WI: Prior statutory authority is not required to get CSLI and use of a stringray as long as there was a warrant issued on PC

Prior statutory authority is not required to get cell site location data and use of a stringray as long as there was a warrant issued on probable cause. State v. Tate, 2014 WI 89, 2014 Wisc. LEXIS 504 (July 24, 2014):

¶1 We review an unpublished decision of the court of appeals affirming the decision of the Milwaukee County Circuit Court denying defendant Bobby L. Tate’s motion to suppress evidence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 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 order 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 spirit of Wis. Stat. § 968.12 and Wis. Stat. § 968.135 (2009-10), the search warrant and criminal subpoena statutes, which express legislative choices about procedures to employ for warrants and criminal subpoenas. Accordingly, we affirm the decision of the court of appeals.