State v. Bobby L. Tate

Plaintiff-Respondent, of Wisconsin, State

v. Bobby Defendant-Appellant-Petitioner. L. Tate,

Supreme Court Argument No. 2012AP336-CR. Oral October July Decided 2014 WI 89 (Also 798.) reported in 849 N.W.2d defendant-appellant-petitioner, For the there were Byron by King, Lichstein, briefs law student Michael J. Remington University Center, and Frank J. ofWisconsin argument by Byron School, Law and oral Lichstein. plaintiff-respondent, argued For the the cause was by Jeffrey attorney general, Kassel, J. assistant with attorney Hollen, whom on the brief was J.B. Van general.

¶ 1. DRAKE PATIENCE J. ROGGENSACK, We unpublished appeals1 review an decision of the court of affirming County decision of Milwaukee Circuit denying Bobby Court2 defendant L. Tate's motion to suppress evidence that law enforcement obtained tracking phone using Tate's cell cell site location infor- ("cell information") stingray. mation tracking site Before phone,

Tate's cell law enforcement an obtained approving pen register/trap order of a use and trace device and the release certain subscriber informa- Tate, 2012AP336-CR, unpublished slip State v. No. op. (Wis. 2012). App. Ct. Dec. 2 The Honorable Dennis R. Cimpl presided. activity and location informa- cell tower

tion, such as argues his enforcement violated law tion. Tate against right under both unreasonable searches States of the United Constitution Fourth Amendment 11 Constitution I, Section of the Wisconsin and Article authorizing tracking his cell the that the order and statutory authority, phone required lacked. which it evaluating argument, we assume In Tate's (1) deciding enforcement's activities that: law without meaning of the Fourth a search within the constituted (2) 11; I, Article and because Amendment and Section tracking Tate's to discover the led law enforcement home, his was location mother's warrant within reason conclude that the search was needed. We then pursuant that to an order3 it was executed able because ll's I, and Article Section met the Fourth Amendment's Higginbotham, requirements. 2d State 162 Wis. See v. (1991). also that 978, 471 N.W.2d We conclude necessary statutory specific not for authorization was Judge Jeffrey Wagner County Circuit Court Milwaukee procedures used to issue the order authorized sup to track Tate's cell because order was ported by probable Nonetheless, did the order cause. § comply spirit of Stat. 968.12 and Wis. Wis. with (2009-10),4 § search Stat. warrant 968.135 express legislative subpoena statutes, criminal which County Judge The Milwaukee Circuit Court document Jeffrey "Order." this docu Wagner signed captioned was It is as a for our ment functioned warrant constitutional subpoena regard to the and as a criminal considerations provider. from service State v. obtained the cell information Sveum, 20, 39, Wis. 2d N.W.2d317 2010 WI ¶¶ (a for entitled "order" can constitute a warrant document purposes). Fourth Amendment are to subsequent All references to the Wisconsin Statutes indicated. the 2009-10 version unless otherwise procedures employ choices about warrants subpoenas.5 Accordingly, criminal affirm we the deci- appeals. sion of the court of

I. BACKGROUND evening ¶ 3. On the June 9, law enforce- responded ment to a homicide outside Mother's Foods Market/Magic Cell Phones at 2879 N. 16th Street Upon lying arrival, Milwaukee. officers found victim gunshot between curb and the sidewalk with a fatal wound to the hospital A second head. victim was taken to the gunshot

to receive treatment for a wound to his left ankle.

¶ 4. Witnesses described the shooter as a black wearing polo striped Footage male shirt. from person Foods' Mother's surveillance camera showed a matching suspect's description purchase prepaid the a phone cellular store, inside the leave the and store shoot victim in phone the the back of the head. The clerk who suspect police sold the to the told the that suspect "Bobby" identified himself to her as said and just gotten prison day. that he had out of provided police 5. Mother's Foods with informa- suspect purchased, including tion the about the telephone assigned phone. the number to the Detective Pajot Patrick used two internet databases to confirm provider that US Cellular the was service for phone. 23, 2014, 2013 Wisconsin Act enacted April effective

April 24, sets out the be actions to taken an when investigative or law enforcement officer seeks to obtain cell phone tracking § See information. Wis. Stat. Wis. 968.373 and 968.375(4)(c) (2013-14). § Stat. These statutes were not effect when Tate's cell was tracked. facts, Pajot which Detective de- these Upon District affidavit, Attorney in a Assistant

scribed sworn an the approving Huebner order applied Grant (1) trap and of a and trace installation use following: (2) use a pen and process; device or installation (3) and the release of sub- device or register process; activity and information, including tower scriber (GPS) informa- and global positioning system location the location of the identify physical tion that could target phone.6 Officer Brian Brosseau of the Milwaukee Fusion Division testified at Intelligence

County's about hearing technology suppression suspect's used to locate ultimately officers and included cell site information7 which phone, approved: The order (1)... trap the installation and use of a and trace device process!;] or (2) pen register . . the installation and use of a . (DNR) device/process Dialed on a cellu- or line, Number Recorder telephone designated lar Electronic Serial Number (IMSI), (ESN), Identifier an International Mobile Subscriber (IMEI), Equipment Mobile Identifier or an International particular subscriber!; and] of a other cellular lines (3) information, incoming . .. release of subscriber detail, activity, outgoing and call cellular tower cellular tower location, information, text header cellular toll information (GPS) global system telephone positioning loca- and cellular information, available, authorizing tion tion of the if identifica- physical target phone. location of cellular digital style analog phones cellular With the older phones capable mobile that are not the cellular GPS phone is provider network can determine where the to using "triangulation" feet within hundred or so because time, any phone usually the is able to at one communi arrays provided by of the cate with more than one aerial to phone typically the The cell are network. towers (less cities) apart phone usually miles and a is within comparing range By of at least three of them. the stingray.8 Cell site information allows law enforcement locate a cell phone by triangulation. The Collection Use and Location Info, Commercial Purposes: J. for Commerce, the Hearing Trade, Subcomm. on Before and Consumer Prot. Commc'ns, and Subcomm. on Comm, Tech., and Internet the H. on and Energy (2010) Commerce, (statement 111th Cong. 34, Cranor, Lorrie Faith Assoc. Professor of Computer and Science of Engineering Policy, & Public Carnegie Mellon University). a cell Any time turned on, is is and, it for searching signal the process, identify- ing itself with the nearest cell tower every seven sec- onds. ECPA and the Revolution in Location Reform Tech, Based and Servs.: Hearing the Subcomm. Before Constitution, on Civil and Civil Rights, Liberties of Comm, the H. the Judiciary, on 111th 17, 20-21 Cong. (2010) (statement of Blaze, Matt Professor, Associate University of In Pennsylvania); Re Application Pen Register & with Device Cell Trap/Trace Site Location signal strength and lag phone's signal time for the carrier tower,

reach at each provider triangulate the network can the phone's approximate position. Harrell, Scott Locating L. Through Pinging Mobile Phones Triangulation, (July 1, 2008), http://pursuitmag.com/ Pursuit locating-mobile-phones-through-pinging-and-triangulation (last 2014). July visited 8A stingray an signal is electronic device that mimics the tower, a cellphone from which causes the cell to send a responding If signal. the stingray phone's is within the cell signal range, stingray signals phone, measures from the phone's based on the signal strength, stingray can provide general an phone. By initial location of the collecting phone's locations, the cell signals stingray from several can develop phone quite the location of the precisely. Jennifer Valentino-DeVries, "Stingray" Phone Tracker Fuels Constitu Clash, Journal, Sept. 22, tional Wall Street 2011, available at http://online.wsj.com/news/articles/SB100014240531119041946 (last 2014). July visited (S.D. 2005). Supp. Cell 2d Tex. F.

Auth. 396 th[e]se providers contacts, "collectdata from service can phones [them] a to cell on real-time allows locate which phone's from movement to reconstruct a basis and (N.J. Earls, v. 70 A.3d data." State recorded 2013). exactly law It is clear from the record how not present in the cell site information

enforcement used Cellular or law do not know whether US case. We signals target triangulated from the the enforcement regu- phone. Cellular also do not know whether US We solely larly if it law information, or did so at collects this only request. explained Officer Brosseau enforcement's receiving "[w]e with the cell were information that, currently on" information, what that cell tower is tower general provider phone ... that, matter, and send[s] as a "the cell [pen] regarding a certain number... us data register9 phone particular on number." information that bouncing signal phone He that "was between stated the phone three different three different cell towers on you you map give it to which if were to out were sectors probability you angle an or an area of of where believe suspect be ... that would at time." After cell site infor- law enforcement received stingray Cellular, from officers used a to mation US stingray, phone's The further narrow down location. 968.27(13) register "a pen § a as Wisconsin Stat. defines impulses electronic other device records or decodes or identify the numbers dialed or otherwise transmitted on line to Officer telephone which device is attached." Brosseau explained pen register that a "records all of the towers words, in operating. a cell In other sectors" on which is provide police, cell site information to a cellular order pen provider register must have "its own and send results Toeniskoetter, B. Mod Preventing law enforcement." Steven Acquisition Panopticon: ern Law Real-Time Enforcement (2007). Data, & Tracking Cellular Rich. J.L. Tech. tower, device that mimicked allowed officers signal strength. to locate the on based See "Stingray" Valentino-DeVries, Jennifer Phone Tracker Sept. Clash, Fuels Constitutional Wall Journal, Street http://online.wsj.com/news/ 22, 2011, available at SB100014240531119041946045765831127231 articles/ (last 2014). July 3, visited Officer Brosseau ex- plained stingray that law enforcement's is a "directional respond only antenna mounted on our vehicle which will looking to that electronic serial number of which we're give you [us] pointing for and it arrow, will an if will, to strength [us] the direction and with the tell how close [we] particular Using stingray, are to that electronic." the [the target phone] officers tell "could on was the... particular apartment building south and east side" of a Hampton on the 5700 block West Avenue. point, apart- 10. At that officers entered the building began knocking

ment and on the doors of apartments individual the on southeast side the building. searching apartments After of three or locating they looking four residents and not what were for, officers knocked on door of the defendant's mother, Doris Cobb. apartment

¶ 11. Officers entered10 Cobb's and Bobby asked her if was there. was, She told them he pointed toward his bedroom. Officers found the defen- gave conflicting testimony Witnesses about whether granted Cobb law enforcement to her apartment. access Law did, enforcement officers said she that but Cobb testified that not, explaining "just door, she did opened they that she [and] just in" "they came and that police, thought they since were I supposed [were] to come Transcript in." of Motion Hearing at issue, Tate does not this raise so we assume Cobb v. Corp. granted permission Smith apartment. to enter her A.O. Cos., Ins. Allstate (Ct. 475, 492, Wis. 2d 588 N.W.2d 285 1998) ("in App. party order for a to an have issue considered brief'). court, this it be and argued must raised within its striped along sleeping bedroom, awith in the back

dant appeared polo to have blood a tennis shoe that shirt and They phone. for first- arrested Tate it and the cell on degree homicide. intentional suppress to the evidence seized moved Tate including phone, pursuant to track his to the order apartment, state- mother's items from his seized building, apartment people in the ments from argued arrest. Tate made after his statements Tate to track needed a search warrant enforcement law Wagner's Judge not the order was and that Tate's equivalent warrant. of a search sup- to denied motion 13. The circuit court concluding Judge Wagner's press, suffi- order was track enforcement to Tate's cient allow law building apartment Cobb and that consented the pled apartment. no contest to first- of Tate search degree the appealed suppression homicide, the but reckless appeals conviction, of affirmed the decision. The court Judge Wagner concluding basis had a "substantial finding probable locate to issue order to cause agree phone." now affirm the decision Tate's cell We and appeals. of court of

II. DISCUSSION Review A. Standard of police independently ¶ 14. review "whether We guarantee against conduct the constitutional violated presents question of searches," unreasonable which ¶ Arias, 11, 311 84, State 2008 WI constitutional fact. v. (quoting v. 358, Griffith, Wis. 2d 752 N.W.2d748 State 72). ¶ 48, 2d 72, 23, WI 236 613 N.W.2d 2000 Wis. 184 magistrate's warrant-issuing However, we review de support termination of whether affidavit in of the probable "great order was sufficient to show cause with Higginbotham, deference." warrant-issuing magistrate's 2d 162 Wis. at 989. A probable

determination of cause will be affirmed unless the facts asserted in support clearly sup of the are warrant insufficient to probable port independently cause. Id. We also deter language mine whether "the of a order court satisfies requisite requirements constitutional of a warrant." Sveum, v. 92, 17, State 2010 WI Wis. 369, 2d N.W.2d317. finally, addressing argument 15. And Tate's statutory authority

that the circuit court lacked to issue § interpret apply order, we Stat. Wis. 968.12 § Statutory interpretation and Wis. Stat. 968.135. application present questions indepen of for our law Badger Co., dent review. Richards v. Mut. Ins. 2008 WI doing, 14, 309 2d 541, Wis. 581. In N.W.2d so we benefit from the discussions of both the court of appeals just and the court, circuit do as we with other questions Regents of law.Marder v.Bd. the Univ. Sys., Wis. WI 2d Wis. N.W.2d

