                                                                   2014 WI 89

                  SUPREME COURT           OF    WISCONSIN
CASE NO.:               2012AP336-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Bobby L. Tate,
                                  Defendant-Appellant-Petitioner.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 345 Wis. 2d 847, 826 N.W.2d 123
                                  (Ct. App. 2012 – Unpublished)

OPINION FILED:          July 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 3, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Cimpl

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., (joins Parts I-
                        IV) dissent. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Byron Lichstein, law student Michael J. King, and Frank J.
Remington Center, University of Wisconsin Law School, and oral
argument by Byron Lichstein.


       For      the    plaintiff-respondent,   the   cause   was   argued   by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                             2014 WI 89
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2012AP336-CR
(L.C. No.    2009CF2842)

STATE OF WISCONSIN                                :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                          FILED
      v.                                                             JUL 24, 2014

Bobby L. Tate,                                                          Diane M. Fremgen
                                                                     Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Affirmed.



      ¶1      PATIENCE     DRAKE         ROGGENSACK,        J.     We      review        an

unpublished     decision    of     the    court   of     appeals1       affirming      the

decision of the Milwaukee County Circuit Court2 denying defendant

Bobby L. Tate's motion to suppress evidence that law enforcement

obtained by tracking Tate's cell phone using cell site location

information ("cell site information") and a stingray.                              Before

tracking Tate's cell phone, law enforcement obtained an order

approving the use of a pen register/trap and trace device and


      1
       State v. Tate, No. 2012AP336-CR,                     unpublished        slip    op.
(WiS. Ct. App. Dec. 27, 2012).
      2
          The Honorable Dennis R. Cimpl presided.
                                                                               No.     2012AP336-CR



the    release      of      certain      subscriber      information,           such        as   cell

tower activity and location information.                            Tate argues that law

enforcement         violated      his     right      against       unreasonable          searches

under       both      the       Fourth     Amendment          of        the    United        States

Constitution          and     Article      I,     Section          11    of     the     Wisconsin

Constitution and that the order authorizing the tracking of his

cell phone required statutory authority, which it lacked.

       ¶2      In     evaluating         Tate's      argument,          we     assume       without

deciding that:            (1) law enforcement's activities constituted a

search within the meaning of the Fourth Amendment and Article I,

Section 11; and (2) because the tracking led law enforcement to

discover Tate's location within his mother's home, a warrant was

needed.       We then conclude that the search was reasonable because

it    was    executed        pursuant      to   an      order3      that      met     the    Fourth

Amendment's and Article I, Section 11's requirements.                                   See State

v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991).                                      We

also       conclude      that    specific       statutory          authorization         was      not

necessary       for      Milwaukee        County     Circuit        Court       Judge       Jeffrey

Wagner to issue the order that authorized the procedures used to

track      Tate's     cell      phone     because       the   order       was    supported        by

probable      cause.         Nonetheless,         the    order      did       comply    with      the


       3
       The document Milwaukee County Circuit Court Judge Jeffrey
Wagner signed was captioned "Order."    It is this document that
functioned as a warrant for our constitutional considerations
and as a criminal subpoena in regard to the information obtained
from the cell service provider.     State v. Sveum, 2010 WI 92,
¶¶20, 39, 328 Wis. 2d 369, 787 N.W.2d 317 (a document entitled
"order" can constitute a warrant for Fourth Amendment purposes).

                                                2
                                                                      No.    2012AP336-CR



spirit of Wis. Stat. § 968.12 and Wis. Stat. § 968.135 (2009-

10),4 the search warrant and criminal subpoena statutes, which

express   legislative        choices         about   procedures       to    employ    for

warrants and criminal subpoenas.5                    Accordingly, we affirm the

decision of the court of appeals.

                                   I.    BACKGROUND

     ¶3       On   the    evening       of    June 9,    2009,       law     enforcement

responded to a homicide outside of Mother's Foods Market/Magic

Cell Phones at 2879 N. 16th Street in Milwaukee.                          Upon arrival,

officers found a victim lying between the curb and the sidewalk

with a fatal gunshot wound to the head.                        A second victim was

taken to the hospital to receive treatment for a gunshot wound

to his left ankle.

     ¶4       Witnesses      described        the    shooter    as    a     black     male

wearing   a    striped      polo   shirt.         Footage   from     Mother's       Foods'

surveillance       camera     showed     a     person   matching       the    suspect's

description purchase a prepaid cellular phone inside the store,

leave the store and shoot the victim in the back of the head.

The clerk who sold the phone to the suspect told police that the




     4
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
     5
       2013 Wisconsin Act 375, enacted April 23, 2014, effective
April 24, 2014, sets out the actions to be taken when an
investigative or law enforcement officer seeks to obtain cell
phone tracking information.   See Wis. Stat. § 968.373 and Wis.
Stat. § 968.375(4)(c) (2013-14).     These statutes were not in
effect when Tate's cell phone was tracked.

                                              3
                                                            No.    2012AP336-CR



suspect identified himself to her as "Bobby" and said that he

had just gotten out of prison that day.

      ¶5     Mother's Foods provided police with information about

the phone the suspect purchased, including the telephone number

assigned     to   the   phone.      Detective   Patrick    Pajot       used   two

internet databases to confirm that US Cellular was the service

provider for that phone.

      ¶6     Upon these facts, which Detective Pajot described in a

sworn      affidavit,   Assistant    District   Attorney       Grant     Huebner

applied for an order approving the following:              (1) installation

and use of a trap and trace device or process; (2) installation

and use of a pen register device or process; and (3) the release

of   subscriber    information,     including   cell   tower    activity      and

location and global positioning system (GPS) information that

could identify the physical location of the target phone.6


      6
          The order approved:

           (1) . . . the installation and use of a trap and
      trace device or process[;]

           (2) . . . the installation and use of a pen
      register device/process or Dialed Number Recorder
      (DNR) on a cellular telephone line, a designated
      Electronic Serial Number (ESN), an International
      Mobile Subscriber Identifier (IMSI), an International
      Mobile Equipment Identifier (IMEI), or other cellular
      lines of a particular subscriber[; and]

           (3) . . . the release of subscriber information,
      incoming and outgoing call detail, cellular tower
      activity,   cellular   tower   location,   text   header
      information, cellular toll information and cellular
      telephone global positioning system (GPS) location
      information,   if   available,   and   authorizing   the
                                       4
                                                                 No.   2012AP336-CR



     ¶7      Officer   Brian    Brosseau     of    the    Milwaukee      County's

Intelligence     Fusion   Division     testified         at     the    suppression

hearing about the technology officers ultimately used to locate

the suspect's phone, which included cell site information7 and a

stingray.8      Cell   site    information    allows      law    enforcement    to

locate a cell phone by triangulation.             The Collection and Use of



     identification of the physical location of a target
     cellular phone.
     7
          With the older style analog cellular phones and
     digital mobile phones that are not GPS capable the
     cellular network provider can determine where the
     phone is to within a hundred feet or so using
     "triangulation" because at any one time, the phone is
     usually able to communicate with more than one of the
     aerial arrays provided by the phone network. The cell
     towers are typically 6 to 12 miles apart (less in
     cities) and a phone is usually within range of at
     least three of them. By comparing the signal strength
     and time lag for the phone's carrier signal to reach
     at each tower, the network provider can triangulate
     the phone's approximate position.

L. Scott Harrell, Locating Mobile Phones Through Pinging and
Triangulation,          Pursuit          (July 1,          2008),
http://pursuitmag.com/locating-mobile-phones-through-pinging-
and-triangulation (last visited July 3, 2014).
     8
       A stingray is an electronic device that mimics the signal
from a cellphone tower, which causes the cell phone to send a
responding signal.   If the stingray is within the cell phone's
signal range, the stingray measures signals from the phone, and
based on the cell phone's signal strength, the stingray can
provide an initial general location of the phone. By collecting
the cell phone's signals from several locations, the stingray
can develop the location of the phone quite precisely. Jennifer
Valentino-DeVries, "Stingray" Phone Tracker Fuels Constitutional
Clash, Wall Street Journal, Sept. 22, 2011, available at
http://online.wsj.com/news/articles/SB10001424053111904194604576
583112723197574 (last visited July 3, 2014).

                                      5
                                                                       No.   2012AP336-CR



Location Info. for Commercial Purposes:                       J. Hearing Before the

Subcomm. on Commerce, Trade, and Consumer Prot. and Subcomm. on

Commc'ns, Tech., and the Internet of the H. Comm. on Energy and

Commerce, 111th Cong. 34, 36 (2010) (statement of Lorrie Faith

Cranor, Assoc. Professor of Computer Science and of Engineering

& Public Policy, Carnegie Mellon University).                         Any time a cell

phone is turned on, it is searching for a signal and, in the

process, identifying itself with the nearest cell tower every

seven seconds.          ECPA Reform and the Revolution in Location Based
Tech.      and    Servs.:           Hearing       Before     the     Subcomm.    on   the

Constitution, Civil Rights, and Civil Liberties of the H. Comm.

on the Judiciary, 111th Cong. 17, 20-21 (2010) (statement of

Matt Blaze, Associate Professor, University of Pennsylvania); In

Re Application for Pen Register & Trap/Trace Device with Cell

Cite Location Auth. 396 F. Supp. 2d 747, 750 (S.D. Tex. 2005).

Cell service providers can "collect data from th[e]se contacts,

which allows [them] to locate cell phones on a real-time basis

and   to    reconstruct        a    phone's       movement    from    recorded    data."

State v. Earls, 70 A.3d 630, 632 (N.J. 2013).

      ¶8     It    is    not       clear   from     the    record    exactly    how   law

enforcement used cell site information in the present case.                            We

do not know whether US Cellular or law enforcement triangulated

the signals from the target phone.                   We also do not know whether

US Cellular regularly collects this information, or if it did so

solely at law enforcement's request.                      Officer Brosseau explained

only that, "[w]e were receiving information with the cell tower

information, what that cell tower is currently on" and that, as
                                              6
                                                             No.    2012AP336-CR



a general matter, "the cell phone provider . . . send[s] us data

regarding a certain number . . . [pen] register9 information on

that particular phone number."         He stated that the phone signal

"was bouncing between three different cell phone towers on three

different sectors which if you were to map it out were to give

you an angle or an area of probability of where you believe the

suspect would be . . . at that time."

     ¶9     After law enforcement received cell site information

from US Cellular, officers used a stingray to further narrow

down the phone's location.         The stingray, a device that mimicked

a cell tower, allowed officers to locate the phone based on

signal    strength.       See   Jennifer   Valentino-DeVries,        "Stingray"
Phone Tracker Fuels Constitutional Clash, Wall Street Journal,

Sept. 22,                  2011,                available                    at

http://online.wsj.com/news/articles/SB10001424053111904194604576

583112723197574 (last visited July 3, 2014).                Officer Brosseau

explained    that   law    enforcement's    stingray   is    a     "directional

antenna mounted on our vehicle which will respond only to that

electronic serial number of which we're looking for and it will


     9
       Wisconsin Stat. § 968.27(13) defines a pen register as "a
device that records or decodes electronic or other impulses that
identify the numbers dialed or otherwise transmitted on the
telephone line to which the device is attached."         Officer
Brosseau explained that a pen register "records all of the
towers and sectors" on which a cell phone is operating.       In
other words, in order to provide cell site information to
police, a cellular provider must have "its own pen register and
send the results to law enforcement." Steven B. Toeniskoetter,
Preventing a Modern Panopticon:   Law Enforcement Acquisition of
Real-Time Cellular Tracking Data, 13 Rich. J.L. & Tech. 16, ¶87
(2007).
                                      7
                                                                      No.        2012AP336-CR



give [us] an arrow, if you will, pointing to the direction and

with    the    strength     tell    [us]       how    close    [we]     are        to    that

particular     electronic."         Using      the    stingray,      officers           "could

tell [the target phone] was on the . . . south and east side" of

a    particular    apartment       building      on   the     5700    block        of    West

Hampton Avenue.

       ¶10    At that point, officers entered the apartment building

and began knocking on the doors of individual apartments on the

southeast side of the building.                After searching the apartments

of   three    or   four   residents    and      not    locating      what        they    were

looking for, officers knocked on the door of the defendant's

mother, Doris Cobb.

       ¶11    Officers entered10 Cobb's apartment and asked her if
Bobby was there.          She told them he was, and pointed toward his

bedroom.       Officers    found    the     defendant       sleeping        in    the    back

bedroom, along with a striped polo shirt and a tennis shoe that

appeared to have blood on it and the cell phone.                        They arrested

Tate for first-degree intentional homicide.




       10
        Witnesses gave conflicting testimony about whether Cobb
granted   law   enforcement  access  to   her  apartment.    Law
enforcement officers said that she did, but Cobb testified that
she did not, explaining that she "just opened the door, [and]
they just came in" and that since "they were police, I thought
they [were] supposed to come in." Transcript of Motion Hearing
at 67, 70.    Tate does not raise this issue, so we assume Cobb
granted permission to enter her apartment. A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct.
App. 1998) ("in order for a party to have an issue considered by
this court, it must be raised and argued within its brief").

                                           8
                                                                           No.      2012AP336-CR



       ¶12    Tate moved to suppress the evidence seized pursuant to

the order to track his cell phone, including the items seized

from   his    mother's       apartment,         statements       from      people      in     the

apartment building, and statements Tate made after his arrest.

Tate   argued       that   law     enforcement         needed    a    search        warrant    to

track Tate's phone and that Judge Wagner's order was not the

equivalent of a search warrant.

       ¶13    The    circuit       court      denied     the     motion        to    suppress,

concluding that Judge Wagner's order was sufficient to allow law

enforcement to track Tate's phone to the apartment building and

that Cobb consented to a search of the apartment.                                Tate pled no

contest      to    first-degree       reckless         homicide,       but     appealed       the

suppression         decision.        The       court     of     appeals        affirmed       the

conviction,        concluding       that      Judge     Wagner       had   a     "substantial

basis for finding probable cause to issue the order to locate

Tate's cell phone."          We agree and now affirm the decision of the

court of appeals.

                                    II.       DISCUSSION

                              A.    Standard of Review

       ¶14    We     independently            review     "whether          police      conduct

violated      the     constitutional            guarantee        against         unreasonable

searches,"        which    presents       a   question     of    constitutional           fact.

State v. Arias, 2008 WI 84, ¶11, 311 Wis. 2d 358, 752 N.W.2d 748

(quoting State v. Griffith, 2000 WI 72, ¶23, 236 Wis. 2d 48, 613

N.W.2d 72).         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."
                                                9
                                                                             No.    2012AP336-CR



Higginbotham,          162       Wis. 2d        at      989.          A      warrant-issuing

magistrate's determination of probable cause will be affirmed

unless the facts asserted in support of the warrant are clearly

insufficient       to     support         probable       cause.            Id.        We     also

independently determine whether "the language of a court order

satisfies       the      requisite          constitutional           requirements          of    a

warrant."       State v. Sveum, 2010 WI 92, ¶17, 328 Wis. 2d 369, 787

N.W.2d 317.

     ¶15     And finally, in addressing Tate's argument that the

circuit court lacked statutory authority to issue the order, we

interpret       and     apply        Wis.      Stat.     § 968.12          and     Wis.    Stat.

§ 968.135.        Statutory          interpretation           and    application          present

questions of law for our independent review.                           Richards v. Badger
Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.

In so doing, we benefit from the discussions of both the court

of appeals and the circuit court, just as we do with other

questions of law.            Marder v. Bd. of Regents of the Univ. of Wis.

Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.

