Criminal Procedure
Search and Seizure – GPS Tracking Device Installed on Vehicle
State v. Brereton, 2013 WI 17 (filed 6 Feb. 2013)
Holding: Seizure of the defendant’s vehicle and the installation of a GPS tracking device on it pursuant to a court order did not violate the defendant’s Fourth Amendment rights. The GPS technology used by law enforcement officers did not exceed the scope of the warrant allowing GPS tracking of the defendant’s vehicle.
Summary: The Walworth County Circuit Court denied defendant Brereton’s motion to suppress evidence obtained through monitoring by a global positioning system (GPS) device installed on Brereton’s vehicle. The installation of the device and monitoring of Brereton’s vehicle were accomplished pursuant to a court order of a type that has been determined to constitute a warrant for Fourth Amendment purposes. See State v. Sveum, 2010 WI 92, 328 Wis. 2d 369, 787 N.W.2d 317.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
Brereton did not allege that the use of GPS was per se unreasonable. Rather, he claimed that law enforcement officers lacked probable cause to seize his vehicle and move it to another location at which a GPS device could be safely installed. Therefore, he contended, the subsequent installation and monitoring of the GPS device constituted a violation of the Fourth Amendment’s prohibition of unreasonable seizures. Additionally, Brereton claimed that the GPS tracking of his vehicle used more advanced technology than was contemplated under the warrant, thereby effecting an unreasonable search through the execution of the warrant (see ¶ 1).
In a published decision, the court of appeals affirmed the circuit court order denying the motion to suppress. See 2011 WI App 127. In a majority decision authored by Justice Roggensack, the supreme court affirmed the court of appeals.
The supreme court concluded that the seizure of Brereton’s vehicle was supported by probable cause that the vehicle was evidence of a crime or that it contained such evidence of a crime, and therefore that the seizure was permissible under the Fourth Amendment. “The seizure was supported by witnesses’ reports that a car matching the make, model, and license plate number of that particular vehicle had been seen at the locations of recent burglaries in the area. Additionally, after officers lawfully stopped Brereton and his co-defendant … in the suspect vehicle, they discovered that the vehicle identification number (VIN) did not match the license plate, and that the occupants of the vehicle were notably similar to the two men seen at multiple recent burglaries. Accordingly, the three-hour seizure of Brereton’s vehicle, whereby officers were able to install the GPS device [after towing the vehicle to an impound lot], did not constitute an unreasonable seizure under the Fourth Amendment, as applied to automobiles” (¶ 2).
The court further found that, in light of Brereton’s Fourth Amendment interest in avoiding governmental usurpation of his property for the purpose of conducting surveillance on him, the officers’ decision to obtain a warrant before conducting the GPS search was proper. “[W]e … recognize that the decision to install a GPS device on Brereton’s car required officers to obtain a warrant because the use of a GPS constituted a search that extended beyond the scope of the automobile exception for warrantless searches” (¶ 43).
Finally, the court concluded that “the technology used in conducting the GPS search did not exceed the scope of the warrant allowing GPS tracking of Brereton’s vehicle. [The circuit court judge] issued the warrant based on the probable cause set forth through the facts recited in a detective’s affidavit. The affidavit and warrant’s language contemplated the installation of a GPS device that would track the vehicle’s movements. That the device provided officers with real-time updates of those movements did not alter the kind of information to be obtained under the warrant, or the nature of the intrusion allowed. Therefore, the officers’ execution of the warrant was not unreasonable” (¶ 56).
Chief Justice Abrahamson filed a dissenting opinion.
