WI: GPS warrant is not subject to execution in 5 days requirement because it is for information not something physical

Because placement of a GPS device gathers information and not something physical or digital or a document, it is not subject to the execution in five days requirement of state law. State v. Pinder, 2018 WI 106, 2018 Wisc. LEXIS 636 (Nov. 16, 2018):

[*P1] … This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § 809.61 (2015-16).1 The court of appeals certified the following question:

If a search warrant issued under Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis. Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

In short, this question requires the court to decide if an otherwise reasonably conducted search warrant issued for the placement and use of a Global Positioning System (“GPS”) tracking device on a motor vehicle is subject to Wis. Stat. §§ 968.152 and 968.17(1).

[*P2] We conclude that a search warrant issued for the placement and use of a GPS tracking device on a motor vehicle, but not executed within five days after the date of issuance per Wis. Stat. § 968.15 or timely returned under Wis. Stat. § 968.17(1), is not void if the search was otherwise reasonably conducted, because it is not a warrant issued “for the purpose of seizing designated property or kinds of property” under Wis. Stat. § 968.12(1). It is not a warrant that seeks a “document” or “electronic data” under the control of the vehicle owner as is required under Wis. Stat. § 968.13 and thus, is not subject to the execution and return provisions of §§ 968.15 and 968.17(1). Such a warrant for GPS tracking is not issued pursuant to a statute, but instead is issued pursuant to the court’s inherent authority and thus, must comply only with the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. Because the GPS warrant in this case was otherwise constitutionally sufficient, the evidence obtained as a result of the warrant is not subject to suppression. Therefore, we affirm the circuit court.