Two Courts, Same Issue, Different Outcome

Wisconsin resident Michael Sveum appealed his aggravated stalking conviction because prosecution evidence included Sveum's movements as recorded by a GPS device police secretly attached to his car.  This, Sveum said, violated his Fourth Amendment rights.  The Wisconsin Appellate Court said no violation occurred because the device was attached to the car in a public place, and is the same type of evidence that can be obtained through other types of public surveillance.  The police did obtain a warrant in this case, but the court made it clear a warrant was unnecessary.

From the Court's opinion:

Like the Seventh Circuit, we discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.

The Seventh Circuit case to which the Court referred is United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).  The Court was a bit troubled by their conclusion, though not enough to rule otherwise, and suggested that the Wisconsin legislature consider legislation that addressed the issue.  The Wisconsin opinion, issued on May 7th, is here and a news report in the Chicago Tribune is here.

The New York Court of Appeals decided today that placing a GPS system on a defendant's vehicle without a warrant does violate the Fourth Amendment.  The Court reviewed seminal Supreme Court decisions such as Katz and Olmstead and came to the opposite conclusion than the Wisconsin court.  Oddly, the Court of Appeals also cited Garcia, but ignored its holding.  It noted other state courts that took the same view, notable Washington State and Oregon.  The U.S. Supreme Court has yet to rule in this type of case, but may get the chance if one of these two cases goes for further appeal.  The New York opinion is here, and a story about the case in Newsday is here.  [MG]