State v. Todd DiMiceli

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 16, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1302-CR Cir. Ct. No. 2018CF91

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TODD DIMICELI,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dodge County:
MARTIN J. DE VRIES, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.

¶1 GRAHAM, J. Todd DiMiceli appeals a judgment of conviction for
two counts of possession of child pornography. He argues that the circuit court
erroneously denied his motion to suppress evidence derived from a court-ordered
subpoena for records from his internet service provider. Specifically, DiMiceli
No. 2020AP1302-CR

contends that the evidence should be suppressed because law enforcement did not
serve the subpoena within five days as required by WIS. STAT. § 968.375(6)
(2019-20).1 We conclude that, under the circumstances, law enforcement’s
noncompliance with § 968.375(6) was a technical irregularity or error, and that it
did not affect DiMiceli’s substantial rights. Therefore, based on § 968.375(12),
we affirm the circuit court.

BACKGROUND

¶2 This appeal arises out of an investigation conducted by the
Wisconsin Department of Justice (the Department) into the sharing of child
pornography over peer-to-peer networks. The pertinent facts are not in dispute.

¶3 On September 4, 2015, a Department agent downloaded four files
containing what the agent believed to be child pornography from a specific IP
address, thereby identifying that IP address as a potential source of child
pornography.2 The agent determined that the IP address was registered to Charter
Communications.

¶4 On October 23, 2015, the Department secured a court-ordered
subpoena under WIS. STAT. § 968.375. Although the subpoena was not made part

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
An IP address is a “‘unique address that identifies a device on the Internet.’” State v.
Baric, 2018 WI App 63, ¶4, 384 Wis. 2d 359, 919 N.W.2d 221 (quoted source omitted). Internet
service providers maintain records of IP addresses assigned to their subscribers. See United
States v. Christie, 624 F.3d 558, 563 (3d Cir. 2010).

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of the record on appeal, the parties generally agree on its contents. 3 The subpoena
ordered Charter to provide, among other things, IP assignment logs for the IP
address on the date that the agent downloaded the files from that address,
including the subscriber’s name and service address. Pursuant to § 968.375(6), the
circuit court ordered the Department to serve the subpoena within five days.

¶5 On November 2, 2015—nine calendar days after the circuit court
issued the subpoena—the agent sent it to Charter’s legal department by facsimile
transmission. The following day, Charter provided DiMiceli’s name, among other
things, and identified the service address as that of DiMiceli’s residence in
Hustisford, Wisconsin.

¶6 After further investigation, the Department obtained a warrant to
search the premises of the Hustisford residence and seize items that may contain
evidence of child pornography. The warrant application identified DiMiceli’s
name and address, which was information obtained through the subpoena for
Charter’s records. The search of DiMiceli’s residence resulted in the seizure of
hard drives, computers, and other devices, which were subsequently searched
pursuant to a second warrant. The Department found additional images of child
pornography on those devices.

3
In his appellate briefing, DiMiceli’s counsel includes citations to materials that are
contained in the appendix but not in the record. This practice violates the Rules of Appellate
Procedure. WISCONSIN STAT. § 809.19(1)(e) requires citations to the parts of the record that are
relied on in the argument section of the brief. The appendix is not the record, United Rentals,
Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322, and we do
not consider any materials not in the record, South Carolina Equip., Inc. v. Sheedy, 120 Wis. 2d
119, 125-26, 353 N.W.2d 63 (Ct. App. 1984). We caution counsel not to ask us to consider
materials that are not in the record.

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No. 2020AP1302-CR

¶7 DiMiceli was charged with six counts of possession of child
pornography. DiMiceli filed a motion seeking to suppress all evidence derived
from the untimely served subpoena. The circuit court denied the motion.
DiMiceli then pled guilty to two of the counts pursuant to a plea agreement,4 and
he now appeals the judgment of conviction based on the denial of his suppression
motion.