B. Search compares phone tracking ¶ 16. Tate cell technol ogy tracking to the GPS device we that examined in Brereton, ¶ v. 34, State 2013 WI 2d 345 Wis. tracking N.W.2d 826 369. He contends that a cell through stingray cell site information and a involves a "usurpation property" similar of an individual's therefore constitutes a search. Id. the law en- Brereton, that concluded

¶ In we placed aon a GPS device who officers forcement in order to his movements and monitored car defendant's long privacy "invad[ed] interests conduct surveillance undoubtedly Amend- to, Fourth entitled afforded, and property they protection" his without used when ment Jones, (quoting v. permission. United States Id. his (2012) concurring)). (Sotomayor, J., 945, 954 S. Ct. Supreme ana- Court States the United 18. When placement physical device on a lyzed of a GPS a similar trespass. Jones, 132 in it did so terms car, defendant's tracking Brereton, noted that we In Ct. at 947. S. a through attached to device use of a GPS may search "even a have constituted car defendant's trespass." Brereton, 2d 345 Wis. aof the absence (Sotomayor,J., (quoting Jones, at 954-55 132 S. Ct. ¶ 34 concurring)). a to determine whether reiterated that 19. We tracking uses law enforcement occurs when

search trespass technology physical on a defendant's a to which apply, apply forth property the test set we does not (1967), which asks States, U.S. 347 v. United Katz subjective expecta- government "the violates whether recognizes society privacy reasonable." as tion (quoting Jones, 132 S. 2d Brereton, 345 Wis. omitted). 954-55) (further citation Ct. at tracking through The issue of whether subjective stingray "violates site information expectation recognizes society as reason- conceded,and has us because the State not before able"is tracking a is briefed, whether such has not therefore meaning Amendment.11 of the Fourth search within (2014), 134 S. Ct. 2473 Riley California, _, 573 U.S. In v. may not an officer held that Supreme Court the United States an seized from a cell digital information on "search briefly Still, we inform take stock of the doctrines that analysis challenges our search and note several applying technology them to the at issue this case. analyzing

¶ 21. using First, whether surveillance cell site information constitutes a search under Katz quite can become circular. is, That "the same techno- logical possible nontrespas- advances that have made sory techniques surveillance . . . also affect the Katz test by shaping privacy expecta- the evolution of societal (Sotomayor, Jones, tions." ring); 132 S. Ct. at 955 J., concur- (Alito, Jones, concurring) 132 S. Ct. at J., ("phone-location-tracking [that] services are offered as shape average person's 'social' expectations tools . . . movements"). privacy daily about the of his or her ¶ 22. Second, it is unclear how the notion that a purchaser accepts goods they including as him, come to goods electronically whether the can be traced in real impact analysis. time, should such an Jones, 132 S. Ct. 952; at Karo, see United States v. 468 U.S. 705, 712-13 (1984) (defendant object was not entitled to to law tracking enforcement's of a can of ether because the tracking beeper, placed device, a was in the can before it defendant). belonged to the

individual who has been arrested" without prior judicial autho- rization. Id. at 2480. The explained Court that an individual retains a expectation reasonable in the contents of a cell phone because a search of that could reveal a panoply personal through information which "[t]he sum of an private individual's life can be reconstructed." Id. at 2489. The Court discussed location type, among information as one many, of information a could contain. It address, did not however, question "the whether the inspection collection or aggregated digital information amounts to a search under other circumstances." Id. at 2489 n.l. Additionally, Riley's applicabil- ity to the case before us is diminished because law enforcement judicial obtained authorization before tracking phone. Tate's complicating the matter is loca- ¶ 23. Further example, phone. law enforce- cell For when tion of they may phone, contemplates tracking not a ment private resi- located in a is know whether "very at core" of the Fourth stands dence, which public highway, traveling a in down Amendment, or is expectation may have no of a which case privacy defendant Kyllo States, 533 v. United in his movements. (2001) (quoting States, United Silverman v. 27, U.S. 31 (1961)); Knotts, 460 States v. 365 U.S. 511 United (1983) ("A traveling person in an automo- 281 U.S. expecta- thoroughfares public no has reasonable bile on place privacy one in his movements from tion of another."); (Ziegler, J., Sveum, 328 2d Wis. tracking ("installing monitoring concurring) a GPS public not constitute a a vehicle in a area does device on meaning of the Fourth or within the search seizure Amendment"). Finally, public can even in areas 24. movements highly personal "familial, such as

reveal political, professional, information

religious, and sexual associa- "chill[] closely,may if asso- monitored too tions," which expressive Jones, freedoms." S. Ct. ciational concurring.) (Sotomayor, J., 955-56 successfully minimum, At it that to seems privacy argue expectation one of has reasonable requires in a reexamination of "the cell site information expecta- premise that an individual has no reasonable voluntarily privacy tion of in information disclosed (Sotomayor, concurring).12 parties." J., third Id. at 957 Supreme in which the United States Court asked Cases Supreme developed Court the third The United States through "false friend" cases that held party disclosure series of typically retains no federal constitutional reasonable that "one conveyed party," to a third expectation of information hypothetical person not what information a third could person generally expects rather, obtain but what a from parties party third show that third doctrine, even its permutations.13 state, current has "proceed areWe mindful that courts should considering concept pri- with care when the whole vacy expectations in communications made on elec- equipment" "[t]he judiciary tronic and that risks error by elaborating fully too on the Fourth Amendment implications emerging technology before its role in society City Ontario, has become clear." Quon, Cal. v. (2010). U.S. For that reason and because parties dispute do not that a search occurred, we deciding, tracking assume, without a cell using stingray cell site information and a constitutes a implications. search that has constitutional but the "doctrine is not absolute." ABA Standards for Criminal Justice, Law Party Access to Third Records at 6 & Enforcement (3d 2013). n.16, 7 ed. 13 (2013) Jardines, 1409, See Florida v. 133 S. Ct. 1416 ("introducing police dog a trained explore the area around the home in hopes discovering incriminating evidence" constitutes a search part "customary because it is not of a attempt Ontario, invitation" to entry); City Quon, Cal. v. (2010) U.S. employee's (concluding city's 760-65 review of messages pager provided by text sent on a city was not unreasonable and therefore did not violate the Fourth (2001) Amendment); States, Kyllo v. United 533 U.S. (thermal imaging of a home constituted a search because the sense-enhancing technology general use"); was not "in public States, (2000) 334, 335, Bond v. United 529 U.S. 338-39 ("physical manipulation passenger's carry-on luggage" of a bus constituted a passenger expect search because a not does passengers employees fellow bus or bus bag to "feel the in an manner," exploratory and may it, even if expect he them to move bag).

therefore handle the of the Search C. Reasonableness the United States Amendment of 27. The Fourth I, 11 of the Wisconsin and Article Section Constitution14 from "unreasonable protect persons Constitution15 the manner which warrants searches" and establish Henderson, v. n.4, 17 & shall issue. State 2001 WI "Searches made 2d 629 N.W.2d 613.16 245 Wis. requirements issued to the pursuant without warrants are to be unconstitu- presumed of the warrant clause Id., tional." warrant, to a 28. As to searches made pursuant if they comply constitutional muster with

they pass of the Fourth three of the Warrant Clause requirements Amendment: Amendment of the United States Constitu The Fourth provides:

tion houses, right people persons, The of the to be secure in their effects, seizures, against papers, and unreasonable searches violated, issue, upon probable but shall not be and no Warrants shall cause, affirmation, particularly describing supported Oath or searched, place persons things to be and the or to be seized. I, pro Article Section of Wisconsin Constitution vides: houses, right people persons, The of the to be secure in their against

papers, and and effects unreasonable searches seizures violated; upon probable shall not be and no warrant shall issue but cause, affirmation, supported by particularly oath or describ- things ing place persons to be searched and the or to be seized. ^[16] we generally have interpreted the state constitution to provide guarantees Supreme "the same constitutional as the through interpretation Court has accorded its of the Fourth Kramer, 14, 18, Amendment." State v. WI 315 Wis. 2d 2009 ¶ 414, 598; Sveum, 369, 2d 18 n.7. 759 N.W.2d see also 328 Wis. follow that tradition here. We

190 (I) neutral, prior authorization magis- detached (2) trate; upon a demonstration oath or affirmation probable there is cause to believe that evidence sought aid in a particular particu- will conviction for a (3) offense; particularized lar description of the place to be searched and items to be seized.

Sveum, 369, 328 Wis. 2d requirement "interposes[s] ¶ 29. The first the im partial judgment [neutral] of a officer between the citi police zen and the and also between the citizen and the prosecutor, may so that an individual be secure from an improper (quoting Id., ¶ search." 21 State ex rel. White v. (1965)). Simpson, 590, 598, 28 Wis. 2d 137 N.W.2d391 requirement provides ¶ 30. The second that the person seeking upon a warrant demonstrate oath or support probable affirmation sufficient facts to cause to sought particular believe that "the evidence aid in will apprehension particular or conviction for a offense." (quoting Henderson, 245 Wis. 2d Dalia v. (1979)) (internal quota States, United U.S. omitted).17 Finally, requirement tion marks the third place requires on focuses to be searched and that it particularity, be identified with in addition to the items to be seized. Id. In the event that a search warrant does comply requirements, may not exclusionary with these we invoke the exception

rule if no to the warrant re quirements applies. Sveum, 328 Wis. 2d 31 & n.8. urges disregard "apprehension" Tate portion us formulation, arguing Hayden,

this that Warden v. 387 U.S. (1967), original language, properly source of this is regarded as dicta. the phone Because we conclude that had value, evidentiary argument. we do not reach this Application

D. argues Tate that enforcement officers law they performed illegal an search when tracked his cell using stingray cell site information and a be- tracking that violated cause the constituted search the Fourth Amendment of the United States Constitu- I, and Article Section 1 of the Wisconsin Constitu- tion Judge Wagner statutory

tion and because thority "lacked au- authorizing police an order to track to issue phone in im- Tate's real time." This latter contention statutory authority necessary plies to the is lawful issuance of warrant. regard contention, In to the latter Tate also Judge Wagner cited,

asserts that the statutes Wis. Stat. §§ § § 968.35, 968.36, 2703, 2711, Wis. Stat. 18 U.S.C. grant power 3127, did not court to through enforcement to obtain location data authorize law stingray,

cell site information or a either indi- vidually collectively.18 or holding Tate cites federal cases this mosaic of authority is insufficient enforcement to track a cell allow law But, out,

phone using points cell site information. the State government sought those cases to obtain cell site informa upon showing probable cause, upon tion not of but a lower In Application See re the United States statutory showing. for Authorizing an Prospective Order the Disclosure Cell Site 2006) (the (E.D. Info., Supp. F. 2d 949 n.1 Wis. "of issue provi whether a search warrant issued in accordance with the support of Rule 41 requested sions would issuance of the order (if made) court); appropriate showing were not before" the is ¡Trace Application Register Trap In re Pen & Device with Cell for (S.D. Auth., 2005) Site Location Supp. 396 F. 2d Tex. ("Denial government's of the request prospective for cell site consequences data in this instance should no dire have for law type unquestionably enforcement. This of surveillance is avail upon probable able showing a traditional cause under Rule 41."); In Application re the United States an Order sufficiency

1. Constitutional constitutionally ¶ 33. To be sufficient, a warrant probable must be based on cause and be reasonable both in its issuance and in Henderson, its execution. 245 ¶¶ Wis. 2d 18-20. The warrant we review was Pajot, based on the affidavit of Detective who described support probable sufficient facts to cause to believe that phone sought the cell site information law enforcement particular apprehension would aid in "a or conviction for particular (quoting Id., ¶ a offense." Warden v. (1967)) (internal Hayden, quotation 387 U.S. omitted). marks Judge Wagner

¶ 34. was told that a surveillance captured person video made at the time of a homicide wearing a shirt, distinctive who identified himself to a "Bobby" purchased phone. store clerk as when he a cell He also was told that, later, moments surveillance video captured person matching physical description shooting people Finding two outside the store. the cell phone suspect purchased probative could be that the (1) Authorizing the Use Register a Pen & a Trap & Trace of (2) Device and Authorizing Info, Release Subscriber Cell and/or of (E.D.N.Y. 2005) ("disclosure Info., Site Supp. 396 F. 2d of cell site information turns a mobile telephone 'tracking into a device' and may therefore such disclosure not be authorized showing without a Application In re probable cause"); of United States an Order Authorizing the & Installation Use a Pen Register & a Sys. Caller [] [] on Tele. Nos. & Identification Prod, and the Real Info., Time Cell Cite Supp. F. 2d (D. 2005) ("When 605 Md. government acquire seeks to use real time cell identify site information to the location and phone possessor time, movement of a and its in real the court will upon issue a warrant a sworn demonstrating probable affidavit crime."). cause to yield believe information will evidence of a

person possession Tate of the was the shooter. before the circuit court not that the facts has established support clearly a determination of to were insufficient Higginbotham, probable id.; 2d at Wis. cause. See regard complaint that Detective In Tate's Attorney Judge Pajot, Huebner District Assistant why Wagner the cell constituted did not address Amendment nor crime, of a neither the Fourth evidence seeking require person a warrant our decisions explain why particular object consti- or information Higginbotham, 2d 162 Wis. at 989. tutes evidence. Starting Attorney ¶ 36. with Assistant District application itself, and the Huebner's the order order magistrate warrant-issuing the standard is whether the "apprised an of sufficient facts to excite honest belief is sought objects linked in a mind that are reasonable the objects crime, the of a and that the with commission sought place be State will be found the to searched." (1978). Starke, In 2d N.W.2d v. 81 Wis. keeping decisions focused standard, with this our have sufficiency legal argu evidence, the of the not the on reasoning magis applicant of or of ments the the E.g., Kerr, 372, 380-81, 2d trate. State v. 181 Wis. (1994) (although supporting N.W.2d 586 affidavit support probable contained "minimal factual basis to probable upheld cause," we a determination of cause "veracity knowledge per on of based basis information"). supplying sons . . . Pajot's affidavit, have As Detective we responsibilities seeking an a

described the affiant warrant as follows:

