The prosecutor’s perspective: Supreme court avoids GPS issue and rules on cell phone privacy, among other decisions
By David Perlman, assistant attorney general, Wisconsin Department of Justice
Oct. 20, 2010 – This past term, the Wisconsin Supreme Court decided several important cases involving the Fourth Amendment. The cases in the composite do not clearly go in one direction or another but rather reflect the murkiness inherent in a body of law that must reconcile two powerful and competing forces; the right to be safe and secure from unwarranted police intrusions and the right of law enforcement to solve cases and hold criminals accountable for their actions.
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The defense perspective: Supreme court sanctions law enforcement’s ability to create justifications for warrantless entry
By Kathleen Pakes, legal counsel, State Public Defender
Oct. 20, 2010 – Upon reading the trilogy of Wisconsin Supreme Court decisions concerning the Fourth Amendment’s protection against unlawful searches and seizures, one might come to the conclusion that your home is not your castle – at least not when the police have the “knock and talk” arrow in the quiver.
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The prosecutor’s perspective: Supreme court avoids GPS issue and rules on cell phone privacy, among other decisions
By David Perlman, assistant attorney general, Wisconsin Department of Justice
Oct. 20, 2010 – This past term, the Wisconsin Supreme Court decided several important cases involving the Fourth Amendment. The cases in the composite do not clearly go in one direction or another but rather reflect the murkiness inherent in a body of law that must reconcile two powerful and competing forces; the right to be safe and secure from unwarranted police intrusions and the right of law enforcement to solve cases and hold criminals accountable for their actions.
The supreme court rendered important opinions dealing with Fourth Amendment issues such as the impact of technology on privacy, the parameters of the community caretaker doctrine, the curtilage doctrine, the attenuation exception, and the relationship between exigent circumstances and a police “knock-and-talk.”
Below is a look at the cases that discuss these issues and, in particular, their impact on law enforcement and prosecutors.
The technology cases
As technology continues to develop so too does the law applying Fourth Amendment principles to these new tools. Most notably the Wisconsin Supreme Court recently addressed Fourth Amendment privacy issues as it relates to increasingly popular gadgets such as the iPhone or its equivalent, and GPS trackers.
In State v. Carroll 322 Wis.2d 299, 778 N.W.2d 1, 2010 WI 8, the Wisconsin high court wrestled with the issue of whether there is an expectation of privacy in a cell phone.
The court answered this question essentially in the affirmative, requiring in most instances a search warrant before the full contents of a phone can be inspected by law enforcement. The court reasoned that the doctrine of exigent circumstances was inapplicable since once the police seize custody of the phone they should have ample time to get a search warrant.
From a prosecutorial perspective this reasoning is flawed since the contents of high tech cell phones can be altered from remote locations and Internet Service Providers can inadvertently remove potential evidence through their normal procedures.
On the plus side for prosecutors, the Carroll court did recognize that cell phones are ripe repositories of potential evidence for cases like drug trafficking, or child pornography, and thus this language can be incorporated in affidavits seeking a search warrant.
Curiously the court held that while it is impermissible in most cases to make a warrantless search of a cell phone the police can answer the phone if it rings while in law enforcement custody. The net effect of Carroll is a split decision from a prosecutor’s point of view. On the one hand, the case makes clear that there is a privacy interest in a cell phone and its contents but on the other it clearly recognizes cell phones as fruitful sources of potential evidence, facilitating the procurement of a search warrant.
The case of State v. Sveum, 2010 WI 92, 787 N.W.2d 317, represents a mild disappointment as the supreme court ducked the core privacy issue before it – whether there is an expectation of privacy in a vehicle parked in a front driveway which would require the police to have a court order before placing a GPS unit on the automobile.
Sveum therefore leaves the issue muddled and from a prosecutor’s perspective it would seem that the prudent course for law enforcement to take is to presume a privacy interest and to get a warrant or court order before placing a GPS unit on a subject’s vehicle. The requirement of a court order or warrant may not be present when a vehicle is found in a clearly public place as it would seem that the court of appeals ruling in Sveum, 319 Wis.2d 498, 769 N.W.2d 53 (Wis. App. 2009), finding no expectation of privacy when a vehicle is clearly in a public place, would remain good law.
The community caretaker doctrine
The community caretaker doctrine has been expanded recently and this momentum continues in State v. Pinkard, 210 WI 81, 785 N.W. 2d 592. Pinkard found the community caretaker doctrine to be applicable for a warrantless intrusion into a home even though the police clearly also had an investigatory agenda; indeed a drug task force arrived at the scene as opposed to an emergency response team.
