SCOW: GPS tracking is a “search,” but a GPS tracking warrant is not a “search warrant”

State v. Johnny K. Pinder, 2018 WI 106, 11/16/18, on certification from the court of appeals; 2017AP208; case activity (including briefs)

The police thought Pinder was probably the culprit in a string of burglaries, so they applied for, and got, a warrant to attach a GPS device to his car. They did not actually do the attaching, though, until 10 days after they got the warrant. This seems to run afoul of Wis. Stat. § 968.15, which together with surrounding provisions defines, authorizes and regulates the issuance of search warrants. Specifically, it says a warrant not executed within five days of issuance is “void.”

So was the warrant here void? No, says the supreme court, because it was not actually a “search warrant” at all, as that term is used in the statute, and so wasn’t required to comply with § 968.15.

To reach this conclusion, the court points to Wis. Stat. § 968.12, which defines “search warrant” as “an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designated object or a designated place for the purpose of seizing designated property or kinds of property” and § 968.13, which enumerates what objects may be seized, among them “documents,” which “includes, but is not limited to, books, papers, records, recordings, tapes, photographs, films or computer or electronic data.” (Emphasis added by On Point.)

Basically, the majority says, the GPS tracking warrant didn’t authorize the police to “seize” any “property” belonging to Pinder–it just authorized them to produce electronic data of their own, using their own device. (¶¶32-35). And though “electronic data” is specifically listed as a type of “document,” the court says, in essence that it doesn’t mean this kind of electronic data:

To the extent that Pinder’s argument that a future electronic transmission from a GPS tracking device is “electronic data” under his control as the term is used in Wis. Stat. § 968.13(2), the other terms of the statute demonstrate that the term “documents” pertains to documents already in existence and “electronic data” must be considered in context. Section 968.13(2) defines documents to include but is not limited to “books, papers, records, recordings, tapes, photographs, films or computer or electronic data.” The canon of noscitur a sociis instructs that “an unclear statutory term should be understood in the same sense as the words immediately surrounding or coupled with it.” Under this canon, “electronic data” should be understood in the same sense as the other enumerated “documents.” …. Read in conjunction with the other types of “documents,” it is evident that “electronic data” under this statute would be more akin to stored documents, music, pictures or videos, not future electronic transmissions from a GPS tracking device that are in the possession of the Mequon Police Department, not Pinder. Instead, if there might eventually be a document containing GPS information, it will come into existence at the behest of and belong to the Mequon Police Department, and is not something under the control of Pinder.

(¶38 (citations omitted)).

So the search warrant isn’t a “search warrant” under the statute, meaning that it springs instead from the court’s inherent authority, and must only comply with the Fourth Amendment, which the court holds it does. (¶¶43-57).

Hmm. But why does a GPS warrant have to comply with the Fourth Amendment then? If it’s not a search warrant? The answer is that it is a search warrant, because U.S. v. Jones, 565 U.S. 400 (2012), says GPS tracking is a “search,” even though the practice doesn’t really fit all that comfortably within the constitutional text. Obviously the Founders didn’t contemplate GPS tracking, but the principles the Fourth Amendment embodies were broad and flexible enough (all Justices agreed) to encompass the new technology. Not so, apparently, with our search warrant statute.

Justice Kelly, joined by Justice R.G. Bradley, concurs. He takes umbrage at the majority’s oft–repeated exhortation to the legislature to pass a law expressly governing GPS warrants. (¶¶63-70).