[Affidavits for search ... warrants!] must be tested and interpreted by magistrates and courts a commonsense They normally realistic fashion. are by drafted nonlawyers in the midst and haste of a criminal inves- tigation. requirements Technical specificity of elaborate once pleadings exacted under common law have no proper place in A grudging negative this area. or attitude by reviewing courts toward warrants will tend to dis- courage police submitting officers from their evidence to judicial acting.... officerbefore Recital of some of the underlying circumstances in the affidavit if is essential magistrate perform is to his detached function and merely not serve stamp police. as a rubber for the However, detailed, where these are circumstances where crediting reason for the source of the information is given, magistrate probable cause, and when a has found should courts not invalidate the warrant inter- preting hypertechnical, the affidavit in a rather than a commonsense, manner. Starke,

Higginbotham, 2d at Wis. 991-92 (quoting 410) (further omitted). 2dWis. at citation 38. Although we do not an affiant require provide legal theories, we do require narration sufficient facts and a statement what basis such a upon narration is made. However, if an affiant seeks warrant based solely on his or her own legal conclu- sions, the cause. Id. at cannot magistrate find probable 992. Having concluded that had Judge Wagner a suffi- cient factual cause, basis for turn finding probable we to Tate's particularity argument.19 39. Tate argues that the order fails the Fourth Amendment's it particularity requirement because does 19 dispute Judge Wagner Tate does not was a neutral magistrate, requirement. so we do not address that warrant particular specify a location where evidence will be

not timely found. When it had failed to obtain a warrant for monitoring beeper government home, in a the the argument impos- made a similar in Karo: "it would be 'place' searched, sible to describe the to be because the sought place precisely location of the is what is to be Supreme Karo, 468 U.S. at 718. The Court discovered." impressed logic was not with that and concluded that government object the beeper could describe the into which the placed and the that led

would be circumstances government beeper. the the want install Id. argument particular-

¶ 40. Tate's similar that the ity requirement of the Fourth Amendment's warrant First, clause was not met fails for two reasons. both the Supreme United States Court and court this have upheld involving tracking despite searches devices the impossibility describing place the exact to be by description, searched a traditional such as a street Id.; Brereton, ¶¶ 52-54; address. 345 Wis. 2d disagree Sveum, Second, 328 Wis. 2d we with argument physical Tate's that since there was no instal- tracking property lation of the device on Tate's this case, Karo, Brereton, Sveum, as there inwas the satisfy particularity requirement. order does not explained "[i]n Sveum, In we order to satisfy particularity requirement, the warrant must reasonably identify enable the searcher to ascertain and things Sveum, which are authorized to be seized." (quoting Noll, 328 Wis. 2d State v. (1984)). 443, 450-51, Wis. 2d N.W.2d While a description object tracking of the into which device placed satisfying particu was to be was a factor in larity requirement why Sveum, there is no reason way identifying phone, another a cell such as its number, electronic serial cannot serve the same func- placing tracking physically tion as property. device on Tate's Accordingly, employ- we conclude that ment of the electronic serial number for Tate's particularity requirement because that satisfies permits particularized number a collection cell site only phone. apply- Therefore, one cell information ing great Judge Wagner's probable to deference cause passes determination, we conclude that the warrant muster. constitutional Statutory sufficiency specific statutory authority necessary

¶ 42. No is to the issuance of a valid warrant for cell site informa- (explaining id., ¶¶ tion. See 69-72 that the failure to comply statutory provisions relating with all of the to warrant). validity warrants did not affect the of the though statutory However, even authorization was not necessary in warrant, order to issue the because the legislature general pro- has enacted criteria about the issuing employ regard warrants, cedures to with to we examine relevant statutes. 968.10(3) §

¶ 43. Wisconsin Stat. authorizes pursuant warrant, searches valid Wis. Stat. 968.12(1) § provides: signed by judge directing

A search warrant is an order a law enforcement officer to conduct a search of a designated designated object designated person, a or a place purpose seizing designated property for the or property. judge kinds of A shall issue search warrant probable if is cause shown. 968.12(1) § probable speaks

The cause that to is com- parable probable cause under the Fourth Amend- Bergman id., 44; State, ment. See see also v. 189 Wis. (1926) (quoting 615, 617-18, State v. 208 N.W. (1925) Blumenstein, 428, 430, 186 Wis. 202 N.W. 684 (§ (ioverruled grounds)) predecessor, on other 968.12's § 4839, Wis. Stat. "must be construed in accordance requirements upon subject with the constitutional seizures"). of searches and 968.12(1) § requires judge

¶ 44. Wisconsin Stat. a showing upon probable a cause, to issue warrant a Judge Wagner's sup- and we conclude that order was ported by probable cause. We also conclude that law stingray enforcement's use of a to locate Tate's cell phone was reasonable. Law enforcement's use of cell requires site information additional discussion because 968.12(1) § must be read in concert with Wis. Stat. 968.13(2) § § and Wis. Stat. 968.135 in order to have a complete statutory picture more when law enforcement seeks a warrant to obtain cell site information. explained "[w]hen 45. Tate his brief that log cell site, identifies itself to a cell of location information is created and in a stored carrier's data- base."20 While the record in this case does not show exactly log what form takes, this of location information we think it is safe to assume that it would come within 968.13(2)'s § Wis. Stat. broad documents, definition of 20We do not know whether US Cellular log maintained this as a matter of routine or it pen register whether installed a at request law enforcement's in order to collect cell site informa Toeniskoetter, tion for law enforcement. supra See note 9 (cellular providers service cell obtain site information install ing pen register). their own This distinction could matter if law prior judicial enforcement had not obtained authorization for 968.34(2)(a) tracking. § (prohibiting See Wis. Stat. the use pen register judicial authorization, of a prior subject without exceptions, certain one of which relates to a cellular service provider's "operation, testing maintenance of a wire or service"). electronic communication papers, "includes, to, books, which but is not limited recordings, tapes, photographs, records, films or com- puter electronic data."21 or

¶ 46. Search warrants issued under Wis. Stat. 968.12(1) § may not authorize the seizure of documents, 968.13(l)(c), § they Wis. Stat. unless are "under the person reasonably suspected control of who is be concerned in the commission of crime," 968.13(l)(d). § According to Officer Brosseau's testi- mony, law enforcement officers tracked Tate's using cell site information obtained from a cellular provider. sought Therefore, service the documents were party; they in the hands of a third were not "under the person reasonably suspected control of a who is to be concerned in the commission of that crime." compel

¶ 47. When law enforcement wants to party proceed documents, third to turn over it can pursuant obtain an order effect, to that to Wis. Stat. § provides 968.135. Section 968.135 that "a court shall subpoena requiring production issue a the of docu- 968.13(2)." specified "[u]pon ments, as s. This is done request attorney general attorney of the or a district upon showing probable cause."22Id. Application See also In re the United States His for (5th 2013) ("[c]ell Data, torical Cell Site 724 F.3d Cir. records"). site data are business § any Because Wis. Stat. 968.135 "does not limit or affect law," subpoena authority provided by other we note that § authority subpoena 968.135 does not restrict to issue a § under Wis. Stat. 968.375. Section 968.375 describes situations judge may subpoena which a issue a or warrant to obtain records or information from an "electronic communication ser computing provider." vice or remote service It does not limit a judge's powers statute, general subpoena under the more § provides § 968.135. We do not decide an whether 968.375 authority Judge Wagner's additional source of order because party § no has addressed 968.375. 48. We have held that failure to make a probable

¶ determination, cause when one is in order to required documents, obtain particular may a defendant of deprive to which he is entitled. safeguards State v. Popen 2008 WI 2d hagen, 309 Wis. 749 N.W.2d However, 611. Popenhagen has no here. application In law enforcement Popenhagen, officers and attorney district obtained a criminal defendant's bank records to a issued under pursuant subpoena Wis. 805.07, § Stat. the civil statute. subpoena they Because sought obtain the record as of a criminal part inves- tigation, they should have under the proceeded criminal subpoena statute, 968.135, § Wis. Stat. which

strictly subpoena limits a court's issuance of a for the production Only attorney general of documents. or attorney may request district a subpoena for the production of request documents. The must be ruled upon the circuit subpoena court before the is issued. may The circuit court subpoena issue a for documents only upon a showing probable cause.23 Id., 53. The officers in did not an Popenhagen present affidavit showing probable cause to the subpoena- issuing judges those did not judges make the determination of probable § cause that 968.135 re- Id., quires. legislature The require chose probable cause for

subpoena note, § issued under Wis. Stat. however, 968.135. We that we do not decide whether the Fourth Amendment comes play obtaining into when part cell site information in any because electronic necessarily documents have been shared with a third party. In Application See re the United States Historical Cell for Data, Site 724 F.3dat (rejecting 6L4-15 challenge constitutional to the Stored "specific Communication Act's and articulable facts" standard for disclosure of historical cell site information because a cell "voluntarily conveys user ... cell site data" to the call"). phone company "each time he makes a Popenhagen, Tate Unlike the defendant § safeguards. deprived of Wis. Stat. 968.135's was not upon request Judge Wagner the order the issued probable attorney. that the He determined district Pajot's met based on Detective cause standard had been argument reject that the court's sworn affidavit. We may not have been best citation to statutes that Judge Wagner's reversible error because choices is legal analysis with the standard Wis. was consistent § required. § 968.135 Ac- 968.12 and Wis. Stat. Stat. cordingly, rights conclude that Tate's substantial we prejudiced. not were

III. CONCLUSION evaluating argument, assume In Tate's we (1) deciding that: law enforcement's activities without meaning of the Fourth a search within constituted (2) I, 11; and because Amendment and Article Section tracking to discover Tate's led law enforcement home, a was his mother's warrant location within reason- that the search was needed. We then conclude pursuant to a warrant it was executed able because ll's I, and Article Section Fourth Amendment's met the requirements. Higginbotham, 2d 162 Wis. at 989. See statutory specific authorization We also conclude necessary Judge Wagner the order to issue not was procedures Tate's cell used to track that authorized phone supported probable the order was because comply spirit with the Nonetheless, the order did cause. § § 968.135, which Stat. Stat. 968.12 Wis. of Wis. employ procedures express legislative choices about Accordingly, subpoenas. we criminal for warrants and appeals. the court of affirm the decision of appeals By of the court the Court.—The decision is affirmed. (<dissent- ABRAHAMSON, SHIRLEY S. C.J. technology great

ing). in offer benefits to "Advances society many they pose time, in areas. At the same can privacy rights."1 significant The risks to individual phones tracking proliferation of cell and their location capabilities exemplify privacy rights posed the risks to by technological advancement.

