State of Wisconsin, Plaintiff-Respondent, v. Johnny K. Pinder, Defendant-Appellant.
Case No.: 2017AP208-CR
SUPREME COURT OF WISCONSIN
Opinion Filed: November 16, 2018
Submitted on Briefs: September 7, 2018
2018 WI 106
Judge: Paul V. Malloy
ON CERTIFICATOIN FROM THE COURT OF APPEALS
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Paul V. Malloy
JUSTICES:
CONCURRED: Kelly, J., concurs, joined by R.G. Bradley, J.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha. There was an oral argument by Michael Holzman.
For the plaintiff-respondent, there was a brief filed by Misha Tseytlin, solicitor general, with whom on the brief were Brad D. Schimel, attorney general, and Kevin M. LeRoy, deputy solicitor general. There was an oral argument by Luke Berg, deputy solicitor general.
2018 WI 106
NOTICE
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
No. 2017AP208-CR
(L.C. No. 2015CF84)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
v.
Johnny K. Pinder,
Defendant-Appellant.
FILED
NOV 16, 2018
Sheila T. Reiff
Clerk of Supreme Court
APPEAL from a judgment of the Circuit Court. Affirmed.
If a search warrant issued under
Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance perWis. Stat. § 968.15(1) is the warrant void under§ 968.15(2) , even if the search was otherwise reasonably conducted?
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¶2 We conclude that a search warrant issued for the placement and use of a GPS tracking device on a motor vehicle, but not executed within five days after the date of issuance per
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Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Because the GPS warrant in this case was otherwise constitutionally sufficient, the evidence obtained as a result of the warrant is not subject to suppression. Therefore, we affirm the circuit court.4
I. FACTUAL BACKGROUND
¶3 In February of 2015, multiple businesses were burglarized in Mequon, Wisconsin. Detective Cory Polishinski of the Mequon Police Department (“Detective Polishinski“) was in charge of investigating these burglaries. The burglar stole laptop computers, a “SimCube testing device,” a stereo, a company MasterCard credit card, and cash. Surveillance cameras near one business captured footage of a potential suspect and his car, a silver Chevrolet Impala. The license plates appeared to be missing. MasterCard confirmed that the stolen credit card “had five ATM attempts to get cash advances” and that it was used on or about February 14, 2015, at multiple gas stations in Milwaukee, Wisconsin. Surveillance cameras at two of these gas stations captured footage of the suspect burglar, in what appeared to be the same silver Chevrolet Impala, filling up other vehicles with gasoline.
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¶4 On February 19, 2015, Detective Polishinski received an e-mail from Detective Brad Mellenthein of the Milwaukee Police Department (“Detective Mellenthein“). In his e-mail, Detective Mellenthein provided pertinent information he received from a confidential informant. According to Detective Mellenthein, the informant said that a man named “JP,” who is “a really good lock picker,” was “using his skills to get into locked areas of hospitals and businesses to steal computers, credit cards, and money . . . to support his crack habit.”
¶5 Detective Mellenthein was able to identify JP as Johnny K. Pinder (“Pinder“). According to Detective Mellenthein, Pinder was the known owner of a “2008 Chevrolet Impala LT, silver in color with tinted windows and . . . a WI temp plate (L6019F) in the front window,” VIN 2G1WT58N089144205 (hereinafter “Pinder‘s vehicle“); Pinder had been in prison for
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burglary and was released in December of 2014; Pinder was currently on probation; and the Milwaukee Police Department confirmed Pinder was a suspect in other similar burglaries using the Chevrolet Impala. In addition, surveillance footage of these other similar burglaries showed Pinder and an unknown female “inside an office taking items.”
