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State v. Bobby Tate, 2012AP336-CR, petition for review granted 6/12/13

Review of unpublished court of appeals decision; case activity

Issue (from the Petition for Review)

Should this Court accept review to examine when law enforcement can electronically track a cell phone in order to locate the phone’s user?

More specifically, should this Court review a) whether obtaining a cell phone’s location constitutes a “search” within the meaning of the 4th Amendment, b) if so, what probable cause standard applies before police can obtain location information, and c) whether statutory authorization is necessary before a court can permit this kind of search, and whether such statutory authority exists?

This is the second cell-phone tracking case the court has accepted for review during its next term. The other is State v. Nicolas Subdiaz-Osorio, 2010AP3016-CR (Wis. Ct. App. Nov. 15, 2012) (per curiam); for more on that case, along with background on the tracking issue, see here.

In Subdiaz-Osorio the court of appeals assumed the tracking was unlawful but held the use of the evidence it provided was harmless. In this case the court engaged in more analysis of the legality of the tracking, though, as described in our post on the decision, it did not address whether there was authority for an order tracking a phone to find its location, but only whether there was probable cause for the tracking order issued in this case. As noted in more detail in our prior posts on both cases, this issue is arising with increasing frequency, it presents obvious privacy issues, and so the court’s decision in this case and Subdiaz-Osorio will necessarily  have an impact on Wisconsin practice.

Finally, apart from challenges to the authority for the tracking, there have been some successful challenges to the evidentiary use of the tracking data itself. For more, see our recent post on whether cell tower tracking is “junk science.”

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