                                          B.    Search

     ¶16     Tate compares cell phone tracking technology to the

GPS tracking device that we examined in State v. Brereton, 2013

WI 17, ¶34, 345 Wis. 2d 563, 826 N.W.2d 369.                               He contends that

tracking    a     cell    phone       through        cell     site    information          and    a

stingray     involves        a    similar       "usurpation          of    an      individual's

property" and therefore constitutes a search.                          Id.

     ¶17     In   Brereton,          we     concluded       that     the    law     enforcement

officers    who       placed     a    GPS      device    on    a     defendant's       car      and
                                                10
                                                                         No.     2012AP336-CR



monitored    his       movements        in     order       to   conduct        surveillance

"invad[ed]       privacy      interests        long    afforded,        and     undoubtedly

entitled to, Fourth Amendment protection" when they used his

property without his permission.                    Id. (quoting United States v.

Jones, 132 S. Ct. 945, 954 (2012) (Sotomayor, J., concurring)).

      ¶18   When       the     United     States       Supreme     Court       analyzed     a

similar physical placement of a GPS device on a defendant's car,

it did so in terms of trespass.                     Jones, 132 S. Ct. at 947.              In
Brereton, we noted that tracking through the use of a GPS device

attached    to    a   defendant's        car    may    have     constituted       a    search

"even in the absence of a trespass."                       Brereton, 345 Wis. 2d 563,

¶34   (quoting        Jones,     132     S. Ct.       at     954-55    (Sotomayor,        J.,

concurring)).

      ¶19   We     reiterated        that      to    determine        whether     a    search

occurs when law enforcement uses tracking technology to which a

physical trespass on a defendant's property does not apply, we

apply the test set forth in Katz v. United States, 389 U.S. 347

(1967), which asks whether "the government violates a subjective

expectation of privacy that society recognizes as reasonable."

Brereton, 345 Wis. 2d 563, ¶34 (quoting Jones, 132 S. Ct. at

954-55) (further citation omitted).

      ¶20   The       issue     of     whether      tracking      through       cell     site

information and a stingray "violates a subjective expectation of

privacy that society recognizes as reasonable" is not before us

because the State has conceded, and therefore has not briefed,

whether such tracking is a search within the meaning of the


                                             11
                                                                   No.    2012AP336-CR



Fourth     Amendment.11        Still,     we     briefly    take     stock    of   the

doctrines    that   inform      our     search    analysis    and     note    several

challenges in applying them to the technology at issue in this

case.

     ¶21     First, analyzing whether surveillance using cell site

information constitutes a search under Katz can become quite

circular.       That is, "the same technological advances that have

made possible nontrespassory surveillance techniques . . . also

affect    the    Katz   test    by     shaping    the    evolution       of   societal
privacy expectations."          Jones, 132 S. Ct. at 955 (Sotomayor, J.,

concurring); Jones, 132 S. Ct. at 963 (Alito, J., concurring)

("phone-location-tracking             services     [that]      are       offered    as

'social'    tools   . . .      shape    the    average     person's      expectations

about the privacy of his or her daily movements").

     ¶22     Second, it is unclear how the notion that a purchaser

accepts goods as they come to him, including whether the goods

     11
       In Riley v. California, 573 U.S. __, 134 S. Ct. 2473
(2014), the United States Supreme Court held that an officer may
not "search digital information on a cell phone seized from an
individual who has been arrested" without prior judicial
authorization.    Id. at 2480.    The Court explained that an
individual retains a reasonable expectation of privacy in the
contents of a cell phone because a search of that phone could
reveal a panoply of personal information through which "[t]he
sum of an individual's private life can be reconstructed." Id.
at 2489. The Court discussed location information as one type,
among many, of information a cell phone could contain.    It did
not address, however, "the question whether the collection or
inspection of aggregated digital information amounts to a search
under other circumstances."    Id. at 2489 n.1.    Additionally,
Riley's applicability to the case before us is diminished
because law enforcement obtained judicial authorization before
tracking Tate's phone.

                                          12
                                                                           No.     2012AP336-CR



can be traced electronically in real time, should impact such an

analysis.       Jones, 132 S. Ct. at 952; see United States v. Karo,

468    U.S.    705,     712-13      (1984)      (defendant         was   not     entitled      to

object to law enforcement's tracking of a can of ether because

the tracking device, a beeper, was placed in the can before it

belonged to the defendant).

       ¶23    Further complicating the matter is the location of the

cell   phone.         For    example,      when      law     enforcement         contemplates

tracking a cell phone, they may not know whether the phone is

located in a private residence, which stands at the "very core"

of the Fourth Amendment, or is traveling down a public highway,

in which case a defendant may have no expectation of privacy in

his movements.          Kyllo v. United States, 533 U.S. 27, 31 (2001)
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961));

United States v. Knotts, 460 U.S. 276, 281 (1983) ("A person

traveling      in     an    automobile         on    public        thoroughfares        has   no

reasonable      expectation         of    privacy       in       his   movements    from      one

place to another."); Sveum, 328 Wis. 2d 369, ¶79 (Ziegler, J.,

concurring) ("installing and monitoring a GPS tracking device on

a vehicle in a public area does not constitute a search or

seizure within the meaning of the Fourth Amendment").

       ¶24    Finally,       even    movements         in    public      areas    can    reveal

highly       personal       information         such        as    "familial,       political,

professional,         religious,         and    sexual       associations,"         which      if

monitored too closely, may "chill[] associational and expressive

freedoms."            Jones,        132        S. Ct.        955-56      (Sotomayor,          J.,

concurring.)
                                                13
                                                           No.    2012AP336-CR



      ¶25   At a minimum, it seems that to successfully argue that

one   has    a   reasonable   expectation   of   privacy    in    cell     site

information requires a reexamination of "the premise that an

individual       has   no   reasonable   expectation   of        privacy     in

information voluntarily disclosed to third parties."              Id. at 957

(Sotomayor, J., concurring).12       Cases in which the United States

Supreme Court asked not what information a hypothetical third

person could obtain but rather, what a person generally expects

from third parties show that third party doctrine, even in its

current state, has permutations.13




      12
       The United States Supreme Court developed the third party
disclosure through a series of "false friend" cases that held
that "one typically retains no federal constitutional reasonable
expectation of privacy in information conveyed to a third
party," but the "doctrine is not absolute."    ABA Standards for
Criminal Justice, Law Enforcement Access to Third Party Records
at 6 & n.16, 7 (3d ed. 2013).
      13
       See Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013)
("introducing a trained police dog to explore the area around
the home in hopes of discovering incriminating evidence"
constitutes a search because it is not part of a "customary
invitation" to attempt entry); City of Ontario, Cal. v. Quon,
560 U.S. 746, 760-65 (2010) (concluding that city's review of
employee's text messages sent on a pager provided by the city
was not unreasonable and therefore did not violate the Fourth
Amendment); Kyllo v. United States, 533 U.S. 27, 34 (2001)
(thermal imaging of a home constituted a search because the
sense-enhancing technology was not "in general public use");
Bond v. United States, 529 U.S. 334, 335, 338-39 (2000)
("physical manipulation of a bus passenger's carry-on luggage"
constituted a search because a passenger does not expect fellow
bus passengers or bus employees to "feel the bag in an
exploratory manner," even if he may expect them to move it, and
therefore handle the bag).

                                    14
                                                                         No.     2012AP336-CR



       ¶26    We are mindful that courts should "proceed with care

when considering the whole concept of privacy expectations in

communications         made    on    electronic      equipment"          and    that "[t]he

judiciary risks error by elaborating too fully on the Fourth

Amendment implications of emerging technology before its role in

society has become clear."              City of Ontario, Cal. v. Quon, 560

U.S. 746, 759 (2010).               For that reason and because the parties

do    not    dispute    that     a   search       occurred,       we     assume,    without

deciding, that tracking a cell phone using cell site information

and   a     stingray    constitutes      a    search       that    has    constitutional

implications.

                       C.     Reasonableness of the Search

       ¶27    The      Fourth        Amendment        of      the        United      States

Constitution14      and       Article    I,       Section    11     of    the     Wisconsin

Constitution15 protect persons from "unreasonable searches" and


       14
       The Fourth Amendment of 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.
       15
       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
                                             15
                                                                    No.    2012AP336-CR



establish the manner in which warrants shall issue.                          State v.

Henderson, 2001 WI 97, ¶17 & n.4, 245 Wis. 2d 345, 629 N.W.2d

613.16     "Searches made without warrants issued pursuant to the

requirements          of   the   warrant        clause     are    presumed     to    be

unconstitutional."         Id., ¶19.

     ¶28    As to searches made pursuant to a warrant, they pass

constitutional muster if they comply with the three requirements

of the Warrant Clause of the Fourth Amendment:

     (1)   prior  authorization   by   a   neutral,  detached
     magistrate;   (2)   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; and (3) a
     particularized description of the place to be searched
     and items to be seized.
Sveum, 328 Wis. 2d 369, ¶20.
     ¶29    The       first   requirement       "interposes[s]       the    impartial

judgment    of    a    [neutral]   officer       between    the   citizen    and    the

police and also between the citizen and the prosecutor, so that

an individual may be secure from an improper search."                        Id., ¶21

(quoting State ex rel. White v. Simpson, 28 Wis. 2d 590, 598,
137 N.W.2d 391 (1965)).




     particularly describing the place to be searched and
     the persons or things to be seized.
     16
        We generally have interpreted the state constitution to
provide "the same constitutional guarantees as the Supreme Court
has   accorded   through  its   interpretation  of  the   Fourth
Amendment." State v. Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414,
759 N.W.2d 598; see also Sveum, 328 Wis. 2d 369, ¶18 n.7.     We
follow that tradition here.

                                           16
                                                                              No.    2012AP336-CR



       ¶30       The        second    requirement            provides      that     the   person

seeking          a     warrant        demonstrate            upon   oath     or     affirmation

sufficient facts to support probable cause to believe that "the

evidence         sought       will     aid     in        a   particular      apprehension      or

conviction for a particular offense."                               Henderson, 245 Wis. 2d

345, ¶19 (quoting Dalia v. United States, 441 U.S. 238, 255

(1979)) (internal quotation marks omitted).17                             Finally, the third

requirement focuses on the place to be searched and requires

that it be identified with particularity, in addition to the

items to be seized.                   Id.     In the event that a search warrant
does    not      comply        with    these       requirements,        we   may    invoke    the

exclusionary rule if no exception to the warrant requirements

applies.         Sveum, 328 Wis. 2d 369, ¶31 & n.8.

                                        D.    Application

       ¶31       Tate argues that law enforcement officers performed an

illegal search when they tracked his cell phone using cell site

information and a stingray because the tracking constituted a

search that violated the Fourth Amendment of the United States

Constitution            and     Article       I,     Section        1   of    the     Wisconsin

Constitution            and      because       Judge          Wagner    "lacked       statutory

authority to issue an order authorizing police to track Tate's

phone       in       real    time."         This    latter      contention        implies    that



       17
       Tate urges us to disregard the "apprehension" portion of
this formulation, arguing that Warden v. Hayden, 387 U.S. 294,
307 (1967), the original source of this language, is properly
regarded as dicta.     Because we conclude that the phone had
evidentiary value, we do not reach this argument.

                                                    17
                                                 No.   2012AP336-CR



statutory authority is necessary to the lawful issuance of a

warrant.

    ¶32    In regard to the latter contention, Tate also asserts

that the statutes Judge Wagner cited, Wis. Stat. § 968.35, Wis.

Stat. § 968.36, 18 U.S.C. §§ 2703, 2711, 3117, 3125, and 3127,

did not grant the court the power to authorize law enforcement




                               18
                                                           No.   2012AP336-CR



to   obtain    location   data   through   cell   site   information   or   a

stingray, either individually or collectively.18

                     1.   Constitutional sufficiency

      ¶33     To be constitutionally sufficient, a warrant must be

based on probable cause and be reasonable both in its issuance

and in its execution.       Henderson, 245 Wis. 2d 345, ¶¶18–20.         The

warrant we review was based on the affidavit of Detective Pajot,

      18
       Tate cites federal cases holding that this mosaic of
authority is insufficient to allow law enforcement to track a
cell phone using cell site information.    But, the State points
out, in those cases the government sought to obtain cell site
information not upon a showing of probable cause, but upon a
lower statutory showing.    See In re Application of the United
States for an Order Authorizing the Disclosure of Prospective
Cell Site Info., 412 F. Supp. 2d 947, 949 n.1 (E.D. Wis. 2006)
(the issue "of whether a search warrant issued in accordance
with the provisions of Rule 41 would support issuance of the
requested order (if the appropriate showing were made) is not
before" the court); In re Application for Pen Register &
Trap/Trace Device with Cell Site Location Auth., 396 F. Supp. 2d
747, 765 (S.D. Tex. 2005) ("Denial of the government's request
for prospective cell site data in this instance should have no
dire consequences for law enforcement. This type of surveillance
is unquestionably available upon a traditional probable cause
showing under Rule 41."); In re Application of the United States
for an Order (1) Authorizing the Use of a Pen Register & a Trap
& Trace Device and (2) Authorizing Release of Subscriber Info.
and/or Cell Site Info., 396 F. Supp. 2d 294, 300 (E.D.N.Y. 2005)
("disclosure of cell site information turns a mobile telephone
into a 'tracking device' and therefore such disclosure may not
be authorized without a showing of probable cause"); In re
Application of the United States for an Order Authorizing the
Installation & Use of a Pen Register & a Caller Identification
Sys. on Tele. Nos. [] & [] and the Prod. of Real Time Cell Cite
Info., 402 F. Supp. 2d 597, 605 (D. Md. 2005) ("When the
government seeks to acquire and use real time cell site
information to identify the location and movement of a phone and
its possessor in real time, the court will issue a warrant upon
a sworn affidavit demonstrating probable cause to believe the
information will yield evidence of a crime.").

                                     19
                                                                         No.        2012AP336-CR



who    described      sufficient       facts       to    support    probable         cause     to

believe that the cell phone site information law enforcement

sought would aid in "a particular apprehension or conviction for

a particular offense."               Id., ¶19 (quoting Warden v. Hayden, 387

U.S. 294, 307 (1967)) (internal quotation marks omitted).

       ¶34     Judge Wagner was told that a surveillance video made

at     the    time    of      a    homicide    captured         a   person          wearing     a

distinctive shirt, who identified himself to a store clerk as

"Bobby" when he purchased a cell phone.                        He also was told that,

moments      later,       surveillance      video       captured    a    person       matching

that physical description shooting two people outside the store.

Finding the cell phone the suspect purchased could be probative

that the person in possession of the phone was the shooter.

Tate has not established that the facts before the circuit court

were clearly insufficient to support a determination of probable

cause.       See id.; Higginbotham, 162 Wis. 2d at 989.
       ¶35     In regard to Tate's complaint that Detective Pajot,

Assistant District Attorney Huebner and Judge Wagner did not

address      why    the    cell     phone   constituted        evidence        of    a   crime,

neither      the     Fourth       Amendment    nor       our   decisions       require        the

person seeking a warrant to explain why a particular object or

information constitutes evidence.                       Higginbotham, 162 Wis. 2d at

989.

       ¶36     Starting       with   Assistant          District    Attorney         Huebner's

application for the order and the order itself, the standard is

whether       the     warrant-issuing           magistrate          is    "apprised            of

sufficient facts to excite an honest belief in a reasonable mind
                                              20
                                                           No.   2012AP336-CR



that the objects sought are linked with the commission of a

crime, and that the objects sought will be found in the place

to be searched."           State v. Starke, 81 Wis. 2d 399, 408, 260

N.W.2d 739 (1978).         In keeping with this standard, our decisions

have focused on the sufficiency of the evidence, not the legal

arguments of the applicant or the reasoning of the magistrate.

