Supreme Court rules for Mequon
The state Supreme Court backs the city police’s use of a GPS tracker.
A search warrant for a GPS tracker on a suspect’s car need not conform to statutory limitations on most other search warrants, the Wisconsin Supreme Court ruled.
The unanimous decision issued Friday upholds the conviction of a skilled lock picker who had burglarized several Mequon businesses in 2015 even though police waited 10 days after the warrant was issued to install the tracking device on his car.
State law requires search warrants to be served within five days of issuance.
Writing for the court, Justice Annette Ziegler distinguished the GPS tracker warrant, saying unlike those addressed in the statutes, it was not seeking property, documents or data.
And, in agreement with Ozaukee County Circuit Judge Paul V. Malloy, who initially denied a defense motion to suppress evidence obtained from the GPS search, the high court said the warrant was reasonable under the Fourth Amendment to the U.S. Constitution.
The Mequon detective had shown that a specific vehicle — a silver Chevy Impala registered to suspect Johny Pinder and seen at gas stations where stolen credit cards were being used — was likely involved in the Mequon office burglaries and got the approval of a judge to track the vehicle.
“We cannot ignore this clear legislative pronouncement that the statutory search warrant be for the ‘purpose of seizing designated property or kinds of property,’ ” Ziegler wrote.
“If the legislature intended that §968.12 search warrants be required for other than the seizure of ‘property,’ it would have selected different words,” she wrote.
Pinder argued that electronic data generated by the GPS tracker is included in the statute’s definition of documents.
But Ziegler wrote that the data didn’t exist yet when the tracker was installed and so wasn’t under Pinder’s control and could not be seized from him.
“Instead, if there might eventually be a document containing GPS information, it will come into existence at the behest of and belong to the Mequon Police Department, and is not something under the control of Pinder,” the decision reads.
Pinder also argued that if the statutes don’t apply, Malloy’s order wasn’t a valid search warrant at all.
To that, the high court said judges have inherent authority to grant a search warrant when a request meets Fourth Amendment reasonableness requirements.
While judges have inherent authority to issue GPS warrants even if they are technically at odds with the statute, Ziegler urged the Legislature to address GPS warrants in the future.
Justice Daniel Kelly agreed with the outcome but wrote separately to say he thinks “it is inappropriate for the judiciary to request the legislature to legislate,” because you never know what you’ll get and because lawmakers have already ignored two prior requests for a GPS warrant law.
“Indeed, we’re starting to look a wee bit desperate,” Kelly wrote. “Maybe the legislature is being standoffish because it just doesn’t want to go on this date with us.”
Justice Rebecca Bradley joined Kelly’s concurrence.
Six days after Mequon police installed the GPS tracker on Pinder’s car, they got an alert that it had entered the city. They followed it to a Mequon office suite and caught Pinder with stolen items and burglary tools.
He was convicted and sentenced to five years in prison.