State v. Johnny K. Pinder

2018 WI 106
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP208-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Johnny K. Pinder,
Defendant-Appellant.
ON CERTIFICATOIN FROM THE COURT OF APPEALS
OPINION FILED: November 16, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 7, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Paul V. Malloy
JUSTICES:
CONCURRED: Kelly, J., concurs, joined by R.G. Bradley, J.
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs filed by
Mark S. Rosen and Rosen and Holzman, Ltd., Waukesha. There was
an oral argument by Michael Holzman.
For the plaintiff-respondent, there was a brief filed by
Micha Tseytlin, solicitor general, with whom on the brief were
Brad D. Schimel, attorney general, and Kevin M. LeRoy, deputy
solicitor general. There was an oral argument by Luke Berg,
deputy solicitor general.
2018 WI 106
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP208-CR
(L.C. No. 2015CF84)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. NOV 16, 2018
Johnny K. Pinder, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
APPEAL from a judgment of the Circuit Court. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This case is before
the court on certification from the court of appeals, pursuant
to Wis. Stat. § 809.61 (2015-16).1 The court of appeals
certified the following question:
If a search warrant issued under Wis. Stat.
§ 968.12 for the placement and use of a GPS tracking
device on a motor vehicle is not executed within five
days after the date of issuance per Wis. Stat.
§ 968.15(1) is the warrant void under § 968.15(2),
even if the search was otherwise reasonably conducted?
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
No. 2017AP208-CR
In short, this question requires the court to decide if an
otherwise reasonably conducted search warrant issued for the
placement and use of a Global Positioning System ("GPS")
tracking device on a motor vehicle is subject to Wis. Stat.
§§ 968.152 and 968.17(1).3
¶2 We conclude that a search warrant issued for the
placement and use of a GPS tracking device on a motor vehicle,
but not executed within five days after the date of issuance per
Wis. Stat. § 968.15 or timely returned under Wis. Stat.
§ 968.17(1), is not void if the search was otherwise reasonably
conducted, because it is not a warrant issued "for the purpose
of seizing designated property or kinds of property" under Wis.
Stat. § 968.12(1). It is not a warrant that seeks a "document"
or "electronic data" under the control of the vehicle owner as
is required under Wis. Stat. § 968.13 and thus, is not subject
to the execution and return provisions of §§ 968.15 and
968.17(1). Such a warrant for GPS tracking is not issued
pursuant to a statute, but instead is issued pursuant to the
court's inherent authority and thus, must comply only with the
2
Wisconsin Stats. § 968.15, "Search warrants; when
executable," provides: "(1) A search warrant must be executed
and returned not more than 5 days after the date of issuance"
and "(2) Any search warrant not executed within the time
provided in sub. (1) shall be void and shall be returned to the
judge issuing it."
3
Wisconsin Stats. § 968.17(1), "Return of search warrant,"
states, in relevant part, that "the return of a search warrant
shall be made within 48 hours after execution."
2
No. 2017AP208-CR
Fourth Amendment to the United States Constitution and Article
I, Section 11 of the Wisconsin Constitution. Because the GPS
warrant in this case was otherwise constitutionally sufficient,
the evidence obtained as a result of the warrant is not subject
to suppression. Therefore, we affirm the circuit court.4
I. FACTUAL BACKGROUND
¶3 In February of 2015, multiple businesses were
burglarized in Mequon, Wisconsin. Detective Cory Polishinski of
the Mequon Police Department ("Detective Polishinski") was in
charge of investigating these burglaries. The burglar stole
laptop computers, a "SimCube testing device," a stereo, a
company MasterCard credit card, and cash. Surveillance cameras
near one business captured footage of a potential suspect and
his car, a silver Chevrolet Impala. The license plates appeared
to be missing. MasterCard confirmed that the stolen credit card
"had five ATM attempts to get cash advances" and that it was
used on or about February 14, 2015, at multiple gas stations in
Milwaukee, Wisconsin. Surveillance cameras at two of these gas
stations captured footage of the suspect burglar, in what
appeared to be the same silver Chevrolet Impala, filling up
other vehicles with gasoline.
4
We recognize Pinder also argued that his trial counsel was
ineffective for other reasons. Strickland v. Washington, 466
U.S. 668 (1984). As a result, we later address this secondary
argument and, as will be seen, conclude that counsel was not
ineffective.
3
No. 2017AP208-CR
¶4 On February 19, 2015, Detective Polishinski received
an e-mail from Detective Brad Mellenthein of the Milwaukee
Police Department ("Detective Mellenthein"). In his e-mail,
Detective Mellenthein provided pertinent information he received
from a confidential informant. According to Detective
Mellenthein, the informant said that a man named "JP," who is "a
really good lock picker," was "using his skills to get into
locked areas of hospitals and businesses to steal computers,
credit cards, and money . . . to support his crack habit." JP
bragged to the informant that he would "pick the lock of a
business and enter to take the items he wanted, then leave
things like they were prior to the burglary, giving him time to
move the product or use the credit or gas cards." The informant
described JP as having "a bunch of gas cards and [using the
cards to] fill up vehicles," as well as having "10 to 15
computers available at one time to sell." In fact, JP sold one
of the stolen computers to the confidential informant's aunt
(the computer had one of the burglarized company's stickers on
it) and, after it stopped working, JP agreed to "get her another
one." The informant also stated that JP just "got out [of
prison] about two months ago" after serving 18 years.
¶5 Detective Mellenthein was able to identify JP as
Johnny K. Pinder ("Pinder"). According to Detective
Mellenthein, Pinder was the known owner of a "2008 Chevrolet
Impala LT, silver in color with tinted windows and . . . a WI
temp plate (L6019F) in the front window," VIN 2G1WT58N089144205
(hereinafter "Pinder's vehicle"); Pinder had been in prison for
4
No. 2017AP208-CR
burglary and was released in December of 2014; Pinder was
currently on probation; and the Milwaukee Police Department
confirmed Pinder was a suspect in other similar burglaries using
the Chevrolet Impala. In addition, surveillance footage of
these other similar burglaries showed Pinder and an unknown
female "inside an office taking items."