E.g., State v. Kerr, 181 Wis. 2d 372, 380-81, 511 N.W.2d 586

(1994)    (although    the    supporting   affidavit   contained    "minimal

factual    basis      to    support   probable   cause,"    we     upheld   a

determination of probable cause based on the "veracity and basis

of knowledge of persons supplying . . . information").

     ¶37    As to Detective Pajot's affidavit, we have described

the responsibilities of an affiant seeking a warrant as follows:

     [A]ffidavits for search warrants[] . . . must be
     tested and interpreted by magistrates and courts in a
     commonsense and realistic fashion.    They are normally
     drafted by nonlawyers in the midst and haste of a
     criminal investigation.     Technical requirements of
     elaborate specificity once exacted under common law
     pleadings have no proper place in this area.          A
     grudging or negative attitude by reviewing courts
     toward   warrants  will   tend  to   discourage  police
     officers from submitting their evidence to a judicial
     officer before acting. . . . Recital of some of the
     underlying circumstances in the affidavit is essential
     if the magistrate is to perform his detached function
     and not serve merely as a rubber stamp for the police.
     However, where these circumstances are detailed, where
     reason for crediting the source of the information is
     given, and when a magistrate has found probable cause,
     the courts should not invalidate the warrant by
     interpreting the affidavit in a hypertechnical, rather
     than a commonsense, manner.
Higginbotham, 162 Wis. 2d at 991-92 (quoting Starke, 81 Wis. 2d
at 410) (further citation omitted).

                                      21
                                                                        No.     2012AP336-CR



       ¶38       Although we do not require an affiant to provide legal

theories, we do require a narration of sufficient facts and a

statement upon what basis such a narration is made.                            However, if

an affiant seeks a warrant based solely on his or her own legal

conclusions, the magistrate cannot find probable cause.                              Id. at

992.        Having      concluded       that   Judge     Wagner    had    a     sufficient

factual      basis      for    finding    probable      cause,    we    turn    to   Tate's

particularity argument.19

       ¶39       Tate     argues     that      the     order      fails       the    Fourth

Amendment's         particularity         requirement      because        it    does    not

specify      a    particular       location     where    evidence       will    be   found.

When it had failed to timely obtain a warrant for the monitoring

of a beeper in a home, the government made a similar argument in

Karo:       "it would be impossible to describe the 'place' to be
searched, because the location of the place is precisely what is

sought to be discovered."                 Karo, 468 U.S. at 718.               The Supreme

Court was not impressed with that logic and concluded that the

government could describe the object into which the beeper would

be placed and the circumstances that led the government to want

to install the beeper.             Id.

       ¶40       Tate's       similar     argument       that     the     particularity

requirement of the Fourth Amendment's warrant clause was not met

fails for two reasons.                  First, both the United States Supreme

Court and this court have upheld searches involving tracking


       19
       Tate does not dispute that Judge Wagner was a neutral
magistrate, so we do not address that warrant requirement.

                                               22
                                                                         No.   2012AP336-CR



devices despite the impossibility of describing the exact place

to be searched by a traditional description, such as a street

address.      Id.; Brereton, 345 Wis. 2d 563, ¶¶52-54; Sveum, 328

Wis. 2d 369, ¶52.             Second, we disagree with Tate's argument that

since there was no physical installation of the tracking device

on Tate's property in this case, as there was in Karo, Brereton,

and     Sveum,     the     order      does    not      satisfy     the     particularity

requirement.

      ¶41    In Sveum, we explained that "[i]n order to satisfy the
particularity requirement, the warrant must enable the searcher

to    reasonably        ascertain      and    identify       the   things      which    are

authorized to be seized."                Sveum, 328 Wis. 2d 369, ¶27 (quoting

State v. Noll, 116 Wis. 2d 443, 450-51, 343 N.W.2d 391 (1984)).

While a description of the object into which the tracking device

was to be placed was a factor in satisfying the particularity

requirement in Sveum, there is no reason why another way of

identifying        a    cell    phone,    such    as    by   its   electronic         serial

number, cannot serve the same function as physically placing the

tracking device on Tate's property.                      Accordingly, we conclude

that the employment of the electronic serial number for Tate's

phone    satisfies        the       particularity       requirement        because     that

number      permits       a     particularized         collection        of    cell     site

information for only one cell phone.                     Therefore, applying great

deference     to       Judge    Wagner's     probable     cause    determination,         we

conclude that the warrant passes constitutional muster.

                               2.   Statutory sufficiency


                                             23
                                                               No.    2012AP336-CR



       ¶42    No specific statutory authority is necessary to the

issuance of a valid warrant for cell site information.                  See id.,

¶¶69-72 (explaining that the failure to comply with all of the

statutory provisions relating to warrants did not affect the

validity      of   the    warrant).      However,    even    though    statutory

authorization was not necessary in order to issue the warrant,

because the legislature has enacted general criteria about the

procedures to employ with regard to issuing warrants, we examine

relevant statutes.

       ¶43    Wisconsin      Stat.     § 968.10(3)     authorizes        searches

pursuant      to   a     valid   warrant,    and    Wis.    Stat.     § 968.12(1)

provides:

       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.
The probable cause that § 968.12(1) speaks to is comparable to

probable cause under the Fourth Amendment.                  See id., ¶44; see
also     Bergman v. State, 189 Wis. 615, 617-18, 208 N.W. 470

(1926) (quoting State v. Blumenstein, 186 Wis. 428, 430, 202

N.W.    684    (1925)     (overruled    on   other    grounds))       (§ 968.12's

predecessor, Wis. Stat. § 4839, "must be construed in accordance

with    the    constitutional        requirements    upon    the     subject   of

searches and seizures").

       ¶44    Wisconsin Stat. § 968.12(1) requires a judge to issue

a warrant upon a showing of probable cause, and we conclude that


                                        24
                                                                      No.   2012AP336-CR



Judge Wagner's order was supported by probable cause.                              We also

conclude      that   law   enforcement's       use   of    a   stingray       to    locate

Tate's cell phone was reasonable.              Law enforcement's use of cell

site        information     requires      additional           discussion          because

§ 968.12(1) must be read in concert with Wis. Stat. § 968.13(2)

and    Wis.    Stat.     § 968.135   in   order      to    have   a    more    complete

statutory picture when law enforcement seeks a warrant to obtain

cell site information.

       ¶45     Tate explained in his brief that "[w]hen a cell phone

identifies itself to a cell site, a log of location information

is created and stored in a carrier's database."20                             While the

record in this case does not show exactly what form this log of

location information takes, we think it is safe to assume that

it would come within Wis. Stat. § 968.13(2)'s broad definition

of documents, which "includes, but is not limited to, books,

papers,       records,     recordings,     tapes,         photographs,        films     or

computer or electronic data."21

       20
        We do not know whether US Cellular maintained this log as
a matter of routine or whether it installed a pen register at
law enforcement's request in order to collect cell site
information for law enforcement.       See Toeniskoetter, supra
note 9 (cellular service providers obtain cell site information
by installing their own pen register).     This distinction could
matter if law enforcement had not obtained prior judicial
authorization for the tracking.    See Wis. Stat. § 968.34(2)(a)
(prohibiting the use of a pen register without prior judicial
authorization, subject to certain exceptions, one of which
relates to a cellular service provider's "operation, maintenance
and testing of a wire or electronic communication service").
     21
        See also In re Application of the United States for
Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013)
("[c]ell site data are business records").

                                          25
                                                                      No.    2012AP336-CR



      ¶46    Search     warrants     issued      under     Wis.   Stat.     § 968.12(1)

may   not    authorize        the    seizure      of       documents,       Wis.     Stat.

§ 968.13(1)(c), unless they are "under the control of a person

who is reasonably suspected to be concerned in the commission of

that crime," § 968.13(1)(d).                According to Officer Brosseau's

testimony, law enforcement officers tracked Tate's cell phone

using cell site information obtained from a cellular service

provider.     Therefore, the documents sought were in the hands of

a third party; they were not "under the control of a person who

is reasonably suspected to be concerned in the commission of

that crime."

      ¶47    When law enforcement wants to compel a third party to

turn over documents, it can proceed to obtain an order to that

effect,     pursuant     to   Wis.    Stat.      § 968.135.        Section         968.135

provides    that   "a    court      shall   issue      a   subpoena     requiring      the

production of documents, as specified in s. 968.13(2)."                            This is

done "[u]pon the request of the attorney general or a district

attorney and upon a showing of probable cause."22                     Id.




      22
       Because Wis. Stat. § 968.135 "does not limit or affect
any other subpoena authority provided by law," we note that
§ 968.135 does not restrict the authority to issue a subpoena
under   Wis.   Stat.  § 968.375.    Section  968.375  describes
situations in which a judge may issue a subpoena or warrant to
obtain records or information from an "electronic communication
service or remote computing service provider."     It does not
limit a judge's powers under the more general subpoena statute,
§ 968.135.    We do not decide whether § 968.375 provides an
additional source of authority for Judge Wagner's order because
no party has addressed § 968.375.

                                            26
                                                                  No.    2012AP336-CR



     ¶48     We have held that failure to make a probable cause

determination,        when   one   is    required        in   order      to     obtain

particular documents, may deprive a defendant of the safeguards

to which he is entitled.           State v. Popenhagen, 2008 WI 55, ¶4,

309 Wis. 2d 601, 749 N.W.2d 611.                 However, Popenhagen has no

application here.

     ¶49     In   Popenhagen,      law    enforcement         officers        and    the

district attorney obtained a criminal defendant's bank records

pursuant to a subpoena issued under Wis. Stat. § 805.07, the

civil     subpoena    statute.     Because       they    sought   to    obtain       the

record as part of a criminal investigation, they should have

proceeded     under    the   criminal         subpoena    statute,      Wis.        Stat.

§ 968.135, which

     strictly limits a court's issuance of a subpoena for
     the production of documents.        Only the attorney
     general or a district attorney may request a subpoena
     for the production of documents. The request must be
     ruled upon by the circuit court before the subpoena is
     issued.   The circuit court may issue a subpoena for
     documents only upon a showing of probable cause.23




     23
       The legislature chose to require probable cause for a
subpoena issued under Wis. Stat. § 968.135.   We note, however,
that we do not decide whether the Fourth Amendment comes into
play when obtaining cell site information in part because any
electronic documents have necessarily been shared with a third
party.    See In re Application of the United States for
Historical Cell Site Data, 724 F.3d at 614-15 (rejecting a
constitutional challenge to the Stored Communication Act's
"specific and articulable facts" standard for disclosure of
historical cell site information because a cell phone user
"voluntarily conveys . . . cell site data" to the phone company
"each time he makes a call").

                                         27
                                                                            No.     2012AP336-CR



Id.,    ¶53.        The     officers     in      Popenhagen         did     not    present       an

affidavit showing probable cause to the subpoena-issuing judges

and    those    judges      did   not    make         the    determination         of   probable

cause that § 968.135 requires.                   Id., ¶7.

       ¶50     Unlike     the     defendant           in    Popenhagen,         Tate    was    not

deprived of Wis. Stat. § 968.135's safeguards.                                    Judge Wagner

issued the order upon the request of a district attorney.                                        He

determined that the probable cause standard had been met based

on Detective Pajot's sworn affidavit.                           We reject the argument

that the court's citation to statutes that may not have been the

best choices is reversible error because Judge Wagner's analysis

was consistent with the legal standard Wis. Stat. § 968.12 and

Wis. Stat. § 968.135 required.                        Accordingly, we conclude that

Tate's substantial rights were not prejudiced.

                                   III.       CONCLUSION

       ¶51     In    evaluating      Tate's           argument,       we    assume       without

deciding that:            (1) law enforcement's activities constituted a

search within the meaning of the Fourth Amendment and Article I,

Section 11; and (2) because the tracking led law enforcement to

discover Tate's location within his mother's home, a warrant was

needed.      We then conclude that the search was reasonable because

it    was    executed       pursuant     to      a    warrant       that    met    the       Fourth

Amendment's         and   Article      I,     Section        11's    requirements.              See

Higginbotham,         162    Wis. 2d        at       989.      We    also       conclude       that

specific       statutory      authorization            was    not   necessary          for    Judge

Wagner to issue the order that authorized the procedures used to

track    Tate's      cell    phone      because        the    order       was     supported     by
                                                 28
                                                                No.     2012AP336-CR



probable    cause.    Nonetheless,    the      order   did     comply    with   the

spirit of Wis. Stat. § 968.12 and Wis. Stat. § 968.135, which

express    legislative   choices   about       procedures       to    employ    for

warrants and criminal subpoenas.               Accordingly, we affirm the

decision of the court of appeals.

     By    the   Court.—The   decision    of    the    court    of    appeals    is

affirmed.




                                     29
                                                                  No.   2012AP336-CR.ssa


     ¶52       SHIRLEY S. ABRAHAMSON, C.J.                (dissenting).       "Advances

in technology offer great benefits to society in many areas.                          At

the same time, they can pose significant risks to individual

privacy rights."1           The proliferation of cell phones and their

location tracking capabilities exemplify the risks to privacy

rights posed by technological advancement.

        ¶53    The criminal cases State v. Tate2 and State v. Subdiaz-

Osorio3       raise      the   question          whether     individuals       have     a

constitutional right of privacy in their cell phone location

data.         In   other   words,   do     the     United   States4     and   Wisconsin

Constitutions5 permit law enforcement to access a person's cell

phone location data without a warrant?

     1
         State v. Earls, 70 A.3d 630, 631-32 (N.J. 2013).
     2
       State        v.     Tate,    2014      WI    89,     ___   Wis. 2d ___,        ___
N.W.2d ___.
     3
       State v. Subdiaz-Osorio, 2014 WI 87, ___ Wis. 2d ___, ___
N.W.2d ___.
     4
       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.
     5
       Article        1,    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
                               1
                                                                    No.   2012AP336-CR.ssa


       ¶54    Cell phones are a "pervasive and insistent part of

daily life . . . ."6           The vast majority of Americans own cell

phones; the Pew Research Center has reported that, as of May

2013, 91% of American adults have a cell phone and 56% have a

smartphone.7        Cell phones are literally and figuratively attached

to their users' persons, such that "the proverbial visitor from

Mars   might    conclude      they    were       an    important    feature     of   human

anatomy."8      Unlike land-line phones, people generally carry cell

phones with them at all times——at home, in the car, at work, and

at play.

       ¶55    Cell    phones    can     thus          serve   as    powerful     tracking

devices      that     can    pinpoint        our       movements     with      remarkable

accuracy.       They can isolate in time and place our presence at

shops,       doctors'       offices,     religious            services,        Alcoholics

Anonymous      meetings,     AIDS    treatment          centers,    abortion     clinics,

political      events,      theaters,    bookstores,          and    restaurants,     and




       the place to be searched and the persons or things to
       be seized.
       6
           Riley v. California, 134 S. Ct. 2473, 2484 (2014).
       7
           Earls, 70 A.3d at 638.
       8
       Riley, 134 S. Ct. at 2484. The Riley Court additionally
noted that "nearly three-quarters of smart phone users report
being within five feet of their phones most of the time, with
12% admitting that they even use their phones in the shower."
Id. at 2490.

                                             2
                                                                      No.    2012AP336-CR.ssa


identify       with     whom    the    user    of     the   cell     phone       associates.9
Cellular       service        providers       have    records      of    the       geographic

location of almost every American at almost every moment of the

day and night.10               Accessing this information reveals intimate

details about a person and intrudes on the constitutional right

of association.           The United States Supreme Court characterizes

location       data      as      "qualitatively         different"          from    physical

records, noting that location data can "reconstruct someone's

specific movements down to the minute, not only around town but

also       within   a   particular      building."11           The    more       precise   the

tracking, the greater the privacy concerns.

