State v. Brereton , 345 Wis. 2d 563 ( 2013 )

SHIRLEY S. ABRAHAMSON, C.J.

¶ 57. (<dissenting). Search and seizure of automobiles (and their contents) have a long, and still developing, constitutional history in state and federal courts.¹ This jurisprudence, although mired by plurality and conflicting opinions, has generally been favorable to searches and seizures of automobiles without warrants. Most recently, however, the United States Supreme Court has trended toward restricting law enforcement's ability to conduct warrantless searches of automobiles.²

¶ 58. The present case rests on a familiar narrative: Law enforcement officers stop and seize a vehicle on probable cause for a violation of traffic laws. The basis for the stop and seizure is pretextual. The officers' true motive for stopping the vehicle is not to issue a traffic citation, but to search the vehicle, typically for contraband drugs.

I

¶ 59. Just like in that narrative, the officers in the present case made a "routine pretextual traffic stop." One distinguishing factor in the present case is that the officers freely admit the pretext. Therefore, this court need not guess at their motives.

¶ 60. After coming upon the defendant's vehicle and realizing the license plate matched that of a vehicle seen near a reported burglary, the officers followed the vehicle for nearly two hours. While other officers were in the process of seeking a warrant authorizing a seizure of the vehicle and a search of the vehicle (that is, installation of a GPS device on the vehicle), the officers following the vehicle found probable cause to stop the vehicle for traffic violations. They then conducted what they readily admitted was a routine pretextual traffic stop.³ Specifically, the officers admitted that their goal in conducting the traffic stop was not to warn or cite the defendant for a traffic violation, but rather to seize the vehicle so that they could search it by installing a GPS device to monitor the vehicle's future whereabouts and investigate whether the vehicle and its occupants were involved in reported burglaries in the area.⁴

¶ 61. After the valid traffic stop, the officers removed the occupants from the vehicle, transported them to a distant location and clandestinely took control of the vehicle without a warrant, towing it to a private lot, thus interfering with the defendant's possessory and privacy interests in the vehicle for at least three hours.⁵ Law enforcement seized the vehicle before a warrant was issued.

¶ 62. After obtaining a warrant to seize and search the vehicle, the officers executed the search by opening the vehicle and installing the GPS device.⁶ The process of obtaining the warrant and installing the GPS device apparently took about three hours.⁷ The officers then returned the vehicle to the place where they originally had stopped it, and the vehicle remained there for another four hours.

¶ 63. The traffic stop was based on probable cause to believe that the defendant had violated traffic laws. The defendant's brief clearly states that the defendant does not object to the initial traffic stop and the "seizure" of the automobile at that time (even though it was a pretextual stop). Such an objection would in all likelihood be unsuccessful. Rather, the defendant challenges the State's subsequent interference with his possessory and privacy interests in his personal property.

¶ 64. The defendant and the State focus on the validity of the conduct of the law enforcement officers after the lawful traffic stop in towing and stowing the vehicle for three hours. Because the seizure under the initial traffic stop lasted for at least three hours (and perhaps longer) and morphed into a burglary investigation, the defendant and the State treat the impounding of the vehicle (towing and stowing the vehicle) as a seizure separate and distinct from the initial traffic stop and seizure.

¶ 65. The continuation of a traffic stop based on probable cause must be reasonably limited in time and scope to fulfill the purposes of the initial stop.⁸ A valid traffic stop and seizure can become unlawful if it is prolonged and is not reasonably related in scope to the circumstances that justified the initial interference in the first place.⁹ As Professor LaFave puts it, the questions are how long the seizure may last and what is permissible during that interval.¹⁰

¶ 66. I begin by noting that under the Fourth Amendment, the defendant's vehicle is a constitutionally protected "effect." In the present case, the State engaged in a physical invasion of the defendant's "effect" by towing and stowing the vehicle. In other words, the State encroached on a constitutionally protected area by trespassing on the defendant's property.

¶ 67. The Fourth Amendment protects the "right of the people to be secure in their. . . effects against unreasonable searches and seizures." Justice Scalia, writing for the majority in United States v. Jones,_ U.S._, 132 S. Ct. 945 (2012), discussed the relationship of the Fourth Amendment and trespass as follows: The Fourth Amendment embodies "a particular concern for government trespass upon the area ('persons, houses, papers, and effects') it enumerates."¹¹

¶ 68. A seizure of a vehicle without a warrant is presumptively violative of the Fourth Amendment. Majority op., ¶ 24.

