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State v. James G. Brereton, 2011 WI App 127, rev. granted 3/15/12

court of appeals decision; for Brereton: Matthew S. Pinix; case activity; prior post

Search & Seizure – GPS Device – Warrant 

Issues (Composed by On Point): 

Whether the police illegally seized Brereton’s car, so as to taint a subsequently issued warrant for installation of a GPS tracking device on it; or, whether tracking was unreasonable under U.S. v. Jones, __ U.S. __ (2012).

The police arrested Brereton, towed his car to a lot, and obtained a warrant to install a tracking device, which they then used to monitor the car for 4 days. The objective was to determine involvement in an on-going burglary ring. The court of appeals rejected Brereton’s argument that the police lacked probable cause to obtain the warrant; the Issue-statement assumes that he will renew the argument, but that of course remains to be seen. He also argued (and will undoubtedly continue to argue) “that the level of technology used in this case exceeded the scope of what was allowable under the warrant issued,” in that the police requested only authority to “periodically record” the car’s location, while in the event the device “allowed continuous live tracking of the car’s movements.” The court of appeals, while seemingly agreeing that the police engaged in activity more intrusive than they requested, nonetheless held that this was a matter of execution of the warrant, something generally left to discretion of the executing officers. And, because the monitoring device was “only in use for four days,” albeit continuously so, it was not unreasonably “prolonged.” This appears to be the supreme court’s first opportunity to discuss Jones. And by “discuss,” is meant, reach an issue not discussed by Jones, which held open the very question of executing a GPS warrant:

… [O]ur cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.

And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. Post, at 13 (emphasis added). That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub- stantial amounts of cash and narcotics is not an “extra- ordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

In Jones, “the Government … conceded noncompliance with the warrant and has argued only that a warrant was not required,” fn. 1. Here, the very question appears to be when you can say there’s been “noncompliance with the warrant.”

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