       ¶56     Cell     phone    location      data     can    also     be   a     formidable

instrument in fighting crime.                  In both Tate and Subdiaz-Osorio,

the    law    enforcement        officers      were    performing       their       important

public       safety     duties    by   investigating          violent       crimes.        Both

criminal      suspects        were    apprehended      in     relatively         short   order

through law enforcement use of cell phone location data.

       ¶57     The officers in Tate and Subdiaz-Osorio had to deal
with the thorny issues raised by seeking access to individuals'


       9
       See Earls, 70 A.3d at 632. See also Riley, 134 S. Ct. at
2489 ("Cell phones differ in both a quantitative and a
qualitative sense from other objects that might be kept on an
arrestee's person. . . . [Cell phones] could just as easily be
called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or
newspapers.").
       10
       See Noam Cohen, It's Tracking Your Every Move and You May
Not Even Know, N.Y. Times, Mar. 26, 2011, at A1.
       11
       Riley, 134 S. Ct. at 2490 (citing United States v. Jones,
132 S. Ct. 945 (2012) (Sotomayor, J., concurring)).

                                               3
                                                                          No.    2012AP336-CR.ssa


cell phone location data.                Law enforcement is the first word in

interpreting        constitutional        requirements;             the     courts       are   the

last.

     ¶58       It     is   this     court's        responsibility           to     evaluate      a

potential search "by assessing, on the one hand, the degree to

which     it   intrudes      upon    an     individual's         privacy          and,    on   the

other, the degree to which it is needed for the promotion of

legitimate governmental interests."                          Wyoming v. Houghton, 526
U.S. 295, 300 (1999).

     ¶59       This      court    owes    it       to    law    enforcement,             lawyers,

litigants, circuit courts, the court of appeals, and the public

at large to provide clarity about when a search has occurred

regarding cell phone location data and what procedures must be

undertaken          by     the    government            to     render           such     searches

constitutional.12           A clear set of rules will protect privacy

interests and also give guidance to individuals evaluating these

interests.

     ¶60       Rather      than     dance      around         the    issue         of     whether
government access to cell phone location data in the instant

cases is a search within the meaning of the Constitutions, I

propose that the court address it head-on.                          Government access to

cell phone location data raises novel legal questions of great

importance for the privacy rights of the public in an emerging



     12
       "[W]e promote clarity in the law of search and seizure
and provide straightforward guidelines to governmental officers
who must apply our holdings."    State v. Williams, 2012 WI 59,
¶25, 341 Wis. 2d 191, 814 N.W.2d 460.

                                               4
                                                          No.   2012AP336-CR.ssa


area of technology——exactly the type of questions appropriate

for resolution pursuant to this court's law-developing function.

     ¶61   I   conclude      that   government     access   to    cell    phone

location   data   in   the    instant   cases,    which   involves    invasive

surveillance of an individual's movements, is a search within

the meaning of the Constitutions.13              To read the Constitutions

more narrowly is to ignore the vital role that the cell phone

has come to play in private communications, to paraphrase the

United States Supreme Court in Katz v. United States, 389 U.S.

347, 352 (1967).14

     ¶62   People do not buy cell phones to have them serve as

government tracking devices.         They do not expect the government

to track them by using location information the government gets

from cell phones.15          People have a subjective expectation of

privacy in cell phone location data that society is prepared to




     13
       Justices Ann Walsh Bradley and N. Patrick Crooks agree
with this conclusion.
     14
        "To read the Constitution more narrowly is to ignore the
vital role that the public telephone has come to play in private
communication."    Katz v. United States, 389 U.S. 347, 352
(1967).
     15
       See, e.g., United States v. Davis, ___ F.3d ___, 2014 WL
2599917, at *9 (11th Cir. 2014) ("[I]t is unlikely that cell
phone customers are aware that their cell phone providers
collect and store historical location information.") (quoting In
re Application of U.S. for an Order Directing a Provider of
Elec. Commc'n Serv. To Disclose Records to Gov't, 620 F.3d 304,
317 (3d Cir. 2010)); Earls, 70 A. 3d at 632.

                                        5
                                                                   No.   2012AP336-CR.ssa


recognize as reasonable.            Thus, absent a warrant, such a search

is per se unreasonable.16
      ¶63    If the State does not have a warrant, the State can

access      cell     phone   location      data   only        if     the     State    can

demonstrate one of the narrowly drawn exceptions to the warrant

requirement.         In both Tate and Subdiaz-Osorio, law enforcement

officers could have accessed cell phone location data with a

properly authorized warrant that complied with existing relevant

statutes.17        They did not.

      ¶64    I address the balance between privacy interests and

law   enforcement       interests     as   presented     by    Tate      and     Subdiaz-

Osorio.18     These two cases address substantially similar issues

regarding government access to cell phone location data but pose

distinct fact patterns.

      ¶65    Neither      the      Tate    majority      opinion           nor   Justice

Prosser's     lead     opinion   in   Subdiaz-Osorio      decides          whether    the

government access in question constituted a search within the

meaning of the United States and Wisconsin Constitutions.                            Both
opinions assume that a search occurred.

      ¶66    Despite the insistence of the Tate majority opinion

and Justice Prosser's lead opinion in Subdiaz-Osorio that they

      16
       State v. Sanders, 2008 WI 85, ¶27, 311 Wis. 2d 257, 752
N.W.2d 713; State v. Payano-Roman, 2006 WI 47, ¶30, 290
Wis. 2d 380, 714 N.W.2d 548.
      17
       I refer to the court order issued in Tate as a "warrant,"
as does the Tate majority opinion.       The applicable statute
refers to a court issuing a "subpoena" requiring the production
of documents. Wis. Stat. § 968.135.
      18
           "Privacy comes at a cost."          Riley, 134 S. Ct. at 2493.

                                           6
                                                        No.   2012AP336-CR.ssa


merely assume, without deciding, that the government access was

a search in each case,19 both opinions address the search issue
as   they   elaborate   on   cases   and   principles   underlying      their

assumption that a search occurred.

      ¶67   The Tate majority opinion and Justice Prosser's lead

opinion in Subdiaz-Osorio refer to and draw guidance from the

same Wisconsin and United States Supreme Court cases, including

the recently mandated Riley v. California, 573 U.S. ___, 134 S.

Ct. 2473 (2014).20

      ¶68   The Tate majority opinion and Justice Prosser's lead

opinion announce principles of law that overlap and to an extent




      19
       Tate, majority op., ¶¶2, 26; Subdiaz-Osorio, 2014 WI 87,
¶¶9, 70 (Prosser, J., lead op.).    But see Subdiaz-Osorio, 2014
WI 87, ¶132 (Roggensack, J., concurring) (accusing Justice
Prosser's lead opinion in Subdiaz-Osorio of not merely assuming
the issue of the reasonable expectation of privacy but in effect
deciding the issue).
      20
       See Riley, 134 S. Ct. 2473 (cited in Tate, majority op.,
¶20 n.11; in Subdiaz-Osorio, 2014 WI 87, ¶47 n.23 (Prosser, J.,
lead op.)); Katz, 389 U.S. at 353 (cited in Tate, majority op.,
¶¶19-21; in Subdiaz-Osorio, 2014 WI 87, ¶¶51-52, 65-66 (Prosser,
J., lead op.); in Subdiaz-Osorio, 2014 WI 87, ¶3 (Roggensack,
J., concurring)); Jones, 132 S. Ct. 945 (2012) (cited in Tate,
majority op., ¶¶17-25; in Subdiaz-Osorio, 2014 WI 87, ¶¶43, 48,
51 (Prosser, J., lead op.); in Subdiaz-Osorio, 2014 WI 87, ¶135
(Roggensack, J., concurring); State v. Brereton, 2013 WI 17, 345
Wis. 2d 563, 826 N.W.2d 369 (cited in Tate, majority op., ¶¶16-
18, 40; in Subdiaz-Osorio, 2014 WI 87, ¶¶38, 49 (Prosser, J.,
lead op.); State v. Sveum, 2010 WI 92, 328 Wis. 2d 369, 787
N.W.2d 317 (cited in Tate, majority op., ¶¶14, 23, 28, 30, 40-
43; in Subdiaz-Osorio, 2014 WI 87, ¶49 (Prosser, J., lead op.)).

                                     7
                                                            No.   2012AP336-CR.ssa


conflict with each other.21             The two opinions, as well as the

separate        writings   in     Subdiaz-Osorio     of   Justices    Ann     Walsh

Bradley, N. Patrick Crooks, and Patience Drake Roggensack, must

thus    be      read   together    carefully    to   understand      the    court's

position on the constitutionality of law enforcement access to a

person's cell phone location data.22

       ¶69      To address the overlapping issues raised by these two

cases,      I   organize   my     dissenting   opinions   as   follows.       Each

heading number corresponds to the relevant subdivision of each

dissent.

       ¶70      In my dissent in Tate, I address the following main

points:

       Part I. The police access to the defendant's cell phone

       location data, an issue in both Tate and Subdiaz-Osorio,

       was a search within the meaning of the Constitutions.23


       21
       See Subdiaz-Osorio, 2014 WI 87, ¶¶131-132 (Roggensack,
J., concurring) (criticizing Justice Prosser's lead opinion in
Subdiaz-Osorio for "elaborate[ing] too fully on the Fourth
Amendment implications of emerging technology before its role in
society has become clear"); Subdiaz-Osorio, ¶50 (Prosser, J.,
lead op.) (noting that Tate shares similarities with Subdiaz-
Osorio even though it is ultimately decided on other issues).
       22
       In footnotes 23 through 30, I consolidate and summarize
the position of each opinion in Tate and Subdiaz-Osorio
regarding particular topics.
       23
            For discussions of whether a search existed, see:

       Tate, majority op., ¶26: Assumes, without deciding, that
       there was a search.

       Subdiaz-Osorio, 2014 WI 87, ¶9 (Prosser, J., lead op.):
       Assumes, without deciding, that there was a search but
       hints strongly that a search existed.

                                         8
                                                        No.   2012AP336-CR.ssa


    Part II. The search existed as a trespass.24
    Part    III.   The   search     existed   as   an    invasion     of     an

    individual's reasonable expectation of privacy.

              A. The   subjective   expectation    of    privacy    was    not

                undermined by:

                       1. The cell phone contract;25 or




    Subdiaz-Osorio, 2014 WI 87, ¶89 (Bradley, J., concurring),
    ¶116 (Crooks, J., concurring): Determine that there was a
    search.

    Subdiaz-Osorio, 2014 WI 87, ¶¶131-137 (Roggensack, J.,
    concurring): Criticizes Justice Prosser's lead opinion for
    elaborating too fully on right to privacy in cell phone
    location data.

    Subdiaz-Osorio,   2014  WI   87,   ¶139-143  (Ziegler,   J.,
    concurring): Joining Justice Roggensack's concurrence, and
    requesting additional briefing on whether a search existed.

    Tate, Chief Justice Abrahamson's dissent, ¶61: Yes, access
    to cell phone location data is a search. See also Subdiaz-
    Osorio, 2014 WI 87, ¶155 (Abrahamson, C.J., dissenting).
    24
         For discussions of whether a trespass existed, see:

    Tate, majority op., ¶¶18-20: Discusses trespass but refers
    to the search only as "nontrespassory."

    Subdiaz-Osorio, 2014 WI 87, ¶¶48-50 (Prosser,                  J.,     lead
    op.): Trespass analysis would be "unnatural."

    Tate, Chief Justice Abrahamson's dissent, ¶¶101-102: State
    does not disclose how information was obtained; appears to
    be a trespass.   See also Subdiaz-Osorio, 2014 WI 87, ¶168
    (Abrahamson, C.J., dissenting).
    25
       For discussions of whether the cell phone contract
created consent to access the cell phone location data, see:

    Tate, majority op., ¶22: Defendant might consent through
    purchase of cell phone.

                                     9
                                                       No.    2012AP336-CR.ssa


                        2. The third-party doctrine.26
                B. Society   recognizes   a   reasonable     expectation   of

                   privacy in cell phone location data.27



       Subdiaz-Osorio, 2014 WI 87, ¶¶53-63 (Prosser, J., lead
       op.): Consent through cell phone purchase contract was
       invalid.

       Subdiaz-Osorio, 2014 WI 87, ¶¶133-135 (Roggensack, J.,
       concurring): Questions J. Prosser's lead opinion regarding
       contract.

       Tate,   Chief   Justice   Abrahamson's   dissent,  ¶116-121:
       Adhesion   contract   will   not   be  enforced   to   waive
       constitutional rights.    See also Subdiaz-Osorio, 2014 WI
       87, ¶168 (Abrahamson, C.J., dissenting).
       26
            For discussions of the impact of third-party doctrine,
see:

       Tate, majority op., ¶¶24-25: Third-party doctrine may need
       reevaluation.

       Subdiaz-Osorio, 2014 WI 87, ¶134-135 (Roggensack, J.,
       concurring): Questions whether expectation of privacy
       exists in third-party records.

       Tate, Chief Justice Abrahamson's dissent, ¶¶122-135: Third-
       party doctrine in inapplicable to cell phone location data.
       27
       For   discussions   of   whether          society      recognizes    a
reasonable expectation of privacy, see:

       Tate, majority op., ¶¶2, 16-25: Expectation of privacy may
       be lower for cell phone location, especially in a public
       area; expectation of privacy was dependent on the cell
       phone's location in a home.

       Subdiaz-Osorio, 2014 WI 87, ¶¶65-68 (Prosser, J., lead
       op.): Public expects privacy in cell phone location data
       and worries about invasion of privacy.

       Subdiaz-Osorio, 2014 WI 87, ¶134-135 (Roggensack, J.,
       concurring): Questions whether expectation of privacy
       exists in third-party records.

                                    10
                                                          No.    2012AP336-CR.ssa


    Part     IV.    Wisconsin   Stat.    § 968.135,     the   statute    setting
    forth the requirements for a subpoena of documents, should

    have     been    followed——it   was      not   in   either    Tate   or   in

    Subdiaz-Osorio.28

    ¶71     In my dissent in Subdiaz-Osorio, I address two main

points:

    Part V. The State failed to meet its burden to demonstrate

    the existence of exigent circumstances;29 and



    Tate, Chief Justice Abrahamson's dissent, ¶¶136-149: Case
    law, public policy, and Wisconsin legislation point to
    society recognizing reasonable expectation of privacy in
    cell phone location data. See also Subdiaz-Osorio, 2014 WI
    87, ¶168 (Abrahamson, C.J., dissenting).
    28
          For discussions of the warrant requirement, see:

    Tate, majority op., ¶¶33-50: Warrant did not comply with
    Wis. Stat. § 968.135, subpoena for third-party information.
    Non-statutory   warrant  met   constitutional  requirements.
    Non-statutory warrants met "spirit" of warrant statutes.

    Subdiaz-Osorio, 2014 WI 87, ¶5 n.2 (Prosser, J., lead op.):
    No warrant at issue, but warrants must meet Fourth
    Amendment and statutory requirements.

    Subdiaz-Osorio, 2014 WI 87, ¶89 (Bradley, J., concurring):
    A warrant was needed and the State's warrant failed to
    comply in either case.

    Subdiaz-Osorio, 2014 WI 87, ¶118 (Crooks, J., concurring):
    A warrant was needed but the good-faith exception applied.

