State v. Pinder, 111618 WISC, 2017AP208-CR

Docket Nº:2017AP208-CR
Opinion Judge:ANNETTE KINGSLAND ZIEGLER, J.
Party Name:State of Wisconsin, Plaintiff-Respondent, v. Johnny K. Pinder, Defendant-Appellant.
Attorney:For the defendant-appellant, there were briefs filed by Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha. There was an oral argument by Michael Holzman. For the plaintiff-respondent, there was a brief filed by Micha Tseytlin, solicitor general, with whom on the brief were Brad D. Schimel, atto...
Judge Panel:DANIEL KELLY, J. (concurring). Justice REBECCA GRASSL BRADLEY joins this concurrence.
Case Date:November 16, 2018
Court:Supreme Court of Wisconsin
 
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2018 WI 106

State of Wisconsin, Plaintiff-Respondent,

v.

Johnny K. Pinder, Defendant-Appellant.

No. 2017AP208-CR

Supreme Court of Wisconsin

November 16, 2018

ORAL ARGUMENT: September 7, 2018

ON CERTIFICATION FROM THE COURT OF APPEALS

APPEAL from a judgment of the Circuit Court Ozaukee County No. 2015CF84 Paul V. Malloy Judge. Affirmed.

For the defendant-appellant, there were briefs filed by Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha. There was an oral argument by Michael Holzman.

For the plaintiff-respondent, there was a brief filed by Micha Tseytlin, solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and Kevin M. LeRoy, deputy solicitor general. There was an oral argument by Luke Berg, deputy solicitor general.

OPINION

ANNETTE KINGSLAND ZIEGLER, J.

¶1 This case is before the court on certification from the court of appeals, pursuant to Wis.Stat. § 809.61 (2015-16).1 The court of appeals certified the following question: If a search warrant issued under Wis.Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis.Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

In short, this question requires the court to decide if an otherwise reasonably conducted search warrant issued for the placement and use of a Global Positioning System ("GPS") tracking device on a motor vehicle is subject to Wis.Stat. §§ 968.15[2] and 968.17(1).3

¶2 We conclude that a search warrant issued for the placement and use of a GPS tracking device on a motor vehicle, but not executed within five days after the date of issuance per Wis.Stat. § 968.15 or timely returned under Wis.Stat. § 968.17(1), is not void if the search was otherwise reasonably conducted, because it is not a warrant issued "for the purpose of seizing designated property or kinds of property" under Wis.Stat. § 968.12(1). It is not a warrant that seeks a "document" or "electronic data" under the control of the vehicle owner as is required under Wis.Stat. § 968.13 and thus, is not subject to the execution and return provisions of §§ 968.15 and 968.17(1). Such a warrant for GPS tracking is not issued pursuant to a statute, but instead is issued pursuant to the court's inherent authority and thus, must comply only with the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Because the GPS warrant in this case was otherwise constitutionally sufficient, the evidence obtained as a result of the warrant is not subject to suppression. Therefore, we affirm the circuit court.4

I. FACTUAL BACKGROUND

¶3 In February of 2015, multiple businesses were burglarized in Mequon, Wisconsin. Detective Cory Polishinski of the Mequon Police Department ("Detective Polishinski") was in charge of investigating these burglaries. The burglar stole laptop computers, a "SimCube testing device," a stereo, a company MasterCard credit card, and cash. Surveillance cameras near one business captured footage of a potential suspect and his car, a silver Chevrolet Impala. The license plates appeared to be missing. MasterCard confirmed that the stolen credit card "had five ATM attempts to get cash advances" and that it was used on or about February 14, 2015, at multiple gas stations in Milwaukee, Wisconsin. Surveillance cameras at two of these gas stations captured footage of the suspect burglar, in what appeared to be the same silver Chevrolet Impala, filling up other vehicles with gasoline.