¶ 69. I conclude that in the present case, as in Jones, the State committed a common law trespass. I further conclude that the trespass (seizure) was not reasonable under the circumstances of the present case.¹² The majority explains that to determine the reasonableness of a seizure, a court must balance the public interest in investigating and thwarting crime against the private interests in maintaining dominion over one's possessions. Majority op., ¶ 28. Unfortunately, the majority does not conduct this balancing test.

¶ 70. In applying the test of objective reasonableness to the seizure and its continuation, I conclude that under the circumstances of the present case, the State's dominion over the defendant's vehicle was prolonged beyond a reasonable time and was not reasonably related in scope to the circumstances which, according to the majority opinion, justified the initial and continuing seizure of the vehicle.

¶ 71. To render the seizure reasonable, the majority opinion attempts to place the towing and stowing of the vehicle within the "automobile exception" to the warrant requirement. Courts have been more lenient in permitting warrantless searches or seizures of automobiles than warrantless searches of other premises. The automobile exception has over the years been based on the mobility of cars and diminished expectation of privacy in cars.¹³ Under the automobile exception relevant to the instant case, a car may be seized or searched (1) if the car contains evidence of a crime; or (2) if the car is evidence of a crime.

¶ 72. Quoting snippets of United States Supreme Court cases dealing with the automobile exception to the warrant requirement, the majority opinion declares that the officers had probable cause to believe that the vehicle contained evidence of a crime or was evidence of a crime and that therefore the warrantless seizure of the automobile was lawful. Majority op., ¶¶ 2, 30, 42, 55.¹⁴

¶ 73. The majority opinion repeatedly explains that the continued seizure was valid because the defendant's vehicle contained evidence of a crime, justifying the warrantless seizure. Nevertheless, at ¶ 43, the majority opinion reveals that "law enforcement's target was not evidence within the car, which under the exception gives rise to a need to quickly collect evidence within the car before the evidence can be removed from the jurisdiction." Indeed, the law enforcement officers in the present case made no attempt to examine the interior of the vehicle to collect evidence of a crime within the vehicle.

¶ 74. The State's warrantless interference with the defendant's dominion over the vehicle for three hours was not reasonably related in time or scope to the circumstances which, according to the majority opinion, justified the initial and continuing seizure of the vehicle, namely examining the interior of a vehicle for evidence of a crime contained within the vehicle. The officers extended their seizure beyond the time and scope reasonably permitted by the automobile exception for warrantless seizures of a car for evidence within the car.

¶ 75. With regard to the majority's numerous assertions that the vehicle itself was evidence of a crime, such that the State could commit a trespass and tow and stow the vehicle for three hours without judicial authorization, the majority states: "[Ajlthough officers did have an interest in the attachment of the GPS before the car escaped the jurisdiction, the nature of the evidence that they sought and the privacy interest implicated by the GPS search required judicial authorization ...." Majority op., ¶ 44.

¶ 76. This concession that a warrant was required due to the nature of the evidence sought and the privacy interest implicated undercuts the majority's rationale that the State's warrantless seizure was justified because the vehicle was in and of itself evidence of a crime. The State's interference with the defendant's dominion over the vehicle did not reasonably relate in time or scope to the circumstances that, according to the majority opinion, justified the initial and continuing seizure of the vehicle, namely that the vehicle was in and of itself evidence of a crime. The officers extended their seizure of the vehicle beyond the scope permitted by the automobile exception for warrantless seizures of automobiles as evidence of a crime.

