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Search and seizure of vehicle — attaching GPS tracking device; warrant — scope, coverage of particular GPS device

State v. James G. Brereton, 2013 WI 17, affirming 2011 WI App 127; case activity

Search and seizure of vehicle — attaching GPS tracking device

After lawfully stopping Brereton, the police removed him from his car, towed it to a lot, and, after obtaining a warrant, attached a GPS tracking device. The car was returned to Brereton, and ensuing monitoring led to information connecting him to a crime. Brereton challenged the seizure of his vehicle, contending it was not supported by probable cause. He also claimed the GPS tracking of his vehicle used more advanced technology than contemplated under the warrant, resulting in an unreasonable execution of the warrant. The court rejects both arguments:

¶2   First, we conclude that the seizure of Brereton’s vehicle was supported by probable cause that the vehicle was, or contained, evidence of a crime, and was therefore permissible under the Fourth Amendment.  The seizure was supported by witnesses’ reports that a car matching the make, model, and license plate number of that particular vehicle had been seen at the locations of recent burglaries in the area.  Additionally, after officers lawfully stopped Brereton and his co-defendant Brian Conaway in the suspect vehicle, they discovered that the vehicle identification number (VIN) did not match the license plate, and that the occupants of the vehicle were notably similar to the two men seen at multiple recent burglaries.  Accordingly, the three-hour seizure of Brereton’s vehicle, whereby officers were able to install the GPS device, did not constitute an unreasonable seizure under the Fourth Amendment, as applied to automobiles.  Moreover, in light of Brereton’s Fourth Amendment interest in avoiding government usurpation of his property for the purpose of conducting surveillance on him, the officers’ decision to obtain a warrant prior to conducting the GPS search was proper.

¶3   We also conclude that the technology used in conducting the GPS search did not exceed the scope of the warrant allowing GPS tracking of Brereton’s vehicle.  Judge Carlson issued the warrant based on the probable cause set forth through the facts recited in a detective’s affidavit.  The affidavit and warrant’s language contemplated the installation of a GPS device that would track the vehicle’s movements.  That the device provided officers with real-time updates of those movements did not alter the kind of information to be obtained under the warrant, or the nature of the intrusion allowed.  Therefore, the officers’ execution of the warrant was not unreasonable. Accordingly, we affirm the decision of the court of appeals.

The court of appeals, which also held that both the seizure of Brereton’s vehicle and the particular GPS device used were reasonable, issued its decision before United States v. Jones, 132 S. Ct. 945 (2012),  so the supreme court’s decision takes Jones into account.

Jones held that placing a GPS device on a car and using that device to monitor the car’s movements constitute a search, with the majority basing its decision on common-law trespass doctrine extant at the time of the Founding: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” 132 S. Ct. at 949. While the police in Jones had a warrant, they attached the device one day after the warrant expired and in a neighboring jurisdiction, so the government was left to argue that attaching the device was not a search—a claim all nine justices rejected, though for different reasons. In light of Jones, the court acknowledges that placing the device on Brereton’s car was a search, and even adopts the rationale of the concurrences that warrantless GPS tracking would constitute a search even in the absence of a trespass because it violates a subjective expectation of privacy that society recognizes as reasonable. (¶34, citing Jones at 954–55 (Sotomayor, J., concurring)).

Beyond the fact the case is our supreme court’s first gloss on Jones, note that the court held that the three-hour warrantless seizure of the car to install the device was reasonable under the cases establishing the so-called “automobile exception” to the warrant requirement, such as United States v. Ross, 456 U.S. 798 (1982),  and Chambers v. Maroney, 399 U.S. 42 (1970). (¶¶41-44). The majority’s analysis on this point is criticized by Chief Justice Abrahamson’s dissent, which concludes the seizure was unreasonable because it was too long, was not based on any exigency, and didn’t involve a search of the car for evidence, but instead transformed the car into a surveillance device—and that itself requires a warrant, as the majority acknowledged. (¶¶69-84).

Warrant — scope; coverage of particular GPS device

The court rejects Brereton’s complaint that the particular device the police used was not covered by the warrant, holding that the language in the affidavit did not bind law enforcement to a specific GPS technology and that a device with instantaneous transmission of the car’s location, as opposed to one that stores the information for later download, did not alter the kind of information transmitted. (¶¶45-54).

The court’s conclusion on this issue should not be taken to mean the type of GPS technology employed will never matter. As noted above, the court expressed agreement with the Jones concurrences, which were concerned about GPS technology allowing the government to secretly monitor and catalogue every single movement of a person’s car for a long period of time, creating a wealth of detail about the person’s life and associations. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring) and 964 (Alito, J., concurring). While instantaneous transmission may not heighten that concern, continuous (or very frequent) location readings certainly do, so the use of that type of technology might yield a different result.

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