    Tate, Chief Justice Abrahamson's dissent, ¶¶150-163: State
    fails to comply with statutory warrant requirements.
    Warrant was invalid. See also Subdiaz-Osorio, 2014 WI 87,
    ¶168 (Abrahamson, C.J., dissenting).
    29
          For discussions of exigent circumstances, see:

    Tate: Exigent circumstances not at issue.

                                        11
                                                              No.   2012AP336-CR.ssa


    Part    VI.    The   defendant   invoked   his      Miranda       right   to    an
    attorney at his interrogation.30

    ¶72    My     discussion   in   Parts   I-IV   of    my    Tate    dissent      is

relevant to Subdiaz-Osorio, and I incorporate Parts I-IV of my




    Subdiaz-Osorio, 2014 WI 87, ¶¶69-81 (Prosser, J., lead
    op.):   Exigent    circumstances exception to   warrant
    requirement was satisfied.

    Subdiaz-Osorio, 2014 WI 87, ¶89 (Bradley, J., concurring):
    there were no exigent circumstances.

    Subdiaz-Osorio, 2014 WI 87, ¶118 (Crooks, J., concurring):
    there were no exigent circumstances.

    Subdiaz-Osorio,   2014   WI   87,  ¶130   (Roggensack,                         J.,
    concurring): Law enforcement acted reasonably under                            the
    Fourth Amendment due to exigent circumstances.

    Subdiaz-Osorio, 2014 WI 87, ¶¶169-208 (Abrahamson, C.J.,
    dissenting): State fails to meet its burden to show exigent
    circumstances.
    30
         For discussions of the Miranda right to an attorney, see:

    Tate: Miranda rights not at issue.

    Subdiaz-Osorio, 2014 WI 87, ¶¶82-87 (Prosser, J., lead
    op.): Defendant failed to invoke unequivocally right to an
    attorney.

    Subdiaz-Osorio, 2014 WI 87, ¶89 (Bradley, J., concurring):
    Defendant successfully invoked Miranda right.

    Subdiaz-Osorio 2014 WI 87, ¶109 (Crooks, J., concurring);
    id., ¶130 (Roggensack, J., concurring): Defendant failed to
    invoke unequivocally right to an attorney.

    Subdiaz-Osorio, 2014 WI 87, ¶¶209-219 (Abrahamson, C.J.,
    dissenting): A reasonable person would understand Subdiaz-
    Osorio to have invoked his Miranda right.

                                      12
                                                               No.   2012AP336-CR.ssa


Tate dissent into my Subdiaz-Osorio dissent without repeating
them in full.31

       ¶73   Accordingly, I dissent in both cases.

                                         I

       ¶74   The    majority   opinion       in   Tate   and   Justice    Prosser's

lead opinion in Subdiaz-Osorio do not answer the core question

presented:         Does law enforcement's access to an individual's

cell    phone   location   data   in     the      present   cases    constitute    a




       31
       The two cases raise numerous additional issues that I do
not address, including the applicability of federal statutes,
the good-faith exception, and the proper standard for reviewing
and remedying an illegal search of cell phone location data.

     Justice Crooks' concurrence in Subdiaz-Osorio asserts that
an illegal warrantless search occurred, Subdiaz-Osorio, 2014 WI
87, ¶¶125-128 (Crooks, J., concurring), but that the good-faith
exception applies, and that the evidence should not have been
excluded.   As I explain in Parts I-IV, our state's case law
already set forth the need for a warrant and the statutes
provide procedures for obtaining a warrant. These rules of law
existed at the time that the officers initiated the search in
the instant cases.

     I am unconvinced that the usual harmless-error analysis is
the proper approach in Tate and Subdiaz-Osorio.     See Subdiaz-
Osorio, 2014 WI 87, ¶¶97-105 (Bradley, J., concurring) (applying
harmless-error analysis in Subdiaz-Osorio).      When illegally
obtained cell phone location data forms the entire basis for the
apprehension and arrest of the defendant, rather than evidence
of the crime, the usual harmless-error analysis appears to be a
poor fit.

                                         13
                                                             No.   2012AP336-CR.ssa


search under the Wisconsin and United States Constitutions?                          I

would answer this important question in the affirmative.32
     ¶75    The    various    opinions       in    Tate    and     Subdiaz-Osorio

disagree about the impact of the recent United States Supreme

Court case Riley v. California, 573 U.S. ___, 134 S. Ct. 2473

(2014).    Riley held that law enforcement must obtain a warrant

before    searching    the   contents    of    a   cell    phone    in     a   search

incident   to     arrest.    The   Riley      opinion     extolled    the       strong

privacy    interests    of   individuals      in   electronic       data       stored,

accessed, or maintained on cell phones.

     32
        In Earls, 70 A.3d 630, although the New Jersey Supreme
Court recognized the difficulty of calculating exactly what
level of privacy society expects in its technological products,
the   court   declared  that  individuals  have   a  reasonable
expectation of privacy in their cell phone location data, and
therefore the police must obtain a search warrant before
accessing that information.

     [O]ur focus belongs on the obvious:    cell phones are
     not meant to serve as tracking devices to locate their
     owners wherever they may be.    People buy cell phones
     to communicate with others, to use the Internet, and
     for a growing number of other reasons.      But no one
     buys a cell phone to share detailed information about
     their whereabouts with the police.

Earls, 70 A.3d at 643.

     Similarly, the Massachusetts Supreme Judicial Court has
held that an individual's privacy interest in cell phone
location data is one that society accepts as reasonable, and
that law enforcement's request for cell phone location data from
an individual's cell phone provider is a search requiring Fourth
Amendment protections.  Commonwealth v. Augustine, 4 N.E.3d 846
(Mass. 2014).

     Recently, the federal Eleventh Circuit Court of Appeals has
also held that cell phone location data is within society's
reasonable expectation of privacy. See United States v. Davis,
___ F.3d ___, 2014 WL 2599917 (11th Cir. 2014).

                                        14
                                                                       No.   2012AP336-CR.ssa


      ¶76      The      majority     opinion        in   Tate   and    Justice    Prosser's
lead opinion in Subdiaz-Osorio distinguish Riley by stating that

Riley      does      not     address     the    instant         question:        whether     a

defendant has a reasonable expectation of privacy in location

data.      They relegate Riley to a footnote.33                       Conversely, Justice

Crooks' concurrence in Subdiaz-Osorio relies heavily on Riley

for its statements on the privacy interests of individuals in

cell phone data to determine that police access of cell phone

location data constitutes a search.34

      ¶77      The issue in the instant case of whether access of

cell phone location data constitutes a search was not before the

Court in Riley.              I do not rely on Riley's holding regarding

search incident to arrest in my analysis.                         The language in Riley

is, however, instructive in the instant case.                            I draw from the

teachings of Fourth Amendment case law of both Wisconsin and the

United States regarding privacy interests to analyze whether a

search occurred within the meanings of the Wisconsin and United

States Constitutions in the present case.                          I analyze and apply
the     case      law      using   both       the    trespass      and    the    reasonable

expectation          of    privacy      doctrines        applicable      to     the     Fourth

Amendment.

      ¶78      The case law of our state already provides us with

ample basis to determine that the law enforcement access in Tate


      33
       Tate, majority op., ¶20 n.11; Subdiaz-Osorio, 2014 WI 87,
¶47 n.23 (Prosser, J., lead op.).
      34
       Subdiaz-Osorio,                 2014     WI       87,      ¶109       (Crooks,      J.,
concurring).

                                               15
                                                                    No.    2012AP336-CR.ssa


and Subdiaz-Osorio constituted searches within the meaning of
the Constitutions.

      ¶79    In State v. Brereton,35 the court forcefully declared

that law enforcement access and monitoring of an individual's

location data through the use of a Global Positioning Systems

(GPS) device on a motor vehicle is a search within the meaning

of the Constitutions.36           If the collection of location data via a

GPS   device    attached         to    a   motor    vehicle    is     a    search,     then

government acquisition of more invasive cell phone location data

is    a    search.         Cell       phone      location   data      is     often     more

sophisticated        and   precise,        and     cell   phones'    ubiquity        raises

greater privacy concerns than GPS tracking of a motor vehicle.

      ¶80    The     Brereton     court       explained     that    "warrantless        GPS

tracking would constitute a search even in the absence of a

trespass, [because] a Fourth Amendment search occurs when the

government     violates      a    subjective        expectation      of    privacy     that

society recognizes as reasonable."37

      ¶81    If there was any doubt that the Brereton court held
that the GPS tracking of location data was a search within the

meaning of the Constitutions, the Brereton court added:

      35
       State v. Brereton, 2013 WI 17, 345 Wis. 2d 563,                                  826
N.W.2d 369, cert. denied, 134 S. Ct. 93 (U.S. 2013).
      36
       Although the court is not bound by a party's concession
of law, both the State's and defendant's briefs in Tate assert
that Brereton, 345 Wis. 2d 563, makes clear that the GPS
tracking was a search within the meaning of the Constitutions
and required a warrant. Brief of Plaintiff-Respondent at 14-15;
Brief and Appendix of Defendant-Appellant-Petitioner at 24-25.
      37
       Brereton, 345 Wis. 2d 563, ¶34 (internal quotation marks
omitted).

                                              16
                                                                 No.   2012AP336-CR.ssa

      The privacy interest at issue . . . , where the
      government has utilized [the defendant's] property to
      apply GPS technology to monitor his movements, is
      government usurpation of an individual's property "for
      the purpose of conducting surveillance on him, thereby
      invading    privacy    interests  long    afforded,   and
      undoubtedly      entitled     to,    Fourth     Amendment
      protection."38
      ¶82     Brereton relied on United States v. Jones, 565 U.S.
___, 132 S. Ct. 945 (2012), in which the United States Supreme

Court unanimously determined that the attachment of a GPS device

to   a     motor   vehicle     was    a    search     under   the      United   States

Constitution,       with      three       separate    opinions      reaching     their

conclusions by relying on different Fourth Amendment doctrines.

      ¶83     Jones is instructive in the instant case.                    The Jones

majority opinion, authored by Justice Scalia and joined by four

other      Justices,   held    that       the    attachment   of    the   GPS    device

constituted a trespass onto the defendant's property.39                         Justice

Alito, in a concurrence joined by three other Justices, asserted

that extensive recording of an individual's location "impinges

on   expectations      of    privacy."40         Justice   Sotomayor      joined   the

majority opinion relying on trespass law but wrote a separate

concurrence, asserting that although trespass doctrine settled

the case in Jones, even short-term monitoring of an individual's

      38
           Id. (citing Jones, 132 S. Ct. at 954).

     The Brereton court clearly                 stated numerous times that "the
use of a GPS device constituted                 a search . . . ," Brereton, 345
Wis. 2d 563, ¶43, and that "the                  privacy interest implicated by
the GPS search required judicial                authorization," id., ¶44.
      39
           Jones, 132 S. Ct. at 949-54.
      40
       Jones, 132 S. Ct. at 964 (Alito, J., concurring in the
judgment).

                                            17
                                                             No.   2012AP336-CR.ssa


location implicates the right to privacy.41             Thus, five Justices

viewed    the   GPS   device   and    its   tracking    of    an    individual's

location as impinging on expectations of privacy.

     ¶84    Our case law also recognizes that government access to

data stored on cell phones42 and personal computers43 constitutes

a search within the meaning of the Constitutions.                  Thus, even if

law enforcement officers have consent to search an area, "an

independent analysis" must be performed to determine whether a

personal electronic device can also be searched.44

     ¶85    I agree with the statements in Justice Prosser's lead

opinion in Subdiaz-Osorio on the importance of privacy and its

relationship to our modern, interconnected, electronic-device-

mediated world.       "Privacy is a pillar of freedom."45              "[P]rivacy

serves more than the individual; it is an integral component of

a well-ordered society."46           "[P]rivacy must not become a legal

fiction."47       "[E]fforts    to     access   the    information        in   our

electronic      devices   invade      and   expose     the     marrow     of   our


     41
          Jones, 132 S. Ct. at 954-57 (Sotomayor, J., concurring).
     42
       State v. Carroll, 2010 WI 8, ¶27, 322 Wis. 2d 299, 778
N.W.2d 1.   See Riley, 134 S. Ct. 2473 (requiring warrant for
officers to search the cell phone of an arrestee).
     43
       State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833
N.W.2d 59, cert. denied sub nom. Sobczak v. Wisconsin, 134 S.
Ct. 626 (2013).
     44
          Sobczak, 347 Wis. 2d 724, ¶30.
     45
          Subdiaz-Osorio, 2014 WI 87, ¶40 (Prosser, J., lead op.).
     46
          Id., ¶41 (Prosser, J., lead op.).
     47
          Id., ¶40 (Prosser, J., lead op.).
                                  18
                                                                     No.    2012AP336-CR.ssa


individuality."48           I, like Justice Prosser, am "mindful of the

pervasiveness          of   wireless      technology         and     of    our   citizens'

concern for their privacy . . . ."49

     ¶86    As the United States Supreme Court recently noted in

Riley, 134 S. Ct. at 2494-95, cell phones involve a privacy

interest far beyond what the Founders envisioned:

     Modern cell phones are not just another technological
     convenience.   With all they contain and all they may
     reveal, they hold for many Americans "the privacies of
     life," [Boyd v. United States, 116 U. S. 616, 625
     (1886).] The fact that technology now allows an
     individual to carry such information in his hand does
     not make the information any less worthy of the
     protection for which the Founders fought.
     ¶87    In     light        of     these        twenty-first-century           privacy

concerns     and        our     existing       case     law        holding       that    law

enforcement's      access       to   an    individual's        electronic        data   for

information about the individual's location constitutes a search

within the meaning of the Constitutions, why do the majority

opinion in Tate and Justice Prosser's lead opinion in Subdiaz-

Osorio     hedge        their    bets?           Indeed,      Justice         Roggensack's

concurrence       in    Subdiaz-Osorio         chides       Justice        Prosser's    lead

opinion in Subdiaz-Osorio for daring to even insinuate that a

privacy interest might exist in cell phone location data.50

     ¶88    The    majority       opinion      in    Tate     and    Justice     Prosser's

lead opinion in Subdiaz-Osorio assert that they choose not to

     48
          Id., ¶42 (Prosser, J., lead op.).
     49
          Id., ¶45 (Prosser, J., lead op.).
     50
       Subdiaz-Osorio,    2014                 WI      87,         ¶¶131-132,      139-137
(Roggensack, J., concurring).

                                            19
                                                                        No.   2012AP336-CR.ssa


decide      whether    the        accessing       of     cell    phone        location      data

constituted     searches          within    the     meaning      of    the     Constitutions

because of "caution" as urged by the United States Supreme Court

in City of Ontario, Cal. v. Quon, 560 U.S. 746, 759 (2010).
Tate,    majority      op.,       ¶26;     Subdiaz-Osorio,            2014      WI    87,   ¶64

(Prosser,     J.,     lead    op.).        Justice       Prosser's       lead    opinion      in

Subdiaz-Osorio        recites       language        from    Quon      stating        that   "[a]

broad holding concerning employees' privacy expectations vis–à-

vis     employer-provided             technological          equipment          might       have

implications        for      future      cases      that     cannot       be     predicted."

Subdiaz-Osorio, 2014 WI 87, ¶64 (Prosser, J., lead op.) (quoting

Quon, 560 U.S. at 760).

      ¶89    Contrary to the hand-wringing of the majority opinion

in Tate and Justice Prosser's lead opinion in Subdiaz-Osorio,

recognizing a privacy interest in cell phone location data in

the present cases does not establish far-reaching premises that

define the existence and extent of privacy expectations for all

technology.         The    court      would       establish      only     that       government
access to cell phone location data by the means used in these

cases    constitutes          a     search         within       the     meaning        of    the

Constitutions.

