WisBar News: Warrant to Track Suspect’s Cell Phone Met Constitutional Requirements:

Sept. 9, 2014 – In the second of two recent cases involving cell phone tracking by police, the Wisconsin Supreme Court has ruled that a warrant order allowing police to track a suspect’s cell phone met state and federal constitutional requirements.

In State v. Tate, 2014 WI 89 (July 24, 2014), a 5-2 majority also ruled that a circuit court magistrate in Milwaukee County did not need “specific statutory authorization” to issue the cell phone tracking order because the order was supported by probable cause.

In June 2009, Milwaukee police responded to a potential murder. They found a victim dead with a gunshot wound to the head. Another victim sustained injuries from a gunshot wound to the ankle. Witness statements implicated Bobby Tate as the shooter.

Tate had purchased a prepaid cell phone from a cell phone store before immediately shooting the victims outside the store. Thus, police were able to obtain information about the phone that Tate purchased, including the number assigned to the phone.

The assistant district attorney, based on the information, applied for an order that would allow police to track Tate’s cell phone through cell site information and a stingray, which together triangulate a phone’s approximate location in the absence of a GPS.

In addition, the order allowed installation of a pen register on a law enforcement vehicle to record and decode the numbers dialed or transmitted through Tate’s cell phone. The pen register allows police to locate the phone when calls are made from that phone.

A magistrate granted the order, and police immediately used the technology to narrow Tate’s location to an apartment building. Police searched several apartments before finding Tate, who was asleep in the back bedroom of his mother’s apartment.

Tate was wearing the same clothes described by witnesses and as seen through surveillance footage. Blood also appeared on Tate’s shoes and his cell phone. Police arrested Tate for first-degree intentional homicide, and he moved to suppress evidence.

After the circuit court denied Tate’s motion to suppress, he pled no contest to first-degree reckless homicide. The court of appeals affirmed the lower court’s rulings.

Majority Rules

A supreme court majority affirmed the appeals court. The majority assumed without deciding that the police activities constituted a “search” and the search required a warrant under the constitutional provisions that protect against unreasonable searches.

Under those assumptions, the majority ruled that the “searches” passed constitutional muster under the Fourth Amendment and the Wisconsin Constitution (Art. 1, section 2).

Warrants, the majority explained, must be issued by a detached and neutral magistrate and there must be an oath or affirmation that probable cause exists to issue the warrant. The warrant must also give a particularized description of the place to be searched.

The majority rejected Tate’s argument that there was not sufficient probable cause, and the warrant did not specify a particular location to be searched.

“[B]oth the [U.S.] Supreme Court and this court have upheld searches involving tracking devices despite the impossibility of describing the exact place to be searched by a traditional description, such as a street address,” wrote Justice Patience Roggensack.

“Second, we disagree with Tate’s argument that since there was no physical installation of the tracking device on Tate’s property in this case … the order does not satisfy the particularity requirement,” Justice Roggensack wrote for the 5-2 majority.

The majority also rejected Tate’s argument that the magistrate needed specific statutory authority to issue the warrant for cell site information, noting that under Wis. Stat. section 968.12(1), no specific statutory authority is necessary so long as there is a probable cause to believe the suspect has committed a crime.

Using the technology to locate Tate’s cell phone was a reasonable search, the majority explained. But Justice Roggensack noted that when law enforcement wants cell site information, it is seeking documents in the hands of a third-party service provider.

“When law enforcement wants to compel a third party to turn over documents, it can proceed to obtain an order to that effect, pursuant to Wis. Stat. § 968.135,” she wrote. That provision requires a subpoena to compel production of the documents.

Dissent

Chief Justice Shirley Abrahamson wrote a 48-page dissent, joined in part by Justice Ann Walsh Bradley. The chief justice said access to cell phone location data is a “search” requiring a warrant, and the warrant obtained in Tate’s case was invalid.

Specifically, Chief Justice argued that the warrant in Tate “failed to comply with almost all of the statutory requirements on the subpoena statute,” section 986.135, “which clearly governs the fact situation in Tate.”

The chief justice noted that the majority side-stepped the issue of whether government access to cell phone location data is a “search” by assuming without deciding.

“Rather than dance around the issue … I propose that the court address it head-on,” noting that the majority did the same thing in a similar case involving GPS data.