¶6 On February 27, 2015, Detective Polishinski applied to
the Ozaukee County circuit court for an order to covertly place
and monitor a GPS tracking device on Pinder's vehicle "for a
period of time not to exceed 60 days from the date the order is
signed." Detective Polishinski's affidavit in support of the
GPS warrant articulated the above-referenced details of the
investigation and outlined his training and experience with
respect to criminal investigations. In his affidavit, Detective
Polishinski acknowledged that, "Wisconsin has no explicit
statute under chapter 968 that addresses the issue of installing
tracking devices on private property." Detective Polishinski
nonetheless detailed how the device would be installed and
monitored, and that "the use of power to run the [GPS] tracking
device [would] be taken from [Pinder's vehicle] in order to
extend the useful monitoring of [Pinder's vehicle]," and enable
police "to identify locations and associates currently
unknown . . . as to the location of the fruits or accomplices of
this violation." Detective Polishinski further explained in his
affidavit that a GPS tracking device "periodically records, at
specified times, the latitude, longitude, date and time of
readings and stores these readings until they are downloaded to
5
No. 2017AP208-CR
a computer . . . for analysis." Detective Polishinski further
stated:
[T]here is probable cause to believe, based upon
information [contained in his affidavit] that
[Pinder's vehicle] is presently being utilized in the
commission of a crime, to wit, Burglary in violation
of Chapter 943.10 of the Wisconsin Statutes [and] that
there is probable cause to believe that the
installation of a [GPS] tracking device on [Pinder's
vehicle] in conjunction with the monitoring,
maintenance and retrieval of information from that
[GPS] tracking device, will lead to evidence of the
aforementioned criminal violations, as well as the
location where the fruits of the violations are being
stored and the identification of associates assisting
in the aforementioned violations.
¶7 On the same day, the Ozaukee County circuit court5
granted Detective Polishinski's application with a signed
warrant entitled "Order" (hereinafter "Warrant"). The circuit
court concluded that there was "probable cause to believe that
the installation of a tracking device in [Pinder's vehicle] is
relevant to an ongoing criminal investigation and that the
vehicle is being used in the commission of the crime of
Burglary." The circuit court authorized the State (the Mequon
Police Department) to
place an electronic tracking device on [Pinder's
vehicle], and . . . surreptitiously enter and re-enter
the vehicle and any buildings and structures
containing the vehicle or any premises on which the
vehicle is located to install, use, maintain and
conduct surveillance and monitoring of the location
and movement of a mobile electronic-tracking device in
the vehicle and any and all places within or outside
5
The Honorable Paul V. Malloy presided.
6
No. 2017AP208-CR
the jurisdiction of Ozaukee County, including but not
limited to private residences and other locations not
open to visual surveillance; to accomplish the
installation agents are authorized to obtain and use a
key to operate and move the vehicle for the required
time to a concealed location and are authorized to
open the engine compartment and trunk areas of the
vehicle to install the device.
¶8 The Warrant did not require the Mequon Police
Department to install the GPS tracking device within a certain
time period, but rather mandated that the tracking device be
removed "as soon as practicable after the objectives of the
surveillance are accomplished or not later than 60 days from the
date the order is signed."
¶9 On March 9, 2015, ten days after the circuit court
signed the Warrant, Detective Polishinski installed the GPS
tracking device on Pinder's vehicle.6 The GPS tracking device
was programmed to alert the Mequon Police Department when the
vehicle entered Mequon.7
¶10 On March 14, 2015, Detective Polishinski received an
alert that Pinder's vehicle had entered Mequon. Detective
6
The record does not contain details about how the GPS
tracking device was installed.
7
Detective Polishinski explained:
Once the GPS is placed on the vehicle a geofence is
established. In this case the geofence was
surrounding the City of Mequon. So if a vehicle would
enter or cross the geofence, an alert would be active;
and myself, along with other detectives and our
captain would receive a text message and an e-mail
stating that the vehicle had crossed at a specific
point on that geofence.
7
No. 2017AP208-CR
Polishinski logged onto the GPS website and monitored the GPS
tracking device's signal.8 The signal indicated that Pinder's
vehicle had stopped at a business office complex in Mequon.
¶11 Detective Polishinski requested that police officers
respond to the business office complex to investigate a possible
burglary there. Police officers arrived at the business office
complex and ascertained that someone had broken into one suite
of offices. Shortly thereafter, the officers confirmed that a
wallet and two laptops were missing, including a new computer
that was still in the original box.
¶12 Mequon police officers also stopped the suspect
vehicle (Pinder's vehicle) on the highway. The occupants of the
vehicle were identified as Pinder and Darnelle Polk ("Polk").
Officers obtained consent to search the vehicle. The officers
found gloves, screwdrivers, "portfolio items,"9 items stolen from
the burglary scene including a laptop computer box, a wallet,
and drug paraphernalia.
8
Detective Polishinski explained:
[Once he] logged onto the GPS website . . . [he] was
able to view a representation of that vehicle. On
that website a map of the area will pop up; and the
GPS is a little dot, and you're able to follow the dot
as it is driving along the roadway; or if it stops,
you're able to find out exactly where on the map it
is.
9
The portfolio contained "a hammer-type device," a "metal
tool with an orange handle," and a laptop.
8
No. 2017AP208-CR
¶13 Pinder and Polk, as well as Pinder's vehicle, were
then transported to the Mequon Police Department.10 At the
station "lock-picking style tools" were found on Pinder.
¶14 Surveillance video footage from the business office
complex provided further evidence that Pinder was likely the
burglar. The footage reflected that Pinder's vehicle was at the
business office complex, that Pinder was dressed like and fit
the description of the suspect, and that the suspect was
carrying "a portfolio" much like the one found in Pinder's
vehicle which contained burglarious tools.
II. PROCEDURAL POSTURE
¶15 On March 16, 2015, the State filed a criminal
complaint charging Pinder with one count of burglary of a
building or dwelling – as a party to a crime, contrary to Wis.
Stat. §§ 943.10(1m)(a), 939.50(3)(f), and 939.05; and one count
of possession of burglarious tools, contrary to Wis. Stat.
§§ 943.12 and 939.50(3)(i).11
10
Detective Polishinski then applied for and received a
search warrant under Wis. Stat. § 968.12 for the vehicle and
took the items contained therein into evidence.
11
Pinder, along with Polk, were both charged in the initial
criminal complaint. The subsequent information, charging Pinder
with the same two charges and using the same charging language,
only contained the counts against Pinder. The initial criminal
complaint charged Polk with one count of burglary of a building
or dwelling – as a party to a crime, contrary to Wis. Stat.
§§ 943.10(1m)(a), 939.50(3)(f), and 939.05; and one count of
possession of drug paraphernalia, contrary to Wis. Stat.
§ 961.573(1).
9
No. 2017AP208-CR
¶16 On September 14, 2015, Pinder filed a motion to
suppress on the basis that the "Order obtained by the State in
this case [was] not a search warrant and thus, the attachment of
a GPS device to [Pinder's vehicle] was a warrantless search."
Pinder further argued that, if the order is a warrant, the
Warrant was not properly executed pursuant to Wis. Stat.
§ 968.15(1). In response, the State argued that the Warrant was
not a statutory search warrant under Wis. Stat. § 968.12, but
instead was a warrant that satisfied the Warrant Clause of the
Fourth Amendment, because it had:
(1) prior authorization of by (sic) a neutral and
detached magistrate, (2) a demonstration upon oath or
affirmation that there is probable cause to believe
the evidence sought will aid in a particular
conviction for [a] particular offense, and (3) a
particularized description of the place to be searched
and the items to be seized.
