Bobby Tate was “arrested . . . for first-degree intentional homicide”, moved to suppress certain evidence, after the trial judge denied the motion, “pled no contest to first-degree reckless homicide” and then appealed the denial of his motion. State v. Tate, 2014 WL 3672705 (Supreme Court of Wisconsin 2014). You can read more about the case in the story you can find here.
On appeal, Tate claimed the lofficers who investigated the case violated “his right against unreasonable searches under both the 4th Amendment of the United States Constitution and Article I § 11 of the Wisconsin Constitution and the order authorizing the tracking of his cell phone required statutory authority, which it lacked.” State v. Tate supra. The Supreme Court begins its opinion by explaining how the prosecution arose:
On the evening of June 9, 2009, [officers] responded to a homicide outside Mother's Foods Market/Magic Cell Phones at 2879 N. 16th Street in Milwaukee. . . . [They] found a victim lying between the curb and thesidewalk with a fatal gunshot wound to the head. A second victim was taken to the hospital to [be treated] for a gunshot wound to his left ankle.
Witnesses described the shooter as a black male wearing a striped polo shirt. Footage from Mother's Foods' surveillance camera showed a person matching the suspect's description purchase a prepaid cellular phone inside the store, leave the store and shoot the victim in the back of the head. The clerk who sold the phone to the suspect told police [he] identified himself to her as `Bobby’ and said he had just gotten out of prison that day. Mother's Foods provided police with information about the phone the suspect purchased, including the telephone number. . . . Detective Patrick Pajot used two internet databases to confirm U.S. Cellular was the service provider for that phone.
Upon these facts, which Detective Pajot described in a sworn affidavit, Assistant District Attorney Grant Huebner applied for an order approving the following: (1) installation and use of a trap and trace device or process; (2) installation and use of a pen register device or process; and (3) the release of subscriber information, including cell tower activity and location and global positioning system (GPS) information that could identify the physical location of the target phone.
Officer Brian Brosseau of the Milwaukee County's Intelligence Fusion Division testified at the suppression hearing about the technology officers used to locate the suspect's phone, which included cell site information and a stingray. Cell site information allows law enforcement to locate a cell phone by triangulation. . . . Any time a cell phone is turned on, it is searching for a signal and, in the process, identifying itself with the nearest cell tower every seven seconds. . . . Cell service providers can `collect data from th[e]se contacts, which allows [them] to locate cell phones on a real-time basis and to reconstruct a phone's movement from recorded data.’ State v. Earls, 214 N.J. 564, 70 A.3d 630 (New Jersey Supreme Court 2013).
State v. Tate supra. In a footnote, the court explains that a stingray is an electronic
device that mimics the signal from a cellphone tower, which causes the cell phone to send a responding signal. If the stingray is within the cell phone's signal range, [it] measures signals from the phone, and based on the cell phone's signal strength, . . . can provide an initial general location of the phone. By collecting the cell phone's signals from several locations, the stingray can develop the location of the phone quite precisely. . . .
State v. Tate supra.
The Supreme Court also noted that it was not clear from the record in the case exactly
how law enforcement used cell site information. . . . We do not know whether U.S. Cellular or law enforcement triangulated the signals from the target phone. We also do not know whether U.S. Cellular regularly collects this information, or if it did so solely at law enforcement's request. Brosseau explained only that, `[w]e were receiving information with the cell tower information, what that cell tower is currently on’ and that, as a general matter, `the cell phone provider . . . send[s] us data regarding a certain number . . . [pen] register information on that particular phone number.’ He stated that the phone signal “was bouncing between three different cell phone towers on three different sectors which if you were to map it out were to give you an angle or an area of probability of where you believe the suspect would be . . . at that time.’
After law enforcement received cell site information from U.S. Cellular, officers used a stingray to further narrow down the phone's location. The stingray . . . allowed officers to locate the phone based on signal strength. . . . Brosseau explained that law enforcement's stingray is a `directional antenna mounted on our vehicle which will respond only to that electronic serial number of which we're looking for and it will give [us] an arrow, if you will, pointing to the direction and with the strength tell [us] how close [we] are to that particular electronic.’ Using [it], officers `could tell [the target phone] was on the . . . south and east side’ of a particular apartment building on the 5700 block of West Hampton Avenue.