¶4 On February 19, 2015, Detective Polishinski received an e-mail from Detective Brad Mellenthein of the Milwaukee Police Department ("Detective Mellenthein"). In his e-mail, Detective Mellenthein provided pertinent information he received from a confidential informant. According to Detective Mellenthein, the informant said that a man named "JP," who is "a really good lock picker," was "using his skills to get into locked areas of hospitals and businesses to steal computers, credit cards, and money ... to support his crack habit." JP bragged to the informant that he would "pick the lock of a business and enter to take the items he wanted, then leave things like they were prior to the burglary, giving him time to move the product or use the credit or gas cards." The informant described JP as having "a bunch of gas cards and [using the cards to] fill up vehicles," as well as having "10 to 15 computers available at one time to sell." In fact, JP sold one of the stolen computers to the confidential informant's aunt (the computer had one of the burglarized company's stickers on it) and, after it stopped working, JP agreed to "get her another one." The informant also stated that JP just "got out [of prison] about two months ago" after serving 18 years.

¶5 Detective Mellenthein was able to identify JP as Johnny K. Pinder ("Pinder"). According to Detective Mellenthein, Pinder was the known owner of a "2008 Chevrolet Impala LT, silver in color with tinted windows and . . . a WI temp plate (L6019F) in the front window," VIN 2G1WT58N089144205 (hereinafter "Pinder's vehicle"); Pinder had been in prison for burglary and was released in December of 2014; Pinder was currently on probation; and the Milwaukee Police Department confirmed Pinder was a suspect in other similar burglaries using the Chevrolet Impala. In addition, surveillance footage of these other similar burglaries showed Pinder and an unknown female "inside an office taking items."

¶6 On February 27, 2015, Detective Polishinski applied to the Ozaukee County circuit court for an order to covertly place and monitor a GPS tracking device on Pinder's vehicle "for a period of time not to exceed 60 days from the date the order is signed." Detective Polishinski's affidavit in support of the GPS warrant articulated the above-referenced details of the investigation and outlined his training and experience with respect to criminal investigations. In his affidavit, Detective Polishinski acknowledged that, "Wisconsin has no explicit statute under chapter 968 that addresses the issue of installing tracking devices on private property." Detective Polishinski nonetheless detailed how the device would be installed and monitored, and that "the use of power to run the [GPS] tracking device [would] be taken from [Pinder's vehicle] in order to extend the useful monitoring of [Pinder's vehicle]," and enable police "to identify locations and associates currently unknown ... as to the location of the fruits or accomplices of this violation." Detective Polishinski further explained in his affidavit that a GPS tracking device "periodically records, at specified times, the latitude, longitude, date and time of readings and stores these readings until they are downloaded to a computer . . . for analysis." Detective Polishinski further stated: [T]here is probable cause to believe, based upon information [contained in his affidavit] that [Pinder's vehicle] is presently being utilized in the commission of a crime, to wit, Burglary in violation of Chapter 943.10 of the Wisconsin Statutes [and] that there is probable cause to believe that the installation of a [GPS] tracking device on [Pinder's vehicle] in conjunction with the monitoring, maintenance and retrieval of information from that [GPS] tracking device, will lead to evidence of the aforementioned criminal violations, as well as the location where the fruits of the violations are being stored and the identification of associates assisting in the aforementioned violations.

¶7 On the same day, the Ozaukee County circuit court5granted Detective Polishinski's application with a signed warrant entitled "Order" (hereinafter "Warrant"). The circuit court concluded that there was "probable cause to believe that the installation of a tracking device in [Pinder's vehicle] is relevant to an ongoing criminal investigation and that the vehicle is being used in the commission of the crime of Burglary." The circuit court authorized the State (the Mequon Police Department) to place an electronic tracking device on [Pinder's vehicle], and . . . surreptitiously enter and re-enter the vehicle and 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 a mobile electronic-tracking device in the vehicle and any and all places within or outside the jurisdiction of Ozaukee County, including but not limited to private residences and other locations not open to visual surveillance; to accomplish the installation agents are authorized to obtain and use a key to operate and move the vehicle for the required time to...

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