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  • WisBar News
    June 25, 2013

    Wisconsin Supreme Court Will Hear Cell Phone Tracking Case, Among Others 

    June 25, 2013 – The Wisconsin Supreme Court has agreed to decide whether police can track a suspect’s whereabouts through court-ordered cell phone location data.

    Milwaukee police obtained video surveillance of a man purchasing a cell phone just before firing fatal gunshots in June 2009. Police obtained the number of the phone purchased by the suspect and, with a court order, retrieved data and information from the cell phone service provider to track the phone’s physical location.

    Using that information, police tracked suspect Bobby Tate to his mother’s apartment. Tate’s mother consented to a search of the apartment, where they found Tate sleeping.

    His clothes matched the description of clothes worn by the suspect in the video footage, and his blood-stained shoes contained the DNA of shooting victims at the scene. Police arrested Tate, who later pleaded no contest to first-degree reckless homicide.

    Tate had filed a motion to suppress evidence obtained as a result of the court-ordered tracking of his cell phone, raising a Fourth Amendment issue. The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures.

    The circuit court denied the motion, and a state appeals court affirmed in State v. Tate. Tate argues that obtaining location data to find his location is protectable “search,” and there is no statutory authority to support the order issued by the judge.

    The state argues that under recent GPS tracking precedent, no statutory authority is needed for a judge to order that a cell phone provider must provide location data.

    Interestingly, Montana recently became the first state to enact legislation requiring that police obtain a warrant before tracking an individual based on cell phone information.

    Court Accepts Three Other Cases 

    The state supreme court also added three other cases to its docket, and denied review in 58 cases, including 20 from Milwaukee County.

    In UW System Board of Regents v. Decker, the court will examine whether the UW System Board of Regents is eligible “to obtain a harassment injunction against a former UW-Stevens Point student who has been lawfully banned from system property yet repeatedly trespasses and engages in a pattern of harassing and intimidating conduct.”

    In Greer v. Schwarz, the case may resolve “whether the state’s Department of Corrections can pursue revocation proceedings against an individual for an action committed after he received an erroneously issued discharge certificate.”

    And in Wisconsin Title Auto Loans v. Jones, the court may decide whether an arbitration clause in a consumer contract is unconscionable despite the U.S. Supreme Court’s decision in AT& T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011).

    In Concepcion, the nation’s high court ruled (5-4) that the federal Arbitration Act preempts state laws that bar class action waivers in consumer contracts as unconscionable. Prior to Concepcion, Wisconsin barred such arbitration clauses.

    This case is before the Wisconsin Supreme Court for the second time. Previously, the court ruled that the arbitration clause used by Wisconsin Auto Title Loans was unenforceable because it was unconscionable. That was pre-Concepcion.

    Summaries derived from full summaries posted at

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