DISCUSSION

¶8 WISCONSIN STAT. § 968.375 provides statutory authority and
requirements for court-issued subpoenas and warrants that are directed at persons
who provide electronic communication or remote computing services and that
compel the disclosure of information about their subscribers. At issue in this
appeal is the proper interpretation and application of this statute—a question of
law that we review de novo. Rechsteiner v. Hazelden, 2008 WI 97, ¶26, 313 Wis.
2d 542, 753 N.W.2d 496. Statutory interpretation “begins with the language of the
statute,” and “[s]tatutory language is given its common, ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” State ex rel. Kalal v. Circuit Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

¶9 Under WIS. STAT. § 968.375(2)(a), upon a showing of probable
cause, a judge may issue a subpoena requiring an electronic communication or
remote computing services provider to disclose information, including a

4
The other counts were dismissed but read in for sentencing purposes. See Austin v.
State, 49 Wis. 2d 727, 732, 183 N.W.2d 56 (1971) (describing Wisconsin’s read-in procedure).

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No. 2020AP1302-CR

subscriber’s name and address.5 Section 968.375(6) sets forth a deadline for
serving such subpoenas: “A subpoena or warrant issued under this section shall be
served not more than 5 days after the date of issuance.” In this case, it is
undisputed that the subpoena requiring the disclosure of DiMiceli’s subscriber
information was supported by probable cause as required by § 968.375(2)(a). It is
also undisputed that the Department did not comply with § 968.375(6)’s five-day
service deadline, and that it served the subpoena after the deadline had already
passed.6

¶10 In some circumstances, evidence may be suppressed as a remedy for
noncompliance with statutory requirements. State v. Popenhagen, 2008 WI 55,
¶¶12, 13 & n.10, 57-61, 309 Wis. 2d 601, 749 N.W.2d 611. But not every
violation of a warrant or subpoena statute will result in the suppression of
evidence. State v. Sveum, 2010 WI 92, ¶¶57-58, 328 Wis. 2d 369, 787 N.W.2d
317; State v. Raflik, 2001 WI 129, ¶15, 248 Wis. 2d 593, 636 N.W.2d 690; State
v. Elam, 68 Wis. 2d 614, 620, 229 N.W.2d 664 (1975). The question in this
appeal is whether DiMiceli is entitled to suppression of the evidence derived from

5
Specifically, WIS. STAT. § 968.375(2)(a) provides:

Upon the request of the attorney general or a district attorney and
upon a showing of probable cause, a judge may issue a subpoena
requiring a person who provides electronic communication
service or remote computing service to disclose within a
reasonable time that is established in the subpoena a record or
other information pertaining to a subscriber or customer of the
service, including any of the following relating to the subscriber
or customer: 1. Name. 2. Address. ….
6
The parties appear to agree that the Department served the subpoena four days late.
We are not certain that this is accurate, see WIS. STAT. § 801.15(1)(b) (discussing how deadlines
imposed by court orders are computed), but we need not further address the proper calculation
because we agree with the ultimate conclusion that service was late.

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No. 2020AP1302-CR

the subpoena of Charter’s records due to the Department’s noncompliance with
WIS. STAT. § 968.375(6).7

¶11 The answer is found in WIS. STAT. § 968.375(12). That subsection
provides: “Evidence 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.” The resolution of this appeal
turns on the interpretation and application of subsection (12).

¶12 In its briefing, the State tends to refer to the Department’s
noncompliance with WIS. STAT. § 968.375(6)’s five-day service deadline as an
“irregularity” and DiMiceli tends to refer to it as an “error,” but the parties do not
identify any meaningful difference between those terms. Regardless of whether
we consider the Department’s noncompliance with the statutory deadline to be an
“irregularity” or an “error,” subsection (12) prohibits suppression when two
conditions are met: the irregularity or error is “technical,” and it did not “affect[]
the substantial rights of the defendant.”8 Thus, in applying subsection (12), we
7
DiMiceli devotes a significant portion of his appellate briefing to the legislature’s use
of the word “shall” in WIS. STAT. § 968.375(6) and whether its five-day service requirement is
“mandatory” or “directive.” DiMiceli addresses this point because the circuit court relied in part
on its conclusion that the term “shall” is directory when it denied the motion to suppress. We
agree with DiMiceli that the word “shall” is presumed to be mandatory, and we see no reason to
depart from that presumption here. See Scanlon v. City of Menasha, 16 Wis. 2d 437, 443, 114
N.W.2d 791 (1962) (“The general rule is that the word ‘shall’ is presumed mandatory when it
appears in a statute.”).

