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United States v. Felton

United States District Court, E.D. Wisconsin

August 2, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
STEPHEN FELTON, Defendant.

          ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS (DKT. NO. 37)

          HON. PAMELA PEPPER United States District Judge

         On June 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.

         Facts

         Judge 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. at 2-3.)
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.

         The 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.

         In its response to the motion to suppress, the government stated the following:

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.

         Argument that the Warrant Did ...


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