¶17 On November 9, 2015, the circuit court held a hearing
on Pinder's motion to suppress.12 On November 23, 2015, the
circuit court denied the motion to suppress, concluding that
Sveum13 is "on point," and that Sveum's reasoning "controls" in
this case. In applying Sveum's test to determine whether the
Warrant was valid, the circuit court found that the court
"qualif[ied] as a detached and neutral magistrate in issuing the
12
At the hearing, the State and Pinder stipulated that the
GPS tracking device was installed ten days after the Warrant was
signed.
13
State v. Sveum, 2010 WI 92, 328 Wis. 2d 369, 787
N.W.2d 317.
10
No. 2017AP208-CR
warrant" and that the probable cause standard was satisfied
based on the facts in Detective Polishinski's affidavit. The
circuit court added that Pinder's vehicle was "[k]ind of the
linchpin" of the "rash of burglaries," and that the Warrant
allowed the Mequon Police Department to "[observe] the vehicle
when it was in the area where these burglaries had been
committed." While the circuit court acknowledged that Wis.
Stat. § 968.15 presented "difficulties," it nonetheless
concluded that——just as in Sveum——the "constitutional test
appl[ies] over the statutory requirements." The circuit court
concluded that, "under the circumstances . . . the warrant was
appropriate" and denied the motion to suppress.
¶18 On November 30, 2015, Pinder and Polk were tried
before a jury. Before both sides rested, Pinder moved for a
directed verdict on the burglary charge arguing that the State
had charged Pinder under the wrong paragraph of Wis. Stat.
§ 943.10(1m). In response, the State moved to amend its
pleadings to charge burglary under § 943.10(1m)(f) instead of
§ 943.10(1m)(a).14 The circuit court denied Pinder's motion and
14
Wisconsin Stat. § 943.10, "Burglary," in relevant part,
provides:
(1m) Whoever intentionally enters any of the
following places without the consent of the person in
lawful possession and with intent to steal or commit a
felony in such place is guilty of a Class F felony:
(a) Any building or dwelling; or
. . .
(continued)
11
No. 2017AP208-CR
granted the State's motion. After granting the State's motion,
the circuit court explained that it had changed the term
"building," as well as "dwelling," to "office" throughout the
Burglary jury instructions. The circuit court, however, failed
to change "building" to "office" one time, resulting in the
Burglary jury instructions containing the word "building" once.
The circuit court attributed it to an editing mistake. The
State had requested the Burglary jury instructions use the
phrase "room within a building." No one objected to the jury
instructions. The jury found Pinder guilty on both counts.15
¶19 On December 1, 2015, the circuit court sentenced
Pinder to five years of initial confinement and five years of
extended supervision on count 1, and one year of initial
confinement and one year of extended supervision on count 2, to
be served concurrently to the sentence imposed on count 1. Both
sentences were to be served consecutively to a sentence Pinder
was serving at the time.
¶20 On August 24, 2016, Pinder filed a motion for
postconviction relief seeking a new jury trial on the ground
that his "trial attorney . . . was prejudicially ineffective."
(f) A room within any of the above.
§ 943.10(1m)(a), (f).
15
The jury, however, found Polk "not guilty of burglary of
an office as a party to the crime as charged in . . . the
information." He, nonetheless, was found guilty of possession
of drug paraphernalia, contrary to Wis. Stat. § 961.573(1).
12
No. 2017AP208-CR
On January 19, 2017, the circuit court issued its decision
denying the motion. After noting that Pinder "might be able to
meet the first prong of the test [of an ineffective assistance
of counsel claim]," the circuit court concluded that "[i]t is
clear beyond a reasonable doubt that the jury would have
convicted [Pinder] . . . if proper instructions had been given."
The circuit court reasoned that "the quantum of evidence was
[so] overwhelming that the jury would have convicted [Pinder] of
the charges" and that the "jury didn't seem to have any
confusion."
¶21 On February 2, 2017, Pinder filed a notice of appeal,
challenging both the judgment of conviction and the circuit
court's denial of his postconviction motion. On December 13,
2017, the court of appeals certified the case to this court
regarding the application of provisions of Chapter 968 to this
Warrant. On March 14, 2018, we accepted the court of appeals'
certification.
III. STANDARD OF REVIEW
¶22 The certified issue concerns whether the Warrant in
this case is governed by Wisconsin Statutes Chapter 968.
Accordingly, we are called upon to consider various provisions
of Chapter 968 including Wis. Stat. §§ 968.12, 968.13, 968.15,
and 968.17.
¶23 Statutory interpretation is a question of law that we
review de novo but benefiting from prior courts' analyses.
C. Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI
68, ¶14, 310 Wis. 2d 456, 750 N.W.2d 900. "[T]he purpose of
13
No. 2017AP208-CR
statutory interpretation is to determine what the statute means
so that it may be given its full, proper, and intended effect."
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶44, 271 Wis. 2d 633, 681 N.W.2d 110.
¶24 We are then called upon to review whether this Warrant
complied with the Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution. "Whether the language of the warrant satisfies
the requisite constitutional requirements is a question of law.
We review such issues of constitutional guarantees de novo."
State v. Meyer, 216 Wis. 2d 729, 744, 576 N.W.2d 260 (1998); see
also State v. Sveum, 2010 WI 92, ¶17, 328 Wis. 2d 369, 787
N.W.2d 317. "However, we review a warrant-issuing magistrate's
determination of whether the affidavit in support of the order
was sufficient to show probable cause with 'great deference.'"
State v. Tate, 2014 WI 89, ¶14, 357 Wis. 2d 172, 849 N.W.2d 798
(quoting State v. Higginbotham, 162 Wis. 2d 978, 989, 471
N.W.2d 24 (1991)). This "determination will stand unless the
defendant establishes that the facts are clearly insufficient to
support a finding of probable cause." Higginbotham, 162
Wis. 2d at 989.
¶25 When we analyze whether police conduct violated the
Fourth Amendment to the United States Constitution's and Article
I, Section 11 of the Wisconsin Constitution's guarantees against
unreasonable searches, "[w]e independently review 'whether
police conduct violated the constitutional guarantee against
unreasonable searches,' which presents a question of
14
No. 2017AP208-CR
constitutional fact." Tate, 357 Wis. 2d 172, ¶14 (quoting State
v. Arias, 2008 WI 84, ¶11, 311 Wis. 2d 358, 752 N.W.2d 748).
"When presented with a question of constitutional fact, this
court engages in a two-step inquiry. First, we review the
circuit court's findings of historical fact under a deferential
standard, upholding them unless they are clearly erroneous.
Second, we independently apply constitutional principles to
those facts." State v. Robinson, 2010 WI 80, ¶22, 327
Wis. 2d 302, 786 N.W.2d 463 (citations omitted).