However, as the State points out, applying the presumption does not answer the question
we have just articulated—whether the violation of WIS. STAT. § 968.375(6) means that DiMiceli
is entitled to suppression of evidence derived from the subpoena. It is our answer to that question
that is dispositive. See Glendenning’s Limestone & Ready-Mix Co., Inc. v. Reimer, 2006 WI
App 161, ¶14, 295 Wis. 2d 556, 721 N.W.2d 704 (appellate courts can uphold a decision on
grounds other than those stated by the circuit court).
8
Although the parties do not address this specific point, we note that the placement of
the word “or” makes the language of WIS. STAT. § 968.375(12) subject to ambiguity. Subsection
(continued)

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No. 2020AP1302-CR

must determine what is meant for an irregularity or error to be “technical” and also
what is meant for the irregularity or error to “affect” a person’s “substantial
rights.”

¶13 Our precedent is replete with examples of Wisconsin courts
considering whether evidence should be suppressed as a result of an irregularity or
error relating to a search warrant. Some decisions are grounded in a conclusion
that the irregularity or error was “technical,” others explain that it did not “affect”
the defendant’s “substantial rights,” yet others explain that it did not “prejudice”
the defendant, and some Wisconsin cases cite all of these grounds as a basis for
declining to suppress evidence.9 However, the analysis in these cases is thin, and

(12) could prohibit suppression on grounds of any “technical irregularities” or any “errors not
affecting [the defendant’s] substantial rights.” Alternatively, the word “technical” could modify
both “irregularities” and “errors,” so that sub. (12) prohibits suppression if any “irregularities or
errors” were “technical” and did not “affect[] [the defendant’s] substantial rights. We do not
resolve any ambiguity and assume, without deciding, that “technical” modifies both “irregularity”
and “error” in this statutory subsection.
9
See, e.g., State v. Sveum, 2010 WI 92, ¶¶57, 58, 328 Wis. 2d 369, 787 N.W.2d 317
(explaining that evidence obtained in violation of a statute need not be suppressed unless the
violation was “material” or “prejudiced the defendant or affected the defendant’s substantial
rights,” and determining that statutory violations including the officers’ failure to return a warrant
for GPS tracking within five days of issuance were “mere ‘technical irregularities’” as that term is
used in WIS. STAT. § 968.22); State v. Elam, 68 Wis. 2d 614, 620, 229 N.W.2d 664 (1975)
(determining that a delay in the filing of a transcript in support of the issuance of a warrant, a
“technical” violation, did not “prejudice” the defendant who had ample time to study it before an
upcoming hearing); State v. Raflik, 2001 WI 129, ¶¶1, 52, 248 Wis. 2d 593, 636 N.W.2d 690
(determining that a failure to record telephonic testimony in support of a warrant application did
not warrant suppression because the record was promptly reconstructed, but noting that the failure
to record such testimony could “significantly prejudice[]” a defendant and reconstruction might
not always “be sufficient to protect the defendant’s rights”); State v. Nicholson, 174 Wis. 2d 542,
545, 497 N.W.2d 791 (Ct. App. 1993) (determining that an incorrect address on a warrant was a
defect that did not “affect any substantial right” of the defendant when the warrant otherwise
described the correct place to be searched and the officers searched the correct place). Cf. State v.
Tye, 2001 WI 124, ¶¶17-19, 248 Wis. 2d 530, 636 N.W.2d 473 (determining that an affiant’s
failure to swear an oath or affirmation in support of a warrant was not a “technical irregularity”
and that the failure affected Tye’s “fundamental right[s]”).

