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Search & Seizure: GPS Device – Warrant

State v. James G. Brereton, 2011 WI App 127 (recommended for publication); for Brereton: Matthew S. Pinix; case activity

After lawfully stopping Brereton, the police removed him from his car, towed it to a lot and then, after obtaining a warrant, attached a GPS tracking device. Ensuing monitoring led to information connecting Brereton to a crime. The court holds as follows:

  • Fourth amendment concerns are implicated because the tracking device was placed inside the hood while the vehicle was in police possession and out of public view,¶8, in contrast to State v. Sveum, 2009 WI App 81, ¶1, 319 Wis. 2d 498, 769 N.W.2d 53 (Sveum I) (“no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view”), affirmed on other grounds, State v. Sveum, 2010 WI 92, ¶3, 328 Wis. 2d 369, 787 N.W.2d 317 (Sveum II).
  • Nonetheless, removal of the car to the tow lot was supported by probable cause that the car might contain evidence of a crime (namely: the car had been seen near numerous recent burglaries including one a couple of days earlier, and the VIN didn’t match the plate),¶9.
  • Subjective police motivations aren’t dispositive, objective ones are, to justification for the seizure; thus it doesn’t matter that the purpose of the concededly lawful traffic stop was a pretext to install a tracking device, ¶10. The police had probable cause that the vehicle itself was involved in the burglaries under investigation, and there was a “fair probability” the car contained property stolen in the burglaries, id., citing, State v. Carroll, 2010 WI 8, ¶28, 322 Wis. 2d 299, 778 N.W.2d 1.
  • The GPS warrant obtained by the police satisfies the two-part inquiry of Sveum II: it was, given the existence of probable cause and lawfulness of the car’s seizure, “validly issued,” ¶¶11-12; and, although the GPS device was more technologically advanced therefore more intrusive than the one in Sveum (because it monitored location in real time), its use represented a reasonable execution of the warrant, ¶¶11-15.

The court distinguishes United States v. Jones, No. 10-1259, currently pending on cert. (“that there was a warrant and that the device was in play for only four days is what distinguishes the facts of this case”; in Jones, the device was attached without a warrant and used for 4 weeks). The court cautions that “prolonged use of this device might be unreasonable under the Fourth Amendment,” but that line wasn’t crossed in this instance, ¶15.

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