State v. Tate supra. The investigating officers then entered the apartment building and
began knocking on the doors of individual apartments on the southeast side of the building. After searching the apartments of three or four residents and not locating what they were looking for, officers knocked on the door of the [Tate’s] mother, Doris Cobb.
State v. Tate supra. They entered Cobb’s apartment and asked if Tate was there; she said he was and “pointed toward his bedroom.” State v. Tate supra. The officers “found [him] sleeping in the back bedroom, along with a striped polo shirt and a tennis shoe that appeared to have blood on it and the cell phone.” State v. Tate supra. As noted above, they arrested him for first-degree intentional homicide. State v. Tate supra.
The Supreme Court began its analysis of Tate’s arguments by noting that “we assume without deciding that: (1) law enforcement's activities constituted a search within the meaning of the 4th Amendment and Article I § 11; and (2) because the tracking led law enforcement to discover Tate's location within his mother's home, a warrant was needed.” State v. Tate supra. The Supreme Court then took up the first issue, i.e., Tate’s comparing cell phone tracking technology to the GPS tracking device
we examined in State v. Brereton, 2013 WI 17, ¶ 34, 345 Wis.2d 563, 826 N.W.2d 369, He contends that tracking a cell phone through cell site information and a stingray involves a similar `usurpation of an individual's property’ and therefore constitutes a search. Id.
In Brereton, we concluded that the law enforcement officers who placed a GPS device on a defendant's car and monitored his movements in order to conduct surveillance `invad[ed] privacy interests long afforded, and undoubtedly entitled to, 4th Amendment protection’ when they used his property without his permission. Id. (quoting U.S. v. Jones, 132 S.Ct. 945 (2012) (Sotomayor, J., concurring)).
When the U.S. Supreme Court analyzed a similar physical placement of a GPS device on a defendant's car, it did so in terms of trespass. U.S. v. Jones, supra. In Brereton, we noted that tracking through the use of a GPS device attached to a defendant's car may have constituted a search `even in the absence of a trespass.’ Brereton, supra (quoting U.S. v. Jones, supra (Sotomayor, J., concurring)). We reiterated that to determine whether a search occurs when law enforcement uses tracking technology to which a physical trespass on a defendant's property does not apply, we apply the test set forth in Katz v. U.S., 389 U.S. 347 (1967), which asks whether `the government violates a subjective expectation of privacy that society recognizes as reasonable.’ Brereton, supra (quoting U.S. v. Jones, supra).
State v. Tate supra.
The Supreme Court also explained that the issue of whether tracking through cell site
information and a stingray `violates a subjective expectation of privacy that society recognizes as reasonable’ is not before us because the State has conceded, and therefore has not briefed, whether such tracking is a search within the meaning of the 4th Amendment. . . . For that reason and because the parties do not dispute that a search occurred, we assume, without deciding, that tracking a cell phone using cell site information and a stingray constitutes a search that has constitutional implications.
State v. Tate supra.
The Supreme Court then took up the issue of whether the search in this case was conducted in a manner that complied with the requirements of the 4th Amendment and of Article 1 § 11 of the Wisconsin Constitution. State v. Tate supra. It explained that the 4th Amendment and Article I § 11 protect individuals from “`unreasonable searches’” and
establish the manner in which warrants shall issue. State v. Henderson, 245 Wis.2d 345, 629 N.W.2d 613 (Wisconsin Supreme Court 2001). Searches made without warrants issued pursuant to the requirements of the warrant clause are presumed to be unconstitutional.’ Id.
`As to searches made pursuant to a warrant, they pass constitutional muster if they comply with the three requirements of the Warrant Clause of the 4th Amendment:
`(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, 328 Wis.2d 369 (Wisconsin Supreme Court 2010).
State v. Tate supra.
The court then took up Tate’s argument that (i) officers were required by both the 4th Amendment and Article I § 11 to obtain a warrant justifying the cell phone tracking and (ii) the warrant they obtained, which was issued by a trial court judge (Judge Wagner) was not sufficient because he “`lacked statutory authority to issue an order authorizing police to track Tate's phone in real time’.” State v. Tate supra. The Supreme Court also noted that the “latter contention implies that statutory authority is necessary to the lawful issuance of a warrant.” State v. Tate supra.