¶ 77. According to the case law, the most common justifications for a warrantless seizure of a vehicle as evidence of a crime are that there is probable cause to believe that a crime occurred in the vehicle;¹⁵ that the vehicle was used as a weapon;¹⁶ or that the vehicle is an instrumentality of a crime such as drug trafficking or gun running.¹⁷

¶ 78. The vehicle in the present case was not seized for three hours for any of these purposes. There was no probable cause to believe a crime occurred in the vehicle or that the vehicle was used as a weapon. If probable cause existed to believe the vehicle was an instrumentality of a crime (burglary) inasmuch as the vehicle matched eyewitness descriptions of a vehicle seen in the vicinity of reported burglaries, the least intrusive method of identification would have been to photograph the vehicle. Officers could have photographed the vehicle where they initially located it, or at the site where the vehicle was stopped, before releasing it. The photographs could have been shown at trial for witnesses to identify as the vehicle they saw leaving the burglary scene.¹⁸ The officers in this case, after seizing the vehicle and towing and stowing it, did indeed photograph the tires, exterior, and interior of the vehicle (through the windows) while awaiting the warrant.

¶ 79. I conclude that the State's interference with the defendant's dominion over the vehicle by moving and detaining the vehicle for three hours to install a GPS device is not reasonably related in time or scope to the circumstances that, according to the majority opinion, justified the initial and continuing seizure of the vehicle, namely that the vehicle was in and of itself evidence of a crime.

¶ 80. In addition to trying unsuccessfully to squeeze the seizure into the automobile exception, the majority opinion also tries to characterize the seizure of the car as falling within other exceptions to the warrant requirement.

¶ 81. The majority opinion asserts that the seizure was required by exigent circumstances because the officers were trying to minimize the risk of harm to themselves, others, and the vehicle. Majority op., ¶¶ 29, 41, 42. Such a pretext here is patent. After following the vehicle for nearly two hours, the law enforcement officers chose the place to conduct the traffic stop; they cannot create the exigency.

¶ 82. The facts further belie the majority's assertion. The law enforcement officers testified that they towed the vehicle in order to install a GPS device secretly. The law enforcement officers further testified that they did not follow the department's guidelines for impounding the vehicle.¹⁹ Adherence to department protocol is evidence of reasonableness.²⁰ The officers then returned the vehicle to the place where it was initially stopped.

¶ 83. The seizure also cannot be justified by an immediate need to seize the vehicle or install a GPS device. The officers could have simply maintained the status quo and waited by the stopped vehicle until the warrant arrived authorizing the seizure and search.²¹ The officers did not fear the vehicle would move because the driver had been transported to a distant location, and the officers could ensure that the vehicle did not leave its location by watching over it without seizing it. Instead, officers had the vehicle towed and waited by the vehicle in the lot to which it was towed. Here the officers took affirmative steps, without any exigent circumstances and prior to obtaining a warrant, to tow and stow the vehicle without a warrant that they later did obtain.

¶ 84. All told, this case needs far more careful discussion and analysis by the majority opinion of the State's invasion of the defendant's possessory and privacy interest in the vehicle and the defendant's privacy interest with respect to surveillance of the movements of the vehicle before a reader is persuaded that the State has overcome the presumption that the warrant-less seizure of the vehicle is a violation of the Fourth Amendment.²²

II

¶ 85. I began with a narrative about oft-heard, old-time twentieth century cases in which officers stop and seize a vehicle on probable cause for violation of traffic laws. I end with the present case, a twenty-first century narrative grounded in GPS technology.

¶ 86. 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. The majority opinion fails to grasp, as United States Supreme Court Chief Justice John Roberts has carefully expounded, that 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.²³

¶ 87. Chief Justice Roberts recently counseled students at Rice University as follows: "When the framers wrote the Fourth Amendment about search and seizures, did they envision wiretaps?" "Is being able to see through walls a violation of search and seizure protections? I think it will be a good opportunity to see how prescient the framers were if the Constitution will be able to deal with these questions." "[S]o we try to find the . . . fundamental principle underlying what constitutional protection is and apply it to new issues and new technology."²⁴

¶ 88. The Chief Justice clearly identified the challenge. Our court seems oblivious to it.

¶ 89. Police surveillance techniques will change as technology advances. Many new devices permit the monitoring of vehicles and people, and in all likelihood more will come. A new vehicle may be equipped with devices that permit others to ascertain its location at any time. Cell phones and wireless devices permit carriers to track and record the location of users. The quest for new technology is endless, and it is only a matter of time before a court must consider the next advancement.

