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.
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