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No. 2020AP1302-CR

the cases do not provide any clear guidance on the meaning of the key statutory
terms or any consistent framework for determining whether an irregularity or error
was technical and whether it affected a defendant’s substantial rights.10

¶14 DiMiceli cites to Jadair Inc. v. U.S. Fire Insurance Co., 209 Wis.
2d 187, 562 N.W.2d 401 (1997), a civil case that provides helpful guidance. We
note that in Jadair the question about statutory violations arose in a different
context—the question was whether a defective notice of appeal invoked the
jurisdiction of the court, not whether evidence gathered pursuant to a court order
should be suppressed. Id. at 207-08. Nevertheless, despite the differences in
context, Jadair provides helpful guidance on what it means for a statutory
violation to be “technical,” see id. at 207-08, and cases following Jadair provide
helpful guidance on what it means for a violation to “affect” a defendant’s
“substantial rights,” see State v. Gautschi, 2000 WI App 274, ¶15, 240 Wis. 2d
83, 622 N.W.2d 24.

¶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

10
DiMiceli relies on State v. Popenhagen, 2008 WI 55, 57-61, 309 Wis. 2d 601, 749
N.W.2d 611, but that case addressed a different issue. The issue in Popenhagen was whether,
absent a constitutional violation, a circuit court could suppress evidence obtained pursuant to a
non-compliant statutory subpoena when the statute in question was silent about whether
suppression was available as a remedy. Id., ¶¶34, 38. Here, by contrast, WIS. STAT. § 968.375 is
not silent on the availability of suppression as a remedy for statutory violations. As stated above,
the statute expressly provides that evidence disclosed pursuant to a subpoena issued under
§ 968.375 “shall not be suppressed” if the non-compliance was “technical” and did not affect
DiMiceli’s “substantial rights.” The Popenhagen court did not mention these terms, much less
discuss their meaning.

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No. 2020AP1302-CR

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.; Gautschi, 240
Wis. 2d 83, ¶15. 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.”); Evelyn C.R. v. Tykila S., 2001
WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768 (stating that, for an error to “affect
the substantial rights” of a party, “there must be a reasonable possibility that the
error contributed to the outcome of the action or proceeding”).

¶16 This framework from Jadair is consistent with—though
significantly more detailed than—the cases discussed above that use these same
terms in the suppression context. See supra note 9. Accordingly, Jadair provides
a helpful framework for our interpretation of the key terms in WIS. STAT.
§ 968.375(12) and for that statute’s application to the subpoena at issue in this
case.

I. The Department’s Noncompliance
Did Not Affect DiMiceli’s Substantial Rights

¶17 Although the Jadair court began by analyzing whether
noncompliance with a statutory requirement was technical, we begin with an
examination of whether the Department’s noncompliance with WIS. STAT.
§ 968.375(6) affected DiMiceli’s substantial rights. As stated above, the question
is whether DiMiceli was prejudiced by the noncompliance. Gautschi, 240 Wis. 2d
83, ¶15; see also Sveum, 328 Wis. 2d 369, ¶57.

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No. 2020AP1302-CR

¶18 DiMiceli does not identify any prejudice that he suffered as a result
of the Department’s noncompliance. Indeed, he appears to acknowledge, at least
implicitly, that the delay in service did not change the outcome of the
Department’s investigation.11

¶19 We agree. There is no reason to believe that Charter would not have
disclosed DiMiceli’s name and address if the Department had complied with the
service deadline in WIS. STAT. § 968.375(6). If the Department had served the
original subpoena within its five-day deadline, Charter would have produced
DiMiceli’s name and address in response. Likewise, had the Department
reapplied for a subpoena after the deadline passed, as DiMiceli suggests it should
have done, the subpoena would have been reissued and Charter would have
produced DiMiceli’s name and address. We also agree that it would have been
better practice for the Department to reapply for the subpoena upon realizing that
the deadline had passed. However, DiMiceli’s argument undermines any claim
that he was prejudiced by the noncompliance.

