1. [from Petition:] Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.
2. [added by Court:] Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
According to the lower court opinion, authorities obtained a warrant to install a GPS device within 10 days of the warrants’ issuance, but they didn’t do so until the 11th day, albeit on a public street. The Questions Presented thus relate (in a broad sense) to State v. Sveum, 2009 WI App 81, ¶8 (“neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public”), which the cert petition fails to note resulted in a supreme court decision, 2010 WI 92 (affirming without deciding whether a search or seizure occurred).
The lower court opinion attracted considerable attention at the time. Here’s Orin Kerr’s reaction to the cert grant: “I’m glad the Court granted in this case, and I’m also also glad they added the question on installing the device. … (Lower courts have uniformly held that installing the device is not a search or seizure, but I’ve never found their reasoning very persuasive.) … With the current Court, the better bet in any Fourth Amendment case is that the Government will win. But the added question makes this a particularly fascinating case to watch.” John Wesley Hall: “This will clearly be the biggest of the 2011-12 Term, and the biggest privacy case since 1967’s Katz.”