In June of 2009, Bobby L. Tate was charged with
one count of first-degree intentional homicide, one count of second-degree reckless injury, and one count of
possession of a firearm by a felon. The charges stemmed from the shooting death
of Jarvis Banks, and the shooting of Demetrius Edwards, resulting in injury to
Edwards.
According to the criminal complaint, on June 9, 2009, the shooting
took place outside of Mother's Food Market/Magic Cell Phones, 2879 North 16th
Street, Milwaukee (Mother's Food Market). Witnesses described the shooter as a
black male wearing a white polo shirt with large, colored stripes.
State v. Tate, 2012
WL 6699360 (Wisconsin Court of Appeals 2012).
The opinion explains that during the investigation of the
shooting, police officers
spoke with employees of Mother's Food
Market, one of whom told police that the store's external surveillance cameras
captured the shooting. Another store employee told police that prior to the
shooting, a black male wearing a white shirt with colored stripes came into the
store and purchased a prepaid cellular phone. According to the store employee,
the cell phone purchaser identified himself as `Bobby.’
A review of the exterior surveillance
video showed a black male, wearing a white shirt with stripes, outside of the
store firing gun shots. The video also showed the shooter walking away from the
store, but continuing to fire gun shots. Internal surveillance videos showed
the same man purchasing a cell phone from inside the store several minutes
before the shooting.
A Mother's Food Market employee
provided police with the phone number of the purchased cell phone. Police then
applied for a court order authorizing the police to use cellular tower
information to identify the physical location of the cell phone. Specifically, the order requested court
authorization to install and use a trap and trace device, a pen register device, and other means of obtaining cell tower activity and location
information.
Supporting this application was an
affidavit from Milwaukee Police Detective Pajot, one of the officers on the
scene of the shooting. In his affidavit, Pajot provided his knowledge of cell
tower technology, a description of the contents of the surveillance videos,
witness descriptions, explanations of the pen register and trap and trace
technology, and Pajot's belief that tracking the location of the shooter's
phone would `reveal evidence of the crime of First Degree Intentional
Homicide.’ A circuit court judge granted the order approving the tracking of
Tate's cell phone location.
State v. Tate,
supra.
Officers then tracked the cell phone’s location to
apartment building in Milwaukee. After
knocking on multiple doors within the apartment unit, police eventually arrived
at the apartment of Tate's mother. Tate's mother consented to a search of the
apartment. Tate was subsequently located in a bedroom, as was a white shirt
with colored stripes that matched the shirt seen on surveillance video, and a
bloody tennis shoe. Tate was arrested and charged.
State v. Tate, supra.
After being charged with the crimes noted above, Tate filed
a motion to suppress certain evidence, which we will get to in a moment. State
v. Tate, supra. The trial judge
denied his motion, explaining that the police
`got a valid order from [the judge]
which allowed them to track the cell phone to an area.... They're allowed to do
that.... They're allowed to try and find out an area where the cell phone is. .
. . ‘
`What do the cops know when they go to
[the judge]? Well, they know somebody
was shot and killed by an unknown subject at about 6:25[p.m.] on June 9, 2009.
They've got surveillance video. They've got a description of the suspect
including a mostly white shirt with multi-colored stripes. They also have video
that shows that same suspect is purchasing a telephone -- a cell phone at the
Mother's Foods Magic Cell Phone Store on North 16th Street.’
`They -- the video shows him walking
out of the store, walking up to the victim and shooting the victim in the back
of the head, so they know that the guy that purchased the phone is the shooter.’
`They get the information about the
cell phone. They go to [the circuit court] and say Judge, we'd like a track and
trace so that we can find this cell phone and they're hoping that when they
find the cell phone the guy in the striped shirt is there.’
`[The judge] gives them that order. They
use their technology as . . . testified to. Didn't use any GPS technology to
find out where the cell phone was being used for. With the [mobile station ID]
and TESN numbers they narrow it to
a location to an apartment building at ... West Hampton [Street].’
State v. Tate, supra. (In a footnote, the court says “[w]e presume
the circuit court meant `ESN’ number, which stands for `electronic serial
number.’” State v. Tate, supra.)
After the trial judge denied his motion, Tate pled
no contest to first-degree reckless
homicide and possession of a firearm by a felon. Tate was sentenced to
forty-nine years on the first-degree reckless homicide charge, consisting of
thirty-nine years' initial confinement and ten years' extended supervision, and
eight years on the felon in possession charge, consisting of four years each of
initial confinement and extended supervision.
State v. Tate,
supra.
Tate then appealed the denial of his motion to suppress, claiming
the order authorizing the
tracking of [his]phone to find its
location was invalid under Wisconsin Statutes § 968.13 and multiple other
federal and state statutes because the relevant statutes do not authorize
courts to issue orders for location data when location is not itself evidence
of a crime. Tate further contends that because his phone was located in a
private residence, his 4th Amendment right to a reasonable expectation of
privacy was also violated.