II. The Department’s Noncompliance
Was a Technical Irregularity or Error

¶20 Having determined that the noncompliance with the service deadline
did not affect DiMiceli’s substantial rights, we now examine whether the
irregularity or error was “technical” in nature. See WIS. STAT. § 968.375(12). As
we understand his argument, DiMiceli contends that noncompliance was

11
DiMiceli asserts that, in this case, “there would not have been any harm in considering
that subpoena void and obtaining a new one.” He asserts that “law enforcement could have re-
applied for a new subpoena” after the service deadline passed, and that it “would have been easy
… to obtain a new subpoena.”

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No. 2020AP1302-CR

fundamental rather than technical because the five-day service deadline is
mandatory, and because the statute was enacted to protect his privacy.12

¶21 “To determine whether a defect is technical or fundamental, we look
to the purpose of the statute, not just its wording.” Gautschi, 240 Wis. 2d 83, ¶11;
see also State v. Tye, 2001 WI 124, ¶¶17-19, 248 Wis. 2d 530, 636 N.W.2d 473.
An irregularity or error cannot be considered “technical” if it prevents the statute’s
purpose from being served. Jadair, 209 Wis. 2d at 208; Tye, 248 Wis. 2d 530,
¶¶17-19. In Tye, for example, the affiant failed to swear an oath or affirmation in
support of a warrant application, and our supreme court determined that it was not
a “technical irregularity” because the “purpose of an oath or affirmation is to
impress upon the swearing individual an appropriate sense of obligation to tell the
truth.” Tye, 248 Wis. 2d 530, ¶¶17-19.

¶22 DiMiceli argues that the overall purpose of WIS. STAT. § 968.375 is
to protect the information Charter maintained about him from unreasonable
government intrusion. To be sure, protecting subscribers from governmental
12
At times, DiMiceli appears to be arguing that he has a constitutionally protected
privacy interest in the information Charter maintained about his account. The State counters this
argument with citations to Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (holding that a
subscriber has no Fourth Amendment rights to information they voluntarily convey to third
parties) and other federal cases.

To support his assertion that he has a constitutionally protected privacy interest, DiMiceli
points to two paragraphs in a concurring opinion in Two Unnamed Petitioners v. Peterson, 2015
WI 85, ¶¶246-47, 363 Wis. 2d 1, 866 N.W. 2d 165 (Prosser, J., concurring). These paragraphs
are contained in a concurrence and did not garner the votes of a majority of the members of our
supreme court. Aside from his undeveloped and unpersuasive argument about Two Unnamed
Petitioners, DiMiceli does not support his argument with authority. We do not address it further
and do not decide the issue. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992) (we need not consider arguments that are inadequately supported by factual and legal
citations or are undeveloped); Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352
Wis. 2d 436, 842 N.W.2d 508 (“An appellate court need not address every issue raised by the
parties when one issue is dispositive.”).

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No. 2020AP1302-CR

intrusion into certain records absent a judicial determination of probable cause is
an evident purpose of § 968.375. Yet, that purpose was plainly fulfilled in this
case—as stated above, it is undisputed that the subpoena was issued by a judge
upon a showing of probable cause. DiMiceli’s sole complaint was that the
subpoena was served after § 968.375(6)’s deadline had already passed.

¶23 Turning to WIS. STAT. § 968.375(6)’s five-day service requirement,
DiMiceli suggests that its purpose is to ensure that the subpoena is served within
five days. Yet, this argument is tautological—of course on some level, the
purpose of any rule is to ensure that the rule is followed. It is appropriate to
examine the purpose of subsection (6) at a greater level of abstraction.

¶24 We find guidance about the purpose of the five-day service
requirement in State v. Edwards, 98 Wis. 2d. 367, 297 N.W.2d 12 (1980). In that
case, our supreme court considered WIS. STAT. § 968.15(1), a parallel provision in
the statutes that generally governs search warrants. Similar to WIS. STAT.
§ 968.375(6), § 968.15 provides that such warrants “must be executed and
returned not more than 5 days after the date of issuance.” Although the Edwards
court did not use the word “purpose” in its discussion, it explained that the statute
was meant to ensure prompt execution of warrants, which would “‘lessen the
possibility that the facts upon which probable cause was initially based do not
become dissipated.’” Id. at 372 (quoting United States v. Bedford, 519 F.2d 650,
655 (3d Cir. 1975)).

