State v. Brereton
| Decision Date | 06 February 2013 |
| Docket Number | No. 2010AP1366–CR.,2010AP1366–CR. |
| Citation | 826 N.W.2d 369,345 Wis.2d 563,2013 WI 17 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. James G. BRERETON, Defendant–Appellant–Petitioner. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
For the defendant-appellant-petitioner, there were briefs and oral argument by Matthew S. Pinix, Milwaukee.
For the plaintiff-respondent, the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
[345 Wis.2d 568]¶ 1 This is a review of a published decision of the court of appeals1 that affirmed the decision of the Circuit Court for Walworth County2 denying defendant James G. Brereton's motion to suppress evidence obtained through monitoring by a global positioning system (GPS) device installed on Brereton's vehicle. The installation and monitoring of Brereton's vehicle was accomplished pursuant to a warrant, and Brereton does not allege that the use of GPS is per se unreasonable. Rather, Brereton's challenge first alleges that law enforcement officers lacked probable cause to seize his vehicle and move it to another location where a GPS device could be safely installed.3 Therefore, he contends, the subsequent installation and monitoring of the GPS device constituted a violation of the Fourth Amendment's prohibition of unreasonable seizures. Additionally, Brereton claims that the GPS tracking of his vehicle utilized more advanced technology than was contemplated under the warrant, thereby effecting an unreasonable search through the execution of the warrant. We conclude that neither of Brereton's arguments demonstrates a violation of Fourth Amendment rights, and affirm the decision of the court of appeals.
[345 Wis.2d 569]¶ 2 First, we conclude that the seizure of Brereton's vehicle was supported by probable cause that the vehicle was, or contained, evidence of a crime, and was therefore permissible under the Fourth Amendment. The seizure was supported by witnesses' reports that a car matching the make, model, and license plate number of that particular vehicle had been seen at the locations of recent burglaries in the area. Additionally, after officers lawfully stopped Brereton and his co-defendant Brian Conaway4 in the suspect vehicle, they discovered that the vehicle identification number (VIN) did not match the license plate, and that the occupants of the vehicle were notably similar to the two men seen at multiple recent burglaries. Accordingly, the three-hour seizure of Brereton's vehicle, whereby officers were able to install the GPS device, did not constitute an unreasonable seizure under the Fourth Amendment, as applied to automobiles. Moreover, in light of Brereton's Fourth Amendment interest in avoiding government usurpation of his property for the purpose of conducting surveillance on him, the officers' decision to obtain a warrant prior to conducting the GPS search was proper.
¶ 3 We also conclude that the technology used in conducting the GPS search did not exceed the scope of the warrant allowing GPS tracking of Brereton's vehicle. Judge Carlson issued the warrant based on the probable cause set forth through the facts recited in a detective's affidavit. The affidavit and warrant's language contemplated the installation of a GPS device that would track the vehicle's movements. That the device provided officers with real-time updates of those movements did not alter the kind of information to be obtained under the warrant, or the nature of the intrusion allowed. Therefore, the officers' execution of the warrant was not unreasonable. Accordingly, we affirm the decision of the court of appeals.
¶ 4 In late summer and early fall of 2007, law enforcement agencies in Rock and Walworth Counties received multiple reports of burglaries, many of which shared similar characteristics. Witnesses repeatedly reported having seen two men in a blue or teal late 1980s or early 1990s Pontiac Grand Am or Grand Prix near the burglaries. Multiple other witnesses independently reported that a similar vehicle, also occupied by two men described as similar to those seen at the burglaries, had approached witnesses' houses. In each instance, the man who approached the house had asked whether “Billy Massey” lived there. Also, at multiple burglarized locations, law enforcement found that doors to houses or garages had been kicked in, apparently as a method of entry. At one of the burglarized homes, the detectives found fresh tire tread marks, and noted the design and wear pattern for later comparison.5
¶ 5 Notably, one of the witnesses reported that the Pontiac bore an Illinois license plate, number 8643511. A check of the Illinois Department of Transportation database showed that that registration was expired, but that the license plate had been issued to Nicholas Klabacha, 1510 Willowbrook Drive, Belvidere, Illinois, for a 1996 Pontiac coupe. Walworth County detectives visited that location, but found an unoccupied residence. Additionally, Rock County Sheriff's Department records for that Illinois license plate showed that deputies had recently stopped a Buick bearing that plate, and that Brereton's co-defendant Conaway had been a passenger in that vehicle when it was stopped.
