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State Supreme Court hears GPS case

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staff, Gazette
September 7, 2012

— As GPS tracking devices become common in criminal cases, police need to follow the limitations judges impose on their use, an attorney seeking to reverse Walworth County burglary convictions told the Wisconsin Supreme Court on Thursday.

Attorney Matthew Pinix of Milwaukee said Walworth County authorities told Walworth County Judge James Carlson in 2007 they wanted to put a GPS tracking device on a Pontiac Grand Am that had been seen at some of the 35 burglaries they were investigating.

Carlson was told the device would be attached for up to 60 days and when retrieved would yield periodically recorded information about the car's location, Pinix said. Instead, after pulling over the Pontiac and learning it was driven by James G. Brereton, they surreptitiously attached a GPS that transmitted its location in real time and sent text messages to a deputy's cell phone whenever the car moved.

"The device did a lot more than the judge authorized, which was a substantial intrusion into (Brereton's privacy)," Pinix told the court.

He contended the GPS unit violated Brereton's Fourth Amendment rights against unreasonable search and seizure.

Within five days, the device transmitted a location where a burglary was reported. Police were dispatched and stopped the vehicle, which contained Brereton and items taken in a burglary, according to court documents.

Brereton and co-defendant Michael Conway were charged with numerous burglaries. When Judge Michael Gibbs refused to throw out the evidence obtained with the use of the GPS device, Brereton pleaded no contest and was sentenced to seven years in prison.

Pinix argued Thursday that the difference between the device Carlson authorized and what was used is similar to the difference between a camera used occasionally to take photographs and a video camera that continuously records activity.

Chief Justice Shirley Abrahamson asked Pinix if he had a problem with how the device was described to Carlson or how the warrant was executed by law enforcement.

Pinix said he had a problem with both. Although there was no evidence law enforcement intentionally misled Carlson about the device's capability, it certainly functioned "way different" than what they told Carlson.

Assistant Attorney General Daniel O'Brien defended the search warrant and Brereton's convictions, saying the search was proper because authorities established probable cause that the Grand Am was used in the commission of a crime.

At the time of Brereton's arrest, neither state nor federal law required police to obtain a search warrant to install a GPS unit on a vehicle. Even so, the Walworth County authorities took the additional step to obtain search warrant, O'Brien said.

Justice Michael Gableman said there "was not a terrific inconsistency" between what the judge authorized and the device the police used "other than timing" of when the tracking information was available.

Justice Ann Walsh Bradley and Abrahamson focused on what GPS application would exceed the scope of a search warrant.

"What if they embedded it a suspect's clothing?" Bradley asked.

"As long as the warrant presented had sufficient probable cause," O'Brien replied.

"A device that tracks activity in your home? With a warrant," Bradley said, anticipating O'Brien's response. "Is there no concern about privacy? Probable cause is a pretty low threshold."

The court took the case under advisement and isn't expected to issue a ruling for several months.



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