¶ 53. The criminal cases State v. Tate2and State v. question Subdiaz-Osorio3 raise whether individuals right in their cell have constitutional words, data. In do the United States4 and location other permit Wisconsin Constitutions5 law enforcement person's location data access without warrant? phones "pervasive

¶ 54. Cell are a and insistent daily part majority life . . . ."6The vast of Americans phones; reported own cell the Pew Research Center has 1 (N.J. 2013). Earls, 630, v. State 70 A.3d 631-32 2 Tate, 89, 172, State v. 2014 2d WI 357 Wis. 849 N.W.2d 798. 3 Subdiaz-Osorio, State v. 2014 WI 357 Wis. 2d N.W.2d 748. 4 The Fourth Amendment to the United States Constitu provides: tion right people persons, houses, The of the to be secure their

papers, effects, against seizures, and unreasonable searches and violated, issue, upon shall not be and no Warrants shall but cause, affirmation, probable supported by particularly Oath or searched, describing place persons things to be and the or to be seized. Article pro Section of the Wisconsin Constitution vides: right people persons, houses,

The of the to be secure their papers, against and effects unreasonable searches and seizures violated; upon probable shall not be and no warrant shall issue but cause, affirmation, supported by particularly oath or describ ing place persons things to be searched and the or to be seized. (2014). Riley California, v. 134 S. Ct. May of American adults have a cell that, as of 91% phones smartphone.7 phone Cell are and have a 56% figuratively per- literally attached to their users' and might proverbial from Mars sons, such that "the visitor they important were an feature of human conclude phones, people generally anatomy."8 Unlike land-line carry phones in home, with them at all times—at cell play. work, car, at and at phones powerful

¶ 55. Cell can thus serve as tracking pinpoint that can our movements with devices place accuracy. They in can isolate time and remarkable religious shops, presence offices, ser- at doctors' our Anonymous meetings, vices, AIDS treatment Alcoholics political theaters, clinics, events, centers, abortion identify and whom bookstores, restaurants, with phone cell associates.9 Cellular service the user of the providers geographic location of have records of the every every of the American at almost moment almost day Accessing night.10 this information reveals person and intrudes on the intimate details about a right The United States of association. constitutional Supreme "qualita- characterizes location data as Court noting tively physical that records, from different" 7Earls, at 70 A.3d 638. additionally Riley, Riley Ct. at 2484. The Court 134 S. phone report "nearly three-quarters of smart users noted time, with 12% being phones five feet of their most of within they phones in the shower." Id. at admitting that even use their Earls, at 2489 Riley, at See also 134 S. Ct. See 70 A.3d ("Cell quantitative qualitative and a phones differ in both objects might kept be on an arrestee's sense from other cameras, just easily be called person.... phones] [Cell could as calendars, recorders, libraries, rolodexes, tape players, video diaries, albums, televisions, maps, newspapers."). or Cohen, Every You Tracking Your Move and See Noam It's Know, Times, 26, 2011, Mar. at Al. May Not Even N.Y. specific location data can "reconstruct someone's move- only minute, ments down to the not around town but particular building."11 precise also within a The more tracking, greater concerns. ¶ 56. Cell location data can also be a formi- fighting dable instrument In crime. both Tate and per- Subdiaz-Osorio, the law enforcement officers were forming important public safety their duties inves- tigating suspects violent crimes. Both criminal were apprehended relatively through short order law enforcement use location data. ¶ 57. The officers in Tate and Subdiaz-Osorio had thorny by seeking to deal with the issues raised access phone to individuals' cell location data. Law enforce- interpreting ment is the in first word constitutional requirements; the courts are the last. responsibility

¶ 58. It is this court's to evaluate a potential "by assessing, search hand, on the one the degree upon privacy to it which intrudes an individual's degree and, other, on the the legitimate governmental to which it is needed for promotion the of interests." (1999). Wyoming Houghton, v. 526 U.S. 295, 300 ¶ 59. This court owes it enforcement, to law law- yers, litigants, appeals, courts, circuit the court of and public large provide clarity the at to about when a regarding phone search has occurred cell location data procedures gov- and what must be undertaken ernment to render such searches constitutional.12 A protect privacy clear set of rules will interests also give guidance evaluating to individuals these interests. 11Riley, Jones, 134 S. at (citing Ct. 2490 United States v. (2012) (Sotomayor, J., 132 S. Ct. 945 concurring)). promote clarity "[W]e in the law of search and seizure and provide straightforward guidelines governmental officers Williams, who apply holdings." must our State v. 2012 WI 2d Wis. 814 N.W.2d 460. dance around the issue of 60. Rather than government phone access to cell location data whether meaning is a within the of the the instant cases search propose I it head- Constitutions, court address phone access to cell location data raises on. Government great importance privacy legal questions for the novel rights of technology— public emerging of the in an area exactly type questions appropriate for resolution law-developing pursuant function. to this court's government to cell I conclude that access cases, data in the instant which involves location movements, is a invasive surveillance of an individual's meaning To of the Constitutions.13 search within narrowly ignore the more is to read the Constitutions play private phone has come to vital role that the cell paraphrase the United States Su- communications, to preme States, U.S. Court in Katz v. United (1967).14 buy People phones to have them do not cell tracking They government do not

serve as expect devices. by using government to track them location phones.15 government gets information the People from subjective expectation in cell have a recog society prepared data that is location agree Bradley Ann Patrick Crooks Justices Walsh N. with this conclusion. 14 narrowly ignore "To read the Constitution more is telephone play private come to in public vital role that the has (1967). States, 347, v. United 389 U.S. 352 communication." Katz 15See, Davis, 1205, F.3d 2014 WL e.g., United States v. 754 2014) ("[I]t (11th unlikely phone 2599917, is that cell at *9 Cir. phone providers collect and customers are aware that their cell information.") (quoting Applica In re location store historical Directing an Order a Provider Elec. Commc'n tion U.S. (3d Gov't, 304, 317 Cir. To Disclose Records to 620 F.3d Serv. 2010)); Earls, A. 3d at 632. 70

205 Thus, nize as reasonable. warrant, absent a such a per search is se unreasonable.16 If the State does not warrant, have a phone only can State access cell location data if the State narrowly exceptions can demonstrate one of the drawn requirement. to the warrant In both Tate and Subdiaz- Osorio, law enforcement officers could have accessed cell properly location data with a authorized warrant complied existing They with relevant statutes.17 did not.

¶ 64. I address the balance between inter- presented ests and law enforcement interests as Tate and Subdiaz-Osorio.18 These two cases address substan- tially regarding government similar issues access to cell pose patterns. location data but distinct fact majority opinion

¶ 65. Neither the Tate nor Justice opinion Prosser's lead in Subdiaz-Osorio decides government question whether the access in constituted a meaning search within the of the United States and opinions Wisconsin Constitutions. Both assume that a search occurred. Despite majority the insistence of the Tate

opinion opinion and Justice Prosser's lead in Subdiaz- they merely deciding, Osorio that assume, without government access was a case,19 search each both opinions they address the search issue as elaborate on Sanders, State v. 85, 27, 257, 2008 WI 311 Wis. 2d Payano-Roman, State 713; v. N.W.2d 30, 2006 WI 2dWis. 714 N.W.2d 548. 17 I refer Tate as a "warrant," to the court order issued as does the Tate majority opinion. applicable The statute refers to issuing "subpoena" court requiring the production of docu § ments. Wis. Stat. 968.135. 18 "Privacy 19 Tate, majority Riley, comes at a cost." 134 S. Ct. at 2493. 2, 26; Subdiaz-Osorio, op., ¶¶ WI Subdiaz-Osorio, (Prosser, J., But see op.). ¶¶ lead 2014 WI their that a underlying assumption principles cases and occurred. search The Tate and Justice majority opinion

¶ in Subdiaz-Osorio refer to and Prosser's lead opinion and United from the same Wisconsin draw guidance cases, including recently Court Supreme States California, v. 573 134 S. Ct. Riley mandated U.S. _, (2014).20 2473 68. The Tate and Justice majority opinion

¶ of law that principles lead announce opinion Prosser's other.21 The and to an extent conflict with each overlap in writings as well as the separate two opinions, Ann Subdiaz-Osorio Bradley, of Justices Walsh N. 87, J., concurring) (accusing Justice (Roggensack, 132 ¶ merely of not assum- opinion lead in Subdiaz-Osorio Prosser's expectation privacy but in ing the issue of the reasonable issue). deciding effect 20 (cited Tate, Riley, majority op., in See 134 S. Ct. 2473 Subdiaz-Osorio, 87, (Prosser, n.11; in 2014 47 n.23 20 WI ¶ ¶ (cited Tate, Katz, J., majority op., in op.)); lead 389 U.S. at 353 Subdiaz-Osorio, 87, 51-52, 19-21; 65-66 in 2014 WI ¶¶ ¶¶ Subdiaz-Osorio, (Prosser, J., 87, in 2014 WI 3 op.); lead (cited (2012) Jones, J., (Roggensack, concurring)); 132 S. Ct. 945 Subdiaz-Osorio, Tate, 17-25; 87, majority in 2014 WI op., in ¶¶ Subdiaz-Osorio, 43, 48, (Prosser, J., op.); lead in 2014 WI 51 ¶¶ 87, Brereton, J., 2013 (Roggensack, concurring); State v. 135 (cited Tate, 17, 563, majority in WI 345 Wis. 2d 826 N.W.2d Subdiaz-Osorio, 87, 38, 16-18, 40; op., in 2014 WI ¶¶ ¶¶ Sveum, J., 92, 2d (Prosser, 2010 WI 328 Wis. op.); lead State v. (cited Tate, 23, 28, majority op., in 787 N.W.2d 317 ¶¶ J., Subdiaz-Osorio, (Prosser, 30,40-43; lead 2014 WI op.)). Subdiaz-Osorio, (Roggen 2014 WI 131-132 ¶¶ See sack, J., opinion in concurring) (criticizing Justice Prosser's lead "elaborate[ing] fully on the Fourth too Subdiaz-Osorio emerging technology before its role implications Amendment Subdiaz-Osorio, (Prosser, J., clear"); society has become Subdiaz- op.) (noting that Tate shares similarities with lead issues). ultimately decided on other though Osorio even it is must Roggensack, Patience Drake Crooks, Patrick and carefully to understand be read together thus law enforce- constitutionality on position court's location data.22 cell person's phone ment access to issues raised overlapping address the 69. To ¶ I as cases, organize my dissenting opinions these two to the rel- corresponds Each number heading follows. subdivision of each dissent. evant Tate, in I address the follow- my In dissent ¶ main ing points: phone police I. access to the defendant's cell

Part The Subdiaz-Osorio, data, Tate and location an issue both meaning of the Constitutions.23 was a search within trespass.24 Part II. The search existed as 22 30,1 and through In 23 consolidate summarize footnotes regard position opinion of each Tate Subdiaz-Osorio ing topics. particular existed, see: For discussions of whether a search Tate, Assumes, deciding, majority op., that there 26: without ¶

awas search. J., Assumes, Subdiaz-Osorio, 87, (Prosser, op.): lead ¶ 2014 WI deciding, strongly that a without that there was a search but hints search existed. Subdiaz-Osorio, 87, J., (Bradley, concurring), 2014 WI (Crooks, J., concurring): Determine that there was a search. J., Subdiaz-Osorio, (Roggensack, 131-137 concur- ¶¶ 2014 WI opinion elaborating ring): too Criticizes Justice Prosser's lead fully right privacy in cell location data. on Subdiaz-Osorio, J., concurring): (Ziegler, 2014 WI 139-143 concurrence, Joining Roggensack's requesting addi- Justice briefing tional on whether a search existed. Tate, dissent, Yes, Abrahamson's 61: access to Chief Justice Subdiaz-Osorio, phone location data is a search. See also 2014 WI (Abrahamson, C.J., dissenting). ¶ 155 existed, trespass For of whether see: discussions Part III. search The existed as an of an invasion expectation individual's reasonable of privacy. subjective

A. The expectation not was by: undermined contract;25

1. The cell or third-party 2. The doctrine.26 Tate, majority op., trespass ¶¶ 18-20: Discusses but refers to the only "nontrespassory." search as Subdiaz-Osorio, (Prosser, J., op.): 2014 WI 48-50 lead ¶¶ Trespass analysis would be "unnatural." Tate, dissent, Chief Justice Abrahamson's ¶¶ 101-102: State does obtained; appears not disclose how information was be a (Abraham- trespass. Subdiaz-Osorio, 87, See also 2014 WI ¶ 168 son, C.J., dissenting). 25For phone discussions of whether the cell contract cre phone data, ated consent to access the cell location see: Tate, majority op., might through pur- ¶ 22: Defendant consent phone. chase of cell Subdiaz-Osorio, 87, (Prosser, J., op.): 2014 WI 53-63 lead ¶¶ through phone purchase Consent cell contract was invalid. Subdiaz-Osorio, 87, (Roggensack,J., 2014 ¶¶ WI 133-135 concur- ring): Questions opinion regarding J. Prosser's lead contract. Tate, dissent, Chief Justice ¶ Abrahamson's 116-121: Adhesion rights. contract will not be enforced to waive constitutional See Subdiaz-Osorio, 87, (Abrahamson, C.J., also 2014 WI 168 dis- senting). 26 doctrine, For of the of impact third-party discussions see: Tate, majority op., Third-party may ¶¶ 24-25: doctrine need reevaluation. Subdiaz-Osorio, J., (Roggensack, 2014 ¶WI 134-135 concur- ring): Questions expectation privacy whether of in third- exists party records. Tate, dissent, Chief Justice Abrahamson's Third- ¶¶ 122-135: party inapplicable phone doctrine in to cell location data. expectation recognizes a reasonable Society

B. data.27 phone location privacy in cell of setting 968.135, § the statute Stat. TV.Wisconsin Part documents, subpoena of for a requirements forth in either Tate or was not followed—it have been should in Subdiaz-Osorio Subdiaz-Osorio, I address my In dissent main points: two a reason society recognizes whether of For discussions privacy, see: expectation of

able may 2,16-25: Expectation privacy be lower

Tate, op., majority ¶¶ area; location, public expectation of especially phone in a for cell phone's in a home. dependent location privacy on the was J., (Prosser, op.): Subdiaz-Osorio, lead ¶¶ 65-68 2014 WI worries privacy location data and expects in cell Public privacy. invasion of about J., (Roggensack, Subdiaz-Osorio, concur- 2014 WI 134-135 expectation privacy in third- exists ring): whether Questions party records. dissent, law, Tate, Case 136-149: ¶¶ Justice Abrahamson's Chief society recognizing point legislation public policy, and Wisconsin data. See expectation in cell location reasonable C.J., Subdiaz-Osorio, (Abrahamson, dissent- WI also ing). requirement, see: the warrant For discussions of comply Tate, op., with Wis. majority Warrant did not ¶¶ 33-50: 968.135, subpoena third-party Non- § information. Stat. Non-statutory requirements. statutory met constitutional warrant "spirit11of warrant statutes. met warrants (Prosser, J., op.): Subdiaz-Osorio, 87, lead No 2014 5 n.2 ¶ WI issue, Amendment and must meet Fourth at but warrants warrant statutory requirements. J., concurring): Subdiaz-Osorio, 87, (Bradley, A ¶ 2014 WI 89 comply failed to and the State's warrant was needed warrant either case. (Crooks, J., concurring): Subdiaz-Osorio, 87, A 118 ¶ 2014 WI applied. good-faith exception needed but the warrant was 210 Part State V. The failed meet its burden to demon- exigent circumstances;29 strate the existence of Part VI. The defendant invoked Miranda right his to an attorney interrogation.30 at his Tate, dissent, ChiefJustice Abrahamson's 150-163: ¶¶ State failsto comply statutory requirements. with warrant Warrant was invalid. Subdiaz-Osorio, 87, (Abrahamson, C.J., See also 2014 WI 168 ¶ dissenting). 29 exigent circumstances, For discussions of see: Exigent Tate: not at circumstances issue.