¶ 6 On October 5, 2007, Detective Robert Sharp of the Walworth County Sheriff's Department contacted Detective Richard Kamholtz of the Rock County Sheriff's Department to exchange information regarding the burglaries that had been occurring in the area. Detective Kamholtz advised Detective Sharp of at least two burglaries in Rock County with very similar facts to those in Walworth County, and reported that a Rock County Sheriff's deputy had located a blue Pontiac bearing Illinois license plate number 8643511 outside of a residence in Beloit. Detective Kamholtz stated that he would visit the residence to determine if a GPS device could be installed on the vehicle at that location.
¶ 7 Detective Kamholtz later determined that the area where the car was located was not conducive to installation of a GPS device, and decided to continue to monitor the vehicle visually. At that same time, another Walworth County Sheriff's detective, Robert Schiltz, was in the process of preparing an affidavit for a court order to authorize installation of a GPS device on the vehicle.
¶ 8 The officers decided that they would conduct a stop of the vehicle based on its expired registration, its missing rearview mirror, and its loud exhaust, in an attempt to facilitate installation of a GPS tracking device in the vehicle. In accordance with this plan, a Rock County Sheriff's deputy then stopped the vehicle, a blue 1993 Pontiac Grand Am, along Highway 51 outside of Janesville, where he was joined by two Walworth County detectives.
¶ 9 After stopping the vehicle, the officers obtained identification from the two occupants, Brereton and Conaway. At that time, the officers learned that neither man had a valid driver's license. During the stop, the detectives also discovered that the vehicle's VIN did not match the VIN associated with the Illinois license plate. Instead, the VIN of the men's vehicle showed that that vehicle was registered to a woman who resided in Clinton, Wisconsin.
¶ 10 After the officers determined that neither Brereton nor Conaway had a valid driver's license, and therefore neither could legally operate the vehicle, the officers took them to a nearby Dollar Store so that the men could make arrangements for someone else to pick up the vehicle. The joint law enforcement team decided that rather than installing a GPS device on the side of Highway 51, which would be potentially unsafe, the vehicle would be towed to a private impound lot where installation of the GPS could be accomplished. Neither Brereton nor Conaway were told that the vehicle was being towed.
¶ 11 Soon after the vehicle was towed to the impound lot, Detective Schiltz obtained a signed court order allowing the installation of a GPS device in the seized vehicle.6 The order, which was based on Detective Schiltz's affidavit, provided in relevant part:
The Walworth County Sheriff's Department ... or other law enforcement agencies acting on its behalf, are authorized to place an electronic tracking device on: a 1993 blue Pontiac Grand Am SE 4 door registered to Sherry Bloyer of Clinton, Wisconsin, vehicle identification # 1G2NE543N7PM605764, and they are hereby authorized to surreptitiously enter and re-enter the vehicle, any buildings and structures containing the vehicle [ ] or any premises on which the vehicle[ ][is] located to install, use, maintain and conduct surveillance and monitoring of the location and movement of the target vehicle in all places within or outside the jurisdiction of Walworth County. This includes, but is not limited to private residences and other locations not open to visual surveillance, to accomplish the installation. Officers are authorized to obtain and use keys to operate and move the vehicle[ ] for the required time to a concealed location and are authorized to open the engine compartment[ ] and trunk area[ ] of the vehicle [ ] to install the device[ ].
It is further ordered that Detective Robert Schiltz, or other law enforcement officers, shall remove the electronic tracking device as soon as practicable after the objectives of the surveillance are accomplished or not later than sixty (60) days from the date this order is signed unless extended by this court or another court of competent jurisdiction.
Thereafter, law enforcement officers installed the GPS device inside the hood of Brereton's vehicle,7 and then returned the vehicle to the location at which Brereton and Conaway had been stopped.
[345 Wis.2d 574]¶ 12 Over the next four days, the GPS device transmitted information about the movements of the vehicle. Walworth County law enforcement officers received text messages to the telephone associated with...
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