State v. Tate

• Decision Date: 24 July 2014
• Docket Number: No. 2012AP336–CR.,2012AP336–CR.
• Citation: 849 N.W.2d 798,2014 WI 89
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Bobby L. TATE, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

849 N.W.2d 798
2014 WI 89

STATE of Wisconsin, Plaintiff–Respondent,
v.
Bobby L. TATE, Defendant–Appellant–Petitioner.

No. 2012AP336–CR.

Supreme Court of Wisconsin.

Argued Oct. 3, 2013.
Decided July 24, 2014.

[849 N.W.2d 801]

Appeal from the Circuit Court, Milwaukee County, Cimpl, Judge.
For the defendant-appellant-petitioner, there were briefs by Byron Lichstein, law student Michael J. King, and Frank J. Remington Center, University of Wisconsin Law School, and oral argument by Byron Lichstein.

For the plaintiff-respondent, the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

PATIENCE DRAKE ROGGENSACK, J.

¶ 1 We review an unpublished decision of the court of appeals ¹ affirming the decision of the Milwaukee County Circuit Court ² denying defendant Bobby L. Tate's motion to suppress evidence that law enforcement obtained by tracking Tate's cell phone using cell site location information (“cell site information”) and a stingray. Before tracking Tate's cell phone, law enforcement obtained an order approving the use of a pen register/trap and trace device and the release of certain subscriber information, such as cell tower activity and location information. Tate argues that law enforcement violated his right against unreasonable searches under both the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution and that the order authorizing the tracking of his cell phone required statutory authority, which it lacked.

¶ 2 In evaluating Tate's argument, we assume without deciding that: (1) law enforcement's activities constituted a search within the meaning of the Fourth Amendment and Article I, Section 11; and (2) because the tracking led law enforcement to discover Tate's location within his mother's home, a warrant was needed. We then conclude that the search was reasonable because it was executed pursuant to an order ³ that met the Fourth Amendment's and Article I, Section 11's requirements. See State v. Higginbotham, 162 Wis.2d 978, 989, 471 N.W.2d 24 (1991). We also conclude that specific statutory authorization was not necessary for Milwaukee County Circuit Court Judge Jeffrey Wagner to issue the order that authorized the procedures used to track Tate's cell phone because the order was supported by probable cause. Nonetheless, the order did comply with the spirit of Wis. Stat. § 968.12 and Wis. Stat. § 968.135 (2009–10),⁴ the search warrant and criminal subpoena statutes, which express legislative choices about procedures to employ for warrants and criminal subpoenas.⁵ Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

¶ 3 On the evening of June 9, 2009, law enforcement responded to a homicide outside

[849 N.W.2d 802]

of Mother's Foods Market/Magic Cell Phones at 2879 N. 16th Street in Milwaukee. Upon arrival, officers found a victim lying between the curb and the sidewalk with a fatal gunshot wound to the head. A second victim was taken to the hospital to receive treatment for a gunshot wound to his left ankle.

¶ 4 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 that the suspect identified himself to her as “Bobby” and said that he had just gotten out of prison that day.

¶ 5 Mother's Foods provided police with information about the phone the suspect purchased, including the telephone number assigned to the phone. Detective Patrick Pajot used two internet databases to confirm that U.S. Cellular was the service provider for that phone.

¶ 6 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.⁶

¶ 7 Officer Brian Brosseau of the Milwaukee County's Intelligence Fusion Division testified at the suppression hearing about the technology officers ultimately used to locate the suspect's phone, which included cell site information ⁷ and a stingray.⁸ Cell site information allows law

[849 N.W.2d 803]

enforcement to locate a cell phone by triangulation. The Collection and Use of Location Info. for Commercial Purposes: J. Hearing Before the Subcomm. on Commerce, Trade, and Consumer Prot. and Subcomm. on Commc'ns, Tech., and the Internet of the H. Comm. on Energy and Commerce, 111th Cong. 34, 36 (2010) (statement of Lorrie Faith Cranor, Assoc. Professor of Computer Science and of Engineering & Public Policy, Carnegie Mellon University). 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. ECPA Reform and the Revolution in Location Based Tech. and Servs.: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 17, 20–21 (2010) (statement of Matt Blaze, Associate Professor, University of Pennsylvania); In Re Application for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F.Supp.2d 747, 750 (S.D.Tex.2005). 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, 632 (2013).

¶ 8 It is not clear from the record exactly how law enforcement used cell site information in the present case. 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. Officer 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 ⁹ 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.”

¶ 9 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, a device that mimicked a cell tower, allowed officers to locate the phone based on signal strength. See Jennifer Valentino–DeVries, “Stingray” Phone Tracker Fuels Constitutional Clash, Wall Street Journal, Sept. 22, 2011, available at http:// online. wsj. com/ news/ articles/ SB 10001424 05311190419 46045765 8311272319 7574 (last visited July 3, 2014). Officer 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

[849 N.W.2d 804]

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 the stingray, 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.

¶ 10 At that point, officers 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 defendant's mother, Doris Cobb.

¶ 11 Officers entered ¹⁰ Cobb's apartment and asked her if Bobby was there. She told them he was, and pointed toward his bedroom. Officers found the defendant 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. They arrested Tate for first-degree intentional homicide.

¶ 12 Tate moved to suppress the evidence seized pursuant to the order to track his cell phone, including the items seized from his mother's apartment, statements from people in the apartment building, and statements Tate made after his arrest. Tate argued that law enforcement needed a search warrant to track Tate's phone and that Judge Wagner's order was not the equivalent of a search warrant.

¶ 13 The circuit court denied the motion to suppress, concluding that Judge Wagner's order was sufficient to allow law enforcement to track Tate's phone to the apartment building and that Cobb consented to a search of the apartment. Tate pled no contest to first-degree reckless homicide, but appealed the suppression decision. The court of appeals affirmed the conviction, concluding that Judge Wagner had a “substantial basis for finding probable cause to issue the order to locate Tate's cell phone.” We agree and now affirm the decision of the court of appeals.

II. DISCUSSION A. Standard of Review

¶ 14 We independently review “whether police conduct violated the constitutional guarantee against unreasonable searches,” which presents a question of constitutional fact. State v. Arias, 2008 WI 84, ¶ 11, 311 Wis.2d 358, 752 N.W.2d 748 (quoting State v. Griffith, 2000 WI 72, ¶ 23, 236 Wis.2d 48, 613 N.W.2d 72). However, we review a warrant-issuing magistrate's determination of whether the affidavit in support of the order was sufficient to show...