Subdiaz-Osorio, 87, (Prosser, J., op.): ¶¶ 2014 WI 69-81 lead Exigent exception requirement circumstances to warrant was satisfied. Subdiaz-Osorio, 87, J., (Bradley, concurring): 2014 WI 89 there exigent no were circumstances. Subdiaz-Osorio, (Crooks,J., 87, concurring): 2014 ¶WI 118 there exigent no were circumstances. Subdiaz-Osorio, 87, J., (Roggensack, concurring): 2014 ¶WI 130 reasonably Law acted enforcement under the Fourth Amendment exigent due to circumstances. Subdiaz-Osorio, 87, (Abrahamson, C.J., 2014 ¶¶ WI 169-208 dissenting): exigent its State fails meet burden to show circum- stances. right attorney, For of Miranda to an discussions see: rights Tate: Miranda not at issue.

Subdiaz-Osorio, (Prosser, J., op.): ¶¶ WI 82-87 lead right attorney. unequivocally Defendant failed to invoke to an Subdiaz-Osorio, J., (Bradley, concurring): 2014 WI Defen- successfully right. dant invoked Miranda (Crooks, J., id., concurring); Subdiaz-Osorio 2014 WI J., concurring): (Roggensack, Defendant failed to invoke right attorney. unequivocally to an Subdiaz-Osorio, (Abrahamson, C.J., ¶¶ 2014 WI 209-219 dissenting): person A reasonable would understand Subdiaz- right. Osorio to have invoked his Miranda Tate I-IV of my Parts My discussion Subdiaz-Osorio, I incorporate and relevant dissent is Tate dissent Subdiaz-Osorio my into Parts I-IV of my them in full.31 repeating dissent without in both cases. Accordingly, I dissent

I in Tate and Justice majority opinion 74. The in Subdiaz-Osorio do not answer lead opinion Prosser's Does enforcement's law presented: the core question in the location data phone to an individual's access a search under the Wisconsin cases constitute present I answer this United States Constitutions? would in the affirmative.32 question important I that do raise numerous additional issues The two cases statutes, address, the including applicability the of federal not reviewing for exception, proper and the standard good-faith remedying of cell location data. illegal

an search concurrence in Subdiaz-Osorio asserts Justice Crooks' occurred, Subdiaz-Osorio, 2014 illegal search WI an warrantless (Crooks, J., concurring), good-faith but that the 125-128 ¶¶ the evidence not have been exception applies, and that should already case I in Parts our state's law explain excluded. As I-IV provide the need for a warrant and the statutes set forth obtaining a These rules of law existed at procedures for warrant. the initiated the in the cases. the time that officers search instant analysis I harmless-error is am unconvinced that usual proper approach in Tate and Subdiaz-Osorio. See Subdiaz- Osorio, J., (Bradley, concurring) (apply- 2014 WI 97-105 ¶¶ Subdiaz-Osorio). analysis illegally ing When harmless-error data forms the entire basis obtained cell location defendant, rather than evidence apprehension and arrest of crime, appears to analysis the usual harmless-error be poor fit. 32 Earls, Jersey Supreme although A.3d the New In exactly difficulty calculating what level recognized the Court of society technological the court expects products, in its expectation have a reasonable declared that individuals in Tate opinions The various Subdiaz- ¶ Osorio about of the disagree impact recent United California, v. States Court case Riley Supreme U.S. (2014). 134 S. Ct. 2473 Riley held that _, law enforce- ment must obtain a warrant before searching the contents of a cell in a phone search incident arrest. The Riley extolled the opinion strong privacy interests in individuals stored, electronic data accessed, or maintained on cell phones. 76. The majority opinion in Tate and Justice lead opinion in Subdiaz-Osorio distinguish

Prosser's Riley Riley that stating does not address the instant whether a question: defendant has a reasonable ex- in pectation privacy location data. They relegate Riley to a footnote.33 Conversely, Justice Crooks' con privacy data, in cell phone their location and therefore the police must obtain search accessing warrant before that information. belongs phones [Olur focus on the obvious: cell are not meant to tracking they may serve as devices to locate their owners wherever People buy phones others,

be. cell to communicate with to use the Internet, growing and for number of other reasons. But no one buys phone a cell to share detailed information about their police. whereabouts with the Earls, 70 A.3d at 643. Similarly, Supreme the Massachusetts Judicial Court has

held an privacy that individual's in phone interest cell location data is one society accepts reasonable, as and that law request phone enforcement's for cell location from data an individual's cell phone provider is a requiring search Fourth protections. Amendment v. Augustine, Commonwealth 4 N.E.3d (Mass. 2014). Recently, the federal Eleventh Appeals Circuit Court of has phone also held that society's cell location data is within expectation Davis, reasonable privacy. See United States v. (11th 2014). 754 F.3d 2014 WL Cir. 33Tate, majority Subdiaz-Osorio, op., n.ll; WI (Prosser, J., 47 n.23 op.). lead heavily Riley on relies in

currence Subdiaz-Osorio individuals in interests of its on the statements police phone of cell access data determine a search.34 location data constitutes of whether The issue in the instant case a search location data constitutes of cell access rely Riley. I do not on the Court not before was Riley's holding regarding to arrest in search incident my analysis. language Riley is, however, instruc- The teachings of case. I draw from the tive in the instant and the Amendment case law of both Wisconsin Fourth analyze regarding privacy interests to States United meanings of within the the a search occurred whether in the United States Constitutions Wisconsin and present using analyze apply I and the case law case. expectation trespass of the and the reasonable both privacy applicable to the Fourth Amendment. doctrines already provides

¶ law of our state us 78. The case ample the enforcement basis to determine that law with in Tate and constituted searches access Subdiaz-Osorio meaning the of the Constitutions. within forcefully Brereton,35 the In v. court 79. State monitoring that law enforcement access and of declared through use of a Global an individual's location data the (GPS) Positioning Systems on a motor is device vehicle meaning of If a search within the the Constitutions.36 34 Subdiaz-Osorio, (Crooks, 87, J., 109 concur 2014 WI ring). Brereton, v. 2d State 2013 WI 345 Wis. (U.S. 2013). denied, cert. 134 Ct. N.W.2d S. by party's is not bound concession of Although court defendant's briefs in Tate assert law, that both State's and Brereton, tracking 2d makes clear the GPS Wis. meaning and was a search within the of Constitutions Plaintiff-Respondent 14r-15; required a of at warrant. Brief Defendant-Appellant-Petitioner Appendix Brief at 24-25. of the collection of location data avia GPS device attached government acquisi- search, a motor vehicle is a then tion of more invasive location data ais search. sophisticated Cell location data is often more precise, phones' ubiquity greater privacy and cell raises tracking concerns than GPS of a motor vehicle. explained The Brereton court that "warrant- tracking less GPS would constitute a search even in the trespass, [because] of absence a Fourth Amendment government subjec- search occurs when the violates expectation privacy society recognizes tive as reasonable."37 any If there was doubt that the Brereton tracking

court held that the GPS of location data was a meaning search within the Constitutions, Brereton court added: ,

The interest at govern- issue.. . where the [the ment has property apply defendant's] utilized technology movements, GPS to monitor his govern- is usurpation ment of an property individual's "for the conducting him, purpose thereby surveillance on invading privacy long afforded, interests and undoubt- to, edly protection."38 entitled Fourth Amendment ¶ Jones, 82. Brereton relied on United v. States (2012), 565 132 S. Ct. 945 in which the United U.S. _, Supreme unanimously States Court determined that of attachment a GPS device to a motor vehicle was a search under the United Constitution, States with 37 (internal Brereton, 563, 345 Wis. quotation 2d 34¶ omitted). marks 38 954). Jones, (citing Id. Ct. 132 S. at Brereton court The clearly stated numerous times that "the ," Brereton, use of a GPS device constituted a search ... 345 563, 43, Wis. 2d implicated by and that "the interest ¶ id., judicial authorization," required the GPS search 44. ¶

215 by reaching separate opinions their conclusions three relying Fourth Amendment doctrines. on different The the instant case. 83. Jones is instructive majority opinion, Justice Scalia authored Jones joined by held that the attachment Justices, four other trespass a onto the constituted of the GPS device property.39 Alito, in a concurrence defendant's Justice joined by Justices, that extensive three asserted other "impinges recording ex- location on of an individual's joined Sotomayor privacy."40 pectations of Justice relying trespass majority opinion law but on wrote although asserting trespass separate concurrence, Jones, the case in even short-term doctrine settled monitoring implicates of individual's location an right privacy.41Thus, viewed the GPS five Justices tracking as its of an individual's location device and privacy. impinging expectations on recognizes govern- Our law also case phones42 personal cell ment access data stored on meaning computers43 constitutes search within if Thus, law enforcement offic- Constitutions. even independent "an area, ers have consent to search an analysis" performed must to determine whether be personal also electronic device can be searched.44

39Jones, at 132 S. Ct. 949-54. 40Jones, (Alito, J., concurring 132 at in the S. Ct. 964 judgment). 41Jones, J., concurring). (Sotomayor, 132 at S. Ct. 954-57 42 Carroll, 27, 299, 8, 2d v. 322 Wis. State WI Riley, (requiring N.W.2d 1. See 134 S. warrant Ct. arrestee). an officers to search the Sobczak, v. 2d 833 N.W.2d State WI Wis. Wisconsin, v. 134 S. Ct. 626 cert. denied sub nom. Sobczak (2013). 44Sobczak, 2d 347 Wis.

216 agree ¶ I with the in statements Justice opinion impor- Prosser's lead on Subdiaz-Osorio privacy relationship tance of modern, and its our interconnected, electronic-device-mediated world. "Pri- vacy pillar "[P]rivacy ais of freedom."45 serves more integral component individual; than the it is an aof society."46"[Pjrivacy well-ordered legal not must become a "[EJfforts fiction."47 to access the information expose our electronic devices invade and marrow individuality."48I, Prosser, our like Justice am "mindful pervasiveness technology of the of wireless and of our ,"49 privacy citizens' concern for their .. . Supreme

¶ 86. As United States re- Court cently Riley, phones noted in 134 2494-95, S. Ct. at beyond involve interest far what the Founders envisioned: phones

Modern cell are just technological not another all they they convenience. With contain may and all reveal, they for many privacies hold Americans "the (1886).] life," [Boyd States, v. United 116 U. S. fact technology The now allows an individual carry such information in hand not his does make the any worthy information less protection of the for which fought. the Founders light twenty-first-century pri- In these

vacy existing holding concerns and our case law law an enforcement's access to individual's electronic data for information about individual's location meaning constitutes search within the of the Consti 45Subdiaz-Osorio, (Prosser, J., op.). WT lead 46Id., (Prosser, J., op.). lead 47Id., (Prosser, J., op.). 40¶ lead 48 Id., (Prosser, J., op.). lead 49id, (Prosser, J., op.). 45¶ lead why majority opinion in and Justice Tate tutions, do the hedge opinion their in lead Subdiaz-Osorio Prosser's Roggensack’s in concurrence Indeed, Justice bets? opinion in Prosser's lead chides Justice Subdiaz-Osorio daring to insinuate that a for even Subdiaz-Osorio might phone privacy in cell location data.50 exist interest majority opinion ¶ in Tate Justice 88. The they opinion in assert that lead Subdiaz-Osorio Prosser's accessing phone of cell not decide whether the choose meaning of searches within the location data constituted urged by "caution" as the because of Constitutions Supreme City Ontario, Cal. v. Court United States of (2010). op., majority ¶ Tate, 26; Quon, 560 U.S. (Prosser, op.). Subdiaz-Osorio, J., 2014 WI lead opinion in Subdiaz-Osorio recites Justice Prosser's lead "[a] stating holding language Quon that broad from concerning privacy expectations employees' vis-a-vis might equipment employer-provided technological have predicted." implications for future cases that cannot be (Prosser, op.) Subdiaz-Osorio, J., 2014 WI lead 760). (quoting Quon, 560 U.S. at major- Contrary hand-wringing of to the opinion ity opinion lead in Tate and Justice Prosser's recognizing privacy Subdiaz-Osorio, interest in cell phone present in the cases not estab- location data does far-reaching premises lish that define the existence technology. privacy expectations all extent of The only government to cell court would establish access phone used in location data the means these cases meaning constitutes a search within the Consti- tutions. change Technology rapidly, does but urged by hedge in favor of our Quon

caution should 50Subdiaz-Osorio, 131-132, 2014 WI 139-137 ¶¶ J., concurring). (Roggensack, privacy

protecting presented in the fact situations to us. existing Caution should steer us to follow Wisconsin already recognizing government tracking law case anof individual's cell location data constitutes a search. Regardless applies

¶ 91. of whether one the tres- pass expectation doctrine or the reasonable jurisprudence, doctrine Fourth Amendment law en- forcement access defendants' cell location in data both and Tate Subdiaz-Osorio constitutes a meaning within search the of the Constitutions. analyze ¶ through 92. I nonetheless both cases trespass the Fourth Amendment lenses of both expectation doctrine and the reasonable of doctrine.