¶26 Finally, with respect to Pinder's ineffective
assistance of counsel argument, review of "[w]hether a defendant
was denied effective assistance of counsel is a mixed question
of law and fact." State v. Breitzman, 2017 WI 100, ¶37, 378
Wis. 2d 431, 904 N.W.2d 93, cert. denied, 138 S. Ct. 1599
(2018). "The factual circumstances of the case and trial
counsel's conduct and strategy are findings of fact, which will
not be overturned unless clearly erroneous; whether counsel's
conduct constitutes ineffective assistance is a question of law,
which we review de novo." Id. "To demonstrate that counsel's
assistance was ineffective, the defendant must establish that
counsel's performance was deficient and that the deficient
performance was prejudicial." Id. (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). "To establish that
counsel's performance was deficient, the defendant must show
that it fell below 'an objective standard of reasonableness.'
In general, there is a strong presumption that trial counsel's
conduct 'falls within the wide range of reasonable professional
15
No. 2017AP208-CR
assistance.'" Id., ¶38 (citation omitted). "To establish that
deficient performance was prejudicial, the defendant must show
that 'there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.'" Id., ¶39.
Whether trial counsel performed deficiently and whether any
deficient performance was prejudicial are both questions of law
we review de novo. Id., ¶¶38-39. "If the defendant fails to
satisfy either prong, we need not consider the other." Id., ¶37
(citing Strickland, 466 U.S. at 697).
IV. ANALYSIS
A. Wisconsin Statutes Chapter 968 Does Not Apply.
¶27 The crux of the issue before the court begins with an
analysis of certain provisions of Chapter 968 of the Wisconsin
Statutes. We are first called upon to determine whether this
Warrant must be issued, executed, and returned pursuant to the
provisions of Chapter 968. Because the plain language of the
provisions of Chapter 968 neither addresses nor includes such a
GPS warrant, we conclude that this Warrant cannot be subject to
the statutory limitations and requirements therein. See Wis.
Stat. §§ 968.12, 968.13, 968.15, and 968.17.
¶28 This court begins statutory interpretation with the
language of the statute. Kalal, 271 Wis. 2d 633, ¶45. If the
meaning of the statute is plain, we ordinarily stop the inquiry
and give the language its "common, ordinary, and accepted
meaning, except that technical or specially-defined words or
16
No. 2017AP208-CR
phrases are given their technical or special definitional
meaning." Id.
¶29 Context and structure of a statute are important to
the meaning of the statute. Id., ¶46. "Therefore, statutory
language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id. Moreover, the
"[s]tatutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage." Id. "A
statute's purpose or scope may be readily apparent from its
plain language or its relationship to surrounding or closely-
related statutes——that is, from its context or the structure of
the statute as a coherent whole." Id., ¶49.
¶30 "If this process of analysis yields a plain, clear
statutory meaning, then there is no ambiguity, and the statute
is applied according to this ascertainment of its meaning."
Id., ¶46. If statutory language is unambiguous, we do not need
to consult extrinsic sources of interpretation. Id.
¶31 This case requires us to begin with an interpretation
of Wis. Stat. § 968.12(1) which addresses, in part, the purpose
of a statutory search warrant,16 and Wis. Stat. § 968.13 which
16
Although Chapter 968 of the Wisconsin Statutes describes
several categories of warrants, in this opinion, we use
"statutory search warrant" to refer only to warrants issued
pursuant to Wis. Stat. § 968.12(1).
17
No. 2017AP208-CR
addresses what property is subject to seizure because of a
statutory search warrant.
¶32 Wisconsin Stat. § 968.12, "Search warrant," provides,
in pertinent part:
(1) Description and issuance. A search warrant
is an order signed by a judge directing a law
enforcement officer to conduct a search of a
designated person, a designated object or a designated
place for the purpose of seizing designated property
or kinds of property. A judge shall issue a search
warrant if probable cause is shown.
§ 968.12(1) (emphasis added).
¶33 Initially, under the plain language interpretation of
Wis. Stat. § 968.12(1), statutory search warrants are "for the
purpose of seizing designated property or kinds of property."
Id. (emphasis added). A GPS tracking device does not seize
property, it creates data. See United States v. Jones, 565 U.S.
400, 419 (2012) (Alito, J., concurring) ("The Court does not
contend that there was a seizure [from the attachment or use of
the GPS device]. A seizure of property occurs when there is
'some meaningful interference with an individual's possessory
interests in that property,' and here there was none." (citation
omitted)); see also id. at 415 (Sotomayor, J., concurring) ("GPS
monitoring generates a precise, comprehensive record of a
person's public movements." (emphasis added)); see also United
States v. Karo, 468 U.S. 705, 718 (1984). We cannot ignore this
clear legislative pronouncement that the statutory search
warrant be for the "purpose of seizing designated property or
kinds of property." See § 968.12(1); see also Kalal, 271
18
No. 2017AP208-CR
Wis. 2d 633, ¶46 ("Statutory language is read where possible to
give reasonable effect to every word, in order to avoid
surplusage."); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 174-79 (2012) ("If possible,
every word and every provision is to be given effect (verba cum
effectu sunt accipienda). None should be ignored. None should
needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence."
(footnote omitted)). Instead, "[w]e must assume that the
legislature has reviewed the legislation and that it intends the
words used be given their meaning." State v. MacArthur, 2008 WI
72, ¶30, 310 Wis. 2d 550, 750 N.W.2d 910; see also 2A Norman J.
Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory
Construction § 46.6 (7th ed. 2018) ("Courts assume that every
word, phrase, and clause in a legislative enactment is intended
and has some meaning and that none was inserted accidentally.").
If the legislature intended that § 968.12 search warrants be
required for other than the seizure of "property," it would have
selected different words. The plain meaning of § 968.12 does
not support Pinder's argument.
¶34 Further support for the conclusion that Wis. Stat.
§ 968.12 does not apply to GPS warrants is found in the plain
language of Wis. Stat. § 968.13, which specifically defines "the
property" that may be seized by a statutory search warrant.
Information subsequently generated from a GPS tracking device is
not "property" that can be "seized" at the time the warrant
19
No. 2017AP208-CR
issued. Moreover, it is not "property" that is under the
control of Pinder.
¶35 Wisconsin Stat. § 968.13, "Search warrant; property
subject to seizure," provides:
A search warrant may authorize the seizure of the
following: . . .
(d) Documents which may constitute evidence of
any crime, if probable cause is shown that the
documents are under the control of a person who is
reasonably suspected to be concerned in the commission
of that crime under s. 939.05(2).
§ 968.13(1)(d) (emphasis added). Subsection (2) of Wis. Stat.
§ 968.13 defines documents as including but not limited to,
"books, papers, records, recordings, tapes, photographs, films
or computer or electronic data." § 968.13(2).
¶36 Pinder argues that GPS warrants authorize the seizure
of "[d]ocuments," specifically "electronic data," under Wis.
