking a new trial on various grounds, all of which the court rejected.
¶ 14 The court of appeals affirmed. State v. Sveum (Sveum II), 2009 WI App 81, ¶ 2, 319 Wis.2d 498, 769 N.W.2d 53. The court of appeals addressed a number of issues not raised in this court. Id., ¶¶ 1-2. On the Fourth Amendment issue, the court of appeals concluded that installing and monitoring the GPS device on Sveum's vehicle did not constitute a search or a seizure within the meaning of the Fourth Amendment. Id., ¶ 6. As such, the court did not address whether the court order authorizing the installation and monitoring of the GPS device was a warrant. Id., ¶ 6 & n. 3.
¶ 15 Sveum petitioned this court for review, which we granted. We now affirm the decision of the court of appeals.
II. STANDARD OF REVIEW
¶ 16 In reviewing the denial of a motion to suppress evidence, we will uphold a circuit court's findings of historical fact unless they are clearly erroneous. State v. Arias, 2008 WI 84, ¶ 12, 311 Wis.2d 358, 752 N.W.2d 748. However, "[t]he question of whether police conduct violated the constitutional guarantee against unreasonable searches and seizures is a question of constitutional fact" that we review independently. Id., ¶ 11 (internal quotations and brackets omitted).
¶ 17 Whether the language of a court order satisfies the requisite constitutional requirements of a warrant is a question of law we review independently. See State v. Meyer, 216 Wis.2d 729, 744, 576 N.W.2d 260 (1998).
III. DISCUSSION
¶ 18 The Fourth Amendment of the United States Constitution guarantees that persons shall be secure from "unreasonable searches and seizures and sets forth the manner in which warrants shall issue." State v. Henderson, 2001 WI 97, ¶ 17, 245 Wis.2d 345, 629 N.W.2d 613. The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[7]
A search and seizure conducted without a warrant issued pursuant to the requirements of the Fourth Amendment is presumptively unreasonable. Henderson, 245 Wis.2d 345, ¶ 19, 629 N.W.2d 613.
¶ 19 Whether a search and seizure pursuant to a warrant is constitutionally *327 valid is a two-part inquiry. First, the Warrant Clause demands that all warrants be validly issued. Id. Second, the Reasonableness Clause requires that warrants be reasonably executed. Id., ¶ 18.
A. Warrant Clause
¶ 20 The "warrant clause provides [] particularized protections governing the manner in which search and arrest warrants are issued." Id., ¶ 19. The United States Supreme Court has interpreted the Warrant Clause to be "`precise and clear,'" and as requiring only three things: (1) prior authorization by a neutral, detached magistrate; (2) a demonstration upon oath or affirmation that there is probable cause to believe that evidence sought will aid in a particular conviction for a particular offense; and (3) a particularized description of the place to be searched and items to be seized. Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (quoting Stanford v. Texas, 379 U.S. 476, 481, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)).
1. Neutral and detached magistrate
¶ 21 First, when officers obtain prior judicial authorization for a search, the magistrate who issues the warrant must be neutral and detached. Henderson, 245 Wis.2d 345, ¶ 19, 629 N.W.2d 613 (citing Dalia, 441 U.S. at 255, 99 S.Ct. 1682). This requirement protects citizens because "`the usual inferences which reasonable men draw from evidence'" are "`drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'" State ex rel. White v. Simpson, 28 Wis.2d 590, 597, 598, 137 N.W.2d 391 (1965) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (concluding that "the determination of the district attorney does not constitute the determination of a neutral and detached magistrate")). We have explained that the purpose of this rule "is to interpose the impartial judgment of a judicial officer between the citizen and the police and also between the citizen and the prosecutor, so that an individual may be secure from an improper search." Id. at 598, 137 N.W.2d 391.
2. Probable cause
¶ 22 Second, "the officer seeking a warrant [must] demonstrate upon oath or affirmation probable cause to believe that `the evidence sought will aid in a particular apprehension or conviction' for a particular offense." Henderson, 245 Wis.2d 345, ¶ 19, 629 N.W.2d 613 (quoting Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). "[W]hen no sworn testimony exists to support a search warrant, then the warrant is void." State v. Tye, 2001 WI 124, ¶ 13, 248 Wis.2d 530, 636 N.W.2d 473 (citing State v. Baltes, 183 Wis. 545, 553, 198 N.W. 282 (1924)).
¶ 23 The Wisconsin constitutional oath or affirmation provision has been reinforced by legislation. Id., ¶ 11. A search warrant may be based either "upon sworn complaint or affidavit, or testimony recorded by a phonographic reporter," Wis. Stat. § 968.12(2), or "upon sworn oral testimony communicated to the judge by telephone, radio or other means of electronic communication," Wis. Stat. § 968.12(3)(a).
¶ 24 A search warrant may issue only on probable cause. State v. Higginbotham, 162 Wis.2d 978, 989, 471 N.W.2d 24 (1991). The task of the issuing magistrate is to determine whether, under the totality of the circumstances, given all the facts and circumstances set forth in the affidavit, "`there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. DeSmidt, 155 Wis.2d 119, 131, 454 N.W.2d *328 780 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The probable cause standard is not a "technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." State v. Petrone, 161 Wis.2d 530, 547-48, 468 N.W.2d 676 (1991), overruled in part by State v. Greve, 2004 WI 69, 272 Wis.2d 444, 681 N.W.2d 479 (citing Texas v. Brown, 460 U.S. 730, 743, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).
