Nov. 20, 2018 – The Wisconsin Supreme Court has unanimously upheld a search warrant for the placement of a global positioning system (GPS) tracking device on a car, even though the warrant was not executed within five days under a state statute.

Wis. Stat. section 968.15 says “a search warrant must be executed and returned not more than 5 days after the date of issuance.” In 2015, after multiple businesses were burglarized in Mequon, police received tips on a possible suspect, Johnny Pinder.

A detective applied for a search warrant to place a hidden GPS tracking device on Pinder’s vehicle for not more than 60 days “from the date the order is signed.” A judge in Ozaukee County granted the search warrant, based on the information provided.

The warrant did not require the GPS device to be executed within a certain time period, and the police installed the tracking device 10 days after the judge signed the order. Five days later, the GPS device pinged Pinder’s location at a business park in Mequon.

Officers pinched Pinder on the subsequent burglary that took place there. He was charged with burglary and possession of burglarious tools. Pinder moved to suppress all evidence obtained as a result of GPS tracking, arguing the search warrant was invalid.

The circuit court judge denied the motion, and a jury ultimately found Pinder guilty on both counts. He was sentenced to six years in prison, with two years extended supervision. Pinder’s postconviction motion for relief was denied, and he appealed.

The Wisconsin Court of Appeals certified the case to the Wisconsin Supreme Court to determine whether the search warrant to secretly plant the tracking device was void because it was not executed within five days, under section 968.15.

In State v. Pinder, 2018 WI 106 (Nov. 16, 2018), the supreme court unanimously concluded that a search warrant for placement of a GPS tracking device is still valid if not executed within five days “if the search was otherwise reasonably conducted.”

Justice Annette Ziegler, in a majority opinion, explained that the five-day rule applies to warrants that contemplate the seizure of property, such as documents or electronic data. “A GPS tracking device does not seize property,” Ziegler wrote, “it creates data.”

Justice Ziegler said section 968.13 specifically defines the property that may be seized, and it does not include information generated from a GPS tracking device.

“Such a warrant for GPS tracking is not issued pursuant to a statute, but instead is issued pursuant to the court’s inherent authority and thus, must comply only with” the Fourth Amendment to the U.S. Constitution and the Wisconsin Constitution.

“Because the GPS warrant in the case was otherwise constitutionally sufficient, the evidence obtained as a result of the warrant is not subject to suppression.”

Pinder argued that the GPS tracking device does seize property in the form of documents that reflect electronic data concerning a vehicle’s whereabouts.

“Pinder’s argument, however, fails because a document/electronic data is not even in existence at the time the GPS unit is installed,” Justice Ziegler wrote.

“Moreover, this not-yet-created information could not possibly be ‘under the control of’ Pinder so to be seized from him,” Justice Ziegler continued. “GPS tracking devices may create data in the future, but that data is not under the control of Pinder.”

The search warrant was valid, Justice Ziegler explained, because it complied with the Fourth Amendment’s Warrant Clause: it was issued by a detached and neutral magistrate, it was based on probable cause, and it described the particulars of the GPS tracking, including the vehicle to be tracked and the duration of the surveillance.

Concurrence

Justice Daniel Kelly wrote a concurring opinion, joined by Justice Rebecca Bradley. They joined the majority opinion except to the extent that it urged the legislature to consider enacting specific provisions with respect to GPS warrants.

“As a general rule, I think it is inappropriate for the judiciary to request the legislature to legislate,” wrote Justice Kelly, noting this is the court’s third request for a GPS statute.

“And in this specific instance, I think we would have been wise to heed the old proverb that one should be careful about one’s wishes, because they just might be granted.”

He said it’s not the judiciary’s role to “opine on the wisdom of any given policy, or even its absence,” since the people have entrusted public policy to the legislative branch.