Stat. § 968.13(1)(d). Pinder's argument, however, fails because
a document/electronic data is not even in existence at the time
the GPS unit is installed. Moreover, this not-yet-created
information could not possibly be "under the control of" Pinder
so to be seized from him.
¶37 Simply stated, Wis. Stat. § 968.13(1)(d) requires that
the property to be seized be "under the control of a person who
is reasonably suspected to be concerned in the commission of
that crime." GPS tracking devices may create data in the
future, but that data is not under the control of Pinder. To
the extent that a document or data might come into existence
eventually because of the tracking, it would be created by the
20
No. 2017AP208-CR
Mequon Police Department and is under the Mequon Police
Department's control, not Pinder's.
¶38 To the extent that Pinder's argument that a future
electronic transmission from a GPS tracking device is
"electronic data" under his control as the term is used in Wis.
Stat. § 968.13(2), the other terms of the statute demonstrate
that the term "documents" pertains to documents already in
existence and "electronic data" must be considered in context.
Section 968.13(2) defines documents to include but is not
limited to "books, papers, records, recordings, tapes,
photographs, films or computer or electronic data." The canon
of noscitur a sociis instructs that "an unclear statutory term
should be understood in the same sense as the words immediately
surrounding or coupled with it." Wis. Citizens Concerned for
Cranes & Doves v. DNR, 2004 WI 40, ¶40, 270 Wis. 2d 318, 677
N.W.2d 612; Scalia & Garner, supra ¶33, at 195-98. Under this
canon, "electronic data" should be understood in the same sense
as the other enumerated "documents." See, e.g., Book, Webster's
Third New International Dictionary 252 (1976) (defining "book"
as "a formal written document" or "a collection of written,
printed, or blank sheets fastened together"); record, id. at
1898 (defining "record" as "evidence, knowledge, or information
remaining in permanent form (as a relic, inscription, document)"
or "an account in writing or print (as in a document)");
recording, id. (defining "recording" as "a phonograph record,
magnetic tape, or some other thing (as film, wire, one of the
perforated rolls played by a player piano) on which sound or
21
No. 2017AP208-CR
visual images have been recorded for subsequent reproduction").
Read in conjunction with the other types of "documents," it is
evident that "electronic data" under this statute would be more
akin to stored documents, music, pictures or videos, not future
electronic transmissions from a GPS tracking device that are in
the possession of the Mequon Police Department, not Pinder.
Instead, if there might eventually be a document containing GPS
information, it will come into existence at the behest of and
belong to the Mequon Police Department, and is not something
under the control of Pinder.
¶39 Finally, the parties argue about how, if at all,
Sveum, 328 Wis. 2d 369, informs our analysis. While it is true
that Sveum cites to the search warrant statutes in its
reasonableness analysis and considers a warrant to also be an
order, the court in Sveum concluded that suppression is not the
remedy for what it determined was a technical irregularity.
Sveum, 328 Wis. 2d 369, ¶¶57-58. The arguments in Sveum
centered around the Fourth Amendment. In Sveum the court
engaged in a Fourth Amendment reasonableness analysis and turned
to the Wisconsin Statutes for further validation that the search
warrant was constitutional. While Sveum does establish that a
court has inherent authority to issue a GPS warrant, it does not
conclude that GPS warrants must be issued under and otherwise
comply with Wisconsin Statutes Chapter 968.
¶40 The facts of Sveum were different and the parties'
arguments were other than they are here. In Sveum the parties
neither briefed nor argued whether the warrant was a common law
22
No. 2017AP208-CR
warrant. Sveum in part argued that the "[t]he court order also
failed requirements of Ch. 968 of the Wisconsin Statutes," and
the court determined that to the extent there was a departure
from Wis. Stat. § 968.15(1), it was a "technical irregularity."
Id., ¶57.
¶41 As a result, Sveum is far from precedent that GPS
warrants are controlled by Chapter 968. Instead, Sveum supports
the conclusion that courts have the authority to issue GPS
warrants even though a technical irregularity is present under
the statute.
¶42 Therefore, we conclude that the plain meaning of Wis.
Stat. §§ 968.12(1) and 968.13 foreclose the argument that GPS
warrants must comport with Wisconsin Statutes Chapter 968.
Those statutes clearly do not apply to GPS warrants, and
therefore GPS warrants are not subject to the requirements of
Wis. Stat. §§ 968.15 or 968.17(1). However, we again take this
opportunity to urge the legislature to consider enacting a
specific statutory grant of authority to define parameters and
requirements with respect to GPS warrants. See Fed. R. Crim. P.
41;17 see also State v. Brereton, 2013 WI 17, ¶54 n.16, 345
17
Rule 41, Federal Rules of Criminal Procedure, "Search and
Seizure," in relevant part, provides:
(C) Warrant for a Tracking Device. A tracking-
device warrant must identify the person or property to
be tracked, designate the magistrate judge to whom it
must be returned, and specify a reasonable length of
time that the device may be used. The time must not
exceed 45 days from the date the warrant was issued.
The court may, for good cause, grant one or more
(continued)
23
No. 2017AP208-CR
Wis. 2d 563, 826 N.W.2d 369; id., ¶98 (Abrahamson, C.J.,
dissenting); Sveum, 328 Wis. 2d 369, ¶77 (Crooks, J.,
concurring); id., ¶¶81-82, 84 (Ziegler, J., concurring); id.,
¶126 (Abrahamson, C.J., dissenting). Had the legislature
enacted such a statute, we may very well not be confronted with
the issues now present.
B. Fourth Amendment
¶43 We now turn to the court's authority to issue a GPS
warrant and whether this Warrant complies with Fourth Amendment
principles. Because no statutes control the issuance of a GPS
warrant, a court is left to rely on its inherent authority. See
Tate, 357 Wis. 2d 172, ¶42 (citing Sveum, 328 Wis. 2d 369, ¶¶69-
72); Meek v. Pierce, 19 Wis. 318 (*300), 321-22 (*302-03)
(1865); United States v. Falls, 34 F.3d 674, 678 (8th Cir.
1994); United States v. Torres, 751 F.2d 875, 879 (7th Cir.
1984); United States v. Villegas, 899 F.2d 1324, 1334 (2d Cir.
extensions for a reasonable period not to exceed 45
days each. The warrant must command the officer to:
(i) complete any installation authorized by the
warrant within a specified time no longer than 10
days;
(ii) perform any installation authorized by the
warrant during the daytime, unless the judge for good
cause expressly authorizes installation at another
time; and
(iii) return the warrant to the judge designated
in the warrant.
Fed. R. Crim. P. 41(e)(2)(C).
24
No. 2017AP208-CR
1990). Several courts have considered this issue, including
ours, and have concluded that courts do indeed have the inherent
authority to issue warrants at common law. Tate, 357
Wis. 2d 172, ¶42 (citing Sveum, 328 Wis. 2d 369, ¶¶69-72) ("No
specific statutory authority is necessary to the issuance of a
valid warrant . . . ."); Meek, 19 Wis. at 321-22 (*302–03) ("It
is clear that at common law a justice of the peace had a right
to direct his warrant to any particular private person by name.
