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Search and seizure – order for real-time cell phone location tracking

State v. Bobby L. Tate, 2012AP336-CR, District 1, 12/27/12;  court of appeals decision (not recommended for publication), petition for review granted 6/12/13; case activity

Order allowing police to track the current location of cell phone upheld, rejecting Tate’s argument that it constituted an illegal search warrant:

¶8        The heart of Tate’s argument on appeal is that the order authorizing the tracking of Tate’s phone to find its location was invalid under Wis. Stat. § 968.13 (2009-10) and multiple other federal and state statutes because the relevant statutes do not authorize courts to issue orders for location data when location is not itself evidence of a crime. ….

¶9        We conclude that under this set of facts, the issue before us is simply whether there was probable cause for the issuance of the tracking order.  The warrant clause of the Fourth Amendment “require[s] only three things:  (1) prior authorization by a neutral, detached magistrate; (2) a demonstration upon oath or affirmation that there is probable cause to believe that evidence sought will aid in a particular conviction for a particular offense; and (3) a particularized description of the place to be searched and items to be seized.” State v. Sveum, 2010 WI 92, ¶20, 328 Wis. 2d 369, 787 N.W.2d 317.  The only issue relevant to this appeal is whether there was probable cause to believe that location data obtained from Tate’s phone would lead to evidence of the crime of homicide described by witnesses and shown on the surveillance videos.

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¶12      [Detective] Pajot provided a detailed affidavit describing the contents of the surveillance video, which showed the shooter both purchase a cell phone at Mother’s Food Market and then shoot the victim outside of the store.  Pajot also reported witness descriptions of the shooter and the shooter’s clothing.  The affidavit explained Pajot’s knowledge of cell tower technology, the manner in which locations are traced, and his belief that, based on his knowledge and experience, the location of the shooter’s phone would probably lead to evidence of the crimeof firstdegree intentional homicide.

¶13      Under the totality of the circumstances, we conclude that there were sufficient facts for the warrantissuing judge to believe that the location data from Tate’s phone would probably lead to evidence of the shooting, Tate’s clothing, the weapon, and ultimately, Tate himself.  The phone was evidence that could help to identify the shooter.  See Warden v. Hayden, 387 U.S. 294, 307 (1967).

The court also rejects Tate’s argument that because his phone was located in a private residence, his Fourth Amendment right to reasonable expectation of privacy was also violated:

¶14      Tate contends that the use of tracking devices violated his right to privacy because his phone was tracked to his private residence. However, the location of the phone was narrowed down to an apartment building, not to his individual apartment.  Police knocked on the doors of multiple units prior to knocking on Tate’s mother’s door.  The circuit court found that Tate’s mother consented to the entry of her apartment.  No violation of Tate’s Fourth Amendment privacy rights occurred when police located and entered his mother’s apartment with her permission….

As hinted at in the court’s summary description of the “heart” of Tate’s argument, ¶8, the main issue raised and briefed is statutory authority of a court to order a cell phone service provider to disclose real-time cell site location information for a particular cell phone to track that phone and, in turn, the person in possession of the phone. Over the last several years there has been an upsurge of litigation in other courts about police power to collect cell phone location data collection of both current, real-time data, and historical data showing where the phone has been. The resulting issues include whether: police even need a warrant or order; an order or warrant, if needed, is authorized in one or more federal or state statutes; and authorizing statutes allow issuance of a warrant or order on less than probable cause. The issues are complicated by a confusing overlay of older and newer state and federal statutes dealing with electronic surveillance and arguments based on cases decided decades ago, regarding far different technology. Detailed discussion is beyond the scope of this case summary, but more information is available in various articles, including those posted here, here, and here.

By relying on the standard from Sveum (involving GPS device attached to a car to track its movements) and declaring that the issue here is simply probable cause for the tracking order, ¶9, the court avoids disputes about whether an order is necessary, what standard governs its issuance, whether a statute authorizes a cell phone tracking order, and whether there even needs to be statutory authority for such an order. That doesn’t mean these issues will disappear. The court does not declare that a warrant issued on probable cause is necessary, it only says that the warrant in this case was issued based on probable cause and thus no Fourth Amendment violation here. So, the issues remain, and they will no doubt come up again, perhaps in a case where the police don’t bother to apply for a warrant or order, or the state asserts it need not establish probable cause, but only make some lesser showing.

It is also worth noting the court’s conclusion, ¶13, of probable cause to believe the location data would lead “to evidence of the shooting, Tate’s clothing, the weapon, and ultimately, Tate himself.” Apart from the fact the detective’s affidavit in support of the application for the order was far more general about the evidence being sought (simply saying the physical location of the phone would “reveal evidence of the crime…”, ¶4), the court here is addressing an additional argument made by Tate about the validity of the order. Specifically, Tate claimed the order was not valid because the Fourth Amendment requires probable cause to believe the evidence to be seized is itself evidence of the crime, but neither the cell phone location data nor the cell phone itself was evidence of the crime; instead, the location data was simply evidence to aid in apprehension of the suspect. Not surprisingly, perhaps, that argument made no headway, given that the purchase of the phone close in time to the shooting makes the phone evidence tending to identify the shooter.

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