¶6 On February 27, 2015, Detective Polishinski applied to the Ozaukee County circuit court for an order to covertly place and monitor a GPS tracking device on Pinder‘s vehicle “for a period of time not to exceed 60 days from the date the order is signed.” Detective Polishinski‘s affidavit in support of the GPS warrant articulated the above-referenced details of the investigation and outlined his training and experience with respect to criminal investigations. In his affidavit, Detective Polishinski acknowledged that, “Wisconsin has no explicit statute under chapter 968 that addresses the issue of installing tracking devices on private property.” Detective Polishinski nonetheless detailed how the device would be installed and monitored, and that “the use of power to run the [GPS] tracking device [would] be taken from [Pinder‘s vehicle] in order to extend the useful monitoring of [Pinder‘s vehicle],” and enable police “to identify locations and associates currently unknown . . . as to the location of the fruits or accomplices of this violation.” Detective Polishinski further explained in his affidavit that a GPS tracking device “periodically records, at specified times, the latitude, longitude, date and time of readings and stores these readings until they are downloaded to
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a computer . . . for analysis.” Detective Polishinski further stated:
[T]here is probable cause to believe, based upon information [contained in his affidavit] that [Pinder‘s vehicle] is presently being utilized in the commission of a crime, to wit, Burglary in violation of Chapter 943.10 of the Wisconsin Statutes [and] that there is probable cause to believe that the installation of a [GPS] tracking device on [Pinder‘s vehicle] in conjunction with the monitoring, maintenance and retrieval of information from that [GPS] tracking device, will lead to evidence of the aforementioned criminal violations, as well as the location where the fruits of the violations are being stored and the identification of associates assisting in the aforementioned violations.
¶7 On the same day, the Ozaukee County circuit court5 granted Detective Polishinski‘s application with a signed warrant
place an electronic tracking device on [Pinder‘s vehicle], and . . . surreptitiously enter and re-enter the vehicle and any buildings and structures containing the vehicle or any premises on which the vehicle is located to install, use, maintain and conduct surveillance and monitoring of the location and movement of a mobile electronic-tracking device in the vehicle and any and all places within or outside
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the jurisdiction of Ozaukee County, including but not limited to private residences and other locations not open to visual surveillance; to accomplish the installation agents are authorized to obtain and use a key to operate and move the vehicle for the required time to a concealed location and are authorized to open the engine compartment and trunk areas of the vehicle to install the device.
¶8 The Warrant did not require the Mequon Police Department to install the GPS tracking device within a certain time period, but rather mandated that the tracking device be removed “as soon as practicable after the objectives of the surveillance are accomplished or not later than 60 days from the date the order is signed.”
¶9 On March 9, 2015, ten days after the circuit court signed the Warrant, Detective Polishinski installed the GPS tracking device on Pinder‘s vehicle.6 The GPS tracking device was programmed to alert the Mequon Police Department when the vehicle entered Mequon.7
¶10 On March 14, 2015, Detective Polishinski received an alert that Pinder‘s vehicle had entered Mequon. Detective
Once the GPS is placed on the vehicle a geofence is established. In this case the geofence was surrounding the City of Mequon. So if a vehicle would enter or cross the geofence, an alert would be active; and myself, along with other detectives and our captain would receive a text message and an e-mail stating that the vehicle had crossed at a specific point on that geofence.
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Polishinski logged onto the GPS website and monitored the GPS tracking device‘s signal.8 The signal indicated that Pinder‘s vehicle had stopped at a business office complex in Mequon.
¶11 Detective Polishinski requested that police officers respond to the business office complex to investigate a possible burglary there. Police officers arrived at the business office complex and ascertained that someone had broken into one suite of offices. Shortly thereafter, the officers confirmed that a wallet and two laptops were missing, including a new computer that was still in the original box.
¶12 Mequon police officers also stopped the suspect vehicle (Pinder‘s vehicle) on the highway. The occupants of the vehicle were identified as Pinder and Darnelle Polk (“Polk“). Officers obtained consent to
[Once he] logged onto the GPS website . . . [he] was able to view a representation of that vehicle. On that website a map of the area will pop up; and the GPS is a little dot, and you‘re able to follow the dot as it is driving along the roadway; or if it stops, you‘re able to find out exactly where on the map it is.
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¶13 Pinder and Polk, as well as Pinder‘s vehicle, were then transported to the Mequon Police Department.10 At the station “lock-picking style tools” were found on Pinder.
¶14 Surveillance video footage from the business office complex provided further evidence that Pinder was likely the burglar. The footage reflected that Pinder‘s vehicle was at the business office complex, that Pinder was dressed like and fit the description of the suspect, and that the suspect was carrying “a portfolio” much like the one found in Pinder‘s vehicle which contained burglarious tools.
II. PROCEDURAL POSTURE
¶15 On March 16, 2015, the State filed a criminal complaint charging Pinder with one count of burglary of a building or dwelling – as a party to a crime, contrary to
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¶16 On September 14, 2015, Pinder filed a motion to suppress on the basis that the “Order obtained by the State in this case [was] not a search warrant and thus, the attachment of a GPS device to [Pinder‘s vehicle] was a warrantless search.” Pinder further argued that, if the order is a warrant, the Warrant was not properly executed pursuant to
(1) prior authorization of by (sic) a neutral and detached magistrate, (2) a demonstration upon oath or affirmation that there is probable cause to believe the evidence sought will aid in a particular conviction for [a] particular offense, and (3) a particularized description of the place to be searched and the items to be seized.