This authority extended as well to search warrants as
others. . . . With us, therefore, the only question is, whether
this common law power has been restrained or taken away by
statute. For when the statute authorizes a magistrate to issue
a warrant in a proceeding for crime, the presumption is that he
may do so in the manner authorized by the common law, unless a
different mode is prescribed by the statute. . . . It is a safe
and established principle in the construction of statutes, that
the rules of the common law are not to be changed by doubtful
implication. To give such effect to the statute, the language
must be clear, unambiguous and peremptory." (citations
omitted)); Falls, 34 F.3d at 678 ("A court of general
jurisdiction has inherent power to issue a search warrant within
the limits set forth in the Fourth Amendment. Although Congress
can limit the procedural power of the federal courts, federal
courts retain their traditional powers until Congress chooses to
limit them with respect to a particular subject." (citation
omitted)); Torres, 751 F.2d at 879 ("The power to issue a search
warrant is a common law power in America as well as England, and
25
No. 2017AP208-CR
in the federal system as well as in the states." (citations
omitted)); Villegas, 899 F.2d at 1334 ("Given the Fourth
Amendment's warrant requirements, and assuming no statutory
prohibition, the courts must be deemed to have inherent power to
issue a warrant when the requirements of that Amendment are
met.").
¶44 Pinder makes little, if any, argument that a court
lacks such authority. His argument instead focused on this
Warrant's failure to comply with the above-referenced search
warrant statutes. Furthermore, Pinder's counsel at oral
argument conceded that common law warrants are valid "in certain
situations."18 However, because we have concluded that Wisconsin
Statutes Chapter 968 does not control the issuance of a GPS
warrant and we rely on the inherent authority of courts to issue
such warrants, we now turn to whether the Warrant complies with
Fourth Amendment protections.
18
Pinder's counsel's full statement was: "They are trying
to create a new kind of warrant, a common law warrant, which
they can do in certain situations, but is not necessary in this
situation." He further conceded that this authority was used in
Tate:
In Tate, there was-- they got the information from
somebody, AT&T, who was not suspected of a crime,
okay, which is not what is provided in Wisconsin
Statutes. Because you have to have someone suspected
of a crime in order to have a valid warrant. So they
couldn't go through the warrant provisions, so they
created this common law situation to avoid having to
go through the statutory procedures for a warrant.
You don't have to do that in this case.
26
No. 2017AP208-CR
¶45 The "touchstone of the Fourth Amendment is
reasonableness." State v. Faust, 2004 WI 99, ¶32, 274
Wis. 2d 183, 682 N.W.2d 371. The Fourth Amendment to the United
States Constitution and Article I, Section 11 of the Wisconsin
Constitution prohibit "unreasonable searches and seizures."
U.S. Const. amend. IV; Wis. Const. art. 1, § 11.19 "A
warrantless search is presumptively unreasonable . . . ." State
v. Tullberg, 2014 WI 134, ¶30, 359 Wis. 2d 421, 857 N.W.2d 120
(citing State v. Henderson, 2001 WI 97, ¶17, 245 Wis. 2d 345,
629 N.W.2d 613).
19
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
The Wisconsin Constitution's search and seizure provision
is "interpret[d] . . . consistent[ly] with the United States
Supreme Court's interpretation of the Fourth Amendment." State
v. Tullberg, 2014 WI 134, ¶29 n.17, 359 Wis. 2d 421, 857
N.W.2d 120 (citing State v. Robinson, 2010 WI 80, ¶24 n.11, 327
Wis. 2d 302, 786 N.W.2d 463); but see State v. Eason, 2001 WI
98, 245 Wis. 2d 206, 629 N.W.2d 625. Article I, Section 11 of
the Wisconsin Constitution provides:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated; and no warrant shall issue but upon probable
cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized.
27
No. 2017AP208-CR
¶46 "Whether a search and seizure pursuant to a warrant is
constitutionally valid is a two-part inquiry. First, the
Warrant Clause demands that all warrants be validly issued.
Second, the Reasonableness Clause requires that warrants be
reasonably executed." Sveum, 328 Wis. 2d 369, ¶19 (citation
omitted).
¶47 Pinder's argument focuses on this Warrant's lack of
compliance with the warrant statutes. The State argues that the
search20 pursuant to the Warrant complied with Fourth Amendment
requirements. We agree with the State.
1. Warrant Clause
¶48 "The Fourth Amendment's warrant clause
provides . . . particularized protections governing the manner
in which search and arrest warrants are issued." Henderson, 245
Wis. 2d 345, ¶19. For a warrant to be validly issued, the
Warrant Clause requires three things. Sveum, 328 Wis. 2d 369,
¶20.
20
The installation and monitoring of the GPS tracking
device on Pinder's vehicle constituted a Fourth Amendment
"search." United States v. Jones, 565 U.S. 400, 404 (2012)
(footnote omitted) ("We hold that the Government's installation
of a GPS device on a target's vehicle, and its use of that
device to monitor the vehicle's movements, constitutes a
'search.'").
28
No. 2017AP208-CR
¶49 First, the warrant must have "prior authorization by a
neutral, detached magistrate." Id. No argument is made that
the Warrant is anything other than this.21
¶50 Second, there must be "a demonstration upon oath or
affirmation that there is probable cause to believe that
evidence sought will aid in a particular conviction for a
particular offense." Id. Again, no argument supports the
notion that the Warrant is deficient in this regard. In the
search context, to find probable cause the issuing magistrate
must determine "under the totality of the circumstances, given
all the facts and circumstances set forth in the affidavit,
'"there is a fair probability that contraband or evidence of a
crime will be found in a particular place."'" Id., ¶24 (quoting
State v. Desmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780 (1990)).
"We accord great deference to the warrant-issuing judge's
determination of probable cause and that determination will
stand unless the defendant establishes that the facts are
clearly insufficient to support a finding of probable cause."
Higginbotham, 162 Wis. 2d at 989. We will not conclude the
facts were clearly insufficient if "the magistrate had a
substantial basis for concluding that the probable cause
21
The Warrant signed by the issuing judge on February 27,
2015, authorized the Mequon Police Department to install and
monitor a GPS tracking device on Pinder's vehicle. On March 9,
2015, Detective Polishinski attached the device on Pinder's
vehicle. Accordingly, the Warrant has prior judicial
authorization from a neutral detached magistrate.
29
No. 2017AP208-CR
existed." Id. Here, the facts are clearly sufficient to
support a probable cause determination, and we owe proper
deference to the judicial determination in that regard.