¶ 90. With each technological advance, courts must stand firm and guard the very core of the Fourth Amendment — the security of one's privacy from arbitrary intrusion by the government.²⁵ The Fourth Amendment is not designed to protect the criminal; it is designed to protect all of us.

¶ 91. 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.

¶ 92. The United States Supreme Court first validated the use of mobile tracking technology in United States v. Knotts when it analyzed the nature and intrusion of the warrantless insertion of a beeper into a container in order to track the container's movements.²⁶ The signal from the beeper enabled law enforcement officers to follow a vehicle carrying the container more easily. The beeper could not, however, perform any tracking on its own or record the location of the container. GPS locational tracking technology has more capabilities than the beeper technology. A GPS device's advanced technology does not simply assist visual surveillance as did the beeper. It tracks the details of every movement of the vehicle. The nature of the technology does affect the Fourth Amendment analysis.

¶ 93. Here, law enforcement officers had a warrant for the installation of a GPS device. The warrant does not comply with the Wisconsin statutes governing warrants, but non-statutory warrants have been accepted by this court. I continue to disagree with this position.²⁷

¶ 94. The GPS device installed did not match the device described in the affidavit. The Fourth Amendment requires that a search warrant restrict the scope of a search by "particularly describing the place to be searched, and the persons or things to be seized,"²⁸ and that the warrant be reasonably executed.²⁹ The United States Supreme Court has not ruled on whether an officer's failure to comply with restrictions in the warrant demands suppression of evidence under the Fourth Amendment.³⁰ This court does not carefully examine the terms and execution of the warrant to evaluate the invasion of privacy and reasonableness of the search.

¶ 95. In contrast, the United States Supreme Court has begun the discussion. The United States Supreme Court recently decided a GPS device case, United States v. Jones, _ U.S. _, 132 S. Ct. 945 (2012), in which a unanimous court held that the warrantless installation of a GPS device within a vehicle constituted an invalid search within the meaning of the Fourth Amendment. But the Court was divided on the rationale. The Justices in separate opinions explored the legal issues to give themselves, the bar, law enforcement, and the public insight into the troublesome issues.

¶ 96. Justice Sotomayor in her concurrence in Jones raised important considerations in taking the attributes of GPS monitoring into account when considering the application of the Fourth Amendment to these searches. A GPS device does not merely record illegal activity. It records every movement of the car and its occupants — every site visited. The GPS device thus gives the government significant personal information about the car and its occupants, in addition to any information it may provide about criminal activity. Justice Sotomayor explored GPS technology and the Fourth Amendment's protection of a person's reasonable expectation of privacy as follows:

In cases involving even short-term monitoring, some unique attributes of GPS surveillance .. . will require particular attention. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility"

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring — by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track — may "alter the relationship between citizen and government in a way that is inimical to democratic society."

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power to and prevent "a too permeating police surveillance."

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice ALITO notes, some people may find the "tradeoff of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.³¹

¶ 97. Justice Alito in his concurrence in Jones opined that the best solution to privacy concerns regarding long-term monitoring devices may be legislative.³² He wrote that until the legislature acts on new technological methods of surveillance, the "best that we can do . . . is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated."³³ Using this approach, the Justice concluded that "the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy."³⁴ (The warrant in the present case authorized use of the GPS device for 60 days; it was maintained for four days. The issue of the duration for which the GPS may be authorized or used is not broached in the majority opinion in the instant case.)

¶ 98. This court has already advised the legislature that legislative action is needed. None has been taken. Here, the court makes a second request.

¶ 99. I would urge the Judicial Council,³⁵ the Legislative Council, the Office of the State Public Defender, the Attorney General, and the Criminal Law Section of the State Bar,³⁶ either separately or jointly, to study the Fourth Amendment issues raised by GPS devices and other technological developments and make proposals to the legislature or to this court (if appropriate for rule making).

¶ 100. I recognize, however, that as long as this court appears to allow any conditions in the warrant authorizing installation of a GPS device and the use of any type of GPS technology without legislative authority, there is no incentive to seek a legislative solution regarding the parameters for warrants authorizing the installation and monitoring of GPS devices.³⁷

¶ 101. The majority opinion does a disservice to law enforcement, the bar, the bench, and the public by not carefully exploring issues presented in the instant case that Chief Justice Roberts and Justices Sotomayor and Alito have highlighted.