      ¶90    Technology does change rapidly, but the caution urged

by Quon should hedge in favor of our protecting privacy in the

fact situations presented to us.                       Caution should steer us to

follow    existing        Wisconsin        case    law     already      recognizing         that

government tracking of an individual's cell phone location data

constitutes a search.

                                              20
                                                                 No.   2012AP336-CR.ssa


     ¶91    Regardless        of    whether        one    applies      the    trespass

doctrine or the reasonable expectation of privacy doctrine of

Fourth Amendment jurisprudence, law enforcement access to the

defendants' cell phone location data in both Tate and Subdiaz-
Osorio     constitutes        a    search        within   the     meaning      of   the

Constitutions.

     ¶92    I nonetheless analyze both cases through the Fourth

Amendment     lenses     of       both   the       trespass     doctrine      and   the

reasonable expectation of privacy doctrine.

                                            II

     ¶93    Under    the      trespass      doctrine,      when     the      government

intrudes upon private property, even if the intrusion is small,

it   has    performed       a      search        within   the     meaning      of   the

Constitutions.51

     ¶94    The     Jones       majority     opinion      held      that     when   law

enforcement       "physically       occupied        private     property      for   the

purpose of obtaining information," a trespassory search occurred

for Fourth Amendment purposes.              Jones, 132 S. Ct. at 949-51.
     ¶95    As Justice Alito notes in his concurrence in Jones,

"some [courts] have held that even the transmission of electrons

that occurs when a communication is sent from one computer to

another is enough" to constitute a trespass.52


     51
       See Silverman v. United States, 365 U.S. 505, 512 (1961)
("mildest and least repulsive" trespass is still a search).
     52
       Jones, 132 S. Ct. at 962 (Alito, J., concurring) (citing
CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015,
1021 (S.D. Ohio 1997); Thrifty–Tel, Inc. v. Bezenek, 46 Cal.
App. 4th 1559, 1566 n.6 (1996)).

                                            21
                                                          No.   2012AP336-CR.ssa


     ¶96   The   defendant's     cell      phone   is     private     personal

property, a constitutionally protected personal "effect".53                   A

physical   intrusion   into    that    property    with    intent     to   find

information creates a trespassory search.54

     ¶97   In both Tate and Subdiaz-Osorio, the police received

the defendant's cell phone location data from the cell phone

service provider, but nowhere in either case is it disclosed

exactly how the cell phone location data was accessed.55




     See also Jones, 132 S. Ct. at 953 ("Situations involving
merely the transmission of electronic signals without trespass
would remain subject to Katz analysis.").   The lead opinion in
Subdiaz-Osorio quotes this language for the proposition that
applying   trespass doctrine  to   electronic   data  would  be
"unnatural," see Subdiaz-Osorio, 2014 WI 87, ¶48 & n.24
(Prosser, J., lead op.), but Jones does not foreclose that
transmission of electronic signals may at times constitute a
trespass.
     53
       See Carroll, 322 Wis. 2d 299, ¶¶27-28 (treating a cell
phone as a closed container).
     54
       Courts have treated government intrusions into stored
data on computers as trespasses to a chattel ("an effect" under
the Fourth Amendment). See Sotelo v. DirectRevenue, LLC, 384 F.
Supp. 2d 1219, 1230-32 (N.D. Ill. 2005) (asserting that
intrusion into a computer causing damage to the computer was
sufficient to state a claim for trespass to chattels); see also
Theofel v. Farey-Jones, 359 F.3d 1066, 1072-73 (9th Cir. 2004)
(analogizing violation of the federal Stored Communications Act
with the common law of trespass); International Ass'n of
Machinists and Aeropsace Workers v. Werner-Masuda, 390 F. Supp.
2d 479, 495 (D. Md. 2005) (noting that federal courts treat
computer hackers as "electronic trespassers").
     55
       "It is not clear from the record exactly how law
enforcement used cell site information . . . ." Tate, majority
op., ¶8.

                                      22
                                                                   No.   2012AP336-CR.ssa


      ¶98       In   both   Tate   and        Subdiaz-Osorio,        the      government
apparently       electronically     intruded       into      the   defendant's      cell

phone by use of either a "ping" from the cell phone company56 or

a   "stingray"       device,57   both    of    which   implicate         a   trespassory

search.

      ¶99       If the cell phone location data was accessed when the

cell phone service provider "pinged" the phone, i.e., actively

sent a signal to trigger the phone to reveal its location, the

entry      of   an   electronic    signal       into   the    phone      implicated    a

trespass.

      ¶100 If the cell phone location data was accessed through

law enforcement use of a "stingray" device as in Tate, such use

also implicated a trespass.58

     The circuit court order issued in Tate required that the
service provider, U.S. Cellular, "shall initiate a signal to
determine the location of the subject's mobile device on the
service provider's network or with such other reference points
as may be reasonable . . . ."
      56
       Tate, majority op., ¶¶1, 7; Subdiaz-Osorio, 2014 WI 87
¶45 n.19 (Prosser, J., lead op.).
      57
           Tate, majority op., ¶¶1, 7, 9.
      58
        A stingray works by mimicking a cellphone tower,
      getting a phone to connect to it and measuring signals
      from the phone. It lets the stingray operator 'ping,'
      or send a signal to, a phone and locate it as long as
      it is powered on, according to documents reviewed by
      the Journal.   The device has various uses, including
      helping police locate suspects and aiding search-and-
      rescue teams in finding people lost in remote areas or
      buried in rubble after an accident.

Jennifer Valentino-Devries, "Stingray" Phone Tracker Fuels
Constitutional Clash, Wall St. J., Sept. 22, 2011, available at
http://online.wsj.com/news/articles/SB10001424053111904194604576
583112723197574 (last visited July 14, 2014).
                                          23
                                                                 No.    2012AP336-CR.ssa


       ¶101 The exact methodology of the "stingray" is of some

secrecy, but a general understanding of its functioning exists.

Apparently the stingray device mimics a cell tower and sends a

signal      into    the   cell      phone   to   trigger     a    response.           The

manufacturers        of   stingray     devices   will    not     discuss      how     the

technology      works.        The   Wisconsin    Department       of    Justice     uses

stingray technology but refuses to disclose the functioning or

use of the stingray device.59
       ¶102 Even though the State has failed to disclose how the

cell    phone      location   data    was   obtained    in   the       two   cases,    it

appears that the government access to cell phone location data

in both cases implicated trespassory intrusions.                        Nevertheless,


       59
       See   Eric  Litke,   State  Cops   Can  Track   Residents'
Cellphones, Oshkosh Northwestern, Mar. 28, 2014, available at
http://www.thenorthwestern.com/article/20140331/OSH0198/30329010
7/State-cops-can-track-residents-cellphones (last visited July
14, 2014).

     Increasingly, local and state law enforcement officers are
tapping into cell phone data using a variety of tools including
stingray devices.    Use of these secretive tools has raised
privacy concerns in many jurisdictions.          See John Kelly,
Cellphone Data Spying:   It's Not Just the NSA, USA Today, June
10,               2014,                available                at
http://www.usatoday.com/story/news/nation/2013/12/08/cellphone-
data-spying-nsa-police/3902809/ (last visited July 14, 2014).

     Additionally, the Obama administration has encouraged state
and local law enforcement to withhold or heavily censor
documents regarding the use of cell phone surveillance tools,
increasingly intervening in routine state public records cases
and criminal trials regarding use of the technology.     See Jack
Gillum & Eileen Sullivan, US Pushing Local Cops To Stay Mum on
Surveillance, U.S. News & World Report, June 12, 2014, available
at    http://www.usnews.com/news/politics/articles/2014/06/12/us-
pushing-local-cops-to-stay-mum-on-surveillance    (last   visited
July 14, 2014).

                                            24
                                                                     No.    2012AP336-CR.ssa


the majority opinion in Tate and Justice Prosser's lead opinion
in Subdiaz-Osorio do not consider trespass relevant to their

inquiries.

     ¶103 The       majority       opinion         in    Tate      simply    ignores    the

possibility that the intrusion in the instant case constituted a

trespassory       search.          The    Tate       majority       opinion,      ¶¶18-19,

analyzes    the    case     as    one    in    which        "physical      trespass    on   a

defendant's       property       does    not       apply"     or   one     involving   "the

absence of a trespass."

     ¶104 Justice         Prosser's        lead         opinion     in      Subdiaz-Osorio

asserts, without citation to any authority or analysis of the

electronic intrusion, that the intrusion did not constitute a

trespass.60       Justice    Prosser's         lead      opinion     in     Subdiaz-Osorio

concludes that holding electronic manipulation to be a trespass

"would be unnatural."61

     ¶105 Justice Prosser's lead opinion in Subdiaz-Osorio does

not explicate what makes electronic manipulation "unnatural" and

cites no cases or authority for its proposition, simply stating,
ipse dixit, that "the present case falls under the category of a

non-trespassory       search . . . ."62                 The     basis      for   the   lead

opinion's reasoning remains a mystery.

     ¶106 The court imprudently assumes that no trespass existed

in the two cases.         The determination of trespass should be based

on the State's disclosure of how it obtained the information.

     60
          Subdiaz-Osorio, 2014 WI 87, ¶50 (Prosser, J., lead op.).
     61
          Id., ¶48 (Prosser, J., lead op.).
     62
          Id., ¶49 (Prosser, J., lead op.).

                                              25
                                                                         No.    2012AP336-CR.ssa


Any     electronic          signal     entering       the    individual's          phone        and

modifying         it   or      triggering      a    response       in    any     way,   however

slight, implicates a trespassory search.

                                               III

        ¶107 Justice           Prosser's       lead       opinion        in     Subdiaz-Osorio
correctly recites the two-part test set out in Katz v. United

States, 389 U.S. 347 (1967), of the "reasonable expectation of

privacy"         standard       for    what    constitutes         a    search     within       the

meaning of the Constitution.63

       ¶108 Katz states that a search occurs when a person has

both:       a)    a    subjective       expectation         of     privacy;       and     b)     an

expectation of privacy "that society is prepared to recognize as

'reasonable.'"                 Katz,     389       U.S.     347,        361     (Harlan,        J.,

concurring).64

       ¶109 Justice            Prosser's       lead       opinion        in    Subdiaz-Osorio

explains         why     the    individual         defendant     in      that    case     had    a

subjective expectation of privacy in cell phone location data,

Subdiaz-Osorio, 2014 WI 87, ¶53-64 (Prosser, J., lead op.), and
why society recognizes an expectation of privacy in cell phone

location         data,    Subdiaz-Osorio,            2014   WI     87,    ¶¶42,     45,    65-68

(Prosser, J., lead op.).                   Yet, in the end, Justice Prosser's

lead        opinion       in     Subdiaz-Osorio           refuses        to     recognize        an

individual's right to privacy in cell phone location data.

       63
            Id., ¶¶51-52 (Prosser, J., lead op.).
       64
       The United States Supreme Court has acknowledged that the
Katz test "has often been criticized as circular, and hence
subjective and unpredictable." Kyllo v. United States, 533 U.S.
27, 34 (2001).

                                                26
                                                        No.   2012AP336-CR.ssa


       ¶110 I would hold that the government access to cell phone

location data in both cases violated both the subjective and

objective reasonable expectations of privacy.

                                       A

       ¶111 In   order    to   determine   whether   government   access   to

cell phone location data constitutes a search within the meaning

of the Constitutions, a court addresses the first prong of the

Katz    test,    namely   that   the   person   must   have   a   subjective
expectation of privacy in the area being searched.

       ¶112 Although individuals may be generally aware that their

locations may be tracked through their cell phones, most do not

realize the extent of tracking possible65 and reasonably do not
       65
         If you have a cell phone in your pocket, then the
       government can watch you.        At the government's
       request, the phone company will send out a signal to
       any cell phone connected to its network, and give the
       police its location. [In 2009] law enforcement agents
       pinged users of just one service provider——Sprint——
       over eight million times. The volume of requests grew
       so large that the 110-member electronic surveillance
       team couldn't keep up, so Sprint automated the process
       by developing a web interface that gives agents direct
       access to users' location data.       Other cell phone
       service providers are not as forthcoming about this
       practice, so we can only guess how many millions of
       their customers get pinged by the police every year.

United States v. Pineda-Moreno, 617 F.3d 1120, 1125 (9th Cir.
2010) (Kozinski, J., dissenting) (citations omitted).

     The   Tate  warrant   approves   collecting  open-ended and
undefined data from the cell phone service provider, such as:
"any historical information law enforcement may request to
include historical cell site information from 6/9/2009 through
this order's duration . . . ."      The order's duration extends
over a long period of time——60 days——and requires that the cell
phone service provider "shall provide all technical assistance
necessary to accomplish this order and disclose the records and
other information described herein twenty-four hours a day."
                                27
                                                                      No.   2012AP336-CR.ssa


expect the cell phone service provider to report their precise

location to law enforcement officers.                       It does not comport with

the     reality       of    the       modern       telecommunications           age    that

individuals lose their constitutional right to privacy in their

location simply by purchasing a cell phone.

      ¶113 In accord with the comments in Justice Prosser's lead

opinion in Subdiaz-Osorio,66 I would hold that the defendants had
a subjective reasonable expectation of privacy in the cell phone

location data.

      ¶114 I      turn     to   the   questions        of    whether    the    cell   phone

service provider's contract or an individual's disclosure of his

cell phone location data to the cell phone service provider (a

third party) undermined the individual's subjective expectation

of privacy in cell phone location data.

                                                   1

      ¶115 The cell phone service provider contract is referenced

in Justice Prosser's lead opinion in Subdiaz-Osorio.                            The State

argues     that    the     contract        removes     the       defendant's    subjective
expectation of privacy in his cell phone location data.

      ¶116 I conclude that the contract in question in Subdiaz-

Osario     was    a   contract        of    adhesion,        a    "take-it-or-leave-it"




     This surveillance goes far beyond the traditional scope of
a search warrant, aided by technology that has now rendered
broad searches practicable.
      66
           Subdiaz-Osorio, 2014 WI 87, ¶¶53-61 (Prosser, J., lead
op.).

                                              28
                                                                       No.   2012AP336-CR.ssa


contract that the individual could not and did not negotiate.67
Consequently, I would at a minimum construe ambiguous or vague

terms against the drafter.68

       ¶117 Justice          Prosser's        lead     opinion       in      Subdiaz-Osorio

points       out    a    variety   of    potentially         unclear      language     in    the

defendant's          cell   phone     service       provider       contract.          Subdiaz-

Osorio, ¶¶56-58 (Prosser, J., lead op.).

       ¶118 Justice Prosser's lead opinion in Subdiaz-Osorio also

avers that such a complex and potentially confusing contract

should       not     constitute       the     basis    for     consent       to   a    search.

Subdiaz-Osorio, 2014 WI 87, ¶59 (Prosser, J., lead op.).                                     Why

not?        Law enforcement officers are already expected to navigate

a   thicket        of    case   law     and   facts     when    performing        a    consent

search.            The   "totality      of    the     circumstances"         analysis       when

determining whether consent to a search has been properly given

often        involves       careful      weighing       of     a    variety       of     legal




       67
       See Wis. Auto Title Loans v. Jones, 2006 WI 53, ¶52, 290
Wis. 2d 514, 714 N.W.2d 155 (quoting Acorn v. Household Int'l,
Inc., 211 F. Supp. 2d 1160, 1168 (N.D. Cal. 2002)).
       68
       "The principle that ambiguities are construed against the
drafter is a deeply rooted doctrine of contract interpretation."
Maryland Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶44, 326
Wis. 2d 300, 786 N.W.2d 15 (internal quotation marks omitted).