The law appears clear that in Wisconsin the community caretaker doctrine can survive a showing of police investigatory motivations as long as there is also present an objectively reasonable basis for a community caretaker concern.
Curtilage and the attenuation doctrine
State v. Artic, 2010 Wis.2d 83, 786 N.W.2d 430, deals with a medley of fourth issues including a look at the curtilage doctrine and a comprehensive discussion of the attenuation exception to the exclusionary rule.
Artic serves as an important reminder to law enforcement that in many cases a backyard is viewed as curtilage giving that area the same constitutional protection as that given a home. Of use for both prosecutors and the defense bar, is a solid review of the attenuation doctrine and its requirements; revisiting the tests to be employed in determining if the police exploited their own original error or whether the nexus between the original violation and the eventual evidentiary discovery is sufficiently remote so as to keep the evidence found admissible in court.
Knocking on the door – exigent circumstances
There has been some confusion in the law as to whether, when the police knock on a subject’s door as a precursor to eventually finding evidence, the police are unlawfully creating their own exigent circumstance.
The supreme court in State v. Robinson, 2010 WI 80, 786 N.W.2d 463, clearly resolved the issue in a manner favorable to prosecutors and law enforcement.
The court held that when the police are lawfully upon the premises and knock on a subject’s door and the subject responds in a way strongly suggesting that they are trying to escape or destroy evidence the police can make a warrantless non-consensual entry under the exigent circumstance doctrine.
The court’s reasoning is that it is not the knocking, but rather the subject’s reaction to the knocking, that created the exigency. The court’s reasoning is Interesting to be sure, but should be helpful to prosecutors in combating the defense argument that law enforcement created their own exigency, and lends credibility to a popular law enforcement technique known as the “knock and talk.”
Summary
Moving forward, the Fourth Amendment to the U.S. and Wisconsin constitutions will remain a vital and dynamic area of criminal law as the courts deal with the tension between individual rights of privacy and society’s collective interest in allowing the police an opportunity to ferret out crime and criminals.
About the author
David Perlman, a 1980 graduate of Indiana University Law School, has served as assistant attorney general for the Wisconsin Department of Justice since 1991. Perlman handles criminal appeals for the Department of Justice on Fourth, Fifth, and Sixth Amendment issues and has argued cases to the appellate courts and to the Wisconsin Supreme Court.
The defense perspective: Supreme court sanctions law enforcement’s ability to create justifications for warrantless entry
By Kathleen Pakes, legal counsel, State Public Defender
Oct. 20, 2010 – Upon reading the trilogy of Wisconsin Supreme Court decisions concerning the Fourth Amendment’s protection against unlawful searches and seizures, one might conclude that your home is not your castle – at least not when the police have the “knock-and-talk” arrow in the quiver.
The attenuation doctrine
In State v. Artic, 210 Wis 83, 768 N.W.2d 430 (2010), the main issue was whether, despite the flagrant Fourth Amendment violations, the defendant “voluntarily” consented to the entry and search of the second floor, and whether the search was sufficiently attenuated from the initial illegal, warrantless entry.
In Artic, the defendant observed two officers approach his home, and knock and announce their presence at the front door. When the defendant did not answer, the officers (who did not have a warrant) kicked open the front door, and broke out the inner door’s window.
Within five minutes of forcing entry and sweeping the first floor, officers ascended the interior stairs to a separate second floor door. Weapons drawn, they knocked at the door. The defendant opened the door and allowed officers to search the second floor.
In a highly debatable opinion, the majority found consent was voluntarily given after what they termed “a relatively congenial and non-threatening encounter[.]” Id. at 450.
The majority further held the search of Artic's residence, within five minutes of illegal entry, was sufficiently attenuated from the illegal entry to purge the primary taint of that entry. Id. at 455.
Exigent circumstances
In State v. Robinson, 2010 WI 80, 768 N.W.2d 463, the supreme court again upheld warrantless entry, making clear that the doctrine of exigent circumstances applies to searches in the home as well as vehicles.
The court sanctioned the warrantless entry, reasoning that police had probable cause of criminal activity – by (mostly) verifying an anonymous tip regarding drug use in the residence – and accompanying exigent circumstances – the fact footsteps were heard running from the door when the police knocked and announced their presence.
Community caretaker function
In the absence of consent, and exigent circumstances, the supreme court also sanctioned warrantless entry under the community caretaker function.