¶ 102. For the reasons set forth, I cannot join the majority opinion.

1 See generally case law discussed by 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, ch. 7 (5th ed. 2012) (Search and Seizure of Vehicles).

2 See, e.g., United States v. Jones,_U.S._, 132 S. Ct. 945 (2012); Arizona v. Gant, 556 U.S. 332 (2009).

3 The officers testified that at approximately 11:00 a.m. on October 5, 2007, they located the defendant's vehicle parked outside a Beloit residence and decided to attach a GPS device to it. The officers determined that the vehicle's location at the time would not allow them to attach a GPS device undetected, because it was parked on a residential street and several people walking around the neighborhood would see them. The officers decided to keep the vehicle under surveillance and apply for a warrant for the GPS device.

The officers followed the vehicle when it left the residence and traveled to a restaurant in Janesville. The officers then decided that they would stop the vehicle when it left the restaurant because "the license plates on the vehicle [were] expired and the vehicle [had] a loud exhaust." The officers watching the vehicle noticed that "the two male/white occupants in the vehicle fit the description perfectly of the suspicious subjects that had been witnessed by a complainant in our county on the day that several of their daytime residential burglaries started."

At approximately 12:56 p.m., a Rock County Deputy Sheriff conducted a pretextual traffic stop of the vehicle along Highway 51 by the Rock County Airport, near Janesville. The deputy observed the vehicle had expired plates, no rear view mirror and a slightly louder than normal muffler. A Rock County Sheriffs Department detective arrived on the scene and observed the vehicle as a "medium blue" car, which could also reasonably be described as teal or robin's egg blue. The vehicle seemed to fit the description of a car observed near reported burglaries. The two white male occupants, Brereton and Conaway, whose identities were ascertained during the initial traffic stop, also fit the description of the men seen near the burglaries.

When a vehicle is lawfully stopped, an officer ordinarily may ask the driver for his or her name, driver's license and registration as a routine matter. State v. Griffith, 2000 WI 72, ¶¶ 45-51, 236 Wis. 2d 48, 613 N.W.2d 72.

With regard to the Vehicle Identification Number (VIN), which was obtained at the initial stop and included in the warrant affidavit, the United States Supreme Court has explained: "In sum, because of the important role played by the VIN in the pervasive governmental regulation of the automobile and the efforts by the Federal Government to ensure that the VIN is placed in plain view, we hold that there was no reasonable expectation of privacy in the VIN." New York v. Class, 475 U.S. 106, 114 (1986).

4 The affidavit in support of the warrant explained that the purpose of installing the GPS device was to "lead to evidence of the aforementioned criminal violation, as well as the location where the fruits of the crimes are being stored and the identification of associates assisting in the aforementioned crimes." There is no time stamp recording when the affidavit for the warrant was submitted. It is clear, however, that the affidavit was submitted after the initial traffic stop because the affidavit includes information that the officers learned only after they stopped the vehicle.

At 1:08 p.m., twelve minutes after the stop, one officer informed another officer that he was getting a court order for the installation of a GPS device. At 1:14 p.m., an officer relayed information to another officer and to an assistant district attorney. This information was included in the affidavit.

5 The defendant asserts that the seizure began when he was removed from the vehicle and taken to the Dollar Store to arrange for him and the car to be retrieved. The record does not show the defendant objected to leaving the vehicle or asked to remain with the vehicle.

6 United States v. Jones,_U.S._, 132 S. Ct. 945 (2012), establishes that the installation of a GPS device in a car constitutes a search within the meaning of the Fourth Amendment.

7 At approximately 3:35 p.m., officers at the private lot were notified that the court order had been signed and that they could go ahead and install the GPS device on the vehicle. Installation was completed at approximately 3:56 p.m.

There is no record of when the vehicle actually was removed from the private lot and returned to Highway 51. It is known that the vehicle did not leave its location on Highway 51 until approximately 7:47 p.m.

Except for the impounding of the vehicle before the warrant was issued, this case demonstrates excellent police work.

8 Illinois v. Caballes, 543 U.S. 405, 407-08 (2005); State v. Malone, 2004 WI 108, ¶¶ 24, 26, 274 Wis. 2d 540, 683 N.W.2d 1.