¶17 On November 9, 2015, the circuit court held a hearing on Pinder‘s motion to suppress.12 On November 23, 2015, the circuit court denied the motion to suppress, concluding that Sveum13 is “on point,” and that Sveum‘s reasoning “controls” in this case. In applying Sveum‘s test to determine whether the Warrant was valid, the circuit court found that the court “qualif[ied] as a detached and neutral magistrate in issuing the
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warrant” and that the probable cause standard was satisfied based on the facts in Detective Polishinski‘s
¶18 On November 30, 2015, Pinder and Polk were tried before a jury. Before both sides rested, Pinder moved for a directed verdict on the burglary charge arguing that the State had charged Pinder under the wrong paragraph of
(1m) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
. . .
(continued)
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granted the State‘s motion. After granting the State‘s motion, the circuit court explained that it had changed the term “building,” as well as “dwelling,” to “office” throughout the Burglary jury instructions. The circuit court, however, failed to change “building” to “office” one time, resulting in the Burglary jury instructions containing the word “building” once. The circuit court attributed it to an editing mistake. The State had requested the Burglary jury instructions use the phrase “room within a building.” No one objected to the jury instructions. The jury found Pinder guilty on both counts.15
¶19 On December 1, 2015, the circuit court sentenced Pinder to five years of initial confinement and five years of extended supervision on count 1, and one year of initial confinement and one year of extended supervision on count 2, to be served concurrently to the sentence imposed on count 1. Both sentences were to be served consecutively to a sentence Pinder was serving at the time.
¶20 On August 24, 2016, Pinder filed a motion for postconviction relief seeking a new jury trial on the ground that his “trial attorney . . . was prejudicially ineffective.”
(f) A room within any of the above.
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On January 19, 2017, the circuit court issued its decision denying the motion. After noting that Pinder “might be able to meet the first prong of the test [of an ineffective assistance of counsel claim],” the circuit court concluded that “[i]t is clear beyond a reasonable doubt that the jury would have convicted [Pinder] . . . if proper instructions had been given.” The circuit court reasoned that “the quantum of evidence was [so] overwhelming that the jury would have convicted [Pinder] of the charges” and that the “jury didn‘t seem to have any confusion.”
¶21 On February 2, 2017, Pinder filed a notice of appeal, challenging both the judgment of conviction and the circuit court‘s denial of his postconviction motion. On December 13, 2017, the court of appeals certified the case to this court regarding the
III. STANDARD OF REVIEW
¶22 The certified issue concerns whether the Warrant in this case is governed by Wisconsin Statutes Chapter 968. Accordingly, we are called upon to consider various provisions of Chapter 968 including
¶23 Statutory interpretation is a question of law that we review de novo but benefiting from prior courts’ analyses. C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶14, 310 Wis. 2d 456, 750 N.W.2d 900. “[T]he purpose of
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statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
¶24 We are then called upon to review whether this Warrant complied with the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. “Whether the language of the warrant satisfies the requisite constitutional requirements is a question of law. We review such issues of constitutional guarantees de novo.” State v. Meyer, 216 Wis. 2d 729, 744, 576 N.W.2d 260 (1998); see also State v. Sveum, 2010 WI 92, ¶17, 328 Wis. 2d 369, 787 N.W.2d 317. “However, we review a warrant-issuing magistrate‘s determination of whether the affidavit in support of the order was sufficient to show probable cause with ‘great deference.‘” State v. Tate, 2014 WI 89, ¶14, 357 Wis. 2d 172, 849 N.W.2d 798 (quoting State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991)). This “determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause.” Higginbotham, 162 Wis. 2d at 989.
¶25 When we analyze whether police conduct violated the Fourth Amendment to the United States Constitution‘s and Article I, Section 11 of the Wisconsin Constitution‘s guarantees against unreasonable searches, “[w]e independently review ‘whether police conduct violated the constitutional guarantee against unreasonable searches,’ which presents a question of
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constitutional fact.” Tate, 357 Wis. 2d 172, ¶14 (quoting State v. Arias, 2008 WI 84, ¶11, 311 Wis. 2d 358, 752 N.W.2d 748). “When presented with a question of constitutional fact, this court engages in a two-step inquiry. First, we review the circuit court‘s findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. Second, we independently apply constitutional principles to those facts.” State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786 N.W.2d 463 (citations omitted).
