Criminal Procedure

Global Positioning System (GPS) Search Warrants – Validity – Requirements

State v. Pinder, 2018 WI 106 (filed 16 Nov. 2018)

HOLDINGS: 1) Statutory search warrant requirements do not apply to GPS warrants. 2) The warrant authorizing GPS tracking in this case satisfied both the Warrant Clause and the Reasonableness Clause of the Fourth Amendment.

SUMMARY: Police developed evidence that the defendant was involved in several burglaries of businesses in Mequon. They obtained a warrant (an “order”) to covertly install a GPS tracking device on the defendant’s vehicle and then monitor the device. The warrant did not require the police to install the GPS tracking device within a certain time period but mandated that the tracking device be removed “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” (¶ 8).

Ten days after the warrant was signed, police officers installed the tracking device on the defendant’s vehicle. Five days after that, the police department received an alert that the vehicle had entered the department’s jurisdiction and had stopped at a particular business office complex there. When responding officers arrived, they found that one of the offices had already been broken into. Officers stopped the defendant’s vehicle and found items stolen from the business inside. The officers arrested the defendant and an accomplice.

The defendant moved to suppress the evidence obtained as a result of the warrant. He argued that the “order” obtained from the judge was not a search warrant and, even if it were, it was not executed in compliance with Wisconsin’s search warrant statutes that are codified in Wis. Stat. chapter 968. These statutes require execution and return of the warrant within five days after issuance (Wis. Stat. section 968.15) and return of the warrant within 48 hours after the warrant is executed (Wis. Stat. section 968.17).

The circuit court denied the motion to suppress, and the defendant was convicted of burglary and possession of burglarious tools. His appeal was certified by the court of appeals to the supreme court, which granted certification. In a majority opinion authored by Justice Ziegler, the supreme court affirmed.

The supreme court concluded that “the plain meaning of Wis. Stat. §§ 968.12(1) and 968.13 foreclose the argument that GPS warrants must comport with Wisconsin Statutes Chapter 968. Those statutes clearly do not apply to GPS warrants, and therefore GPS warrants are not subject to the requirements of Wis. Stat. §§ 968.15 or 968.17(1)” (¶ 42). The court further concluded that a warrant for GPS tracking “is not issued pursuant to statute, but instead is issued pursuant to the court’s inherent authority and thus, must comply only with the Fourth Amendment” and its Wisconsin counterpart (¶ 2).

The Fourth Amendment’s Warrant Clause demands that all warrants be validly issued; its Reasonableness Clause requires that warrants be reasonably executed (see ¶ 46). In this case the tracking warrant satisfied the Warrant Clause inasmuch as it was issued by a neutral and detached magistrate, was based on probable cause, was supported by oath or affirmation, and contained a particularized description of the place to be searched and items to be seized.

“In the context of GPS warrants, this [last] requirement is satisfied when ‘a warrant application … “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”’” (¶ 51) (citation omitted).

Further, the court concluded that the tracking warrant was reasonably executed. Among other things the court noted that the execution of the warrant “was well within the confines of the authority granted by the warrant and did not violate any of the … restrictions [placed on the warrant by the issuing judge]” (¶ 54). Second, the defendant did not establish dissipation of probable cause (see ¶ 55).

Finally, the installation and monitoring of the GPS tracking device were reasonable under the totality of the circumstances. “The warrant was obtained, installed, and monitored in compliance with the court order. The GPS tracking device in this case was in use for only six days, and the surveillance was stopped the same day as the Mequon Police Department obtained evidence that Pinder had committed a burglary of a suite of offices, found stolen items from the suite of offices in his car, and determined the identity of one of his potential criminal associates” (¶ 56).

Justice Kelly filed a concurring opinion that was joined in by Justice R.G. Bradley.

Searches – Consent – Exigent Circumstances

State v. Reed, 2018 WI 109 (filed 7 Dec. 2018)

HOLDING: Neither consent nor exigent circumstances justified a police officer’s warrantless entry into an apartment.

SUMMARY: A police officer entered an apartment and found a small amount of marijuana in the defendant’s possession. She was charged with misdemeanors. The circuit court denied her motion to suppress the evidence, concluding that consent and exigent circumstances justified the officer’s warrantless entry into the apartment. The court of appeals affirmed in an unpublished opinion. The supreme court reversed in a majority opinion authored by Justice Abrahamson.

Police were dispatched to a call that involved a dispute over shoes (and little else). The supreme court’s opinion recounts the facts in great detail, from the officer’s initial “investigation” on the street through his recovery of the evidence in the defendant’s apartment. The key issue concerned the legality of the officer’s entry into the apartment. The officer walked from the street scene to the defendant’s apartment accompanied by a person named Sullivan, who resided there, too. Upon arriving at the door to the apartment, Sullivan entered and then promptly closed the door most of the way before the officer pushed it open, entered the apartment, and picked up the drugs.

The court held that the officer lacked consent to enter the apartment. Consent may be verbal or shown by conduct. Sullivan had “acquiesced” to the officer’s questions and requests up to that point, but the record showed nothing to indicate that Sullivan had voluntarily allowed the officer to enter the apartment (¶ 61). Indeed, Sullivan’s act of “attempting to shut the apartment door in Officer’s Keller’s face” belied consent to enter (¶ 65). Moreover, this same act of shutting the door in the officer’s face would have manifested “withdrawn consent” had Sullivan been found to have granted it initially (he did not) (¶ 73). Finally, the court held that there were no exigent circumstances that justified the entry irrespective of consent (see ¶¶ 84, 92).

Justice Ziegler concurred in the “result” but wrote separately to raise questions about the breadth of the majority’s holding (for example, consent must be “unequivocal”) and whether it sounds in the Wisconsin Constitution to the extent it departs from controlling federal precedent (see ¶ 103).

Chief Justice Roggensack dissented on grounds that the circuit court had properly found consent as a historic fact, which was further supported by the totality of the circumstances (see ¶ 111).