9 Griffith, 236 Wis. 2d 48, ¶ 26.

10 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.2 at 436, § 9.3 at 472 (5th ed. 2012).

11 Jones, 132 S. Ct. at 950.

12 The United States Supreme Court did not reach the issue of the reasonableness of the warrantless installation of the GPS device because the Government did not raise that issue in the court of appeals. Jones, 132 S. Ct. at 954.

13 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 7.2 at 721-22 (5th ed. 2012).

14 Although the automobile exception developed to apply in exigent circumstances, later cases eliminated the exigency requirement. Doubts remain about the necessity of an exigency requirement for purposes of a warrantless seizure of a vehicle on probable cause.

In Chambers v. Maroney, 399 U.S. 42, 51 (1970), addressing the automobile exception, the Court stated: "Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search."

In Coolidge v. New Hampshire, 403 U.S. 443, 461-64 (1971), involving a warrantless seizure of a vehicle, the Court declared that the seizure was unconstitutional when no exigent circumstances existed making it impracticable to secure a warrant. In Coolidge, as in the instant case, "the police had known for some time of the probable role of the [automobile] in the crime," and police knew the whereabouts of the driver, negating the argument that the car could be moved quickly without the police's knowledge.

In Maryland v. Dyson, 527 U.S. 465, 466-67 (1999), the Court explained that exigent circumstances are no longer required to conduct a warrantless search of a car as long as the car is readily mobile and probable cause exists to believe the vehicle contains contraband.

The Court has not addressed whether exigent circumstances are required to seize a car without a warrant as evidence of a crime when the vehicle is not readily mobile. The vehicle in the present case was not readily mobile when the unlicensed driver was removed from the vehicle and the officers could ensure that the vehicle was not mobile by watching over the vehicle without seizing it. See 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 9.2 at 436, § 9.3 at 360 (5th ed. 2012).

15 United States v. Noster, 590 F.3d 624 (9th Cir. 2009) (vehicle seized after officers determined it had been reported stolen); Capraro v. Bunt, 44 F.3d 690 (8th Cir. 1995) (vehicle seized incident to arrest as evidence of a kidnapping that defendant used his vehicle to commit); State v. Serna, 290 N.W.2d 446 (Minn. 1980) (vehicle seized so sexual assault victim could identify vehicle in which assault had occurred); State v. Clark, 24 P.3d 1006 (Wash. 2001) (vehicle impounded to search for evidence of a rape and murder that occurred in the vehicle).

16 Cardwell v. Lewis, 417 U.S. 583 (1974) (vehicle seized to inspect tires and take paint scrapings to identify vehicle that pushed another vehicle over an embankment); United States v. Belt, 854 F.2d 1054 (7th Cir. 1988) (vehicle seized incident to arrest so victim could identify it as vehicle that tried to run him off the road); Tackett v. State, 822 S.W.2d 834 (Ark. 1992) (parts of vehicle seized to establish that vehicle had intentionally rear ended another vehicle); Commonwealth v. A Juvenile (No. 2), 580 N.E.2d 1014 (Mass. 1991) (vehicle seized to preserve evidence of a hit-and-run accident involving the vehicle); Edlin v. State, 523 So. 2d 42 (Miss. 1988) (vehicle seized as evidence of a hit-and-run accident involving the vehicle).

17 United States v. Dickey-Bey, 393 F.3d 449 (4th Cir. 2004) (vehicle seized with probable cause that vehicle was used as an instrumentality of the crime); United States v. Brookins, 345 F.3d 231 (4th Cir. 2003) (vehicle seized after arrest when defendant's wife attempted to flee in vehicle and police had probable cause to believe contraband would be found in the vehicle).

18 See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 331, 129 N.W.2d 321 (1964) (photographs of a car are sufficient to be used as evidence at trial so that actual car does not have to be viewed).

19 Both the Rock County and Walworth County Sheriffs Departments have General Orders for Policy and Procedure that seem to require that once a vehicle is seized, the contents are to be inventoried.

20 State v. Callaway, 106 Wis. 2d 503, 518, 317 N.W.2d 428 (1982) (citing South Dakota v. Opperman, 428 U.S. 364, 372 (1976).

