Feb. 7, 2013 – Police did not violate the Fourth Amendment when they seized James Brereton’s car and placed a Global Positioning System (GPS) device inside the hood to track the car’s movements in real time, a Wisconsin Supreme Court majority has ruled.
Chief Justice Shirley Abrahamson wasn’t sold. She provided the lone dissent and said the majority missed an opportunity to begin the process of reconciling “ever-changing technology with constitutional principles,” while urging future legislation.
Citing a speech by U.S. Supreme Court Chief Justice John Roberts, Abrahamson said “the most daunting challenge for courts in the next 50 years will be to determine how to apply the Constitution in cases as science and technology advance.”
In State v. Brereton, 2013 WI 17 (Feb. 6, 2013), however, a solid majority (6-1) ruled that police did not cross constitutional lines to obtain evidence against Brereton using GPS technology that tracked his whereabouts in real time for four days.
In 2007, burglary sprees in Rock and Walworth counties had a common denominator: witnesses reported seeing two men in a blue Pontiac near the crime scenes.
After investigation, police pinpointed the vehicle identified by witnesses and devised a plan to catch the suspected crooks in the act. Rock County police stopped the vehicle for expired registration and other traffic violations.
Brereton and an eventual co-defendant were the occupants. Neither Brereton nor his associate had a valid driver's license, and signs indicated the car might be stolen.
Police took the two men to a nearby store so they could make arrangements for a legal driver to retrieve the car. Police then towed the car to a private lot, obtained a GPS installation warrant, and installed the GPS device before returning the car to the scene.
For the next four days, police tracked the car in real-time. When the vehicle stopped in a residential area of Janesville for 10 minutes, police dispatched officers to investigate. They found a burglarized home with the door kicked in.
Police then stopped the tracked vehicle, which contained Brereton and his associate. Inside the vehicle was a flat screen computer monitor, among other things reported stolen by the victim. Brereton also had $1,300 cash in his hand.
Ultimately, Brereton was convicted on multiple charges and sentenced to seven years in prison, followed by five years of extended supervision. Before entering his guilty pleas though, Brereton moved to suppress the evidence on Fourth Amendment grounds. The Fourth Amendment protects individuals from unreasonable searches and seizures.
The circuit court denied the motion. An appeals court affirmed the lower court’s ruling. On appeal, the supreme court affirmed the appeals court.
In an opinion by Justice Patience Roggensack, the majority ruled that seizure of the car was supported by probable cause. It also ruled that police use of real-time technology to track the vehicle’s whereabouts did not exceed the scope of the GPS warrant.
Automobile Exception, Scope of Warrant
Brereton challenged the seizure based on the Fourth Amendment, arguing that it was unlawful for police to tow his car away. Police did not have a warrant to seize the car, and seizures conducted without a valid warrant are presumptively unreasonable.
But the majority invoked the “automobile exception,” which allows police to seize cars without a warrant in certain circumstances.
“[A]s long as officers have probable cause to believe that the vehicle is, or contains, evidence of a crime, warrantless seizures of automobiles may be lawful, provided they are conducted reasonably,” Justice Roggensack wrote.
The majority noted that police had probable cause because witness descriptions of the men and the car were similar in approximately 35 burglary reports. Installation of the GPS device was okay, the majority explained, because police had a warrant.
Probable cause “was sufficient to justify the officers’ decision to continue the seizure of the vehicle and move it to a location where a GPS device could be installed more safely and effectively,” Justice Roggensack explained.
The majority also rejected Brereton’s argument that the warrant did not allow police to track his car in real-time. Specifically, Brereton said the warrant only allowed police to install the device, then return later to retrieve the data that was stored on it.
“[N]either the language of the affidavit, nor the practical realities of constantly evolving electronic tracking technology require such a cabined reading of the language setting forth the permissible scope of GPS tracking under the warrant,” Roggensack wrote.
In Dissent, Chief Justice Calls for Action
Chief Justice Shirley Abrahamson dissented, reasoning that police violated the Fourth Amendment because “the officers extended their seizure beyond the time and scope reasonably permitted by the automobile exception for warrantless seizures of a car.”
She also noted a perceived missed opportunity:
“The single main difficulty with the majority opinion is that it fails to appreciate that this case presents the court with the opportunity to begin the process of reconciling ever-changing technology with constitutional principles,” she wrote.
“With ever-expanding technological advances, law enforcement should not necessarily be bound to the use of earlier approved specific technology. Still, the surveillance technology used does affect a court’s view of the nature and validity of the intrusion.”
The chief justice said the real-time GPS installed on Brereton’s car did not match the device described in the warrant, and the Fourth Amendment requires warrants to particularly describe the place to be searched, or the persons or things to be seized.
Chief Justice Abrahamson suggested that legislation is needed to set parameters for warrants authorizing GPS installation and monitoring, and made a request.
She urged the Judicial Council, the Legislative Council, the Office of the State Public Defender, the Attorney General, and State Bar of Wisconsin’s Criminal Law Section “to study the Fourth Amendment issues raised by GPS devices and other technological developments and make proposals to the legislature or to this court.”