                                               29
                                                              No.    2012AP336-CR.ssa


relationships         between    family        members,     romantic        partners,

roommates, landlords and tenants, etc.69
       ¶119 I    also    look,   as   I   have    stated    previously,         to   the

reality of cell phone usage by the everyday purchaser of a cell

phone:       When accepting an adhesion contract to purchase cell

phone service——an increasingly necessary component of everyday

life——the purchaser is not bargaining for unfettered government

access to the purchaser's cell phone location data.

       ¶120 The breadth of the data covered by the contract and

the lack of clarity regarding the circumstances enabling the

cell     phone   service    provider      to     transmit    the     data    to      the

government mandate that the court hold that the purchaser did

not    consent   to     government    access     to   his   or   her     cell     phone

location data.

       ¶121 Thus, I conclude that the defendant in Subdiaz-Osorio

did    not   relinquish    his   subjective       expectation       of   privacy      or


       69
       See, e.g., State v. Kieffer, 217 Wis. 2d 531, 577
N.W.2d 352 (1998) (requiring police to ask additional clarifying
questions when third-party landowner's apparent authority to
search the tenant-defendant's apartment was unclear); State v.
Tomlinson,   2002  WI   91,  254   Wis. 2d 502,   648 N.W.2d 367
(determining that police could reasonably assume that 14-year-
old girl at the door of a residence had apparent authority to
consent to its search even though they had no evidence that the
girl was the resident's daughter); Sobczak, 347 Wis. 2d 724
(deeming it reasonable for police to assume that a defendant's
girlfriend had actual authority to consent to a search of the
defendant's laptop, even though the girlfriend was a houseguest
and not a cotenant); State v. St. Germaine, 2007 WI App 214, 305
Wis. 2d 511, 740 N.W.2d 148 (holding that when a tenant-
defendant did not object to the landlord's consent to search the
entire residence, and when the police did not know that a
particular room belonged to the tenant-defendant, the landlord
had apparent authority to consent to the search).

                                          30
                                                                  No.    2012AP336-CR.ssa


consent to a search based on the cell phone service provider

contract.

                                          2

       ¶122 I turn now to the "third-party doctrine," which is

often broadly stated as follows:               When an individual voluntarily

provides information to a third party, the individual does not

have    a   reasonable     subjective     expectation        of     privacy      in   the

information.70
       ¶123 In    the   instant     cases,      the    defendants'        cell    phones

conveyed     location      information         to     the   cell        phone    service

provider,     a   third    party,    as    a    necessary     component          of   the

functioning of the phone.           The defendants apparently cannot opt

out of giving this information to the service provider.

       ¶124 Thus the very use of the cell phone, as well as the

contract with the cell phone service provider, implicates the

third-party doctrine.

       ¶125 Justice       Roggensack's        concurrence     in        Subdiaz-Osorio

opines that the defendants in Tate and Subdiaz-Osorio had no

       70
       See United States v. Miller, 425 U.S. 435 (1976) (holding
a bank depositor had no reasonable expectation of privacy in his
or her bank records); Smith v. Maryland, 442 U.S. 735 (1979)
(holding that use of a pen register, a device that records the
phone numbers dialed by an individual, does not constitute a
search under the reasonable expectation of privacy analysis).

     Congress   and   many   state legislatures,   including   the
Wisconsin legislature, subsequently created a procedure for
issuing pen registers that protects an individual's privacy
interests.   See 18 U.S.C. § 3123 (2006); Wis. Stat. §§ 968.34-
.36. See also Right to Financial Privacy Act of 1978, 12 U.S.C
§§ 3401-3421 (1980) (protections to prevent government access
into    private    bank    records  without    meeting    specific
requirements).

                                          31
                                                                No.    2012AP336-CR.ssa


reasonable expectation of privacy because "a defendant typically

retains no constitutional reasonable expectation of privacy in

information conveyed to a third party."                  Subdiaz-Osorio, 2014 WI
87, ¶135 (Roggensack, J., concurring) (internal quotation marks

& citation omitted); see also Tate, majority op., ¶25.

       ¶126 In the modern world, in which we regularly disclose

information     to    third    parties      as   part    of   everyday       life,   the

third-party doctrine is ailing as a principle of law.

       ¶127 The    third-party       doctrine      has   been   limited       in    scope

since it was stated broadly in United States v. Miller, 425 U.S.

435,    443   (1976),    a    case   that    predates     cellular      phones.        In

Miller, the Court held that a bank depositor had no reasonable

expectation of privacy in his or her bank records.

       ¶128 Smith v. Maryland, 442 U.S. 735 (1979), applied the

reasoning     of     Miller,    rejecting        the    argument      that   telephone

subscribers harbor any general expectation that the numbers they

dial, which are conveyed to the telephone company, will remain

secret.
       ¶129 Miller and Smith represented the high-water mark for

the    third-party      doctrine,      which       has     receded      ever       since.

Although the third-party doctrine has been defended vigorously

by at least one prominent scholar, Orin Kerr, on the grounds

that it provides clarity and ensures technological neutrality,71

the Miller opinion was met with criticism as both overly broad

and unsatisfactory in its failure to balance privacy rights of


       71
       See Orin Kerr, The Case for the Third-Party Doctrine, 107
Mich. L. Rev. 561 (2009).

                                            32
                                                No.   2012AP336-CR.ssa


individuals   against     the   law   enforcement     interest     in

investigating crimes.72




     72
        See Note, Government Access to Bank Records, 83 Yale L.J.
1439, 1464-65 (1974) (criticizing the doctrine as outdated, and
asserting that denial of a privacy interest in third-party
records   "leads   to  the   anomalous  conclusion   that,  while
safeguarded against all others, the depositor's privacy would be
nonexistent when the prying eye belongs to the government");
Albert W. Alschuler, Interpersonal Privacy and the Fourth
Amendment, 4 N. Ill. U. L. Rev. 1, 22 (1983) (noting that
reactions to Miller were "overwhelmingly negative" and decrying
the alarming breadth of the third-party doctrine announced
therein); Matthew Tokson, Automation and the Fourth Amendment;
96 Iowa L. Rev. 581, 585-86 (2011) (criticizing the third-party
doctrine as "problematic in an age where an ever-growing
proportion of personal communications and transactions are
carried out over the Internet," all accessible to third-party
Internet service providers, among others).

     Professor LaFave has joined others in criticizing the
third-party doctrine.    1 Wayne R. LaFave, Search & Seizure
§ 2.7(c) (5th ed. 2012) (footnotes omitted):

     The result reached in Miller is dead wrong, and the
     Court's woefully inadequate reasoning does great
     violence to the theory of Fourth Amendment protection
     the Court had developed in Katz.

          . . . .

     The Court's assertion in Miller that there can be no
     protected Fourth Amendment interest where there is
     "neither ownership nor possession" is contrary to the
     purposes   underlying   the   Fourth    Amendment,  the
     teachings of Katz, and the realities of modern-day
     life. Ownership and possession are property concepts
     which, the Court wisely concluded in Katz, "cannot
     serve as a talismanic solution to every Fourth
     Amendment problem," and which surely do not lead to
     the proper solution in this context. Unquestionably,
     the "Fourth Amendment's drafters were . . . concerned
     with   privacy   in   the   sense    of   control  over
     information."

                                33
                                                               No.       2012AP336-CR.ssa


     ¶130 Since Miller and Smith, courts have used the third-
party doctrine with decreasing frequency and have limited third-

party cases to the facts at hand, leading some commentators to

deem the doctrine either dead or of limited viability.73

     ¶131 Either         ignoring     or        contravening       the     third-party

doctrine,       courts   now    recognize        a   reasonable      expectation      of

privacy    in    certain     types   of    information      regardless        of   their

disclosure      to   third     parties,    such      as   health    records,74      heat

emanating from a house,75 files entrusted to an attorney by a

client,76 tax records entrusted to a tax preparer,77 or e-mail

records.78




     73
       See, e.g., Stephen E. Henderson, After United States v.
Jones, After the Fourth Amendment Third Party Doctrine, 14 N.C.
J.L. & Tech. 431 (2013) (reasoning that courts have been
hesitant to apply the third-party doctrine in recent years, and
attacking the doctrine as incongruent with modern culture).
     74
       In Ferguson v. City of Charleston, 532 U.S. 67 (2001),
the Court recognized that pregnant women had a privacy interest
in collected urine samples and invalidated a program that shared
samples given at a hospital with law enforcement. The dissent,
authored by Justice Scalia, noted that the Court did not address
the third-party doctrine.
     75
          Kyllo, 537 U.S. 27.
     76
          DeMassa v. Nunez, 770 F.2d 1505 (9th Cir. 1985).
     77
          People v. Gutierrez, 222 P.3d 925 (Colo. 2009).
     78
       United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)
(asserting that an individual enjoys a reasonable expectation of
privacy in e-mails vis-à-vis his or her internet service
provider and that government agents violated the individual's
Fourth Amendment rights by compelling disclosure of his emails
from the internet service provider without a warrant).

                                           34
                                                          No.    2012AP336-CR.ssa


     ¶132 Justice Sotomayor got it right in her concurrence in

Jones, 132 S. Ct. at 957, which casts doubt on the continued
viability of a broad third-party doctrine in the digital age:

     This approach is ill suited to the digital age, in
     which people reveal a great deal of information about
     themselves to third parties in the course of carrying
     out mundane tasks. People disclose the phone numbers
     that they dial or text to their cellular providers;
     the URLs that they visit and the e-mail addresses with
     which they correspond to their Internet service
     providers; and the books, groceries, and medications
     they purchase to online retailers. . . . . I for one
     doubt that people would accept without complaint the
     warrantless disclosure to the Government of a list of
     every Web site they had visited in the last week, or
     month,   or   year.        But    whatever   the    societal
     expectations,    they    can     attain    constitutionally
     protected   status    only    if   our   Fourth    Amendment
     jurisprudence   ceases      to    treat    secrecy    as   a
     prerequisite for privacy. I would not assume that all
     information voluntarily disclosed to some member of
     the public for a limited purpose is, for that reason
     alone, disentitled to Fourth Amendment protection.79
     ¶133 Although Justice Roggensack's concurrence in Subdiaz-

Osorio    reproaches   Justice   Prosser's      lead   opinion    in   Subdiaz-

Osorio for "question[ing] the continued viability of the third

party disclosure doctrine itself,"80 the viability of the third-

party disclosure doctrine is already questioned by existing case

law and by Justice Sotomayor's concurrence in Jones, which the

Tate majority opinion cites favorably.81               Indeed, the Eleventh
     79
       The third-party doctrine also arose in Riley, 134 S. Ct.
at 2492-93.   The Court did not adopt the government's argument
to uphold the search based on the third-party doctrine as stated
in Smith, 442 U.S. 735.
     80
       Subdiaz-Osorio,      2014    WI    87,     ¶135    (Roggensack,       J.,
concurring).
     81
          Tate, majority op., ¶25.

                                     35
                                                                         No.   2012AP336-CR.ssa


Circuit Court of Appeals has rejected the use of the third-party

doctrine in evaluating whether government access to cell phone

location data was a search, reasoning that because the defendant

probably      had    no   idea      that   he     was       allowing       the    cell   phone

provider      to     follow    his    movements,            he    "has    not     voluntarily

disclosed his cell site location information to the provider in

such    a    fashion      as   to     lose      his     reasonable            expectation     of

privacy."      Davis, 2014 WL 2599917 at *10.
       ¶134 The ABA standards for law enforcement access to third-

party       records,      cited       favorably         by         Justice       Roggensack's

concurrence         in    Subdiaz-Osorio,82             advocate          a     finer-grained

approach to data disclosed to third parties, rejecting a broad

third-party         doctrine     in   favor       of    differing         protections       for

differing levels of expected privacy in data.83

       ¶135 I conclude that neither defendant lost his expectation

of privacy in his cell phone location data simply because the

location data was disclosed to the cell phone service provider.

People do not buy cell phones to have them serve as government
tracking devices.

                                              B

       ¶136 For several reasons I conclude that society recognizes

a   reasonable       expectation      of     privacy        in     an    individual's       cell

phone location data.

       82
       Subdiaz-Osorio,              2014     WI       87,        ¶135    (Roggensack,        J.,
concurring).
       83
       ABA Standards for Criminal Justice, Law Enforcement
Access to Third Party Records Standard 25-4.1 & cmt., at 63 (3d
ed. 2013).

                                             36
                                                                     No.    2012AP336-CR.ssa


      ¶137 First,       the    Wisconsin       GPS    case     law    (Brereton)84       has

recognized an individual's subjective expectation of privacy in

the   individual's       location       and     has   declared        that      government

access to GPS location data is a search within the meaning of

the Constitutions.85           Justice Sotomayor's concurrence in Jones

similarly     recognizes       that     even    short-term      GPS        monitoring    can

reveal a wealth of information about a person's private behavior

that he or she chooses not to expose to the world at large and

that society should protect this choice.86

      ¶138 Second, in addition to the case law determining that

government     access     to    an    individual's       GPS   location        data     is   a

violation of an individual's objective reasonable expectation of

privacy, state and federal laws have long protected individual

communications      and       records    disclosed       to    third        parties     from

government access.

      ¶139 Our statutes recognize that individuals have a privacy

interest in electronic and communications data, including oral,

electronic, and wire communications;87 dialed phone numbers;88 and



      84
           Brereton, 345 Wis. 2d 563.
      85
           See ¶¶79-81, supra (discussing Brereton).
      86
       Jones,     132     S.    Ct.     945,    955-56    (2012)       (Sotomayor,       J.,
concurring).
      87
       See Wis. Stat. § 968.31 (prohibiting the interception of
wire, electronic, or oral communication, except as provided and
authorized by judicial order)
      88
       See   Wis.   Stat.  § 968.34   (prohibiting any person,
including law enforcement, from installing a pen register or
trap-and-trace device absent a court order).

                                           37
                                                                  No.   2012AP336-CR.ssa


other records stored by communications services, such as name,

address, session times and durations, billing information, etc.89
       ¶140 Third, society recognizes an individual's subjective

reasonable expectation of privacy in location data regardless of

whether the tracking is in public or private spaces.

       ¶141 The majority opinion in Tate suggests that tracking of

cell   phone      location   in    Tate    required     a   warrant      "because      the

tracking led law enforcement to discover Tate's location within

his mother's home."90             The Tate majority opinion cites United

States v. Knotts, 460 U.S. 276, 281 (1983), and State v. Sveum,

2010 WI 92, ¶79, 328 Wis. 2d 369, 787 N.W.2d 317 (Ziegler, J.,

concurring) for the proposition that tracking in public places

does not constitute a search.              Tate, majority op., ¶23.

       ¶142 Yet the facts of Tate and Subdiaz-Osorio demonstrate

that the public/private space distinction has become blurry.                             In

Tate, when law enforcement officers initiated the tracking, they

did    not    know   whether    the    cell     phone   would     be    in    public     or

private areas.        Stingray devices owned by law enforcement gather
location      information      about   a   cell    phone    whether      it    is   in    a

public       or   private    space.        Similarly,       the    law       enforcement

officers did not know in Subdiaz-Osorio whether the defendant

would be on a public highway or in a private residence (or

similarly protected space, e.g., a hotel room).

       89
       See Wis. Stat. § 968.375 (creating statutory subpoenas
for   disclosure    of   certain   information    by  electronic
communications services and prohibiting disclosure unless the
disclosure fits into certain exceptional categories).
       90
            Tate, majority op., ¶2; see also id., ¶¶23, 51.