21 See Segura v. United States, 468 U.S. 796, 801, 812-13 (1984).

22 For a good discussion of the issues involved in the automobile exception and the case law, see case law discussed by 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, ch. 7, entitled "Search and Seizure of Vehicles" (5th ed. 2012).

23 Chief Justice John G. Roberts, Jr., Speech at Rice University (Oct. 17, 2012). Full video of the speech is available at https://mediacore.rice.edu/media/centennial-lecture-series-aconversation-with-the-.

24 See Mike Tolson, Chief Justice Roberts: Technology Among Top Issues for Court, Houston Chronicle, Oct. 17, 2012.

25 Wolf v. Colorado, 338 U.S. 25, 27 (1949).

26 United States v. Knotts, 460 U.S. 276, 281-83 (1983) (no Fourth Amendment violation when beeper surveillance amounted principally to following an automobile on public streets and highways). Compare United States v. Karo, 468 U.S. 705, 714 (1984) (warrant required to use a beeper to monitor activities inside a private residence).

27 I wrote in dissent in State v. Sveum, 2010 WI 92, ¶ 90, 328 Wis. 2d 369, 787 N.W.2d 317 (Abrahamson, C.J., dissenting), that the warrant authorizing the GPS device in the Sveum case did not comply with the statutes authorizing warrants and was therefore void. The Sveum majority held statutory authority was not necessary for the issuance of a warrant. The warrant in the present case, like the warrant in Sveum, does not comply with the Wisconsin warrant statute.

28 Dalia v. United States, 441 U.S. 238, 255 (1979).

The particularity requirement prevents three evils: general searches, the issuance of warrants on less than probable cause, and the seizure of objects other than those described in the warrant. Sveum, 328 Wis. 2d 369, ¶ 28.

29 In Jones, 132 S. Ct. at 948, the government conceded noncompliance with a warrant authorizing installation of a GPS device in the District of Columbia within ten days. The device was installed on the 11th day and in Maryland, not the District. The Court treated the installation of the GPS device as a warrantless search.

30 Jones, 132 S. Ct. at 964 n.11 (2012) (Alito, J., concurring).

31 Jones, 132 S. Ct at 955-57 (Sotomayor, J., concurring) (citations and parenthetical comments omitted).

32 I repeat the essence of what I wrote in my earlier dissent in Sveum, 328 Wis. 2d 369, ¶ 126 (Abrahamson, C.J., dissenting): I recognize that the problems presented by technologically assisted physical surveillance are complex and that the interests of privacy and crime detection are substantial. The courts, and especially this court, should not do violence to the legislatively enacted warrant statutes in an ill-advised attempt to bend clear and established law to fit novel and fast-changing technology. The myriad of technical, legal, and policy issues involved in electronic surveillance lend themselves to legislative resolution, not 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.

33 Jones, 132 S. Ct. at 964 (Alito, J., concurring).

Justice Crooks, Justice Ziegler, and I made a similar request to the Wisconsin legislature in our separate opinions in Sveum, 328 Wis. 2d 369, ¶¶ 77, 79, 84, 126. The Wisconsin legislature has not yet acted.

34 Jones, 132 S. Ct. at 964 (Alito, J., concurring).

35 The Judicial Council has begun consideration of the GPS device issue but has stopped its study to await the decision in the present case.

36 The Criminal Law Section "provides education, resources and other support for prosecutors, defense attorneys and judges who practice criminal law at the local, state and federal levels. The section monitors and proposes legislation in the area of criminal law . . .." State Bar of Wisconsin, http://www.wisbar. org/AM/Template.cfm?Section=Criminal_Law_Section (last visited Jan. 17, 2013).

37 One final comment about the case: Even if the towing and stowing of the vehicle were illegal, it does not inevitably follow that the evidence ultimately discovered must be suppressed when a valid (according to the majority) search warrant was executed. To determine whether the warrant issued was "genuinely independent" of the earlier "tainted" seizure, Murray v. United States, 487 U.S. 533 (1988), is instructive. See also State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1 (discussing Murray). Neither the parties nor the majority opinion discusses this aspect of Fourth Amendment and exclusion law, and I need not and will not comment further on this point.