In State v. Pinkard, 2010 WI 81, 785 N.W.2d 592, five members of a drug unit arrived at a residence, without a warrant, in response to an unverified anonymous tip that the door to the residence was partially open and people were inside the home sleeping next to drugs, money, and drug paraphernalia.
Unlike Robinson, the officers had no probable cause to suspect criminal activity. And unlike Robinson, upon knocking at the door, the officers detected no movement within the residence. They nonetheless entered and found the occupants sleeping next to drugs and drug paraphernalia.
The court upheld the warrantless entry under the community caretaker doctrine finding the officers articulated two legitimate reasons for entry: to make sure the occupants were not crime victims, and to safeguard life or property in the residence.
From the defense perspective, these three cases sanction law enforcement’s ability, under any fact pattern, to create a situation that justifies warrantless entry. The dissent in Robinson emphasized this weakening of Fourth Amendment protections:
If the suspect opens the door, that suspect may be found to have voluntarily consented to the search. If the suspect refuses to open the door and the officers hear movement inside, there may be exigent circumstances due to the possibility of the destruction of evidence. If no one answers the door, concern for the well-being of the occupants of what sounds like a drug house may justify entry under the community caretaker exception…I am concerned that this case, along with the other two cases decided today, dilute the Fourth Amendment by allowing the knock and talk procedure to justify warrantless entry.1
Technology cases
On the Fourth Amendment technology front involving warrantless GPS surveillance, the defense fared no better. In State v. Sveum, 2010 WI 92, the supreme court accepted review of an issue of national discussion—whether surreptitiously affixing a GPS unit on a car, and monitoring the movements of that vehicle from afar without simultaneous physical surveillance, constitutes a search or seizure within the meaning of the Fourth amendment. The court of appeals held that because a GPS monitors vehicles traveling on public roads, no search or seizure occurs.
Despite accepting review, the supreme court declined to consider the issue, and assumed without deciding, that a search or seizure had occurred thereby passing on the opportunity to weigh in on the longstanding debate surrounding electronic surveillance.2
Twenty-five years ago, in US v. Karo, 468 U.S. 705 (1984), Justice John Paul Stevens emphasized the concern over the unknowing attachment of a beeper to personal property:
[T]he owner of property, of course, has a right to exclude from it from all the world, including the Government, and a concomitant right to use it exclusively for his own purposes. When the Government attaches an electronic monitoring device to that property, it infringes that exclusionary right; in a fundamental sense it has converted the property to its own use. … That interference is also “meaningful”; the character of the property is profoundly different when infected with an electronic bug that when it is entirely germ free.3
In explaining his belief that such conduct constitutes a seizure, Stevens argued that “the Government in the most fundamental sense was asserting ‘dominion and control’ over the property – the power to use the property for its own purposes. And ‘[asserting] dominion and control’ is a ‘seizure’ in the most basic sense of the term.” Id. at 730.
Justice Stevens’ concerns are no less relevant today. As noted by Judge Kozinski’s dissent in United State v. Pineda-Moreno, 591 F.3d 121 (9th Cir. 2010):
I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior.
Whatever struggle the Wisconsin appellate courts had over the issue, they were united in their convictions that the GPS issue deserves legislative attention.
The court of appeals noted: “We are more than a little troubled by the conclusion that no Fourth Amendment search or seizure occurs when police use a GPS or similar device[.]” State v. Sveum, 2009 WI APP 81, ¶ 21.
In the supreme court concurrences, Justices Annette Kingsland Ziegler and N. Patrick Crooks appealed to the legislature to address the issue.4
Chief Justice Shirley Abrahamson, in her dissent, recognized the age-old struggle between law and technology, and the need for legislative intervention: “The myriad of technical, legal and policy issues involved in electronic surveillance lend themselves to legislative resolution no ad hoc judicial authorizations or a bewilderingly complex judicial attempt to shoehorn the possibilities of new surveillance technologies into the parameters of statutes that were never meant to accommodate them.” Id. at ¶126.
The good news is, in light of the courts’ unanimous call for help on this issue, the defense bar has a rare opportunity to work with the legislature to provide protections from unfettered governmental and private use of GPS.
About the author
Kathleen Pakes, a 1995 graduate of the University of Louisville’s Brandeis School of Law, serves as legal counsel at the State Public Defender Office in Madison. Before joining the state public defender, Pakes served nine years as a district attorney in Rusk County.
Endnotes