                                           38
                                                                          No.    2012AP336-CR.ssa


      ¶143 True,            in        older   jurisprudence,         the        United     States

Supreme        Court       distinguished          between       police     surveillance          of

location       in     which        the    tracking      device      entered        a    home   and

surveillance in which the tracking device monitored movements

only in public spaces.                   Compare Knotts, 460 U.S. at 281–83 (no
Fourth Amendment violation when beeper surveillance on a vehicle

tracked the vehicle on public streets and highways) with United

States v. Karo, 468 U.S. 705, 714 (1984) (warrant was required

to use a beeper to monitor the location of a container that was

inside     a    vehicle          on    public    roads,     and    then     moved       inside    a

private space).

      ¶144 This            distinction          between     tracking        in     public      and

private spaces is eroded in the case of cell phone location

data, which can be used to track movements across both public

and private spaces.

      ¶145 This            difficulty           does      not      erode         core     privacy

protections          of    residences.            In    Tate,      upon    determining         the

location of the phone, law enforcement officers entered the home
of the defendant's mother.                       Entry into the home was a search

separate and distinct from law enforcement's access to the cell

phone location data.                   The warrantless entry into the home was

not   covered         by     the       warrant    in    Tate,      which        authorized     the

officers to search only for the location data.                                     Rather, the

warrantless          entry       into     the    home     was     based    on     consent,       an

exception       to     the       warrant      requirement.91         Simply        because     new


      91
       The defendant in Tate disputed the issue of consent at
the circuit court, but did not raise the issue in this court.

                                                  39
                                                                 No.    2012AP336-CR.ssa


technology    reveals     new    areas    of    privacy    does        not    mean     that

existing privacy interests are lost.92
     ¶146 Fourth, the Wisconsin legislature has recognized the

public's     reasonable     expectation         of     privacy     in        cell    phone

location data.     The Wisconsin legislature has recently enacted

2013 Wis. Act 375, creating Wis. Stat. § 968.373 (2013-14), with

support across ideological and partisan lines.93

     ¶147 Newly enacted Wis. Stat. § 968.373, reprinted as an

appendix, contains protections for location data from wireless

or mobile devices.         Subsection 968.373(2) explicitly prohibits

law enforcement from identifying or tracking the location of a

communications    device        without    first      obtaining        a     warrant    as

defined by the statute:

     PROHIBITION.    Except as provided in sub. (8) [the
     statutory emergency exception], no investigative or
     law enforcement officer may identify or track the
     location of a communications device without first
     obtaining a warrant under sub. (4).
By   creating    this     statute,        the       Wisconsin     legislature          has

reflected    society's    willingness          to   recognize     the      individual's
subjective expectation of privacy.

     ¶148 Although the new legislation post-dates the searches

in Tate and Subdiaz-Osorio, this court has examined legislation

     92
       See Kyllo, 533 U.S. at 37-40 (noting that although heat-
imaging technology was novel, core protections of privacy in
homes remained intact).
     93
       Of the bill's 22 Assembly sponsors, 14 were Republicans
and 8 were Democrats. The bill's two co-sponsors in the Senate
were John Lehman (D-Racine) and Glenn Grothman (R-West Bend).
It was also unanimously approved by the Wisconsin Assembly
Committee on Judiciary.

                                          40
                                                                                No.    2012AP336-CR.ssa


not applicable to the case before it to help us understand the

state's public policy.                  See Kimble v. Land Concepts, Inc., 2014
WI 21, ¶65 n.24, 353 Wis. 2d 377, 845 N.W.2d 395 ("While the

statute    is    not       applicable         to    this           case,       it     is    nonetheless

appropriate          to     consider         the        legislature's               judgment           of     a

reasonable      disparity          of      punitive       to       compensatory             damages.");

McGarrity       v.    Welch       Plumbing         Co.,       104    Wis. 2d 414,                427,       312

N.W.2d 37 (1981) (interpreting purpose of child labor laws based

on later enactments on the same topic).

     ¶149 For         all       these      reasons,       I    conclude             that    society          is

willing    to    recognize            as    reasonable             and    protect          individuals'

subjective       reasonable           expectation          of       privacy           in    cell       phone

location data.

                                                   IV

     ¶150 Because           I     conclude      that          in    both       Tate        and   Subdiaz-

Osorio the government's access to the defendant's cell phone

location     data         was     a        search       within           the    meaning           of        the

Constitutions,            the    warrant       requirement               applies.            Thus,          law
enforcement needed a valid warrant to access the defendants'

cell phone location data.                    In Tate, no warrant was obtained in

compliance with the state statutes.                            No warrant was obtained at

all in Subdiaz-Osorio.94

     94
       Justice Prosser's lead opinion in Subdiaz-Osorio does,
however, comment on warrant requirements, although its precise
meaning for courts and law enforcement is unclear:

     A court order that meets the requirements of the
     Fourth Amendment may function as a warrant. State v.
     Tate, 2014 WI 89, ¶2 & n.4, ___ Wis. 2d ___, ___
     N.W.2d ___; see also State v. Sveum, 2010 WI 92, ¶39,
     328 Wis. 2d 369, 787 N.W.2d 317.     However, when a
                               41
                                                      No.    2012AP336-CR.ssa


     ¶151 Our     state    legislature     has    promulgated      statutes

governing search warrants since 1849.95
     ¶152 Existing statutes governing warrants apply directly to

a search for cell phone location data held by a cell phone

provider, as the Tate majority opinion concedes.96                The Tate

majority    opinion   states   that   existing   warrant    statutes,   Wis.

Stat. §§ 968.1297 and 968.135,98 are clear and directly on point,

     statute provides procedures for obtaining a warrant in
     a given set of circumstances, law enforcement should
     follow the statute to ensure that a search conducted
     under the circumstances contemplated by the statute
     does not violate a person's Fourth Amendment rights.

Subdiaz-Osorio, 2014 WI 87, ¶5 n.2 (Prosser, J., lead op.).
     95
          See Wis. Stat. ch. 142, §§ 1-4 (1849).
     96
          Tate, majority op., ¶¶45-50.
     97
          Wisconsin Stat. § 968.12 states as follows:

     Search warrant

     (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.

     (2) Warrant upon affidavit.    A search warrant may be
     based upon sworn complaint or affidavit, or testimony
     recorded by a phonographic reporter or under sub.
     (3)(d),   showing   probable  cause   therefor.    The
     complaint,   affidavit   or  testimony   may   be upon
     information and belief.

     (3) Warrant upon oral testimony. (a) General rule. A
     search warrant may be based upon sworn oral testimony
     communicated to the judge by telephone, radio or other
     means of electronic communication, under the procedure
     prescribed in this subsection.
                                      42
                                         No.   2012AP336-CR.ssa




(b) Application.    The person who is requesting the
warrant shall prepare a duplicate original warrant and
read the duplicate original warrant, verbatim, to the
judge. The judge shall enter, verbatim, what is read
on the original warrant.    The judge may direct that
the warrant be modified.

(c) Issuance.   If the judge determines that there is
probable cause for the warrant, the judge shall order
the issuance of a warrant by directing the person
requesting the warrant to sign the judge's name on the
duplicate original warrant.    In addition, the person
shall sign his or her own name on the duplicate
original warrant.    The judge shall immediately sign
the original warrant and enter on the face of the
original warrant the exact time when the warrant was
ordered to be issued.    The finding of probable cause
for a warrant upon oral testimony shall be based on
the same kind of evidence as is sufficient for a
warrant upon affidavit.

(d) Recording and certification of testimony.   When a
caller informs the judge that the purpose of the call
is to request a warrant, the judge shall place under
oath each person whose testimony forms a basis of the
application and each person applying for the warrant.
The judge or requesting person shall arrange for all
sworn   testimony   to   be  recorded   either  by   a
stenographic reporter or by means of a voice recording
device.   The judge shall have the record transcribed.
The transcript, certified as accurate by the judge or
reporter, as appropriate, shall be filed with the
court.   If the testimony was recorded by means of a
voice recording device, the judge shall also file the
original recording with the court.

(e) Contents.    The contents of a warrant upon oral
testimony shall be the same as the contents of a
warrant upon affidavit.

(f) Entry of time of execution.     The person who
executes the warrant shall enter the exact time of
execution on the face of the duplicate original
warrant.

(4) Location of search.     A search warrant may
authorize a search to be conducted anywhere in the
                        43
                                                             No.    2012AP336-CR.ssa


and discusses these statutes and the important protections they

provide.     Tate, majority op., ¶¶45-50.
      ¶153 Indeed,      the    Tate    majority   opinion    acknowledges        that

the circuit court's order for such data "should have" complied

with the statutes governing warrants and governing subpoenas for

documents in criminal cases, Wis. Stat. §§ 968.12 and 968.135,

and   that    these     statutes      "express    legislative       choices   about

procedures     to     employ   for     warrants    and   criminal        subpoenas."

Tate, majority op., ¶¶49-51.99

      state and may be executed               pursuant      to     its   terms
      anywhere in the state.
      98
           Wisconsin Stat. § 968.135 states as follows:

      Subpoena for documents

      Upon the request of the attorney general or a district
      attorney and upon a showing of probable cause under s.
      968.12, a court shall issue a subpoena requiring the
      production of documents, as specified in s. 968.13(2).
      The documents shall be returnable to the court which
      issued the subpoena. Motions to the court, including,
      but not limited to, motions to quash or limit the
      subpoena, shall be addressed to the court which issued
      the subpoena.    Any person who unlawfully refuses to
      produce the documents may be compelled to do so as
      provided in ch. 785.    This section does not limit or
      affect any other subpoena authority provided by law.
      99
       Indeed, we made clear in State v. Popenhagen, 2008 WI 55,
¶84, 309 Wis. 2d 601, 749 N.W.2d 611, that "the objective of
[the criminal subpoena statute, Wis. Stat.] § 968.135[,] is to
allow the State to acquire and use documents while also ensuring
that the State meets statutory requirements that protect the
privacy interests of persons affected by the subpoena."

     We further held in Popenhagen that failure to comply with
the requirements of Wis. Stat. § 968.135 results in an invalid
warrant and that such a violation justified suppression of
evidence obtained by the invalid warrant.      Popenhagen, 309
Wis. 2d 601, ¶97.

                                         44
                                                                 No.    2012AP336-CR.ssa


       ¶154 Despite          its   acknowledgement       of     the     existence    of

statutes directly applicable to the circumstances in Tate, the
Tate majority opinion asserts that failure to comply with these

statutes does not invalidate the search warrant.                       Tate, majority

op., ¶42.       The majority opinion in Tate turns a blind eye to the

failure of the warrant to comply with multiple requirements of

Wis. Stat. § 968.135, which clearly governs the fact situation

in     Tate,     instead      asserting     that    "[n]o       specific     statutory

authority is necessary" in the instant case.

       ¶155 If       the   statutes      "express   legislative         choices,"   why

does    the     Tate    majority    opinion      rule    that    these     legislative

choices require only compliance with the "spirit" of the statute

rather than compliance with the text of the statute?                              Tate,

majority op., ¶¶2, 51.

       ¶156 The       Tate    majority    opinion   assures      us     that,    despite

compliance "in spirit" rather than actual compliance with the

text,        "[the     defendant]     was    not    deprived       of     Wis.    Stat.

§ 968.135's safeguards."            Tate, majority op., ¶50.100
       ¶157 Yet the warrant in Tate failed to comply with almost

all    of     the    statutory     requirements     of   the     subpoena       statute.

Wisconsin Stat. § 968.135 requires that "[t]he documents shall

be returnable to the court which issued the subpoena."                              The

order in the instant case does not mention the return of any of

the data recovered to the circuit court.

       100
        Wisconsin Stat. § 968.135 asserts that it "does not
limit or affect any other subpoena authority provided by law,"
but the majority opinion describes a nonstatutory "warrant," not
subpoena authority.

                                            45
                                                           No.   2012AP336-CR.ssa


     ¶158 Wisconsin Stat. § 968.135 requires that "[m]otions to

the court, including, but not limited to, motions to quash or

limit the subpoena, shall be addressed to the court which issued

the subpoena."     The order in the instant case never provided any

opportunity for motions to the court, because it was immediately

ordered to "be sealed until otherwise ordered by the court."

     ¶159 Wisconsin      Stat.    § 968.135      does     not    authorize   the

sealing    of   subpoenas.       The   circuit    court    sealed    documents,

relying on the statute that authorizes the sealing of orders for

pen registers or trap-and-trace devices.101             The instant case did

not involve either a pen register or trap-and-trace device.

     ¶160 These defects should have rendered the warrant invalid

under Wis. Stat. § 968.135.

     ¶161 To     avoid   this    result,    the    Tate     majority    opinion

devises a new rule:       A statute directly governing a warrant in

the particular circumstances of a case need not be followed.

     ¶162 Tate's new rule ignores the longstanding jurisprudence

in this state.      When a statute exists governing the warrant at
issue, it must be followed unless the legislature expressed its

intent otherwise.        If the statutory requirements are not met,




     101
           See Wis. Stat. § 968.36(5).

                                       46
                                                                    No.    2012AP336-CR.ssa


the warrant is invalid.102                If no statute covers the search in

question,    law       enforcement     may    seek    a    warrant       if   the   warrant

would have been permissible at common law.                       See Meek v. Pierce,

19 Wis. 318 (*300), 322 (*303) (1865).103                    How will the majority

opinion in Tate apply to the new statute directly governing law

enforcement access to cell phone location data?

       ¶163 For the reasons set forth, I conclude that the law

enforcement      officers      in    Tate     had    to    comply    with      Wis.   Stat.

§ 968.135 to obtain a valid warrant to access the defendant's

cell    phone    location      data.         They    did   not.          Consequently,   I

conclude that no valid warrant was obtained in Tate.

                                          * * * *

       ¶164 Unlike       the   majority        opinion      in      Tate      and   Justice

Prosser's       lead    opinion      in     Subdiaz-Osorio,          I     conclude    that

government access to cell phone location data in the present

cases is a search within the meaning of the Constitutions that

requires a warrant, and that the warrant must comply with the


       102
        See, e.g., State v. Baltes, 183 Wis. 545, 198 N.W. 282
(1924) (determining that when law enforcement failed to secure
sworn testimony as required by the warrant statute, Wis. Stat.
§§ 4839-40 (1923), the warrant was invalid for failing both the
statutory and constitutional requirements); Glodowski v. State,
196 Wis. 265, 220 N.W. 227 (1928) (determining that when a
search warrant was issued to search a private residence for
liquor without evidence of "unlawful manufacture for sale,
unlawful sale, or possession for sale, of liquor" as required by
the statute, the warrant was void).
       103
        In Meek, no statute gave magistrates the power to
authorize warrants against private persons in criminal matters
and no statute denied this power to magistrates. Meek, 19 Wis.
at 321 (*302-303).   The Meek court held that the prior common-
law rules applied as a matter of statutory interpretation.

                                             47
                                                            No.   2012AP336-CR.ssa


existing directly applicable statutes.              The warrant in Tate did
not   comply   with    the   existing    statutes    and    is    invalid.     No

warrant was obtained in Subdiaz-Osorio.

      ¶165 Because     the   various     writings    in    Tate   and   Subdiaz-

Osorio fail to protect privacy, I write in dissent.

      ¶166 I   am     authorized   to    state   that      Justice    ANN    WALSH

BRADLEY joins Parts I-IV of this dissent.




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           No.   2012AP336-CR.ssa


APPENDIX




   1
    No.   2012AP336-CR.ssa




2
    No.   2012AP336-CR.ssa




3
    No.   2012AP336-CR.ssa




1