¶25 Consistent with Edwards, we conclude that the underlying purpose
of WIS. STAT. § 968.375(6)’s five-day service requirement is to ensure prompt
service so that a subpoena, which must be supported by probable cause at the time
it is issued, continues to be supported by probable cause at the time it is served. A

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No. 2020AP1302-CR

prompt service deadline furthers the underlying purpose of reducing the likelihood
that probable cause will dissipate—but the deadline is not in and of itself the
purpose of the statute.13

¶26 Here, DiMiceli makes no cogent argument that the probable cause
had dissipated at the time of the subpoena’s execution. He asserts that “something
like an IP address can change every time a router resets power,” but he does not
explain why this matters here, even if we assume his assertion is factually
accurate. It is undisputed that the subpoena required Charter to disclose the name
and address of the subscriber who was using a particular IP address on the specific
date that the Department’s agent downloaded suspected child pornography from
that IP address. As stated above, DiMiceli does not contest that there was
probable cause at the time the subpoena was issued, and he does not provide any
basis for concluding that Charter’s records of the user of that IP address on the
date in question would have changed in the nine calendar days between the
issuance and service of the subpoena.

13
Notably, unlike in WIS. STAT. § 968.15, the legislature did not specify that subpoenas
and warrants issued under WIS. STAT. § 968.375 are “void” if they are not served within the
statutory deadline. See § 968.15(2) (“Any search warrant not executed within the time provided
in sub. (1) shall be void and shall be returned to the judge issuing it.”).

To the extent that DiMiceli is arguing that the subpoena issued in this case was void as a
result of the untimely service, we reject that argument. Although WIS. STAT. § 968.375(6)
appears to have been modeled in part on provisions from WIS. STAT. § 968.15, the legislature’s
omission of a provision in § 968.375 voiding untimely served subpoenas appears to have been
deliberate. See Milwaukee J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶36, 341 Wis. 2d 607,
815 N.W.2d 367 (the legislature’s omission of language may reflect an intentional choice); see
also State v. Pinder, 2018 WI 106, ¶¶1-2, 37, 384 Wis. 2d 416, 919 N.W.2d 568 (concluding that
warrants for documents that are not “under the control of a person ... suspected ... in the
commission of [a] crime” are not subject to the service and voiding provisions of § 968.15).

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No. 2020AP1302-CR

¶27 Finally, we are not persuaded by DiMiceli’s reliance on
Popenhagen, 309 Wis. 2d 601, to support an argument that noncompliance with
the service deadline rendered the statutory protections meaningless. In
Popenhagen, the State obtained bank documents needed to support a criminal case
using subpoenas issued under WIS. STAT. § 805.07, a civil subpoena statute that
does not require a showing of probable cause. Id., ¶8. The parties agreed that the
State should have instead followed the procedure in WIS. STAT. § 968.135, which
does require a judicial determination of probable cause. Id., ¶10. The
Popenhagen court determined that the circuit court properly suppressed the
evidence derived from the subpoena because the State did not satisfy the probable
cause requirement, rendering it meaningless. Id., ¶61. In contrast to Popenhagen,
DiMiceli’s case is not one in which the State disregarded the process in WIS.
STAT. § 968.375 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, as discussed above, 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.

¶28 In sum, although the late service of the subpoena undeniably
violated WIS. STAT. § 968.375(6), the underlying purpose of this statute was
fulfilled. Accordingly, we conclude that the irregularity or error in this case was
not a “fundamental error,” as DiMiceli suggests, but was rather a technical
irregularity or error within the meaning of § 968.375(12).

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No. 2020AP1302-CR

CONCLUSION

¶29 For all these reasons, we conclude that, based on WIS. STAT.
§ 968.375(12), the circuit court properly denied DiMiceli’s motion to suppress
evidence derived from the subpoena.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

15