                                                                  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
Misha 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
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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
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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
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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
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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

                                                 3
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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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