II trespass ¶ gov- doctrine, Under the when the upon private property, ernment intrudes even if the performed small, intrusion is it has a search within the meaning of the Constitutions.51 majority opinion 94. The Jones held that when "physically private occupied property law enforcement purpose obtaining trespassory for the information," a purposes. search occurred for Fourth Amendment Jones, 132 S. Ct. at 949-51.

¶ 95. As Justice Alito ("an computers trespasses as to a chattel effect" under data on Amendment). DirectRevenue, LLC, the See Sotelo v. Fourth (N.D. 2005) (asserting 2d Ill. Supp. F. 1230-32 causing damage computer to computer into the was intrusion a chattels); to also trespass sufficient to state a claim for see (9th 2004) E3d Cir. Farey-Jones, v. 1072-73 Theofel (analogizing violation of the federal Stored Communications trespass); Act the International Ass'n with common law Werner-Masuda, Aeropsace F. Machinists and Workers v. (D. 2005) 479,495 (noting 2d that federal courts treat Supp. Md. computer trespassers"). hackers as "electronic exactly "It is not clear from the record how law enforce Tate, majority op., ... cell information ." 8. ment used site Tate required The circuit court order issued in Cellular, signal initiate to deter- provider, service U.S. "shall a gov- In both Tate and Subdiaz-Osorio, the apparently electronically ernment intruded into the phone by "ping" defendant's cell use of either a from the phone company56 "stingray" or a device,57both of implicate trespassory which a search. phone

¶ 99. If the cell location data was accessed phone provider "pinged" when the cell service phone, actively signal trigger i.e., phone sent a to entry signal reveal its location, the of an electronic into phone implicated trespass. a phone ¶ 100. If the cell location data was accessed through "stingray" law enforcement use of a device as in implicated trespass.58 Tate, such use also a methodology "stingray" 101. The exact of the is secrecy, general understanding of some but a of its functioning Apparently stingray exists. mim- device signal ics a cell trigger phone tower and sends a into the cell response. a stingray The manufacturers of de- technology vices will not discuss how the works. The mine the subject's location of the mobile device on the service provider's network or with such other points may reference as be reasonable ...." 56 Tate, majority op., 1, 7; Subdiaz-Osorio, ¶¶ 2014 WI 87 (Prosser, J., 45 n.19 op.). lead 57 Tate, majority op., 58A stingray 1, 7, 9. ¶¶ by

works mimicking cellphone tower, getting to connect to it and measuring signals from the phone. It stingray operator lets the 'ping,' or signal send a to, and locate it long powered on, as as it is according to documents reviewed the Journal. The uses, device has various including helping police locate suspects and aiding finding search-and-rescue teams people lost in remote areas or buried rubble after an accident. "Stingray" Phone Tracker Fuels Valentino-Devries,

Jennifer Clash, Constitutional available at J., Sept. Wall St. http://online.wsj.com/news/articles/SB100014240531119041946 (last 2014). July 14, visited technol- Justice uses stingray Department

Wisconsin use of the functioning or refuses to disclose but ogy device.59 stingray has failed to dis- the State though 102. Even data obtained location was phone how the cell

close access to government it that the cases, appears the two tres- implicated data in both cases cell location phone Nevertheless, majority opinion intrusions. passory lead Subdiaz- opinion and Justice Prosser's in Tate inquir- relevant to their trespass do not consider Osorio ies. ig- in Tate majority opinion simply 103. The in the instant the intrusion possibility

nores the major- The Tate search. trespassory case constituted in which 18-19, the case as one analyzes ity opinion, ¶¶ Litke, Cops Can Track Residents' Cell See Eric State Northwestern, 28, 2014, at Mar. available phones, Oshkosh http://www.thenorthwestern.com/article/20140331/OSH0198/30 (last visited 3290107/State-cops-can-track-residents-cellphones 2014). July Increasingly, and state law enforcement officers are local variety including using data of tools tapping into raised stingray devices. Use of these secretive tools has many jurisdictions. Kelly,Cellphone John Data concerns in See NSA, 10, 2014, Today, Not USA June Spying: It's at Just /story/news/nation/ http://www.usatoday.com available 2013/ (last 12/08/cellphone-data-spying-nsa-police/3902809/ visited 2014). July Additionally, encouraged the Obama administration has heavily or state and local law enforcement to withhold censor tools, regarding documents increasingly intervening the use of cell surveillance public in routine state records cases technology. regarding and criminal trials use of the See Jack Sullivan, Stay Mum Pushing Cops & Eileen US Local To Gillum Surveillance, 12, 2014, Report, & World June on U.S. News http://www.usnews.com/news/politics/articles/2014 at available (last /06/12/us-pushing-local-cops-to-stay-mum-on-surveillance 2014). July 14, visited "physical trespass property on a defendant's does not apply" involving trespass." or one "the absence of a opinion

¶ 104. Justice Prosser's lead in Subdiaz- any authority asserts, Osorio without citation to or analysis of intrusion, the electronic that the intrusion trespass.60 did not constitute a Justice Prosser's lead opinion holding in Subdiaz-Osorio concludes that elec- manipulation trespass tronic to be a "would be unnatu- ral."61 opinion

¶ 105. Justice Prosser's lead in Subdiaz- explicate Osorio does not what makes electronic ma- nipulation authority "unnatural" and cites no cases or proposition, simply stating, ipse for its present dixit, that "the category

case falls under of a non- trespassory search. . . ."62 The basis for the lead opinion's reasoning mystery. remains a imprudently

¶ 106. The court assumes that no trespass in existed the two cases. The determination of trespass should be based on the State's disclosure of Any signal it how obtained the information. electronic entering modifying the individual's it or triggering response any way, slight, impli- in however trespassory cates a search.

Ill opinion ¶ 107. Justice Prosser's lead in Subdiaz- correctly two-part Osorio recites the test set out Katz (1967), States, v. United expectation 389 U.S. 347 of the "reasonable privacy" of standard for what constitutes a meaning search within the of the Constitution.63 60Subdiaz-Osorio, (Prosser, J., 2014 WI op.). lead ¶ 61Id., (Prosser, J., op.). lead 62Id., (Prosser, J., lead op.). 63Id., (Prosser, J., 51-52 op.). ¶¶ lead 108. Katz states that a search occurs when a) subjective expectation privacy; person has both: b) society expectation privacy pre- "that is an pared recognize Katz, as 'reasonable.'" 389 U.S. (Harlan, concurring).64 J., opinion lead 109. Justice Prosser's in Subdiaz- why explains Osorio individual defendant subjective expectation case had a in cell Subdiaz-Osorio, data, location 2014 WI (Prosser, op.), why society recog- J., lead and 53-64 expectation privacy phone nizes an of in cell location ¶¶ Subdiaz-Osorio, data, 42, 45, 2014 WI 65-68 (Prosser, op.). in J., Yet, end, lead Justice Prosser's opinion recognize lead in Subdiaz-Osorio refuses to an right privacy phone individual's to in cell location data. government I 110. would hold that the access to phone cell data in location both cases violated both subjective objective expectations pri- and reasonable vacy.

A government ¶ In order to determine whether phone access to cell location data a constitutes search meaning Constitutions, within the of the a court ad- prong namely test, dresses the of the that the first Katz person subjective expectation privacy in must have being the area searched. may Although generally

¶ 112. individuals be may through aware that their locations be tracked their phones, tracking cell most do not realize the extent of Supreme acknowledged The United States Court has circular, the Katz test "has often been criticized as and States, subjective Kyllo hence and unpredictable." v. United (2001). U.S. possible65 reasonably do not the cell expect phone service to their provider report location precise to law enforcement officers. It does not comport with the reality the modern telecommunications age that individuals lose their constitutional right in privacy their location simply by purchasing cell phone. In accord with the comments in Justice Subdiaz-Osorio,66 Prosser's lead opinion I would hold the defendants had a subjective reasonable expec tation of in the cell location data. phone

65 you If phone your pocket, have a cell govern then the

ment you. government's can watch At the request, the phone company signal will any send out cell network, connected to its give police its location. [In agents pinged 2009] law enforcement just users of one provider Sprint—over eight service million times. The — requests grew large volume of so that the 110-member electronic surveillance team keep up, Sprint couldn't so process by developing automated the a web interface that gives agents direct access to users' location data. Other providers service are not forthcoming as about practice, only guess many this so we can how millions of get pinged by police every their customers year. (9th Pineda-Moreno, 1120, United States v. 617 F.3d 1125 Cir. 2010) (citations omitted). (Kozinski, J., dissenting) The approves collecting Tate warrant open-ended and un- defined data phone provider, from the cell service "any such as: historical may request information law enforcement to include historical cell site information from through this 6/9/2009 order's duration ... ." The long order's duration extends over a period days of time—60 requires phone that the cell —and provider provide service necessary "shall all technical assistance accomplish this order and disclose the records other twenty-four information described day." herein hours goes beyond This surveillance scope far the traditional aof warrant, search aided technology that has now rendered practicable. broad searches 66Subdiaz-Osorio, 87, (Prosser, J., 2014 WI 53-61 lead ¶¶ op.).

225 questions ¶ the cell I to the of whether 114. turn phone provider's an or individual's contract service phone data to the of his cell location disclosure (a provider party) phone undermined the third service privacy subjective expectation of in cell individual's phone data. location

1 provider ¶ is The cell service contract opinion in referenced in Justice Prosser's lead Subdiaz- argues the contract removes the Osorio. The State subjective expectation in his cell defendant's phone location data. question I that the contract in conclude adhesion, a contract of a "take-it-or-

Subdiaz-Osario was that the could not and did leave-it" contract individual negotiate.67 Consequently, I at minimum not would ambiguous vague against or terms construe drafter.68 opinion

¶ 117. Justice Prosser's lead in Subdiaz- points variety potentially Osorio out a unclear lan- guage provider defendant's cell service (Prosser, Subdiaz-Osorio, ¶¶ J, contract. op.). 56-58 lead opinion ¶ 118. Justice Prosser's lead in Subdiaz- complex potentially Osorio that such a also avers confusing should contract not constitute the basis Subdiaz-Osorio, 87, 2014 59 consent to a search. WI (Prosser, op.). Why Law J., lead not? enforcement 67 Jones, 53, 52, See Title 2006 WI Wis. Auto Loans v. Int'l, (quoting 2d Acorn v. Wis. 714 N.W.2d Household (N.D. 2002)). Inc., Supp. 2d Cal. F. against "The are principle ambiguities construed deeply interpretation." drafter is a rooted doctrine of contract Connell, Maryland P'ship Ltd. v. 2010 WI Arms (internal omitted). 300, quotation Wis. 2d N.W.2d marks already expected navigate officers are to a thicket of performing case law and facts when a consent search. "totality analysis The of the circumstances" when deter- mining properly whether consent to a search has been given weighing variety often involves careful of a legal relationships family between members, romantic partners, roommates, tenants, landlords and etc.69 previously, I I look, also as have stated reality phone usage by everyday pur- of cell phone: accepting chaser of a cell When an adhesion purchase phone contract to cell service—an increas- ingly necessary component everyday pur- life—the bargaining government chaser is not for unfettered purchaser's phone access to the location data. 120. The breadth of the data covered clarity regarding contract and the lack of the circum- provider enabling stances the cell service government transmit the data to the mandate that the purchaser gov- court hold that the did not consent to ernment access to his or her cell location data. 69 See, e.g., Kieffer, State v. 531, 2dWis. 577 N.W.2d 352 (1998) (requiring police to clarifying questions ask additional when third-party apparent authority landowner's to search the Tomlinson, apartment unclear); tenant-defendant's State v. was 2002 WI 254 Wis. 2d (determining 648 N.W.2d 367 police reasonably year-old could girl assume that at the door 14— apparent of a residence had authority to consent to its search though they even had girl no evidence that the was the resident's Sobczak, daughter); 347 Wis. 2d (deeming it reasonable for police to assume that girlfriend a defendant's had actual author ity to consent ato search of the defendant's laptop, though even girlfriend State v. St. houseguest cotenant); was a and not a Germaine, App 2007 WI 2d 305 Wis. 740 N.W.2d 148 (holding object that when a tenant-defendant did not to the residence, landlord's consent to search the entire and when the police did particular not know that a belonged room to the tenant-defendant, apparent authority landlord had to con search). sent to the ¶ in Thus, I conclude that the defendant 121. relinquish subjective expec- his did not Subdiaz-Osorio privacy to a search based on the cell tation of or consent provider phone contract. service