The Supreme Court began its analysis with the constitutional issues, noting that to be
constitutionally sufficient, a warrant must be based on probable cause and be reasonable both in its issuance and in its execution. . . . State v. Henderson, 245 Wis.2d 345 (Wisconsin Supreme Court 2001). The warrant we review was based on the affidavit of Detective Pajot, who described sufficient facts to support probable cause to believe the cell phone site information law enforcement sought would aid in `a particular apprehension or conviction for a particular offense.’ State v. Henderson, supra (quoting Warden v. Hayden, 387 U.S. 294 (1967)).
Judge Wagner was told a surveillance video made at the time of a homicide captured a person wearing a distinctive shirt, who identified himself to a store clerk as `Bobby’ when he purchased a cell phone. He also was told that, moments later, surveillance video captured a person matching that physical description shooting two people outside the store. Finding the cell phone the suspect purchased could be probative that the person in possession of [it] was the shooter. Tate has not established that the facts before the circuit court were clearly insufficient to support a determination of probable cause. See State v. Henderson, supra.
State v. Tate supra.
The Supreme Court also noted that, “[i]n regard to Tate's complaint that Detective Pajot, Assistant District Attorney Huebner and Judge Wagner did not address why the cell phone constituted evidence of a crime, neither the 4th Amendment nor our decisions require the person seeking a warrant to explain why a particular object or information constitutes evidence.” State v. Tate supra. As Wikipedia notes, the warrant need only be based on probable cause “to believe that the search will uncover criminal activity or contraband.” The court therefore reviewed the factual allegations provided to Judge Wagner and found they supported a finding of probable cause. State v. Tate supra.
Next, Tate claimed the warrant did not satisfy the 4th Amendment’s particularity requirement “because it does not specify a particular location where evidence will be found.” State v. Tate supra. The Supreme Court found the argument failed
for two reasons. First, both the United States Supreme Court and this court have upheld searches involving tracking devices despite the impossibility of describing the exact place to be searched by a traditional description, such as a street address. address. U.S. v. Karo, 488 U.S. 705 (1984); State v. Sveum, supra. Second, we disagree with Tate's argument that since there was no physical installation of the tracking device on Tate's property in this case, as there was in Karo, State v. Brereton, 826 N.W.2s 369 (Supreme Court of Wisconsin 2013); and State v. Sveum, supra, the order does not satisfy the particularity requirement.
In Sveum, we explained that `to satisfy the particularity requirement, the warrant must enable the searcher to reasonably ascertain and identify the things which are authorized to be seized.’ State v. Sveu, supra (quoting State v. Noll, 116 Wis.2d 443, 343 N.W.2d 391 (Wisconsin Supreme Court 1984)). While a description of the object into which the tracking device was to be placed was a factor in satisfying the particularity requirement in Sveum, there is no reason why another way of identifying a cell phone, such as by its electronic serial number, cannot serve the same function as physically placing the tracking device on Tate's property. Accordingly, we conclude that the employment of the electronic serial number for Tate's phone satisfies the particularity requirement because that number permits a particularized collection of cell site information for only one cell phone.
Therefore, applying great deference to Judge Wagner's probable cause determination, we conclude that the warrant passes constitutional muster.
State v. Tate supra.
The court then took up Tate’s argument that the tracking warrant “lacked statutory authority”, which was required. State v. Tate supra. It began by noting that “[n]o specific statutory authority is necessary to the issuance of a valid warrant for cell site information.” State v. Tate supra. Notwithstanding that, it examined several Wisconsin statutes that “enacted general criteria about the procedures to employ with regard to issuing warrants”. State v. Tate supra. Basically, it found Judge Wagner’s “analysis was consistent with the legal standard” required by those statutes. State v. Tate supra.
One of the Supreme Court Justices – Shirley S. Abrahamson, Chief Justice -- wrote a very lengthy dissenting opinion, in which she concluded that government access to
cell phone location data in the present cases is a search within the meaning of the Constitutions that requires a warrant, and that the warrant must comply with the existing directly applicable statutes. The warrant in Tate did not comply with the existing statutes and is invalid.
State v. Tate supra. Essentially, she disagreed with the way the majority parsed the 4th Amendment cases dealing with when someone has, and does not have, a 4th Amendment expectation of privacy in electronic communications. If you are interested, you can read the entire opinion, and Justice Abrahamson’s dissent, here.