¶51 Third, the Fourth Amendment requires that there be "a
particularized description of the place to be searched and items
to be seized." Sveum, 328 Wis. 2d 369, ¶20. In the context of
GPS warrants, this requirement is satisfied when "a warrant
application . . . 'describe[s] the object into which the
[tracking device] is to be placed, the circumstances that led
agents to wish to install the [tracking device], and the length
of time for which [] surveillance is requested.'" Id., ¶30
(quoting Karo, 468 U.S. at 718). Here, again, the parties do
not meaningfully question this part of the analysis. In the
context of a GPS warrant, the parameters set forth are not
unreasonable.
¶52 We conclude that the Warrant authorizing the
installation and monitoring of a GPS tracking device on Pinder's
vehicle satisfied all three requirements of the Warrant Clause
and thus was a validly issued search warrant.
2. Police conduct
¶53 "Even if a court determines that a search warrant is
constitutionally valid, the manner in which the warrant was
executed remains subject to judicial review." Sveum, 328
Wis. 2d 369, ¶53. "A search 'must be conducted reasonably and
appropriately limited to the scope permitted by the warrant.'"
State v. Andrews, 201 Wis. 2d 383, 390, 549 N.W.2d 210 (1996).
"The determination of reasonableness is made by reference to the
30
No. 2017AP208-CR
particular circumstances of each individual case, and balances
the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion."
Henderson, 245 Wis. 2d 345, ¶18 (citation omitted). Whether a
search was reasonably executed is determined by considering "the
totality of the circumstances." United States v. Banks, 540
U.S. 31, 35-36 (2003). Further, the "burden of proving the
dissipation of probable cause . . . [is] with the defendant"
because "[i]t would be an unreasonable and unnecessary burden on
the [S]tate as well as the courts to force the [S]tate to
justify the timeliness of every search warrant executed by
requiring a showing that probable cause had not dissipated."
State v. Edwards, 98 Wis. 2d 367, 376, 297 N.W.2d 12 (1980).
¶54 First, there is essentially no argument that the
installation of the GPS tracking device did not comply with the
terms of the Warrant. Instead, Pinder's argument focuses on
noncompliance with the statute. In the case at issue, Detective
Polishinski obtained the Warrant from the issuing judge to
"install and monitor a [GPS] tracking device on [Pinder's
vehicle]." The Warrant was subject to three restrictions: that
the installation and monitoring be of a "tracking device," that
the installation of the GPS tracking device be done by the
Mequon Police Department, and that the GPS tracking device be
"remove[d] . . . as soon as practicable after the objectives of
the surveillance are accomplished or not later than 60 days from
the date the order is signed." The execution of the Warrant was
31
No. 2017AP208-CR
well within the confines of the authority granted by the Warrant
and did not violate any of the three restrictions. Initially,
the Mequon Police Department installed and monitored a GPS
tracking device on Pinder's vehicle. Further, the GPS tracking
device was removed within 60 days, or alternatively "as soon as
practicable after the objectives of the surveillance [were]
accomplished." The surveillance was completed within 20 days of
the Warrant's issuance——well within the 60-day limit——and the
surveillance concluded "as soon as practicable" considering the
objectives of the surveillance were to find evidence of Pinder
committing burglaries, the location of evidence, and the
identity of associates. The monitoring concluded after less
than a week of surveillance of Pinder's vehicle and on the same
day as when the GPS tracking device's alert and subsequent
monitoring led the Mequon Police Department to obtain evidence
that Pinder had committed a burglary of a suite of offices, to
find stolen items from the suite of offices in Pinder's car, and
to determine the identity of an individual, Polk, riding in the
car with Pinder.
¶55 Second, Pinder has the "burden of proving the
dissipation of probable cause." Edwards, 98 Wis. 2d at 376. He
did not meet this burden. In addition, Pinder's counsel
conceded "the [W]arrant on its face established probable cause,"
and that probable cause did not dissipate.
¶56 Third, the installation and monitoring of the GPS
tracking device was reasonable under the totality of the
circumstances. The Warrant was obtained, installed, and
32
No. 2017AP208-CR
monitored in compliance with the court order. The GPS tracking
device in this case was in use for only six days, and the
surveillance was stopped the same day as the Mequon Police
Department obtained evidence that Pinder had committed a
burglary of a suite of offices, found stolen items from the
suite of offices in his car, and determined the identity of one
of his potential criminal associates. Further, as the circuit
court noted, investigating the crime of burglary typically
necessitates prolonged surveillance because of the
unpredictability of when the burglary will occur. Therefore,
this is not a case where the use of a GPS tracking device became
"unreasonable" under the Fourth Amendment. See Brereton, 345
Wis. 2d 563, ¶¶2, 13, 53-54 (finding that the installation and
monitoring of a GPS tracking device for four days, as authorized
by the warrant, in the investigation of "recent burglaries" was
not unconstitutional).
¶57 Therefore, the State's conduct in the execution of the
Warrant complied with the Fourth Amendment.
C. Ineffective Assistance Of Counsel
¶58 Pinder additionally seeks review of the denial of his
ineffective assistance of counsel claim. Pinder argues that his
trial counsel was ineffective for failing to object to the
Burglary jury instructions because, instead of using the word
"building" or "office," the court should have used the phrase
"room within a building." In this case, this is a distinction
33
No. 2017AP208-CR
without a difference.22 This wording choice was not error but
even if it were to be deemed error, it was not prejudicial. In
short, Pinder's ineffective assistance of counsel claim fails.
¶59 Pinder argues that the Burglary jury instructions were
erroneous. He argues "this present fact situation did not
involve the Burglary of a Building . . . [because] the entry
ways into the building were open at the time of the alleged
entry" and thus the "instruction referred to a situation that,
under the facts, was not a violation of the law." He argues
that "the jury instruction's references to convicting someone
for entering an 'office,' as an element of Burglary, was also
legally incorrect" because an "'office' is not one of the places
indicated in Wis. Stats. 943.10(1m)(a) through (f)," and the
term "does not describe, or qualify as, any of the statutory
examples cited in Wis. Stats. 943.10(1m)." Pinder argues that
the first two errors in the Burglary jury instructions were not
harmless because "the instruction[s] advised the jury that it
could, and should, convict the Defendant improperly." Pinder
argues that "the Burglary jury instruction was materially
erroneous" because it created a "reasonable issue, and concern,
of juror confusion and error" by "allow[ing] the jury to convict
[him] of entry into a building or entry into an office."
22
Pinder acknowledges as much, recognizing that "the facts
of this present matter indicate essentially that the office was
a room inside of the building."
34
No. 2017AP208-CR
Pinder's arguments do not demonstrate that counsel's performance
was deficient in not so objecting.
