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Court of appeals sees no ineffective assistance in not challenging phone-tracking warrant

State v. Brinkley L. Bridges, 2017AP2311-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Bridges pled to five felonies involving guns and drugs; the evidence against him was derived, in part, from a warrant police had obtained allowing them to track his cell phone. He argues counsel was ineffective for not challenging that warrant because the application didn’t show probable cause.

He raises this claim two ways: he first argues that a warrant application to track a cell phone, if it’s based on information from a confidential informant, must include statements from that informant tying the phone directly to the criminal activity. He also submits that, independent of any such rule, there was just not enough there to issue the warrant.

For the first claim, Bridges relies on two federal trial court cases: United States v. Powell, 943 F. Supp. 2d 759, 783 (E.D. Mich. 2013), aff’d, 847 F.3d 760 (6th Cir. 2017), and United States v. Moore, No. 15-116, unpublished slip op. at 8 (D. Minn. Dec. 15, 2015).

The court of appeals, though, says the two opinions are “neither well-reasoned nor precedential” and goes on to hold that the probable cause standard

cannot be reconciled with the per se rule for which Bridges argues: that probable cause for purposes of WIS. STAT. § 968.373 cannot be established without an explicit statement of an affiant’s personal knowledge of a cell phone’s use in criminal activity. Under the statute, the affidavit must establish probable cause that “tracking the communications device will yield information relevant to an ongoing criminal investigation.” See § 968.373.Probable cause—a “fair probability” that relevant evidence will be found in a particular place—must be established by sufficient evidence set forth in the affidavit, but neither the probable cause standard nor the statute demands that an affiant or witness must personally witness the phone being used in criminal activity. See id.

(¶14).

As to the more general argument about probable cause, the court finds there was ample reason to believe tracking the phone would reveal evidence of drug dealing. Agents confirmed some of the things the CI had told them: Bridges’ phone number, car, residence, and employment. And

the “linkage” evidence created more than a fair probability, viewed objectively, under the totality of the circumstances review, that tracking this cell phone would yield  information relevant to Bridges’ drug dealing. See Multaler, 252 Wis. 2d 54, ¶8. In the January 2015 warrant application, the DEA special agent, swore that a confidential informant advised police of Bridges’ cell phone number, which police then independently corroborated. The informant advised that Bridges was dealing heroin and traveled to Chicago every three weeks to procure a kilogram of heroin and sometimes cocaine to sell in Milwaukee, and the informant knew this because he or she had participated in many of these transactions and had received a half kilogram of heroin in the transactions. The affiant averred that with a warrant the police could obtain information from the phone that would be relevant to the drug trafficking investigation based on the officers’ experience that cell phones are used to set up the purchases and sales. This evidence showed at least a fair probability that the phone would show evidence of criminal drug dealing.

(¶15).

 

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