State v. Tate,
supra.
(In a footnote, the court explains that the parties in the
case use the terms
`[o]rder’ and `warrant’ . . .
interchangeably . . . ; however, the relevant law cited by both parties deals
with the necessary requirements for the issuance of search warrants. Because we
conclude that the order issued by the circuit court in this case meets the
standard required for the issuance of search warrants, we too use the terms
interchangeably.
State v. Tate, supra.)
The Court of Appeals began its analysis of the arguments
Tate made on appeal by noting that given the facts in the case, the issue in
the case was
simply whether there was probable cause
for the issuance of the tracking order. The warrant clause of the 4th Amendment
`require[s] only three things: (1) prior authorization by a neutral, detached
magistrate; (2) a demonstration upon oath or affirmation that there is probable
cause to believe that evidence sought will aid in a particular conviction for a
particular offense; and (3) a particularized description of the place to be
searched and items to be seized.’ State v. Sveum, 2010 WI 92,
328 Wis.2d 369, 787 N.W.2d 317 (Wisconsin Supreme Court 2010).
The only issue relevant to this appeal
is whether there was probable cause to believe that location data obtained from
Tate's phone would lead to evidence of the crime of homicide described by
witnesses and shown on the surveillance videos.
State v. Tate,
supra.
It then turned to probable cause, explaining that whether it
exists is determined by
`examining the totality of the
circumstances.’ State v. Ward, 231 Wis.2d 723, 604 N.W.2d
517 (Wisconsin Supreme Court 2000). We must consider whether objectively
viewed, the record before the warrant-issuing judge provided `sufficient facts
to excite an honest belief in a reasonable mind that the objects sought are
linked with the commission of a crime, and that they will be found in the place
to be searched.’ Id.
`[T]o establish probable cause to
search, evidence must indicate a ‘fair probability’ that a particular place
contains evidence of a crime.’ State v. Brereton, 337 Wis.2d 145,
804 N.W.2d 243 (Wisconsin Court of Appeals 2011). In reviewing whether
there was probable cause for the issuance of a search warrant, we accord great
deference to the determination made by the warrant-issuing judge. . . .
State v. Tate,
supra.
The Court of Appeals noted that the “sworn affidavit” which
Detective Pajot submitted in support of the application for the search warrant
in this case stated that based upon
`his personal knowledge and experience,
as well as conversations with other investigating officers of the Milwaukee
Police Department that on Tuesday, June 09, 2009, at about 6:25 pm, an Unknown
subject intentionally shot the victim in the back of the head causing the
victims [sic] death, this incident was captured on the stores [sic], Mothers
Foods/Magic Cell Phone 2879 N 16th St, surveillance video.'
Based on
surveillance video and witness descriptions, affiant states that the suspect is
a black male, 20–30 years old, approximately 5′10″ [sic] with a muscular build,
wearing a mostly white shirt with multi colored [sic] stripes. Video also shows
the suspect at the counter purchasing the phone listed on this document,
walking out of the store with the phone, walking up to the victim who was
standing next to a yellow car and shooting the victim in the back of the head.
Affiant further bases this affidavit upon the statement of [T.M.], the Mothers
Foods/Magic Cell Phone clerk that sold the suspect the cell phone, that the
phone number of the cell phone purchased by the suspect is. . . .’
State v. Tate,
supra.
The court found that under the totality of the circumstances
in this case, “there were sufficient facts for the warrant-issuing judge to
believe that the location data from Tate's phone would probably lead to
evidence of the shooting” and that the “phone was evidence that could help to
identify the shooter.” State v. Tate, supra.
It then addressed Tate’s residual argument – “that the use
of tracking devices violated his right to privacy because his phone was tracked
to his private residence.” State v. Tate, supra. That argument is important because, as
this site explains, the Supreme Court has consistently held that the “home” is
the most private of all places protected by the 4th Amendment.
The Court of Appeals, though, was not persuaded:
[T]he location of the phone was
narrowed down to an apartment building, not to his individual apartment. Police
knocked on the doors of multiple units prior to knocking on Tate's mother's
door.
The circuit court found that Tate's
mother consented to the entry of her apartment. No violation of Tate's 4th
Amendment privacy rights occurred when police located and entered his mother's
apartment with her permission. See Illinois v. Rodriguez, 497U.S. 177 (1990) (entry by the police is valid when based upon `the consent
of a third party whom the police, at the time of the entry, reasonably believe
to possess common authority over the premises, but who in fact does not do so’).
State v. Tate,
supra. The court therefore affirmed
Tate’s conviction and sentence. State v. Tate, supra.
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