¶60 At the outset, we acknowledge that the circuit court
is entitled to some latitude in crafting jury instructions to
comport with the evidence of the case. Dakter v. Cavallino,
2015 WI 67, ¶31, 363 Wis. 2d 738, 866 N.W.2d 656. While the
circuit court could have used the phrase "a room within a
building" instead of the words "office" or "building," the facts
adduced would not confuse the jury as to what it was called upon
to decide regardless of which of these words might be used. The
jury heard the strong evidence against the defendant. There
would be no confusion to the jury that it was to decide whether
the State proved, beyond a reasonable doubt, that Pinder
intentionally entered the locked office suites (prying the
locked space open) without consent; and that he knew it was
without consent and with the intent to steal (being videotaped
at the office building and found shortly thereafter with
burglarious tools and the stolen items in his car). See Wis.
JI-Criminal 1421 (2001). It was based upon the evidence,
regarding the locked rooms within the building, that the jury
determined that Pinder burglarized the subject premises.
Whether one would consider that an office, a building, or a room
within a building is of no moment here. This is not a fact
situation where any allegation was made that Pinder stole from a
building open to the public. See Champlin v. State, 84
Wis. 2d 621, 624-27, 267 N.W.2d 295 (1978). The testimony was
overwhelming as to what office area was burgled. Significantly,
35
No. 2017AP208-CR
the jury instructions did not preclude acquittal as the jury
found the co-defendant, Polk, not guilty of the burglary.
¶61 In sum, Pinder has failed to demonstrate that his
trial counsel's performance was ineffective.
V. CONCLUSION
¶62 We conclude that a search warrant issued for the
placement and use of a GPS tracking device on a motor vehicle,
but not executed within five days after the date of issuance per
Wis. Stat. § 968.15(1) or timely returned under Wis. Stat.
§ 968.17(1), is not void if the search was otherwise reasonably
conducted, because it is not a warrant issued "for the purpose
of seizing designated property or kinds of property" under Wis.
Stat. § 968.12(1). It is not a warrant that seeks a "document"
or "electronic data" under the control of the vehicle owner as
is required under Wis. Stat. § 968.13 and thus, is not subject
to the execution and return provisions of §§ 968.15 and
968.17(1). Such a warrant for GPS tracking is not issued
pursuant to a statute, but instead is issued pursuant to the
court's inherent authority and thus, must comply only with the
Fourth Amendment to the United States Constitution and Article
I, Section 11 of the Wisconsin Constitution. Because the GPS
warrant in this case was otherwise constitutionally sufficient,
the evidence obtained as a result of the warrant is not subject
to suppression. Therefore, we affirm the circuit court.
By the Court.—The judgment of the circuit court is
affirmed.
36
No. 2017AP208-CR.dk
¶63 DANIEL KELLY, J. (concurring). I join the court's
opinion, except to the extent it "urge[s] the legislature to
consider enacting a specific statutory grant of authority to
define parameters and requirements with respect to GPS
warrants." Majority op., ¶42.
¶64 As a general rule, I think it is inappropriate for the
judiciary to request the legislature to legislate. And in this
specific instance, I think we would have been wise to heed the
old proverb that one should be careful about one's wishes,
because they just might be granted. I have no idea what the
legislature might do with the court's request, and neither does
the court.
¶65 In any event, this is now the third time we have asked
the legislature to adopt a GPS-warrant statute. It didn't
answer the phone the last two1 times2 we called, and it isn't
particularly likely it will find our latest overture more
charming. Indeed, we're starting to look a wee bit desperate.
Maybe the legislature is being standoffish because it just
1
"We suggest that the legislature address the constantly
evolving nature of electronic incursions." State v. Brereton,
2013 WI 17, ¶54 n.16, 345 Wis. 2d 563, 826 N.W.2d 369.
2
"Second, I echo my colleagues' requests, see Justice
Ziegler's concurrence, ¶¶79, 84; Chief Justice Abrahamson's
dissent, ¶126, that the Wisconsin legislature weigh in on this
issue and enact legislation governing the proper procedures for
issuing a warrant, executing that warrant, and other procedural
concerns related to police searches using GPS, such as time
limits and return on the warrant requirements." State v. Sveum,
2010 WI 92, ¶77, 328 Wis. 2d 369, 787 N.W.2d 317 (Crooks, J.,
concurring).
1
No. 2017AP208-CR.dk
doesn't want to go on this date with us. Rapid technological
advances make obsolescence a regular feature of modern life.
The legislature may have concluded that a GPS-warrant statute
would be a mere stop-gap measure that would require constant
updating to keep pace with the latest developments.
¶66 Or maybe the legislature quizzically quirks its
collective eyebrow whenever we bring this up because our
requests are always accompanied by proof we don't need its help.
Our opinion correctly concluded that our courts have the
inherent authority to issue GPS warrants. It also deftly
considered the warrant's fidelity to constitutional constraints
and correctly concluded there was no violation. Those were the
only two issues we needed to address, and we confidently and
competently resolved them without any input from the legislature
whatsoever. Our work in this case, Brereton, and Sveum all
prove that we don't need the legislative branch's help in
evaluating GPS warrants. As the legislature glances back and
forth between our several requests and the accompanying
opinions, it would certainly be justified in wondering what,
exactly, we want it to do.
¶67 I wonder, too. Our opinion says: "Had the
legislature enacted such a statute, we may very well not be
confronted with the issues now present." Majority op., ¶42.
Maybe. Maybe not. A GPS-warrant statute might have saved us
the effort we expended in this case, but it will do nothing when
the next case brings us a different type of warrant that does
not fit within a statutory classification. We will have to
2
No. 2017AP208-CR.dk
determine then, just as we did today, whether our inherent
authority justifies such an exercise of authority. Will we
include in that future opinion a request that the legislature
adopt another statute to cover the new type of warrant? Will we
do this every time we encounter a warrant for which there is no
specific statutory authorization? If so, then our request is
really that the legislature completely supplant our inherent
authority to issue warrants. If we made a practice of bungling
the exercise of this authority, there might be good
justification for the request. But we haven't, so this can't be
the reason we need a GPS-warrant statute.
¶68 Perhaps the court believes such a statute will reduce
our workload, saving us from having to consider whether a
challenged GPS warrant complies with constitutional
requirements. However, a warrant that violates one of our
constitutions doesn't become less offensive just because a
statute authorized it. If the legislature adopts a GPS-warrant
statute, we will have plenty of opportunities to consider its
constitutional bona fides in minute detail, most likely in a
long succession of cases. And when we have finally and fully
vetted the requested statute, we will still entertain claims
that the statutorily-authorized warrant was executed
unconstitutionally. So asking the legislature for a GPS-warrant
statute cannot be justified as a labor-saving device for the
judiciary.
¶69 It is possible that our constitutions allow for
warrants that offend certain prudential sensibilities. But
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prudence is the realm of public policy, and the people of
Wisconsin have entrusted public policy to the legislative
branch. It is not the judiciary's role to opine on the wisdom
of any given policy, or even its absence. It is merely to
decide whether the parties before us have honored their lawful
obligations. Today's opinion could have fulfilled that role
without asking for new public policy. That is where we should
have stopped, and I join the opinion up to that point.
¶70 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
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