¶26 Finally, with respect to Pinder‘s ineffective assistance of counsel argument, review of “[w]hether a defendant was denied effective assistance of counsel is a mixed question of law and fact.” State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93, cert. denied, 138 S. Ct. 1599 (2018). “The factual circumstances of the case and trial counsel‘s conduct and strategy are findings of fact, which will not be overturned unless clearly erroneous; whether counsel‘s conduct constitutes ineffective assistance is a question of law, which we review de novo.” Id. “To demonstrate that counsel‘s assistance was ineffective, the defendant must establish that counsel‘s performance was deficient and that the deficient performance was prejudicial.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “To establish that counsel‘s performance was deficient, the defendant must show that it fell below ‘an objective standard of reasonableness.’ In general, there is a strong presumption that trial counsel‘s conduct ‘falls within the wide range of reasonable professional
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assistance.‘” Id., ¶38 (citation omitted). “To establish that deficient performance was prejudicial, the defendant must show that ‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘” Id., ¶39. Whether trial counsel performed deficiently and whether any deficient performance was prejudicial are both questions of law we review de novo. Id., ¶¶38-39. “If the defendant fails to satisfy either prong, we need not consider the other.” Id., ¶37 (citing Strickland, 466 U.S. at 697).
IV. ANALYSIS
A. Wisconsin Statutes Chapter 968 Does Not Apply.
¶27 The crux of the issue before the court begins with an analysis of certain provisions of Chapter 968 of the Wisconsin Statutes. We are first called upon to determine whether this Warrant must be issued, executed, and returned pursuant to the provisions of Chapter 968. Because the plain language of the provisions of Chapter 968 neither addresses nor includes such a GPS warrant, we conclude that this Warrant cannot be subject to the statutory limitations and requirements therein. See
¶28 This court begins statutory interpretation with the language of the statute. Kalal, 271 Wis. 2d 633, ¶45. If the meaning of the statute is plain, we ordinarily stop the inquiry and give the language its “common, ordinary, and accepted meaning, except that technical or specially-defined words or
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phrases are given their technical or special definitional meaning.” Id.
¶29 Context and structure of a statute are important to the meaning of the statute. Id., ¶46. “Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id. Moreover, the “[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.” Id. “A statute‘s purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes—that is, from its context or the structure of the statute as a coherent whole.” Id., ¶49.
¶30 “If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.” Id., ¶46. If statutory language is unambiguous, we do not need to consult extrinsic sources of interpretation. Id.
¶31 This case requires us to begin with an interpretation of
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¶32 Wisconsin Stat.
(1) Description and issuance. A search warrant is an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designated object or a designated place for the purpose of seizing designated property or kinds of property. A judge shall issue a search warrant if probable cause is shown.
¶33 Initially, under the plain language interpretation of
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Wis. 2d 633, ¶46 (“Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.“); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174-79 (2012) (“If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” (footnote omitted)). Instead, “[w]e must assume that the legislature has reviewed the legislation and that it intends the words used be given their meaning.” State v. MacArthur, 2008 WI 72, ¶30, 310 Wis. 2d 550, 750 N.W.2d 910; see also 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory
¶34 Further support for the conclusion that
determine then, just as we did today, whether our inherent authority justifies such an exercise of authority. Will
¶68 Perhaps the court believes such a statute will reduce our workload, saving us from having to consider whether a challenged GPS warrant complies with constitutional requirements. However, a warrant that violates one of our constitutions doesn‘t become less offensive just because a statute authorized it. If the legislature adopts a GPS-warrant statute, we will have plenty of opportunities to consider its constitutional bona fides in minute detail, most likely in a long succession of cases. And when we have finally and fully vetted the requested statute, we will still entertain claims that the statutorily-authorized warrant was
¶69 It is possible that our constitutions allow for warrants that offend certain prudential sensibilities. But
prudence is the realm of public policy, and the people of Wisconsin have entrusted public policy to the legislative branch. It is not the judiciary‘s role to opine on the wisdom of any given policy, or even its absence. It is merely to decide whether the parties before us have honored their lawful obligations. Today‘s opinion could have fulfilled that role without asking for new public policy. That is where we should have stopped, and I join the opinion up to that point.
¶70 I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this concurrence.