United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS
(DKT. NO. 37)
PAMELA PEPPER United States District Judge
17, 2016, the defendant filed a motion to suppress evidence
obtained from the installation of a GPS tracking device on
his SUV. Dkt. No. 37. The basis for the defendant’s
argument was that, while the warrant to install the GPS was
issued by a Wisconsin judge based on probable cause alleging
violations of Wisconsin law, the search was “federal in
character, ” and therefore subject to the requirements
of Fed. R. Crim. P. 41. The parties fully briefed the motion,
and on July 6, 2016, Judge Joseph recommended that this court
deny the motion to suppress. The court denies the motion.
Joseph laid out the following facts in her report and
recommendation (and the defendant does not dispute those
facts-see Dkt. No. 41 at 1, 4):
A criminal complaint was issued in Milwaukee County Circuit
Court on March 15, 2016, charging Felton with one count of
armed robbery, one count of being a felon in possession of a
firearm, and one count of conspiracy to rob a financial
institution. (Def.’s Br. At 1, Docket #37.) On March
24, 2016, Felton’s state case was dismissed on the
State’s motion and a criminal complaint was issued in
the Eastern District of Wisconsin. (Id.) The eleven
page affidavit in support of the criminal complaint alleges
armed carjackings of two vehicles in Milwaukee and armed
robberies of two banks in Wauwatosa in January and February
of 2016. (Id.)
During the investigation of the robberies, law enforcement
identified several unknown suspects and a black 1998 Ford
Expedition with Wisconsin license plate number 975-YLG as
being associated with one of the carjackings and two of the
bank robberies. (Id. at 1-2.) On February 24, 2016,
a Wauwatosa Police Department officer applied for and
obtained from the Milwaukee County Circuit Court a 60-day
order to install, monitor, maintain, and retrieve a global
positioning system (“GPS”) tracking device for
the black Ford Expedition belonging to Felton. (Id.
at 2.) The GPS unit was installed onto Felton’s
Expedition sometime in late February 2016. (Id.) Law
enforcement used the data obtained from the GPS tracking
device on the Expedition to link the Expedition to an
attempted armed robbery of another bank and the armed robbery
of a store, both of which occurred on March 10, 2016 in
Milwaukee and involved four unknown suspects. (Id.
The GPS data also showed the Expedition arriving at an
apartment complex in Milwaukee shortly after the robbery of
the store on March 10, 2016. (Id. at 3.)
Surveillance footage from the apartment complex identified
the four suspects from the store robbery arriving at the same
time in the Expedition. (Id.) One of the suspects
was living in apartment 218. (Id.)
Law enforcement eventually entered the apartment and arrested
Felton and three others. (Id.) Felton and the others
were identified as the suspects involved in the robberies.
(Id.) The Expedition was searched and evidence
implicating Felton in the robberies was seized by the police.
(Id.) Felton also made a post-arrest,
Mirandized statement, during which he admitted to
ownership of the Expedition and that he participated in the
above-referenced robberies. (Id.)
Dkt. No. 40 at 2-3.
defendant attached a copy of the application for the warrant
to his motion to suppress. Dkt. No. 37-1. The application
shows that the person who applied for the warrant was a
Milwaukee County Assistant District Attorney. Id. at
1. The warrant proposed that members of the Wauwatosa Police
Department would install the GPS tracking device.
Id. at 2. The affidavit in support of the warrant
was sworn to by a Wauwatosa Police Department detective.
Id. at 3. The Milwaukee County Court
Commissioner’s order authorized officers or detectives
of the Wauwatosa Police Department to install the device and
to track it. Id. at 4.
response to the motion to suppress, the government stated the
It was local police through the Milwaukee County District
Attorney’s Office, not the FBI, that requested the GPS
and seal orders from state court. Although the FBI was
involved in the investigation, it was not directing local
police, and it did not request the GPS order for
Felton’s vehicle. Furthermore, the installation and
monitoring of the GPS unit was controlled completely by local
police. Thus, these facts support the conclusion that the
installation and monitoring of the GPS unit was a state
search rather than a “federal search.” However,
the distinction is irrelevant in the analysis of whether the
GPS order was valid.
Dkt. No. 38 at 3 n.1.
that the Warrant Did ...