2 "third-party doctrine," I turn now to the broadly an is often stated as follows: When which voluntarily provides information to a third individual party, subjec- does not have a reasonable the individual expectation privacy in the information.70 tive of cases, In the instant the defendants' cell conveyed phone phones information to the cell location necessary provider, party, compo- service a third as a functioning phone. nent of the apparently of the The defendants opt giving

cannot out of this information to provider. the service very phone,

¶ 124. use of the cell as well Thus provider, as the contract with the cell service implicates third-party doctrine. Roggensack's 125. Justice concurrence opines

Subdiaz-Osorio that the defendants in Tate and expectation pri- had no reasonable of Subdiaz-Osorio (1976) Miller, (holding See United States v. 425 U.S. 435 depositor expectation privacy had bank no reasonable of his (1979) records); Maryland, or her bank Smith v. U.S. 735 (holding pen register, that use of a a device that records the individual, numbers dialed an does not constitute a expectation privacy analysis). search under the reasonable of Congress many legislatures, including state the Wis- legislature, subsequently procedure issuing consin created a pen registers protects privacy an individual's interests. See (2006); § §§ Right 18 U.S.C. 3123 Wis. Stat. 968.34-.36. See also (1980) Privacy §§ Financial Act to U.S.C 3401-3421 (protections prevent government private access into bank meeting specific requirements). without records vacy typically because "a defendant retains no constitu- expectation tional reasonable in information conveyed party." Subdiaz-Osorio, a third 87, WI (internal (Roggensack, concurring) quotation J., omitted); majority op., & marks citation see also Tate, ¶ 25. regularly

¶ 126. In the world, modern in which we parties part everyday disclose information to third as third-party ailing principle life, the doctrine is as a of law. third-party ¶ 127. The doctrine has been limited scope broadly in since it was stated in United States v. (1976), predates Miller, 425 U.S. a case that phones. Miller, In cellular depositor the Court held that a bank expectation privacy

had no reasonable in of his or her bank records. Maryland, (1979),

¶ 128. Smith v. 442 U.S. 735 applied reasoning rejecting argument Miller, the the telephone any general expecta- subscribers harbor they conveyed tion that the dial, numbers which are to telephone company, the remain will secret. represented high-

¶ 129. Miller and Smith the third-party doctrine, water mark for the which has Although third-party receded ever since. the doctrine vigorously by prominent has been defended at least one grounds provides scholar, Kerr, Orin on the it clarity technological neutrality,71 and ensures the opinion overly Miller met was with criticism as both unsatisfactory pri- broad and in its failure to balance vacy rights against of individuals the law enforcement investigating in interest crimes.72 Kerr, Doctrine, Third-Party See Orin The Case (2009). Mich. L. Rev. 561 Records, Note, See Government Access to Bank 83 Yale (1974) (criticizing outdated, L.J. 1464-65 the doctrine as asserting third-party and that denial of a interest Smith, 130. Since Miller and courts have used

the third-party doctrine with and decreasing frequency hand, have limited cases to the facts at third-party some commentators leading to deem the doctrine either dead or of limited viability.73 that, records "leads to the anomalous conclusion while safe guarded others, against depositor's all privacy would be eye nonexistent prying belongs government"); when the Alschuler, Interpersonal Albert W Privacy and the Fourth (1983) Amendment, 4 N. Ill. U. L. Rev. (noting that "overwhelmingly negative" reactions Miller were ing decry alarming third-party breadth of the doctrine announced therein); ment; Tokson, Matthew Automation and the Fourth Amend (2011) 96 Iowa L. Rev. (criticizing 585-86 third-party "problematic doctrine as age an where an ever- growing proportion personal communications transac Internet," tions are carried out over the all accessible to others). third-party providers, Internet among service joined Professor LaFave criticizing has others in the third- 2.7(c) party Wayne LaFave, doctrine. 1 R. § Search & Seizure (5th 2012) (footnotes omitted): ed. The wrong, result reached in Miller is dead and the Court's woefully inadequate reasoning great theory does violence to the protection developed Fourth Amendment the Court had in Katz. The protected Court's assertion in Miller that there can be no ownership Fourth Amendment interest where there is "neither nor possession" contrary purposes underlying is to the the Fourth Amendment, Katz, teachings modern-day the of and the realities of Ownership possession property concepts which, life. and are the Katz, wisely Court concluded in "cannot serve as a talismanic every problem," surely solution to Fourth Amendment and which proper do not lead to Unquestionably, solution in this context. the "Fourth pri- Amendment's drafters were . .. concerned with vacy in the sense of control over information." 73See, e.g., Stephen Henderson, E. United States v. After Jones, Doctrine, Party Fourth Amendment Third 14 After (2013) N.C. J.L. & Tech. 431 (reasoning that courts have been apply third-party hesitant to attacking years, doctrine in recent culture). incongruent the doctrine as with modern

230 131. Either or the third- ignoring contravening doctrine, courts now a recognize reasonable ex- party of in certain privacy types of information pectation of their disclosure to third such as regardless parties, records,74 house,75 health heat from a files emanating client,76 entrusted to an tax attorney by records a tax or e-mail entrusted to records.78 preparer,77 Justice it in her con- Sotomayor got right Jones, 132 S. Ct. at currence which casts doubt viability on the continued of a broad doc- third-party trine in the digital age: approach digital age,

This is ill suited to the in which people great reveal a deal of information about them- parties carrying selves to third in the course out People mundane tasks. disclose the numbers they that dial or text to their providers; cellular they URLs that and the e-mail visit addresses with they correspond provid- which to their Internet service ers; books, groceries, they and the and medications purchase to online retailers.....I for one doubt that people accept complaint would without the warrantless every disclosure to the of a Government list of Web site week, month, they year. had in the But visited last or or Charleston, (2001), Ferguson City In v. 532 U.S. 67 recognized pregnant privacy Court women had a interest samples program in collected urine invalidated samples given hospital shared at a with law enforcement. The dissent, Scalia, authored Justice noted that the Court did not third-party address the doctrine.

75 Kyllo,537 U.S. 27. (9th 1985). Nunez, DeMassa v. 770 F.2d 1505 Cir. (Colo. 2009). Gutierrez, People v. 222 P3d 925 (6th 2010) Warshak, United States v. Cir. F.3d (asserting enjoys expectation that an individual reasonable provider in e-mails his or her internet service vis-á-vis government agents and that violated the Fourth individual's rights by compelling Amendment disclosure of his emails from warrant). provider the internet service without a expectations, they whatever the societal can attain only if constitutionally protected status our Fourth jurisprudence secrecy Amendment to treat ceases as prerequisite privacy. for I would not that all assume voluntarily information disclosed to some member of is, public purpose for a limited for that reason alone, protection.79 disentitled to Fourth Amendment Although Roggensack's ¶ 133. Justice concur- reproaches rence in Subdiaz-Osorio Justice Prosser's opinion "question[ing] lead in Subdiaz-Osorio viability party continued of the third disclosure doc- viability third-party itself,"80 trine of the disclosure already questioned by existing doctrine is case law and Sotomayor's Jones, Justice concurrence in which majority opinion favorably.81 Tate cites Indeed, the Appeals rejected Eleventh Circuit Court of has the use third-party evaluating gov- of the doctrine in whether ernment search, access to cell location data was a reasoning probably that because the defendant had no allowing phone provider idea that he was the cell voluntarily movements, follow his he "has not disclosed provider his cell site location information to the in such expectation a fashion as to lose his reasonable privacy." Davis, 2014 WL 2599917 at *10.

¶ 134. The ABA standards for law enforcement third-party favorably by records, access to cited Justice Roggensack's Subdiaz-Osorio,82 concurrence in advo- finer-grained approach cate a to data disclosed to third third-party Riley, The doctrine also arose 134 S. Ct. at adopt 2492-93. The did government's argument Court not uphold third-party the search based on the doctrine as stated Smith, 442 U.S. 735. 80Subdiaz-Osorio, J., (Roggensack, 2014 WI concurring). 81Tate, majority op., 82Subdiaz-Osorio, (Roggensack, J., 2014 WI concurring). rejecting third-party parties, a broad doctrine favor differing protections differing expected levels of of privacy in data.83

¶ 135. I conclude that neither defendant lost his expectation privacy phone of in his cell location data simply because the location data was disclosed to the cell provider. People buy phones phone do not cell service government tracking have them serve as devices.

B society I 136. For several reasons conclude that recognizes expectation privacy a reasonable in an location data. individual's First, 137. the Wisconsin GPS case law (.Brereton)84 recognized subjective has an individual's expectation privacy in the individual's location and government has declared that access to location GPS meaning data is a search within the of the Constitu- Sotomayor's tions.85Justice larly recognizes concurrence in Jones simi- monitoring

that even short-term GPS person's can reveal a wealth of information about a expose private that he not to behavior or she chooses society protect large this the world at and that should choice.86 Second, in addition to the case law deter-

mining government access to an individual's GPS objective location data is a violation of an individual's expectation privacy, state and federal laws reasonable Justice, Law ABA Standards for Criminal Enforcement (3d cmt., Party 25-4.1 & at 63 Access to Third Records Standard 2013). ed. 84 Brereton, 2d 345 Wis. Brereton). 79-81, supra (discussing See ¶¶ (2012) Jones, J., (Sotomayor, 132 S. Ct. 955-56 concurring).

have individual communications long protected to third from ac- parties government records disclosed cess. 139. Our statutes individuals recognize

have a interest in electronic and communications data, oral, electronic, and communica- including wire tions;87 numbers;88 and dialed other records services, name, stored communications such as ad- dress, durations, information, session times and billing etc.89 Third, 140. an society recognizes individual's

¶ in subjective reasonable location expectation in regardless data of whether is or tracking public private spaces. Tate in majority 141. The that opinion suggests

¶ location in Tate of cell tracking phone required warrant "because the led law enforcement tracking discover Tate's location within his mother's home."90 The Tate Knotts, majority opinion cites United States v. 460 U.S. Sveum, State v. 276, (1983), 281 and 79, 2010 WI ¶ 328 Wis. 2d J., 787 N.W.2d 317 (Ziegler, concurring) for the in proposition tracking does public places Tate, not constitute a search. 23. majority op., of Tate Subdiaz-Osorio 142. Yet the facts demonstrate the public/private space distinction § See (prohibiting interception Wis. Stat. 968.31 wire, electronic, communication, or oral except provided as order) by judicial authorized § (prohibiting any person, See Wis. Stat. 968.34 including enforcement, installing law pen register trap-and- from or order). trace device absent a court (creating statutory § See Wis. Stat. subpoenas 968.375 by disclosure of certain information electronic communications prohibiting services and disclosure unless the disclosure fits into exceptional categories). certain 90Tate, id., majority 2; op., see also ¶¶ blurry. Tate, has become In when law enforcement tracking, they officers initiated the did not know public private the cell whether would be or Stingray areas. devices owned law enforcement gather location information about a cell whether public private space. Similarly, it is in a or the law enforcement officers did not know in Subdiaz-Osorio public highway whether the defendant would be on a or (or private similarly protected space, e.g., in a residence room). a hotel jurisprudence, True, in older the United Supreme distinguished police

States Court between tracking surveillance of location in which the device tracking entered a home and surveillance in which the only public spaces. device monitored movements (no Compare Knotts, 460 U.S. at 281-83 Fourth Amend- beeper ment violation when surveillance on a vehicle public highways) tracked the vehicle on streets and (1984) Karo, with United States v. U.S. (warrant required beeper was to use a to monitor the location of a container that was inside a vehicle on public private space).

roads, and then moved inside a tracking public ¶ 144. This distinction between private spaces phone and is eroded in the case of cell data, location which can be used to track movements public private spaces. across both difficulty privacy ¶ 145. This does not erode core protections upon determining Tate, In of residences. phone, the location of the enforcement law officers Entry entered the home of the defendant's mother. into separate the home awas search and distinct from law enforcement's access to location data. entry The warrantless into the home was not covered by Tate, the warrant which authorized the officers to only Rather, search for the location data. the warrant- entry consent, an on was based into the home less Simply requirement.91 be- exception to the warrant privacy technology does new areas of reveals new cause existing privacy are lost.92 interests mean that not legislature has rec- Fourth, the Wisconsin privacy expectation ognized public's of reasonable legislature data. The Wisconsin location in cell creating recently Wis. Act enacted 2013 Wis. has ideologi- (2013-14), support § across with 968.373 Stat. partisan lines.93 cal and § Newly re- 968.373, Wis. Stat. enacted protections appendix, for loca-

printed contains as an Subsection or mobile devices. data from wireless tion 968.373(2) explicitly prohibits from law enforcement tracking identifying of a communica- the location or obtaining as de- a warrant first tions device without by the statute: fined (8) [the Except provided in sub. as

PROHIBITION. investigative or law emergency exception], no statutory identify track the location may or enforcement officer obtaining a without first a communications device (4). under sub. warrant legislature By creating has statute, this Wisconsin recognize willingness society's reflected privacy. subjective expectation individual's of consent at disputed in Tate the issue The defendant in this court. court, did not raise the issue circuit but (noting although Kyllo, at 37-40 See 533 U.S. novel, technology protections core heat-imaging was intact). in homes remained Republicans Assembly sponsors, 14 were the bill's 22 Of co-sponsors in the Senate The bill's two were Democrats. and 8 (R-West (D-Racine) Lehman Grothman Glenn were John Bend). unanimously approved the Wisconsin It also was Judiciary. Assembly Committee on Although legislation post-dates ¶ 148. the new Subdiaz-Osorio, searches Tate and this court has legislation applicable examined not to the case before it help public policy. to us understand the state's See Concepts, Inc., Kimble v. Land 21, n.24, 2014 WI ("While 377, 353 Wis. 2d 845 N.W.2d395 the statute is applicable appropriate case, not to this it is nonetheless legislature's judgment to consider the of a reasonable disparity punitive compensatory damages."); McGarrity Plumbing Co., 414, 427, v. Welch 104 Wis. 2d (1981) (interpreting purpose 312 N.W.2d37 of child labor topic). based on later laws enactments on the same reasons, 149. For all these I conclude that soci- ety willing recognize protect is as reasonable and subjective expectation pri- individuals' reasonable vacy phone in cell location data.