¶ 25 "We accord great deference to the warrant-issuing judge's determination of probable cause and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause." Higginbotham, 162 Wis.2d at 989, 471 N.W.2d 24; see also Gates, 462 U.S. at 236, 103 S.Ct. 2317. "The duty of the reviewing court is to ensure that the magistrate had a substantial basis for concluding that the probable cause existed." Higginbotham, 162 Wis.2d at 989, 471 N.W.2d 24. Such determination is "confined to the record that was before the warrant-issuing judge." Id.
¶ 26 Our deferential review of the warrant-issuing judge's probable cause determination is "`appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.'" Id. at 990, 471 N.W.2d 24 (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (further quotation omitted)). Accordingly, we resolve doubtful or marginal cases regarding a probable cause finding in light of the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Id.
3. Particularity
¶ 27 Finally, the warrant clause requires "that warrants [] particularly describe the place to be searched, as well as the items to be seized." Henderson, 245 Wis.2d 345, ¶ 19, 629 N.W.2d 613 (citing Dalia, 441 U.S. at 255, 99 S.Ct. 1682). "In order to satisfy the particularity requirement, the warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized." State v. Noll, 116 Wis.2d 443, 450-51, 343 N.W.2d 391 (1984). A general description of the items to be seized is constitutionally acceptable when a more specific description is not available. Id. at 451, 343 N.W.2d 391.
¶ 28 The particularity requirement fulfills three objectives. Petrone, 161 Wis.2d at 540, 468 N.W.2d 676. It prevents general searches, the issuance of warrants on less than probable cause and the seizure of objects other than those described in the warrant. Id.
¶ 29 In United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), the Court was called on to decide whether the warrantless monitoring of a "beeper," an electronic tracking device, in a private residence constituted a search within the meaning of the Fourth Amendment. Id. at 707, 104 S.Ct. 3296. The Court concluded that monitoring the beeper in a private residence constituted a warrantless search. Id. at 714, 104 S.Ct. 3296. In so concluding, the Court rejected the argument that a warrant should not be required to authorize the installation and monitoring of electronic tracking devices "because of the difficulty in satisfying the particularity requirement of the Fourth Amendment." Id. at 718, 104 S.Ct. 3296.
¶ 30 Specifically, the "Government contend[ed] that it would be impossible to describe the `place' to be searched, because the location of the place is precisely what is sought to be discovered through the search." Id. The Court explained that a *329 warrant application that "describe[s] the object into which the [tracking device] is to be placed, the circumstances that led agents to wish to install the [tracking device], and the length of time for which [] surveillance is requested" is sufficient to satisfy the constitution's particularity requirement and will "permit issuance of a warrant authorizing [] installation [of a tracking device] and surveillance." Id.
4. Severability doctrine
¶ 31 In the event of a constitutionally defective search warrant, we may apply the exclusionary rule,[8] which bars all evidence obtained pursuant to the defective warrant from a criminal proceeding against the defendant whose constitutional rights have been violated. See State v. Ward, 2000 WI 3, ¶ 46, 231 Wis.2d 723, 604 N.W.2d 517. However, in Noll, we addressed the issue of the appropriate remedy for items seized pursuant to a partially defective search warrant. Noll, 116 Wis.2d at 451, 343 N.W.2d 391.
¶ 32 In Noll, we concluded that a search warrant authorizing the seizure of "various long play phonograph albums, and miscellaneous vases and glassware items" lacked the required particularity; however, the remaining items described in the warrant were "sufficiently particular to satisfy the constitutional requirement." Id. at 451, 343 N.W.2d 391. As such, the search warrant was defective only with respect to those items that were seized, but inadequately described.
¶ 33 We recognized the harshness of applying the exclusionary rule to search warrants that are partially defective. Quoting Professor LaFave, we explained: "`[I]t would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and magistrate erred in seeking and permitting a search for other items as well.'" Id. at 454, 343 N.W.2d 391 (quoting 2 Wayne R. LaFave, Search and Seizure § 4.6(f) (1978)). Indeed, we further noted that such a rule would "unduly hamper[] the government's efforts to gather evidence of crime and is not compelled by the purposes underlying the exclusionary rule." Id. at 460, 343 N.W.2d 391.
¶ 34 To avoid such harsh results, we adopted the "severability doctrine," which permits reviewing courts to excise the defective portions of an otherwise valid warrant. Id. at 445, 343 N.W.2d 391.[9] We explained that "admitting those items seized pursuant to the valid parts of the warrant and suppressing those items seized" under the defective portion, "strike[s] the proper balance between the government's obligation to enforce its laws to protect its citizens from wrongdoers and the citizen's right to be secure ... from unreasonable government intrusion[s]." Id. at 454, 343 N.W.2d 391.
¶ 35 We concluded that application of the severability doctrine was proper, and *330 therefore, we excised the defective warrant provisions from the valid warrant provisions. The items seized pursuant to the valid portion of the warrant were admitted, and those items seized pursuant to the defective portion were suppressed. See id.
¶ 36 The court of appeals applied the severability doctrine to a search warrant in State v. Marten, 165 Wis.2d 70, 477 N.W.2d 304 (Ct.App.1991). In Marten, a search warrant authorized police to search a "home, yard and `outbuildings'" for drug paraphernalia based on information provided by an informant and through police officer surveillance. Id. at 72-73, 477 N.W.2d 304. While executing the search warrant, officers seized marijuana found in Marten's house. Marten filed a motion to suppress all the evidence res