IV ¶ 150. I Because conclude that both Tate and government's Subdiaz-Osorio the to the access defendant's cell location data was a search within meaning require- Constitutions, of the the warrant applies. Thus, ment law enforcement needed a valid warrant to access the defendants' cell location compliance Tate, In data. no warrant was obtained in with the state statutes. obtained at all No warrant was in Subdiaz-Osorio.94 does, opinion Justice Prosser's lead in Subdiaz-Osorio

however, comment requirements, although pre on warrant its meaning cise for courts and law enforcement is unclear: requirements

A court order that meets the of the Fourth Amend Tate, may 89, ment 2¶ function as a warrant. State v. 2014 WI & n.4, 798; Sveum, 2d 357 Wis. 849 N.W.2d see also State v. However, WI 2d 328 Wis. 787 N.W.2d 317. when a provides procedures obtaining given statute in a warrant set 151. Our state has stat- legislature promulgated utes search warrants since 1849.95 governing Existing governing ap- statutes warrants to a search for cell location data held ply directly as the Tate a cell by phone provider, majority opinion The Tate states that exist- majority opinion concedes.96 statutes, §§ warrant Wis. Stat. 968.1297 and ing circumstances, law enforcement should follow the statute to ensure that a search conducted under the circumstances contem- plated by person's the statute does not violate a Fourth Amend- rights. ment Subdiaz-Osorio, (Prosser, J., op.). 5 n.2 lead 2014 WI (1849). 142, §§ 1-4 See Wis. Stat. ch. 96Tate, majority op., 45-50. ¶¶ § Wisconsin Stat. 968.12 states as follows:

Search warrant

(1) Description and issuance. A search warrant is an order by signed judge directing a a law enforcement officer to conduct a designated person, designated object designated search of a a or a place purpose seizing designated property for the or kinds of property. judge probable A a if shall issue search warrant cause is shown. (2) upon may Warrant affidavit. A search warrant be based affidavit, upon complaint testimony by sworn or or recorded (3)(d), phonographic reporter showingprobable or under sub. cause complaint, testimony may upon therefor. The affidavit or be infor mation and belief. (3) (a) upon testimony, Warrant oral General rule. A search may upon testimony warrant be based sworn oral communicated to judge by telephone, the radio or other means of electronic commu nication, prescribed procedure under the in this suhsection. (h) Application. person requesting The who is the warrant shall prepare duplicate original duplicate warrant and read the original warrant, verbatim, judge. judge enter, to the The shall verbatim, original judge may what is read on the warrant. The direct that the warrant be modified. (c) judge probable If Issuance. the determines that there is cause warrant, judge for the shall order the issuance of warrant 968.135,98 are clear directly on point, and discusses these statutes the important protections they pro- Tate, majority vide. 45-50. op., ¶¶ directing person requesting sign judge's the warrant to duplicate original addition, person name on the warrant. In sign duplicate original shall his or her own name on the warrant. judge immediately sign original The shall warrant and enter original on the face of the warrant the exact time when the finding probable warrant was ordered to be issued. The of cause upon testimony for a warrant oral shall be based on the same kind upon of evidence as is sufficient for a warrant affidavit. (d)Recording testimony. and When a caller informs certification of judge purpose request warrant, the that the of the call tois the judge place person testimony shall under oath each whose forms a application person applying basis of the and each for the warrant. judge requesting person arrange The or shall for all sworn testimony by stenographic reporter by to he recorded either or recording judge means of a voice device. The shall have the record transcript, by judge transcribed. The certified as accurate the or reporter, appropriate, as shall be filed with the court. If the testimony device, recording was recorded means of a voice judge original recording shall also file the with the court. (e) upon testimony Contents. The contents of a warrant oral shall be the upon same as the contents of a warrant affidavit. (f)Entry person time execution.The who executes the warrant of shall enter duplicate the exact time of execution on the face of the original warrant. (4) may Location of A search. search warrant authorize a search anywhere may to be conducted in the state and be executed pursuant anywhere to its terms in the state. § Wisconsin Stat. 968.135 states as follows: Subpoena for documents

Upon request attorney general attorney of the or a district upon showing 968.12, probable cause under s. a court shall subpoena requiring production documents, issue a as 968.13(2). specified in s. The documents shall be returnable to the court, subpoena. including, court which issued the to the Motions to, quash subpoena, but not limited motions to or limit the be shall subpoena. Any person addressed to the court which issued the who unlawfully produce may compelled refuses to the documents be majority opinion Indeed, the Tate acknowl edges for such circuit court's order data "should complied governing have" with the statutes warrants governing subpoenas in for documents criminal §§ 968.135, cases, Wis. Stat. 968.12 and and that these legislative "express procedures statutes employ choices about subpoenas." Tate, for warrants and criminal majority op., ¶¶ 49-51.99 Despite acknowledgement

¶ 154. its of the exist- directly applicable ence of statutes to the circumstances majority opinion Tate, the Tate asserts that failure to comply with these statutes does not invalidate the majority op., majority Tate, search warrant. opinion 42. The eye in Tate turns a blind to the failure of the comply multiple requirements warrant to with of Wis. § clearly governs 968.135, Stat. which the fact situation asserting specific statutory "[n]o Tate, instead authority necessary" is in the instant case. "express legislative If choices," the statutes why majority opinion the Tate does rule that these legislative only require compliance choices with "spirit" compliance of the statute rather than with the majority op., ¶¶ Tate, text of the 2, statute? 51. provided do so as in ch. 785. This section does not limit or affect any subpoena authority provided by other law. 99Indeed, 55, made Popenhagen, we clear State v. 2008 WI 2d objective Wis. 749 N.W.2d that "the ¶ [the of subpoena statute, 968.135[,] §

criminal Stat.] Wis. tois allow the State acquire and use ensuring documents while also that the statutory requirements State meets protect that persons by subpoena." interests of affected in Popenhagen We further held that comply failure to with requirements § of Wis. Stat. 968.135 results in an invalid justified warrant and that such a suppression violation evi- of by dence obtained the invalid Popenhagen, warrant. 2d 309 Wis. majority opinion ¶ 156. The Tate that, assures us despite compliance spirit" compli- "in "[the rather than actual deprived defendant] text, ance with the was not § safeguards." majority op., Tate, Wis. Stat. 968.135's ¶ 50.100 comply 157. Yet the warrant Tate failed to statutory requirements

with almost all of the of the subpoena § requires statute. Wisconsin Stat. 968.135 "[t]he that documents shall be returnable to the court subpoena." which issued the The order in the instant any case does not mention the return of data recovered to the circuit court. § requires 158. Wisconsin Stat. 968.135

"[mjotions including, court, to the but limited to, not quash subpoena, motions to or limit the shall be ad- subpoena." dressed to the court which issued the The provided any opportunity order in the case instant never immediately the court, motions to because it was ordered to "be sealed until otherwise ordered court." §

¶ 159. Wisconsin Stat. 968.135 does not autho- sealing subpoenas. rize the The circuit sealed court relying documents, on the statute that authorizes the sealing pen registers trap-and-trace of orders for or pen devices.101 The instant case did not involve either register trap-and-trace or device.

¶ 160. These defects should have rendered the § warrant invalid under Wis. Stat. 968.135. majority result, To avoid this the Tate

opinion directly govern- devises new rule: A statute § Stat. Wisconsin 968.135 asserts it not "does limit any subpoena authority law," or affect provided by other but the majority opinion "warrant," nonstatutory describes not sub poena authority. 101 See Wis. Stat. 968.36(5). §

241 particular ing case of a in the circumstances a warrant not need be followed. ignores longstanding the Tatés new rule gov-

jurisprudence a statute exists in this state. When erning be unless issue, at it must followed the warrant legislature expressed If the its intent otherwise. the statutory requirements met, is not the warrant are question, the search If no statute covers invalid.102 may if warrant seek a warrant law enforcement permissible Meek common law. See at would have been (*303) (1865).103 (*300), Pierce, How v. 19 Wis. apply opinion majority the new in Tate to will the directly governing access to law enforcement statute data? cell location forth, I conclude 163. For the reasons set comply in Tate had with

the law officers to enforcement § access to obtain a valid warrant to Wis. Stat. 968.135 They not. location data. did the defendant's Consequently, I that no valid warrant was conclude obtained in Tate. ‡ ‡ ‡

$' 102 See, Baltes, e.g., v. 183 Wis. 198 N.W. State (1924) to secure (determining that when law enforcement failed statute, required Wis. Stat. testimony by sworn as the warrant (1923), failing §§ invalid for both the 4839-40 warrant was State, statutory v. requirements); and constitutional Glodowski (1928) (determining that when 196 Wis. 220 N.W. private for issued residence search warrant was to search sale, liquor of "unlawful manufacture for without evidence sale, sale, possession liquor" required as unlawful or void). statute, was the warrant 103 Meek, magistrates power gave In no statute against private persons in criminal matters authorize warrants Meek, power magistrates. this 19 Wis. and no statute denied (*302-303). prior at The Meek court held that common- statutory interpretation. applied law rules as a matter of majority opinion ¶ 164. Unlike the in Tate and opinion Justice Prosser's Subdiaz-Osorio, lead I government conclude access to location present meaning data in the is a within cases search requires of the warrant, Constitutions and that comply existing directly the warrant must with the applicable comply statutes. The warrant in Tate did not existing with the statutes and is invalid. No warrant was obtained Subdiaz-Osorio. writings

¶ 165. Because the various in Tate and protect privacy, Subdiaz-Osorio fail to I write in dissent. I am authorized to state that Justice ANN joins WALSH BRADLEY Parts I-IV this dissent.

APPENDIX notes his concurrence in Jones, [courts] "some have held that even transmis- sion electrons that occurs when a communication is computer enough" sent from one to is another trespass.52 constitute a 51 (1961) States, See 505, Silverman v. United U.S. 365 512 ("mildest search). repulsive" trespass least a is still 52Jones, (Alito, J., 132 at concurring) (citing S. Ct. 962 219 private per- cell is phone 96. The defendant's "ef- personal constitutionally protected a property, sonal with into property A intrusion physical fect".53 trespassory a to find information creates intent search.54 Subdiaz-Osorio, Tate the police In both location data from phone cell received defendant's but nowhere either service provider, cell cell location it how the exactly case is disclosed accessed.55 data was Inc., Promotions, Supp. Cyber F. v. 962 CompuServe, Inc. (S.D. Bezenek, 1997); App. 46 Cal. Thrifty-Tel, Inc. v. 1021 Ohio (1996)). 4th n.6 1566 ("Situations Jones, involving at Ct. See also S. signals trespass merely the of electronic without transmission opinion in subject analysis."). lead remain Katz The would quotes language proposition this Subdiaz-Osorio be "unnatu trespass doctrine to electronic data would applying Subdiaz-Osorio, (Prosser, J., ral," & WI n.24 see not foreclose that transmission op.), lead but Jones does signals may trespass. at times electronic constitute Carroll, (treating 2d 27-28 See 322 Wis. ¶¶ container). phone as closed into government intrusions stored Courts have treated

Case Details

Case Name: State v. Bobby L. Tate

Court Name: Wisconsin Supreme Court

Date Published: Jul 24, 2014

Citation: 849 N.W.2d 798

Docket Number: 2012AP000336-CR

Court Abbreviation: Wis.